Cases Pending Review

From left: Justice Monica M. Márquez, Justice Brian D. Boatright, Justice Gregory J. Hobbs Jr., Chief Justice Nancy E. Rice, Justice Nathan B. Coats, Justice Allison H. Eid, Justice William W. Hood, III

From left: Justice Monica M. Márquez, Justice Brian D. Boatright, Justice Gregory J. Hobbs Jr., Chief Justice Nancy E. Rice, Justice Nathan B. Coats, Justice Allison H. Eid, Justice William W. Hood, III

A case can be reviewed by the Colorado Supreme Court via a number of different avenues. The two most common are certiorari review, and Original Proceedings pursuant to Colorado Appellate Rule (C.A.R.) 21.

It takes 3 justices to agree to hear a case on certiorari, and 4 votes to accept a case pursuant to CAR 21. When certiorari is denied, but a Justice indicates they would have granted one or more issues, I will list, by Justice, the issues that Justice would have granted. If you have filed or opposed a petition for certiorari review, please tell me and I will include the issues and eventual outcome in the blog. To see the issues for which each Justice would have granted review, click on their names below to go to their individual pages.

See HERE for a detailed explanation of the Court’s internal process for determining the cases for which certiorari review will be granted.

For more information about drafting Petitions for Certiorari, please see my article published in the June 2007 issues of The Colorado Lawyer. Jason Astle, Tips for Effective Petitions for Certiorari, 36 Colo. Law. 6, 63 (2007).

Here is the Colorado Court of Appeals Appellate Guide for Parties, containing a checklist and step by step instructions for appealing from a District Court Order in non-Dependency and Neglect cases.

To see topics upon which each Justice would have granted certiorari, click on the Justice’s name below. To find particular topics, use the word search bar.

Chief Justice Nancy E. Rice
Justice Gregory J. Hobbs
Justice Nathan B. Coats
Justice Allison H. Eid
Justice Monica M. Márquez
Justice Brian D. Boatright
Justice William W. Hood III.

Former Chief Justice Michael L. Bender

 

Cases will be deleted as the Court disposes of them, either by issuing an opinion, remanding without opinion, or dismissal. Links to CLR summaries of court of appeals opinions being reviewed by the Supreme Court will be provided when available.

[A note about Supreme Court case numbering: Cases with a yySC### are issues on certiorari review from the court of appeals; Cases with a yySA### are issues that will be review pursuant to CAR 21.]

Schedule and Recordings of Oral Arguments can be found and listened to HERE.

THE COURT WILL DECIDE THE FOLLOWING ISSUES

No. 12SC 871, City of Littleton, Colorado, Littleton Fire Rescue, and CCMSI, v. Industrial Claim Appeals Office and Julie Christ, surviving spouse and personal representative of Jeffrey J. Christ, deceased; and Michelle Parris, on behalf of Lauren Parris. Court of Appeals Case No. 10CA1494

Whether the court of appeals erred in its interpretation of section 8-41 -209, C.R.S., in determining that the statute is effectively irrebuttable, contrary to the intent of the General Assembly and the unambiguous wording of the statute.

Whether the court of appeals erred in holding petitioners’ medical evidence, while admittedly persuasive and credible, to be insufficient as a matter of law to rebut the statute’s presumption. Whether the court of appeals failed to defer to the Administrative Law Judge’s Findings of Fact, thereby committing reversible error in contravention of the mandate s of appellate review.

No. 13SC560 Mike Zukowski, v. Town of Castle Rock and CIRSA. Court of Appeals Case No. 12CA2190

Whether the court of appeals in Town of Castle Rock and CIRSA v. Industrial Claim Appeals Office and Mike Zukowski , 2013 CA 2190, misconstrued the application of the statutory presumption found at section 8-41-209, C.R.S. , by holding that legislative presumption of cancer causation for fighters “can be overcome by establishing that the risk of cancer from other sources outweighs the risk created by firefighting.”

