Tag Archives: Court of Appeals

Motions to Stay pending Appeal?

C.A.R. 8 addresses motions to stay. Earlier this year, the Colorado Supreme Court amended Rule 8, as well as Rule 27 related to Motions. Although the changes are not particularly substantive, the language has been cleaned up.

Click to see the amendments to CAR 8 and 27 , which went into effect on January 7, 2015.

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Elizabeth L. Harris appointed to Colorado Court of Appeals

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

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Robert Cikraji v. Daniel Snowberger, Superintendent, Durango Public Schools, Andrew Burns, Roxanne Perrin, David McMillian, Paul Angelico, Curt Wilson, 2015COA66 (May 7, 2015)

Opinion in pro se Plaintiff’s appeal published; parent was engaging in the unauthorized practice of law. The Colorado High School Activities Association’s bylaws allows athletes to compete on “any other team, in any non-school activity or event in that sport during that sports season with the express written permission of the principal.” Plaintiff’s son, a Durango HS athlete won a 10k cross country race in Ohio but did not get permission to compete and was suspended from one meet. Plaintiff, apparently an Ohio lawyer, sued on behalf of his son. The court of appeals affirmed the trial court’s dismissal. It noted many failures to comply with the CAR. And, Plaintiff engaged in the unauthorized practice of law by bringing claims on behalf of his son. Plaintiff’s case was dismissed because he failed to comply with CGIA notice requirements, depriving the court of jurisdiction.

https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2015/14CA1160-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9772&courtid=1

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Jennifer Hansen v. American Family Mutual Ins. Co. 2013COA173 (Dec. 19, 2013)

Twice the covered benefits plus attorneys’ fees and costs is what an insurance company must pay if it acts in bad faith when deciding an uninsured or underinsured insurance claim under CRS 10-3-1116. In this case, the claimant/plaintiff was awarded $0 damages on a statutory bad faith claim, but ultimately recovered three times the amount of UIM coverage available under the policy: double for statutory bad faith and a third under the settlement of a bad faith breach of contract claim. The court of appeals affirmed. First, it held that the policies were ambiguous on the identity of the insured, allowing the jury to conclude claimant was an insured. Then it held that even if the question of coverage was fairly debatable, delay or denying coverage was not necessarily reasonable. And finally, a successful statutory claim independently entitles a claimant to double the covered benefits.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/11CA1430-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9194&courtid=1

 

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Filed under Contracts, Insurance, Personal Injury

People v. Robert Clyde Crouse, 2013COA174 (Dec. 19, 2013)

“The [Medical Marijuana] Amendment does not require patients to do anything.” – Opinion. This is a forfeiture case arising from a criminal prosecution. Defendant was arrested for possessing marijuana; the police seized his pot and plants. Defendant was acquitted and requested the return of his pot.  The trial court ordered the police to return the pot, which they did, over the objection of the prosecution. The DA appealed. Colorado’s Constitution Art. XVIII sec 14(2)(e) requires the return of pot seized from a patient if a jury acquits the patient of charges arising from the seized marijuana. The DA argued that returning pot under CO law was preempted as an obstacle to the federal Controlled Substances Act. The court of appeals affirmed the to order to return the pot.  Federalism does not allow the federal government to require states to seize and hold marijuana, thus, no preemption.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA2298-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9195&courtid=1

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Filed under Constitutional, Government

Mathew Barnhart v. American Furniture Warehouse Co, 2013COA158 (Nov. 21, 2013)

“Death is a very dull, dreary affair, and my advice to you is to have nothing whatever to do with it.” – Somerset Maugham. This case involves Colorado’s Wrongful Death Act CRS 13-21-201, which allows a decedent’s surviving spouse the exclusive right to bring such an action within the first year after the date of death; heirs have a right to bring an action after the second year, but there may be “only one civil action.” Here, husband settled a wrongful death claim without bringing an action; son then brought an action. Defendant claims the earlier settlement bars the later action. The court of appeals construed the word “action” to include settlement and not just a judicial proceeding. The court also construed the word “shall” to be directory (should, may, will) and not mandatory. Thus, the out-of-court settlement by a beneficiary with the primary right to sue binds later beneficiaries.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/13CA0085-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9147&courtid=1

