Category Archives: Proceedure

Premier Members Federal Credit Union, v. Henry Block and South Broadway Automotive Group, Inc., d/b/a Quality Mitsubishi, Inc., v. Darrell Einspahr, 2013COA128 (Aug. 29, 2013)

If you want a jury trial, you have to pay the fee.  (If you file electronically through ICCES, Colorado’s E-filing system, jury trial fees are added automatically). Here, a pro se defendant demanded a jury on his cross-claim but did not pay the jury fee. He later moved under CRCP 6 to pay out-of-time but was denied. The court of appeals affirmed. “According to the rule [CRCP 38] and the statute [CRS 13-71-144], the failure to pay the jury fee at the time of filing of the jury demand constitutes a waiver of a jury trial.” CRCP 6 does not permit a trial court to enlarge the statutory time to pay jury fees. Plaintiff’s cross-claim for indemnification was also dismissed by the trial court.  The court of appeals again affirmed because “an employee-tortfeasor is barred from seeking indemnification from his vicariously liable employer when [ ] that employee knew he was engaging in wrongful conduct.”

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA0906-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9073&courtid=1

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Major changes to the Federal Rules of Civil Procedure

Colorado courts often look to the Federal Rules of Civil Procedure for guidance when interpreting the CRCP. The reasoning has been that Colorado’s rules are substantially similar to the Federal rules. That may be changing. As noted HERE by the Institute for the Advancement of the American Legal System, the Judicial Conference Advisory Committees on Bankruptcy and Civil Rules have proposed amendments to their respective rules and forms. Specifically, Rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84, and Appendix of Forms.

HERE is a link to the redline copy of all the changes, including substantial changes to the Bankruptcy Rules.

Three significant changes are:

1) The scope of discovery under Rule 26. The proposed change includes this change to 26(b)(1), which would now read in its entirety as follows:

Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

2) A new procedure for early requests for documents would also be added as follows:

(2) Early Rule 34 Requests.

(A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:
(i) to that party by any other party, and
(ii) by that party to any plaintiff or to any other party that has been served.

(B) When Considered Served. The request is considered as served at the first Rule 26(f) conferences.

3) A completely new Rule 37(e) – Failure to Preserve Discoverable (not just electronic) Information. For example, in the event that discoverable information has not been preserved, the court may “impose any sanction listed in Rule 37(b)(2)(A) or give an adverse- inference jury instruction, but only if the court finds that the party’s actions:
(i) caused substantial prejudice in the litigation and were willful or in bad faith; or
(ii) irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.”

The proposed rule also includes a detailed list of factors to be considered in assessing a party’s conduct.

Other important changes were made to timelines, and the number of requests for admission were presumptively limited.

“All comments on these proposed amendments will be carefully considered by the rules committees, which are composed of experienced trial and appellate lawyers, judges, and scholars. Please provide any comments on the proposed amendments, whether favorable, adverse, or otherwise, as soon as possible but no later than February 15, 2014. Comments concerning the proposed amendments may be submitted electronically by following the instructions at . Hard copy submissions may be mailed to the Committee on Rules of Practice and Procedure, Administrative Office of the United States Courts, Suite 7-240, Washington, D.C., 20544. All comments are made part of the official record and are available to the public.”

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Mauro v. State Farm Mutual Auto Insurance, 2013COA117 (Aug. 1, 2013)

“If the interest of the absentee is not represented at all, or if all existing parties are adverse to him, then he is not adequately represented.” Opinion. In a personal injury case, the parties moved for a protective order to keep certain records confidential. State Farm, defendant’s insurer, moved to intervene and oppose the order. The trial court denied the motion, but the court of appeals reversed. The court agreed with State Farm that: 1) its record-keeping obligations under state law gave it an interest in the outcome of the protective order; 2) there was no other venue in which State Farm could challenge the order; and 3) its interests were not protected by counsel for the insured, even if that counsel was hired by State Farm. The court did not, however, rule on the merits of the protective order. Instead, State Farm was permitted to intervene on remand.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1509-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9047&courtid=1

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Filed under Evidence, Insurance, Proceedure, Torts

William G. Strudley and Beth E. Strudley v. Antero Resources Corporation, Antero Resources Piceance Corporation, Calfrac Well Services Corporation, and Frontier Drilling, LLC, 2013 COA 106 (July 3, 2013)

“Coal seam gas stinks.” – Anti-fracking poster. In this case, home-owner Plaintiffs sued four oil and gas companies claiming pollutants from drilling activities at three well sites contaminated their air, water, and land around their home. The trial court issued a modified case management order that required Plaintiffs to make a prima facie case in support of their toxic tort claims before discovery began — commonly called “Lone Pine” orders. Plaintiffs produced evidence of well water contamination and expert reports, but not evidence that the drilling caused their injuries. The trial court dismissed with prejudice. The court of appeals reversed because: 1) trial courts lack discretion under CRCP 16(c) to issue such orders; 2) the case was not complex or extraordinary enough to depart from normal procedure; and 3) existing procedures protect against meritless claims.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1251-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9023&courtid=1

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Filed under Evidence, Proceedure, Torts

In re the Parental Responsibilities of I.M., and Concerning R.A.M. and M.A.R., 2013COA107 (July 3, 2013)

“Paternity is a legal fiction.” James Joyce. McKenzie sought to have Russo declared the legal father of her son, I.M. Russo countered, arguing both that the statute of limitations barred the suit, and that McKenzie could not sue on I.M.’s behalf, as he was over 18. McKenzie claimed she should be allowed to bring the suit “at any time” under CRS 19-4-107 because Russo held I.M. out as his son.  She then sought to join I.M. as an indispensable party. The trial court granted judgment on the pleadings, holding that the suit was barred by statute of limitations, and that I.M. was not indispensable because, under CRS 19-4-108, he could bring his own suit before turning 21. The Court of Appeals agreed with the trial court’s legal conclusions as well as holding that CRS 19-4-107 only allows suits “at any time” when the parties were married or thought they were married.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1412-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9024&courtid=1

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Filed under Family Law, Proceedure

Changes to CRCP 103 and 121 1-15

The following changes have been made the Colorado Rules of Civil Procedure:

Rule 103. Garnishment

SECTION 1 [NO CHANGE]
SECTION 2
(a) Through (f) [NO CHANGE]

(g) Court Order on Garnishment Answer.