Whether the court of appeals improperly equated “risk” with “cause,” by holding that showing “risk” or “precursor” factors can sufficiently establish a preponderance of the medical evidence that a firefighter’s cancer did not occur on the job, thereby rejecting statutory presumption created by the Colorado Legislature that petitioner’s skin cancer (melanoma) was, in fact, caused by his job.

No. 13SC497, Oasis Legal Finance Group, LLC; Oasis Legal Finance, LLC; Oasis Legal Finance Operating Company, LLC; and Plaintiff Funding Holding, Inc., d/b/a LawCash, v.  John W. Suthers  and Julie Ann Meade, Court of Appeals Case No. 12CA1130

[REFRAMED ISSUE] Whether the court of appeals erred when it held that the litigation financing transactions in this case are subject to the requirements of the Uniform Consumer Credit Code.

13SC404, Board of County Commissioners of Summit County v. James Hazel and Jason RodgersCourt of Appeals Case No. 12CA457

[REFRAMED ISSUE] Whether the court of appeals erred by holding that under C.R.C.P. 50, a trial court cannot direct a verdict as to some but not all issues within a single claim against a single defendant. 

No. 13SC554, Merridy Kay Baker and Sue Carol Kunda v. Wood, Ris & Hames, Donald L. Cook; and Barbara L. Brundin, Court of Appeals Case Nos. 12CA907 & 12CA1702

Whether the court of appeals erred in determining that third-party intended beneficiaries of a deceased testator’s estate plan lack standing to pursue a claim for professional malpractice against the testator’s estate planning attorneys based on either breach of contract or professional negligence.

Whether the court of appeals erred in confusing petitioners’ claim for fraudulent concealment with the distinct tort of fraudulent misrepresentation in applying the heightened pleading requirements of C.R.C.P. 9(b) to petitioners’ concealment claim as if it were a claim for fraudulent representation.

No. 14SC77 Pulte Home Corporation, Inc., a Michigan corporation V. Countryside Community Association, Inc., a Colorado nonprofit corporation. Court of Appeals Case No. 12CA1568

Whether the majority of the court of appeals erred by concluding that a common interest community is formed immediately upon a developer’s recording of a declaration and plat, rendering the developer immediately liable for assessments, notwithstanding that (a) the declaration provides for the gradual annexation process that has long been practiced across Colorado, and (b) the developer clearly intended such gradual annexation.
Whether the court of appeals erred by affirming a grant of summary judgment on the association’s equitable claim for unjust enrichment to the extent the community’s declaration does not provide a remedy at law.

No. 13SC722, Patrick Murray v. Just in Case Business Lighthouse, LLC, a Colorado limited liability company. Court of Appeals Case No. 12CA1261

[REFRAMED] Whether the court of appeals erred by holding under Colorado Rule of Professional Conduct 3.4(b) that compensating a fact witness contingent upon the outcome of the case does not require a per se rule excluding that witness’s testimony.
[REFRAMED] Whether the court of appeals erred by holding that the trial court did not abuse its discretion in allowing a non-expert summary witness to testify about voluminous trial evidence.
[REFRAMED] Whether the court of appeals erred by affirming the trial court’s admission into evidence of summary exhibits because they were demonstrative devices that contained arguments of counsel.

No. 13SC815, Travelers Property Casualty Company of America v. Stresscon Corporation. Court of Appeals Case Nos. 11CA1239 & 11CA1582

[REFRAMED] Whether the court of appeals’ rule, which allows a plaintiff who has violated a “no voluntary payments” clause in an insurance policy to recover benefits by showing a lack of prejudice to the insurer, directly conflicts with Kesinger v.  Commercial Standard Insurance Co., 101 Colo. 109, 70 P.2d 776 (1937), in which this court enforced a similar clause without regard to prejudice to the insurer.

[REFRAMED] Whether a liability insurer may be prejudiced as a matter of law by the insured’s violation of a “no voluntary payments” clause.