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Filed under Personal Injury, Torts

In re the Estate of Carol S. Gattis, deceased. Scott M. Gattis, Linda L. Spreitzer, and Amy G. Goeden, as Personal Representatives, v. John E. McNutt; Timothy A. McNutt; and Christopher L. Boortz, 2013COA145 (Nov. 7, 2013)

This is a case of how NOT to flip a house. Defendants bought a house, repaired damage caused by expansive soils, and then sold it to Plaintiffs. In the standardized Seller Property Disclosure form, Defendants claimed no knowledge of expansive soils. Plaintiffs brought a nondisclosure tort claim after the soils damaged the home. Defendants asserted the Economic Loss Rule as a defense, which was rejected by the trial court. As a matter of first impression, the court of appeals held the economic loss rule does not bar nondisclosure tort claims arising from a house built on expansive soils. First, home sellers owe home buyers an independent duty to disclose latent defects of which they are aware. Second, common law duties remain with standardized form contracts that do not set out a standard of care, limit rights to specific disclosures, or provide express remedies for nondisclosure.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1269-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9127&courtid=1

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Filed under Contracts, Property, Torts

Annette Berenson v. USA Hockey and Colorado Ice Hockey Referees Association, 2013COA138 (Oct. 10, 2013)

“They’re saying it’s because I agreed to the latest terms and conditions on iTunes!” Kyle Broflovski – South Park. If you click “I Agree” to an online waiver, can they prove it? The Best Evidence Rule codified in CRE 1002 states that to prove the contents of a writing, the original writing is required, unless an exception applies. An amateur female hockey player registered online to play in a league online, was injured, and sued the league. The league claimed she released her claims, but did not provide the release and did not claim an exception. Instead, it submitted an affidavit stating a waiver had to be initialed to complete online registration; she had registered; so she must have released her claims. The court, over a dissent, held that because the terms of the contract were not in dispute, the original contract was not required, and thus the league’s affidavit was admissible.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1013-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9104&courtid=1

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Filed under Contracts, Evidence, Personal Injury

Martin Foster Egelhoff v. Lesley Joe Taylor, 2013COA137 (Sept. 26, 2013).

“When you have no basis for an argument, abuse the [judge].” Cicero. After pleading guilty to criminal charges, an inmate sent his sentencing judge documents claiming the judge owed him $500 million. After the inmate filed a lien against the judge’s property, the judge sought and was granted an order declaring the lien spurious and invalid pursuant to CRS § 38-35-204 and CRCP 105.1. On appeal, the inmate claimed the court erred in finding the lien invalid, but did not provide any legal or factual support for its validity. Further, the inmate argued the judge failed to exhaust administrative remedies before challenging the lien. The court of appeals held that, with no supporting documentation for the lien, the court properly invalidated the lien. Further, the judge’s actions complied with statutory requirements, making administrative exhaustion unnecessary and impossible.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1963-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9097&courtid=1

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Filed under Administrative, Property

Jerry Mullins v. Medical Lien Management, Inc., 2013COA134 (Sept. 26, 2013)

This case is a fight over $17,000.00. This appeal is about civil procedure. Plaintiff filed an interpleader action to determine who was entitled to funds recovered from a tortfeasor in a personal injury case. Medical Lien Management (MLM) filed an Answer and Counterclaims. Plaintiff then amended the Complaint, which MLM Answered without reasserting its counterclaims. 1 1/2 years later, Plaintiff claimed MLM had waived or abandoned its right to assert the Counterclaims. The trial court disagreed. The court of appeals did too because: 1) there is no requirement that counterclaims be repleaded in response to an amended complaint; 2) MLM prosecuted its claims, which did not prejudice Plaintiff; 3) technical defects must be disregarded if they do not affect the rights of the parties; and 4) a claim not pleaded but still tried can be decided. Evidentiary rulings were also upheld.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/11CA0699-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9094&courtid=1

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Filed under Contracts, Proceedure