(1) If an answer to a writ with notice shows the garnishee is indebted to the judgment debtor, the clerk shall enter judgment in favor of the judgment debtor and against the garnishee for the use of the judgment creditor in an amount not to exceed the total amount due and owing on the judgment and if the judgment creditor is pro se, request such indebtedness paid into the registry of the court. However, if the judgment creditor is represented by an attorney or is a collection agency licensed pursuant to 12-14-101, et. seq., C.R.S., the garnishee shall pay the funds directly to the attorney or licensed collection agency.

(2) through (4) [NO CHANGE]
SECTIONS 3 through 12 [NO CHANGE]

Rule 121, Section 1-15 Determination of Motions

1. through 9. [NO CHANGE]

10. Proposed Order. Except for orders containing signatures of the parties or attorneys as re- quired by statute or rule, each motion shall be accompanied by a proposed order submitted in editable format. The proposed order complies with this provision if it states that the requested relief be granted or denied.

HERE is a link to RULE CHANGE 2013(07).

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Medical Lien Management, Inc., v. Allstate Insurance Company, 2013COA88 (June 6, 2013)

“The other car collided with mine without giving warning of its intention.” (Anonymous). Here, MLM paid an accident victim’s medical bills in exchange for an assignment of settlement funds, if any. MLM gave notice of the assignment to the tortfeasor’s insurer Allstate, who then settled. Allstate paid the victim instead of MLM. MLM sued Allstate for breach of both the settlement contract and the assignment. The trial court dismissed MLM’s claims. The court of appeals reversed, holding: 1) personal injury claims may be validly assigned prior to settlement, as they were here; 2) the notice of assignment was sufficient and triggered Allstate’s duty to pay MLM, despite its lack of consent; and 3) because the victim had a claim against Allstate, MLM had a claim. Finally, the court rejected a request to apply the Federal pleading standards in Bell Atlantic v. Twombly. Dismissal reversed.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA0691-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8972&courtid=1

CERTIORARI GRANTED

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Filed under Contracts, Personal Injury, Proceedure, Torts

Tammy Hudak v. Medical Lien Management, Inc., 2013COA83 (May 23, 2013)

Move it or lose it. That is the general principle when it comes to litigation. But in this case, the trial court overlooked a fully-briefed pending motion and prematurely closed the case without proper notice to claimant. 13 months later, claimant filed a renewed motion. A new trial judge held the delay was too long, lacked mitigating circumstances, and was unexcused because it could have contacted or reminded the court about the pending motion. The judge dismissed the case. The court of appeals reversed, and though affirming the principles upon which the trial court relied — that a claimant has an affirmative duty to pursue pending motions and a duty to inquire about inaction — held the trial court abused its discretion because the claimant was not obligated to renew or remind the court about the pending motion, and had it done so, risked irritating the court. The case was reinstated.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA1694-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8949&courtid=1

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Jason L. Rodgers and James R. Hazel v. Board of County Commissioners of Summit County, 2013COA61 (April 25, 2013)

“Plaintiffs … a same-sex couple, primarily contend the County treated them differently from heterosexual couples when interpreting and enforcing [septic] regulations.” (Opinion). Plaintiffs sued. The trial court dismissed some claims and granted a partial directed verdict by removing certain “actions” from a single claim under 42 USC 1983 (1983). The court of appeals reversed in part, holding that under CRCP 50, a trial court can’t parse evidence supporting a single claim against a single defendant. But it affirmed the trial court’s dismissal of 1) an inverse condemnation claim (taking property through regulation) because the regulations did not rise to the level of a taking, 2) a discrimination claim not brought to the Civil Rights Commission as required, and 3) a direct constitutional challenge because 1983, CRCP 106, and CRS 24-10-118 provide alternate remedies.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA0457-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8921&courtid=1

CERTIORARI GRANTED

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Filed under Administrative, Constitutional, Evidence, Government, Proceedure, Property

Tarco, Inc., v. Conifer Metropolitan District, 2013COA60 (April 25, 2013)

Count the negatives: “noncompliance with nonclaim statutes deprives a court of subject matter jurisdiction” (Opinion), and CRS 38-26-106 is not a nonclaim statute. That statute requires public-works-project contractors to post a bond. Here, Tarco did not post a bond when constructing an overpass and infrastructure around a shopping center for the Conifer Metro District (CMD). It did not get paid by CMD and sued. The District, after a two-year delay, claimed that Tarco couldn’t sue because of its noncompliance with the statute. The trial court dismissed Tarco’s claims. The court of appeals reversed in part, holding: 1) CMD’s pleadings didn’t prejudice Tarco, 2) the contracts were for “public works” under the statute, 3) the statute is not a nonclaim statute, 4) the CMD lacked the power to waive the bond requirement, and 5) fact issues saved Tarco’s equitable estoppel argument.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA0250-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8920&courtid=1

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