Tag Archives: Parties and Pleadings

Short Summary of notable changes to the Rules of Civil Procedure effective July 1, 2015

Major changes to the Colorado Rules of Civil Procedure have been in the works for the last few years.  The Civil Access Pilot Project tested many rule changes and the Court took comments and opinions from the public and attorneys earlier this year.  Those changes have now become a reality for civil litigators.  HERE IS A LINK TO THE REDLINE OF THE RULE CHANGES.

The Colorado Rules of Civil Procedure that have been amended are as follows: Rules 1, 12, 16, 16.1, 26, 30, 31, 33, 34, 37, 54, and 121 §1-22, and the Proposed Case Management Order.

If you are familiar with the CAPP Rules, many of these changes will come as no surprise. The new rules are not duplicative of the CAPP rules, however.

Also, the new “Proposed Case Management Order” is not the same as the old “ICMC Joint Reports” that were filed before.  In person or telephonic attendance at an initial case management conference is required unless dispensed of by the court upon the joint request of the attorneys.

CHANGES AND OFFICIAL COMMENTS WORTH NOTING INCLUDE:

Comments to CRCP 1:

“[1] The 2015 amendments are the next step in a wave of reform literally sweeping the nation. This reform movement aims to create a significant change in the existing culture of pretrial discovery with the goal of emphasizing and enforcing Rule 1’s mandate that discovery be administered to make litigation just, speedy, and inexpensive. One of the primary movers of this reform effort is a realization that the cost and delays of the existing litigation process is denying meaningful access to the judicial system for many people.

[2] The changes here are based on identical wording changes proposed for the Federal Rules of Civil Procedure. They are designed to place still greater emphasis on the concept that litigation is to be treated at all times, by all parties and the courts, to make it just, speedy, and inexpensive, and, thereby, noticeably to increase citizens’ access to justice.”

CRCP 16(11) & (12) – CASE MANAGEMENT:

(11) Discovery Limits and Schedule. Unless otherwise ordered by the court, discovery shall be limited to that allowed by C.R.C.P. 26(b)(2). Discovery may commence as provided in C.R.C.P. 26(d) upon service of the Case Management Order. The deadline for completion of all discovery, including discovery responses, shall be not later than 49 days before the trial date. The proposed order shall state any modifications to the amounts of discovery permitted in C.R.C.P. 26(b)(2), including limitations of awardable costs, and the justification for such modifications consistent with the proportionality factors in C.R.C.P. 26(b)(1).

(12) Subjects for Expert Testimony. The proposed order shall identify the subject areas about which the parties anticipate offering expert testimony; whether that testimony would be from an expert defined in C.R.C.P. 26(a)(2)(B)(I) or in 26(a)(2)(B)(II); and, if more than one expert as defined in C.R.C.P. 26(a)(2)(B)(I) per subject per side is anticipated, the proposed order shall set forth good cause for such additional expert or experts consistent with the proportionality factors in C.R.C.P. 26(b)(1) and considering any differences among the positions of multiple parties on the same side as to experts.

CRCP 26(b)(4)(D) – DISCLOSURES (limitations):

(D) Rule 26(b)(3) protects from disclosure and discovery drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded, and protects communications between the party’s attorney and any witness disclosed under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(I) relate to the compensation for the expert’s study, preparation, or testimony;

(II) identify facts or data that the party’s attorney provided and which the expert considered in forming the opinions to be expressed; or

(III) identify the assumptions that the party’s attorney provided and that the expert relied on in forming opinions to be expressed.

COMMENT 20 TO CRCP 26 also notes the following about expert disclosures:

“The 2015 amendment also requires that, if a deposition reveals additional opinions, previous expert disclosures must be supplemented before trial if the witness is to be allowed to express these new opinions at trial. Rule 26(e). This change addresses, and prohibits, the fairly frequent and abusive practice of lawyers simply saying that the expert report is supplemented by the “deposition.” However, even with the required supplementation, the trial court is not required to allow the new opinions in evidence.”

CRCP 33(b)(1) – INTERROGATORIES

(1) An objection must state with specificity the grounds for objection to the Interrogatory and must also state whether any responsive information is being withheld on the basis of that objection. A timely objection to an Interrogatory stays the obligation to answer those portions of the Interrogatory objected to until the court resolves the objection. No separate motion for protective order pursuant to C.R.C.P. 26(c) is required.

CRCP 34 – REQUESTS FOR PRODUCTION

COMMENT 3:

“[3] Rule 34 is changed to adopt similar revisions as those proposed to Fed. R. Civ. P. 34, which are designed to make responses to requests for documents more meaningful and transparent. The first amendment is to avoid the practice of repeating numerous boilerplate objections to each request which do not identify specifically what is objectionable about each specific request. The second amendment is to allow production of documents in place of permitting inspection but to require that the production be scheduled to occur when the response to the document request is due, or some other specific and reasonable date. The third amendment is to require that when an objection to a document request is made, the response must also state whether, in fact, any responsive materials are being withheld due to that objection. The fourth and final amendment is simply to clarify that a written objection to production under this Rule is adequate to stop production without also filing a motion for a protective order.”

CRCP 37 – DISCOVERY SANCTIONS

COMMENT 3:

“[3] The threat and, when required, application, of sanctions is necessary to convince litigants of the importance of full disclosure. Because the 2015 amendments also require more complete disclosures, Rule 37(a)(4) now authorizes, for motions to compel disclosures or discovery, imposition of sanctions against the losing party unless its actions “were substantially justified or that other circumstances make an award of expenses manifestly unjust.” This change is intended to make it easier for judges to impose sanctions.”

