Tag Archives: Abuse of Discretion

DCP Midstream, LP, v. Anadarko Petroleum Corp.; Kerr-McGee Oil & Gas Onshore LP; and Kerr-McGee Gathering LLC, 2013 CO 36 (June 24, 2013)

Do courts manage cases “to secure the just, speedy, and inexpensive determination of every action?” (CRCP 1). They should. Here, Plaintiff sought information about thousands of gas wells and contracts, though it sued on far fewer. The trial court permitted broad discovery. In a wide-reaching opinion, the Court reversed and ordered all trial courts to actively manage discovery when objections to scope arise under CRCP 26(b). Those objections should be explicitly addressed in the context of the cost-benefit, proportionality, and other “good cause” factors in CRC 26(b)(2)(F). The Court would not distinguish between discovery of “claims and defenses” and “subject matter,” though the concurrence would have. The Court also reiterated that the attorney-client privilege applies to a Title Opinion if it is a confidential communication made in the course of obtaining advice.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SA307.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9000&courtid=2

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Filed under Contracts, Evidence, Interlocutory Review

In Re: Gateway Logistics, Inc. and Gateway Freight Solutions, Inc. v. Christopher Smay, Republic Cargo, and Republic Freight, 2013CO25 (April 15, 2013)

“If you want to keep a secret, you must also hide it from yourself.” – George Orwell. In this interlocutory appeal, the Court reviewed an order by the trial court to allow the plaintiffs to inspect personal and business computers, smartphones, other electronic devices belonging to the lead Defendant (and his wife, who is not a party to the case), and approximately three years of defendants’ telephone records. The Court, making the rule absolute (reversing the trial court and remanding the case) held: 1) the assertion of privacy requires a trial court to apply the balancing test in In Re District Court and failing to do so is an abuse of discretion; 2) people have a privacy interest in their electronically stored information and their telephone records; and 3) a nonparty’s status as such must be considered. Here, the trial court failed to apply the balancing test and was ordered to do so.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SA287.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8907&courtid=2

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Filed under Evidence, Interlocutory Review

Patrick Youngs, v, Industrial Claim Appeals Office; White Moving and Storage, Inc.; and Pinnacol Assurance, 2013COA54 (April 11, 2013)

“Time is what we want most, but what we use worst.” – William Penn. In this workers’ compensation case, 2 Administrative Law Judges (ALJ) each issued an order denying Claimant’s claim for benefits based on 1) fraud, and 2) a worsening condition, respectively. Claimant appealed the first (interlocutory) order, before the second order was final. The court of appeals held that under CRS 8-43-301, Claimant was required to file his appeal of the interlocutory order after the final order. He didn’t, so the IACO lacked jurisdiction to hear the appeal of the first order. The court also upheld the second order because the ALJ properly exercised her discretion to 1) refuse to touch the injured shoulder during the hearing, and 2) limit the cross-examination of the IME. Finally, Claimant’s request that the ALJ recuse herself after the hearing was untimely. The IACO’s decisions were upheld.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA0257-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8906&courtid=1

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Filed under Administrative, Appellate Review Challenged, Evidence, Government, Workers Compensation

Marc Giuliani, Footprints Health and Wellness, Inc., et. al., v. Jefferson County Board of County Commissioners, 2012COA190 (November 1, 2012)

A medical marijuana dispensary/center is not a medical office or clinic, retail sales or services establishment, drug store, medical supply distributor or seller of medical equipment and services. Here, the court upheld a zoning violation notice to a dispensary located in a retail shopping center zoned for only the above purposes. Specifically, the court found that: 1) neither Amendment 20 nor the regulatory statutes barred the zoning restriction, 2) Jefferson County was immune to equitable estoppel claims, and 3) the record supported the zoning violation citation. It also found that a ban on all medical marijuana centers in unincorporated areas, issued after the center opened, mooted certain claims because zoning compliance would be impossible. The remaining constitutional challenges were not preserved for appeal and the dispensary’s challenge was dismissed in full.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1919-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8724&courtid=1

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Filed under Administrative, Appellate Review Challenged, Constitutional, Government

Churchill v. University of Colorado at Boulder, 2012CO54 (September 10, 2012)

Suing for civil rights violations is complicated. Concluding a years-long controversy regarding the termination of Ward Churchill, the Supreme Court held that the CU Regents were absolutely immune from suit for claims arising from his termination. Churchill was given 5 internal hearings, presented evidence, examined witnesses, and made arguments under a clear standard of review. The Court held that the Regents are immune from suit for their quasi-judicial decisions. Plus, CRCP 106 review can also prevent constitutional violations. The acrimony between CU and Churchill meant that reinstatement plus wages was not equitable or justified. Finally, even if the investigation was bad faith retaliation for free speech, there is no clear law on that point, so, the Regents could not know if they actually violated his Constitutional rights, and thus also had qualified immunity.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC25.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8655&courtid=2

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Filed under Constitutional, Government