“The fox chases the rabbit around the tree and down the hole. That’s how the tie works buddy.” Dirk Pitt – Sahara. Plaintiff Bristol Bay (BB) produced Sahara, based on a Clive Cussler novel. Cussler told BB he had sold over 100 million books; actually it was 40 million. The movie failed and BB lost around $50 million. BB sued Cussler in California for fraudulent inducement. A CA jury found that BB’s damages were not caused by Cussler’s lie. BB then sued different defendants – Cussler’s agents – in Colorado for the same exact claim. Defendants moved to dismiss, arguing the claims were precluded by the CA action and won. The Court agreed because the identity of the defendant is irrelevant to whether plaintiff’s reliance caused damages. But, the trial court should have converted the CRCP 12 motion to CRCP 56 because preclusion was an affirmative defense based on matters outside the pleadings.
Tag Archives: Attorneys Fees
Bristol Bay Productions, f/k/a Crusader Entertainment v. Peter Lampack; The Peter Lampack Agency; Simon & Schuster; and Penguin Group USA, 2013CO60 (October 21, 2013)
Mountain-Plains Investment Corporation; John Robert Fetters, Jr.; Joann Dransfeldt Fetters; A. Sue Fetters; and John R. Fetters III, v. Parker Jordan Metropolitan District, 2013COA123 (August 15, 2013)
“Sunlight is the most powerful of all disinfectants.” Justice Brandeis. Plaintiffs sought access to emails between a quasi-governmental agency (District), its management company, and its consultants on a water project. Plaintiffs sued for violations of the Colorado Open Records Act (CORA), because the District claimed it did not possess emails sent only between its consultants, and sought $16k for production of the records it did have. CORA defines public record as one “made, maintained, or kept by the state.” The court held that, while emails to or from the District or its management company are public record, those only between its consultants were not made, maintained, or kept by the District. Further, the court found the fee structure of $25/hour for collection of records and segregation and logging of privileged materials reasonable under CORA.
James C. Smith and Dona Laurita, v. Alan W. Kinningham and Accelerated Network Solutions, Inc., 2013COA,103 (July 3, 2013)
After all these years, rear-end car accidents still produce new law. Here, the court of appeals held that evidence of Medicaid benefits were properly excluded by the collateral source rule. Under CRS 10-1-135, any collateral source payment is excluded from evidence. Medicaid payments are a collateral source, and the statute abrogated the common law “gratuitous government benefits exception.” Plaintiffs’ claims against ANS, the company insuring the car, were dismissed; thus, ANS as the prevailing party was entitled to costs but not fees because the claims were not frivolous. The remaining issues got short shrift: 1) the sudden emergency doctrine has been abolished; 2) a party who requests a hearing on costs is entitled to one; 3) Plaintiffs were awarded appellate fees because Defendants frivolously argued for a new trial under CRCP 59 based on a requirement that did not exist.
Lynda S. Gibbons, Brent Wilson, and Gibbons-White, Inc., v. Gregory T. Ludlow, S. Reid Ludlow, and Jean E. Cowles, 2013CO49 (July 1, 2013)
“He who lives by the crystal ball soon learns to eat ground glass.” – Edgar R. Fiedler. In this case, the Court held that recovering damages for the bad advice of a transactional real estate broker requires proof of what would have happened but-for the bad advice. Analogizing to legal malpractice claims, the Court noted that a plaintiff must show either that he: 1) would have been able to obtain a “better deal” or 2) would have been better off with “no deal.” Both require proof that the professional’s negligent acts or omissions caused the client damages. Here, Plaintiff claimed lost profits as damages, requiring proof of either the amount of the profits that would have been earned or the fact that profits would have been earned. Plaintiff had an appraisal. The appraisal wasn’t proof a future sale of the property would have been better or different than the actual sale. Dismissal affirmed.
“I’ve lived with this case since I’ve been here in January, and I am very much aware of the protracted convoluted history this cases possesses [sic]” – The Trial Court. Plaintiff (PPI) entered into an Agreement to provide services to Defendant (QED). PPI later loaned money to QED pursuant to a promissory note. The Note required QED to pay reasonable costs and fees that PPI might incur “in connection with the enforcement of” the promissory note. PPI later sued for breach of the note and QED counterclaimed for breach of the Agreement. They both win. The trial court awarded fees to PPI, but did not apportion them. The court of appeals held it should have. The Court disagreed, rejecting a rule requiring proportional diminishment of fees when the defendant recovers on a counterclaim. Rather, trial courts may apportion fees, but if the contract does not require apportionment, it need not do so.
