As announced in a press release issued May 29, 2015:
DENVER — Friday, May 29, 2015 —
Gov. John Hickenlooper announced today the appointment of Elizabeth L. Harris to serve as a judge for the Colorado Court of Appeals. She will fill a vacancy due to the retirement of the Honorable James S. Casebolt.
Ms. Harris is a sole practitioner, focusing primarily on appellate work, criminal defense and civil litigation.
Before establishing her own practice in 2013, Ms. Harris was an associate, of counsel and partner at Jacobs Chase (now Husch Blackwell) from 2003 to 2012.
Previously, Ms. Harris was an assistant federal public defender (2000 – 2003) and research and writing attorney at the Office of the Federal Public Defender (1997 – 2000).
From 1996 to 1997, she was a judicial clerk for the Honorable John Porfilio, United States Court of Appeals for the Tenth Circuit.
Ms. Harris received her undergraduate degree from Georgetown University in 1989 and her Juris Doctor from New York University School of Law in 1996. The appointment is effective July 1, 2015
The future belongs to those who prepare for it today. – Malcolm X. Medical debt financing companies require a plaintiff to assign the proceeds of their potential future settlement funds up to the amount of medical expenses financed and then demand that the tortfeasor’s insurance company pay them directly. Here, notwithstanding such a demand, Allstate paid the plaintiff, not MLM, who sued. The Court noted an assignment is a transfer of one’s right to performance to another. A conditional right to funds is assignable. But a right to a future right to funds is not, unless it is to all or a determinable portion of the funds. A demand for specific performance of payment of future funds may be enforceable. But an assignment cannot increase an obligor’s burden to perform. Here, the assignment was ill-defined and not independently determinable and thus not an assignment at the time it was made.
**Disclaimer: the author represents a company engaged in business similar to MLM.
“It isn’t what we say or think that defines us, but what we do.” – Jane Austen. Some companies offer debt-management services to debtors. Plaintiff is one of them. They are regulated by CRS 12-14.5-202. (the DMSA). Attorneys providing such services are exempt from regulation. Plaintiff (consisting entirely of nonlawyers) hired “local counsel” and sought “legal services exemption.” The Court, interpreting the DMSA with Colo.RPC 5.3, held that nonlawyer assistants may be exempt if they work for an attorney in substance, not just in name, and under the attorney’s supervision. Here, Plaintiff’s attorneys, some out-of-state , did not actually provide meaningful instruction or supervision. Although the Court, through CRCP 205.1, not the Legislature, regulates attorneys, the DMSA did violate the Separation of Powers doctrine. Thus, Plaintiff was subject to regulation.
The general life cycle of civil litigation: Complaint, Answer, Disclosures, Discovery, Trial. In this case, before the court would allow full discovery, it required the plaintiffs to provide prima facie evidence to support their toxic tort allegations of exposure, injury, and causation arising from the proximity of natural gas drilling operations near their home. Finding the plaintiffs’ evidence lacking, the court dismissed their case entirely. The court of appeals reversed holding that the modified case management order issued by the trial court was not authorized by CRCP 16. The Court agreed, “tapping the brakes,” as the dissent describes it, on active case management. The Court held that CRCP 16, in the context of Rules like 12, 37, and 56, does not authorize a court to fashion its own summary judgment-like filter and dismiss claims during the early stages of litigation.
♪This land is your land, it’s not my land, I’m not a landowner, so you can’t sue me… Plaintiff tripped and fell on common area sidewalk outside a medical campus. She sued the main tenant. Under the Premises Liability Act (PLA), only “landowners” could be liable for injuries on their land. There are two kinds of landowners: those in possession of the land, and those who are legally responsible for conditions on the land. This case addressed the second category and limited its scope. Here, under its lease, the defendant could not exclude anyone from occupying the land, was not responsible for maintenance or the condition of the sidewalk, and was not conducting any activities on the sidewalk; it also did not assume a duty to repair the sidewalk or create the condition that caused the injuries. Under these facts, the Court held the commercial tenant was not a landowner.
“A reasonable person could foresee that a group of intoxicated individuals evicted from a hotel might be involved in a drunk driving accident that causes injuries.” Opinion. The Court affirmed the court of appeals’ ruling that hotels owe guests a duty of care not to evict them into a foreseeably dangerous environment, taking into account the guest’s physical state and the conditions into which she is evicted, including the time, surroundings and weather. Liability is limited by challenging the causal connection to the injury or by blaming other contributing factors. Whether an act caused an injury is fact-specific making summary judgment for the hotel improper. The dissent agreed the duty existed. But here, the plaintiff walked past two taxis. If the availability of alternative transportation is not sufficient to grant summary judgment for the hotel, then all cases go to a jury.
“A fool sees not the same tree that a wise man sees.” – William Blake. A plurality of the Court held that a tree located in the Cherry Creek State Park that existed before the State built camping facilities, but which is located next to, and whose branches hang over a campsite, is a “natural condition of unimproved property.” Relying extensively on a legislative report written about the CGIA, it held that if a tree is native pre-improvement, as in this case, the State has no duty to make it safe and prevent a branch from falling. Thus, the State is immune, without regard to the location of the tree. That approach, the Court held, balances the cost of maintenance and access to public land. Rosales v. Denver, which analyzed whether trees were public facilities, was overruled. The concurrence would focus on the text: the State is immune if a branch originating from “unimproved property” falls.
PURSUANT TO C.A.R. 21.1, the Court granted a certified question posed by the United States Bankruptcy Court, for the District of Colorado in No. 15SA68, In re Michael and Marlene Heimann.
This post will be updated when more information about the issue certified becomes available.
[A message from the CBA Chair of the Litigation Section. A link to a Redline version of the proposed changes is provided below]
There are, pending before the Colorado Supreme Court, proposed changes to the Colorado Rules of Civil Procedure. Significant changes to Rules 16, 26, 34, 37 and 54 are proposed which raise lots of questions. Do you understand the meaning of “proportionality” as defined in proposed new Rule 26(b)(1)? Can you depose an expert in 3 hours as limited by proposed new Rule 26(b)(4)(A)? Do you agree with the limitations on discovery relative to an expert’s opinion as provided in proposed Rule 26(b)(4)(D)?
The public hearing concerning the proposed rule changes which will be held on April 30, 2015. The Supreme Court is presently seeking public comment about the proposed rules in advance of that hearing. April 17, 2015 is deadline for submission of written public comments.
The Litigation Section Council is working toward formulating comments on behalf of the Litigation Section membership to be submitted to the Supreme Court. If you have comments concerning the proposed rule changes that you would like to have considered by the Council, please submit your comments to Greg Martin the Section’s CBA staff liaison at firstname.lastname@example.org no later than March 5, 2015.
A redlined version of the proposed revisions can be found as a link in the Winter, 2015 CBA Litigation Section Newsletter on the CBA website, and are attached to this e-mail. Thank you.
Peter R. Black
Chairperson, CBA Litigation Section Council
2015 proposed rule changes CRCP – redline