No. 14SC64, Regional Transportation District, a political subdivision of the State of Colorado v. 750 West 48th Ave, LLC. Court of Appeals Case No. 12CA2463

Whether the court of appeals erred in allowing an eminent domain valuation commission to reverse a trial court’s in limine legal ruling and exclude evidence.

Whether the court of appeals erred in ruling that the judge, who did not preside at trial and thus did not hear the evidence, could issue an instruction excluding a specific item of evidence that the eminent domain valuation commission had ruled relevant and admissible.

No. 14SC1045, In the Interest of Minor Children : Baby A and Baby B, Petitioners : T.W. , and A.W ., and Petitioner: Adoption Choices of Colorado, Inc., v. Respondent: M.C., Court of Appeals Case No. 13CA2280

[REFRAMED] Whether the court of appeals erred in its application of a special presumption in favor of the birth father to Colorado’s statutory procedure and criteria for termination of parental rights set forth in section 19-5 -105  C.R.S. (2014).

[REFRAMED] Whether the court of appeals erred in holding that adoptive parents had no cognizable rights or interests in this action.

Whether the court of appeals erred in holding that the trial court abused its discretion in only considering biological father’s one payment of child support during a three – month period in determining whether he has taken “substantial responsibility” for the children.

Whether the court of appeals erred in failing to consider the needs and interests of the children in its analysis and interpretation of section 19-5-105 C.R.S. (2014) .

No. 14SC586  Petitioners: Branch Banking & Trust Company; Liberty Mortgage Corporation; and BB&T Corporation; v. Respondent: Raymond L. Fiscus a/k/a Ray Fiscus. Court of Appeals Case No. 13CA420

[REFRAMED] Whether a lender in possession of a promissory note secured by a deed of trust on real property may assert a holder-in-due-course defense under section 4-3-305, C.R.S. (2014), to a claim that the deed of trust was forged.

No. 15SC57, Petitioner: The People of the State of Colorado , In the Interest of Minor Children: J. G., J.P., S.L. , and C.L., and Petitioner: J.G., J.P., S.L. , and C.L., by and through their Guardian ad Litem, v. Respondent : M.L., Court of Appeals Case No. 14CA595
Whether the court of appeals erred in requiring jury findings “as to” the fault of each parent when a trial court is adjudicating a child dependent or neglected under the “injurious environment” provision of the Colorado Children’s Code. Whether the court of appeals erred in holding that the status of a child as dependent or neglected must be considered in relation to each parent’s acts or failures to act and the parent’s availability, ability, and willingness to provide reasonable parental care.
No. 14SC346,  Jeffrey A. Martinez , v. The Estate of Steven Wayne Bleck, by Joanna Churchill, Personal Representative for Steven Bleck, deceased. Court of Appeals Case No. 12CA2637
Whether where there are no disputed issues of material fact, a trial court’s denial of immunity on the basis of a claim of “willful and wanton conduct” is subject to interlocutory appeal.
Whether if the issue of denial of immunity is subject to interlocutory appeal, the district court improperly applied the Colorado Governmental Immunity Act’s “willful and wanton” conduct exception to immunity for public employees, section 24 – 10 – 188(2)(a), C.R.S. (2014) to deny defendant’s motion to dismiss plaintiff’s tort claim of battery arising out of defendant’s accidental discharge of his firearm.

No. 14SC431, Ryan Ranch Community Association, Inc., v. John E. Kelley, Kelly D. Kelley, Rick Zimmerman, and Lora Zimmerman. Court of Appeals Case No. 12CA2312 & 12CA2316.

Whether the process of “annexation by deed” to form units within common interest communities is void under the Colorado Common Interest Ownership Act. Whether a plat map that subdivides property identified in an earlier declaration constitutes an amendment to said declaration. Whether a homeowner who has actual knowledge of a declaration amendment can avoid paying community assessments based on a clerical error in the recorder’s index.

No. 14SC494. Arnold A. Calderon , v. American Family Mu tual Insurance Company. Court of Appeals Case No. 13CA1185.