“We all get a second chance; it’s called tomorrow.” Anon. Moye White (MW) represented David Beren in probate litigation. MW employed and assigned to Beren’s case an attorney with a past of disciplinary proceedings, mental illness, alcoholism, and related arrests. MW sued Beren for its attorneys’ fees; Beren counterclaimed for breach of fiduciary duty claiming he should have been told about the attorney’s history. The court of appeals disagreed; a law firm does not have a duty to disclose such history to a client. Any risk posed by an attorney’s past conduct is speculative, and therefore not material. For the same reason, no ethical duty to disclose such information exists under professional conduct rules 1.4 or 7.1. The court of appeals also upheld costs awarded MW for uploading documents into a document review platform and costs incurred after a pretrial offer of settlement.
Deutsche Bank Trust Co. Americas, and Saxon Mortgage, v. Veronica E. Samora, 2013COA81 (May 23, 2013)
“Samora chose to accept … misrepresentations rather than … investigate the transaction after discovering the document was a warranty deed with the name of an individual [Wasia] she had never met.” (Opinion). Samora was the victim of a complex real estate fraud. As part of the fraud, she relied on misrepresentations about a warranty deed she signed, and unknowingly transferring title to Wasia. Wasia deeded the house to Saxon for a loan. Deutsche Bank (DB), Saxon’s trustee, sought to quiet title. The appellate court held that the Samora-Wasia deed was valid. As a consequence: 1) Samora’s claims accrued when she alerted the DA to the fraud, 2) there was no fraud in the factum because she knew she signed a deed, and 3) DB (who was not “closely related” to Saxon) was a holder in due course. Thus, the deed was not voided and the Wasia-Saxon deed was not a spurious lien. Title quieted in Saxon.
Despite rumors to the contrary, the use of medical marijuana is not a “lawful activity” under Colorado law; at least not under CRS 24-34-402.5, the Lawful Activities Statute protecting employees from termination for off-the-job activities. Plaintiff, a quadriplegic, is licensed to use medical marijuana. Defendant fired plaintiff after he tested positive for marijuana, which was a violation of its drug policy. The court of appeals, applying the ordinary meaning of “lawful activity” as used in section 24-34-402.5, held plaintiff’s medical marijuana use, unlawful under federal law, was not “lawful.” Although defendant defeated plaintiff’s claim, it was not entitled to attorneys’ fees pursuant to CRS 13-17-201, mandating fee awards, because the claim was not a “tort.” First, it is not an invasion of privacy tort and second, it lacks the general characteristics of a tort.
BDG International, Inc., v. Robert J. Bowers and Auxiliary Graphic Equipment, Inc., 2013COA52 (April 11, 2013)
Maritime law applies in Colorado. Defendants (D) bring goods from Australia to CO. Plaintiff (P) is a subcontractor for packing and shipping. D is not paid and then fails to pay P. P asserts a lien against D’s goods, so D enters into a payment agreement (governed by CA law) with P. D breaches, P sues and wins. On appeal, D argued the state courts lack subject matter jurisdiction because the claims were subject to federal Maritime law. The court of appeals held that federal courts have exclusive jurisdiction only for in rem maritime claims, but that state courts have concurrent jurisdiction over these in personsam maritime claims. The court of appeals also then held: 1) judgment was final despite directions regarding post-judgment satisfaction; 2) there was no setoff for judgments against different parties; and 3) the trial court correctly resolved the contract claims under CA law.
When it comes to kids and divorce, alternative dispute resolution is an option, but courts are ultimately responsible for protecting the best interests of children. CRS 14-10-128.5 authorizes court review of a dissolution of marriage arbitration award pursuant to the Arbitration Act, CRS 13-22-222, which favors confirmation of such awards. But, the trial court may review issues related to children de novo if a timely request is made. Here, an arbitrator issued a final award that included parenting time. Wife moved to confirm, but at a later hearing indicated she did not believe the award was in the best interest of the child. That request was made 42 days after the award, not 30 (as then required). The court of appeals held that the trial court lacked the authority to conduct a de novo review because the request was not timely. Thus, the trial court should have confirmed the entire award.