Tag Archives: Dismissed with Prejudice

Tammy Hudak v. Medical Lien Management, Inc., 2013COA83 (May 23, 2013)

Move it or lose it. That is the general principle when it comes to litigation. But in this case, the trial court overlooked a fully-briefed pending motion and prematurely closed the case without proper notice to claimant. 13 months later, claimant filed a renewed motion. A new trial judge held the delay was too long, lacked mitigating circumstances, and was unexcused because it could have contacted or reminded the court about the pending motion. The judge dismissed the case. The court of appeals reversed, and though affirming the principles upon which the trial court relied — that a claimant has an affirmative duty to pursue pending motions and a duty to inquire about inaction — held the trial court abused its discretion because the claimant was not obligated to renew or remind the court about the pending motion, and had it done so, risked irritating the court. The case was reinstated.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA1694-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8949&courtid=1

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Filed under Proceedure

Northstar Project Management, Inc. v. DLR Group, Inc., 2013CO12 (February 11, 2013)

You don’t know what you don’t know; that is why an appeals court must have a complete record before it to render a decision. Here, the court of appeals believed it had a sufficient record; the Court disagreed. CAR 10(b) requires the appellant to submit a record with all evidence relevant to the issue on appeal. Relevance is defined by CRE 401 and conversely by CRE 402 — which excludes irrelevant evidence. It follows, therefore, that all evidence admitted at trial on a claim was relevant; otherwise it would have been excluded. Thus, the record on appeal must include everything in the record related to the issue on appeal. Because CAR 10(b) puts the burden on the appellant, the consequences for failing to designate a complete record fall on the appellant. Here, the appellant won in the court of appeals. But for violating CAR 10(b), the Court dismissed the appeal entirely, with prejudice.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC494.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8828&courtid=2

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Filed under Appellate Review Challenged, Contracts, Evidence