[REFRAMED] Whether the statutory structure governing automobile insurance permits an insurer to reduce its payment to an insured for an Uninsured/Underinsured Motorist (“UM/UIM”) claim by the payments it already made to the insured under the insured’s Medical Payments (“MedPay”) coverage. Whether the collateral source rule prohibits a setoff of the amount of the coverage available under UM/UIM coverage by MedPay coverage.

CASES DECIDED, NOT YET SUMMARIZED

Harman-Bergstedt, Inc., d/b/a Kentucky Fried Chicken; and Zurich American Insurance Company v. Elaine Loofbourrow, and Industrial Claims Appeals Office, Court of Appeals Case No. 10CA2176 OPINION HERE (JAN 27, 2014)

11SC759 – Department of Revenue of the State of Colorado and M. Michael Cooke v. Public Service Company of Colorado. Court of Appeals Case No. 10CA1026 OPINION HERE (JUNE 30, 2014

No. 12SC737, City of Brighton and CIRSA, v. Helen M. Rodriquez. Court of Appeals Case No. 11CA1868 OPINION HERE (FEB 3, 2014)

No. 12SC501, Industrial Claim Appeals Office v. Softrock Geological Services, Inc., and Colorado Division of Unemployment Insurance. Court of Appeals Case No. 11CA2331 OPINION HERE (MAY 12, 2014)

No. 12SC911, Western Logistics, Inc., d/b/a Diligent Delivery Systems v. Industrial Claim Appeals Office, et. al., Court of Appeals Case No. 11CA2461 OPINION HERE (MAY 12, 2014

No. 12SC819, Cantina Grill, JV; Airport Lounges, LLC; Dos Amigos Joint Venture; F & B Concessions; Pour LA France B; Pour La France T; and Skyport Companies, Inc, v.City & County of Denver County Board of Equalization, Clerk and Recorder, Manager of Public Works, County Assessor, Court of Appeals Case No. 11CA2452 OPINION HERE (MARCH 16, 2015)

No. 13SC306, Sara L. Burnett v. State of Colorado, Department of Natural Resources, Division of Parks and Outdoor Recreation. Court of Appeals Case No. 11CA2141 OPINION HERE (MARCH 23, 2015)

13SA124, In re: Plaintiff: Scott R. Simpson v.Defendants: Cedar Springs Hospital, Inc., a d/b/a Cedar Springs Behavioral Mental Health Systems; Roger Dwight Pumphrey, M.D.; and Charles J. Peck, M.D.
OPINION HERE (OCT. 14, 2014)

2014SA17, In Re: The Board of County Commissioners of the County of Teller, v. The City of Woodland Park, a municipal corporation. OPINION HERE (MAY 19, 2014)

No. 12SC205,  Richard C. LaFond, v. Charlotte N. Sweeney, Court of Appeals Case No. 10CA2005 OPINION HERE (JAN. 20, 2015)

No. 12SC870, SDI, Inc., v. Pivotal Parker Commercial, LLC, Court of Appeals Case Nos. 11CA134 & 11CA1427

Whether the court of appeals erred in holding that the Special District Act does not empower districts to assign their assets to pay off district indebtedness.

Whether the court of appeals exceeded the proper scope of appellate review in determining the effect of a contract in a manner contrary to the stipulations and understandings of the parties, based on arguments never raised at trial or on appeal, in the absence of any extraordinary circumstances.

Whether the prevailing party attorney’s fees awarded to petitioner should be reinstated.

OPINION HERE.

No. 14SC50 Gary S. Roup v. Commercial Research, LLC. Court of Appeals Case No. 12CA453

[REFRAMED] Whether a health savings account that meets the requirements of 26 U.S.C. section 223 (2006) qualifies as a “retirement plan” for purposes of section 13-54-102, C.R.S. (2013), which exempts certain property from garnishment.

OPINION HERE.

14SA253 – In Re: Christopher Nickerson v. Network Solutions

The Petitioner, Christopher Nickerson d/b/a Christopher Alan, seeks relief from the district court’s Order of August 19, 2014 setting aside a default judgment.

OPINION HERE.

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