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.
Tag Archives: Jurisdiction
Marilyn Marks v. Gessler, Colorado Secretary of State and Judd Choate, [Director of Elections], 2013COA115 (Aug. 1, 2013)
United States Taekwondo Committee and U.S. Kukkiwon, Inc., v. Kukkiwon, a Republic of Korea special corporation, 2013COA105 (July 3, 2013)
The most difficult part of [taekwondo] is … taking the first step across the threshold of the dojang door.” ― Doug Cook. This case is about the threshold issue of appellate court jurisdiction over an interlocutory appeal from a denial of a motion to dismiss claiming Foreign Sovereign Immunities Act (FSIA) immunity and asserting the Act of State Doctrine. Denial of FISA immunity is immediately appealable in federal court. CRS 13-4-102 only permits appeals from final judgments. The court of appeals held it had jurisdiction over the FISA order and affirmed, citing federal law, principles of neutrality between state and federal courts and sound appellate practice. But, it lacked jurisdiction over the Act of State Doctrine appeal because the Doctrine is a form of preclusion based on facts. Finally, it held that Colorado courts of appeals do not have pendent appellate jurisdiction.
Nathan J. Dunlap v. Colorado Department of Corrections and Roger Werholtz as Interim Executive Director, 2013COA63 (April 25, 2013)
Just before Nathan Dunlap is put to death, now set for the week of August 18, 2013, the Warden will disconnect the telephone in the execution room and the witness-viewing window curtain will be opened. Department of Corrections (DOC) Regulation 300-14 sets forth the procedures for carrying out a death sentence by lethal injection, but it was not promulgated pursuant to CRS 24-4-101 to 108 – the Administrative Procedures Act (APA). Dunlap sought an order invalidating the Regulation for failure to follow the APA. The Regulation was exempted from the APA, and thus valid, because CRS 17-1-103 and 111, granting the DOC with authority to manage, supervise and control inmates, and to administer sentences imposed by the courts, exempts the DOC from the APA. A partially dissenting judge would have ordered full disclosure of the Regulation to allow courts to make a more informed decision.
In re the Estate of Charles Erroll Hossack, deceased, Gladys Robinson v. Lori Hossack and Kirk Hossack, 2013COA64 (April 25, 2013)
A contempt of court order issued to compel compliance cost $231,300. Before 1995, CRCP 107 limited remedial contempt fines paid to parties; anything in excess of actual damages, costs and fees was outside the court’s jurisdiction. The 1995 amendments and the current rule now permit a fine paid to a party to exceed the damages caused by the contempt. Here, appellant was ordered to return property to decedent’s children; she disobeyed the order. The trial court issued a continuing fine of $100/day that grew to $1000/day after continued non-compliance. She claimed the trial court lacked jurisdiction and, under CRCP 60, the judgment was void. The trial court disagreed. The court of appeals also rejected her arguments and the pre-1995 cases on which she relied because Rule 107 now permits such fines. The trial court had jurisdiction, and thus properly denied relief under CRCP 60.
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.
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.
Larimer County Board of Commissioners, Grand County Board of Commissioners, Board of Assessment Appeals v. Colorado Property Tax Administrator, and YMCA of the Rockies, 2013COA49 (April 11, 2013)
“Young man, young man, what do you wanna be?” – YMCA, The Village People. The YMCA is a Christian organization and sought religious and charitable use tax exemptions from property taxes. The exemption applications were eventually denied. The Colo. Const. provides for both exemptions, as does CRS 39-2-117, 39-3-106 and 108. Each are determined by examining the property’s use, not the character of the entity. Activities of religious organizations that further their religious purposes constitute religious worship, and entities can use facilities for charitable purposes without requiring participation in entity-organized activities. In each case, the Tax Board failed to examine whether the activities furthered declared religious or charitable purposes. The court of appeals reversed, remanded and ordered the Board to apply the correct legal standards for each exemption.
In Re Emily Liebnow v. Boston Enterprises Inc. d/b/a Giacomo’s, U.S. Foodservice, Tanimura & Antle Fresh Foods, Inc. et. al.
“The closed mouth catches no flies” – B. Franklin. This case involves the disqualification of an entire firm based on an unwaivable conflict of interest. Defense counsel had a friendly relationship with an out-of-state plaintiff’s Firm specializing in e-coli cases and consulted with a lawyer at the Firm about an e-coli case. Defense counsel followed some of his advice. In the same case, Plaintiff hired a different lawyer from the same Firm. The trial court denied pro hac vice admission, effectively disqualifying the Firm. The Court upheld the trial court’s ruling that under the Rules of Professional Conduct (RPC) an unwaivable conflict was created under RPC 1.7, and that RPC 1.10 imputed that conflict to the entire firm. The Court also held that RPC 1.7 conflicts apply to third parties, and here the conflict was unwaivable becase it undermined the fairness of the proceedings.