CRCP 121 1-22 COSTS AND ATTORNEY FEES

COSTS. A party claiming costs shall file a Bill of Costs within 21 days of the entry of order or judgment, or within such greater time as the court may allow. The Bill of Costs shall itemize and provide a total of costs being claimed. Taxing and determination of costs shall be in accordance with C.R.C.P. 54(d) and Practice Standard § 1-15. Any party that may be affected by the Bill of Costs may request a hearing within the time permitted to file a reply in support of the Bill of Costs. Any request shall identify those issues that the party believes should be addressed at the hearing. When required to do so by law, the court shall grant a party’s timely request for a hearing. In other cases where a party has made a timely request for a hearing, the court shall hold a hearing if it determines in its discretion that a hearing would materially assist the court in ruling on the motion.

 

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Filed under Commentary, Proceedure

In Re: Lillian R. Malm v. Marion Brigitte Villegas, 2015CO4 (January 20, 2015)

“[D]elay in service… cannot be found reasonable simply because the plaintiff made diligent efforts to locate the defendant.” Opinion. Malm filed her personal injury complaint in 2005, one month before the 3-year time limitation ended. In 2013, Malm found Villegas in Germany, and the District Court reopened the case noting the lack of a rule stating a reasonable time for service in a foreign country. Villegas opposed, arguing that the failure to serve her sooner was an unreasonable delay amounting to a failure to prosecute. The Court held that a delay between filing and service of a complaint beyond the statute of limitations is reasonable only if it is the product of either wrongful conduct by the defendant or some formal impediment to service. Without any facts that Villegas deliberately avoided service, the District Court should have dismissed the case for failure to prosecute.

DISCLAIMER: The Author was an attorney on the brief for Petitioner Malm. Andy Helm assisted in the writing of this post.

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2014/14SA13.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9640&courtid=2

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Filed under Interlocutory Review, Personal Injury, Proceedure, Torts

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

Mauro v. State Farm Mutual Auto Insurance, 2013COA117 (Aug. 1, 2013)

“If the interest of the absentee is not represented at all, or if all existing parties are adverse to him, then he is not adequately represented.” Opinion. In a personal injury case, the parties moved for a protective order to keep certain records confidential. State Farm, defendant’s insurer, moved to intervene and oppose the order. The trial court denied the motion, but the court of appeals reversed. The court agreed with State Farm that: 1) its record-keeping obligations under state law gave it an interest in the outcome of the protective order; 2) there was no other venue in which State Farm could challenge the order; and 3) its interests were not protected by counsel for the insured, even if that counsel was hired by State Farm. The court did not, however, rule on the merits of the protective order. Instead, State Farm was permitted to intervene on remand.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1509-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9047&courtid=1

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Filed under Evidence, Insurance, Proceedure, Torts

In re the Parental Responsibilities of I.M., and Concerning R.A.M. and M.A.R., 2013COA107 (July 3, 2013)

“Paternity is a legal fiction.” James Joyce. McKenzie sought to have Russo declared the legal father of her son, I.M. Russo countered, arguing both that the statute of limitations barred the suit, and that McKenzie could not sue on I.M.’s behalf, as he was over 18. McKenzie claimed she should be allowed to bring the suit “at any time” under CRS 19-4-107 because Russo held I.M. out as his son.  She then sought to join I.M. as an indispensable party. The trial court granted judgment on the pleadings, holding that the suit was barred by statute of limitations, and that I.M. was not indispensable because, under CRS 19-4-108, he could bring his own suit before turning 21. The Court of Appeals agreed with the trial court’s legal conclusions as well as holding that CRS 19-4-107 only allows suits “at any time” when the parties were married or thought they were married.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1412-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9024&courtid=1

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Filed under Family Law, Proceedure

Medical Lien Management, Inc., v. Allstate Insurance Company, 2013COA88 (June 6, 2013)

“The other car collided with mine without giving warning of its intention.” (Anonymous). Here, MLM paid an accident victim’s medical bills in exchange for an assignment of settlement funds, if any. MLM gave notice of the assignment to the tortfeasor’s insurer Allstate, who then settled. Allstate paid the victim instead of MLM. MLM sued Allstate for breach of both the settlement contract and the assignment. The trial court dismissed MLM’s claims. The court of appeals reversed, holding: 1) personal injury claims may be validly assigned prior to settlement, as they were here; 2) the notice of assignment was sufficient and triggered Allstate’s duty to pay MLM, despite its lack of consent; and 3) because the victim had a claim against Allstate, MLM had a claim. Finally, the court rejected a request to apply the Federal pleading standards in Bell Atlantic v. Twombly. Dismissal reversed.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA0691-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8972&courtid=1

CERTIORARI GRANTED

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Filed under Contracts, Personal Injury, Proceedure, Torts

Tarco, Inc., v. Conifer Metropolitan District, 2013COA60 (April 25, 2013)

Count the negatives: “noncompliance with nonclaim statutes deprives a court of subject matter jurisdiction” (Opinion), and CRS 38-26-106 is not a nonclaim statute. That statute requires public-works-project contractors to post a bond. Here, Tarco did not post a bond when constructing an overpass and infrastructure around a shopping center for the Conifer Metro District (CMD). It did not get paid by CMD and sued. The District, after a two-year delay, claimed that Tarco couldn’t sue because of its noncompliance with the statute. The trial court dismissed Tarco’s claims. The court of appeals reversed in part, holding: 1) CMD’s pleadings didn’t prejudice Tarco, 2) the contracts were for “public works” under the statute, 3) the statute is not a nonclaim statute, 4) the CMD lacked the power to waive the bond requirement, and 5) fact issues saved Tarco’s equitable estoppel argument.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA0250-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8920&courtid=1

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Filed under Contracts, Government, Proceedure

A.M. by and through his Guardian ad Litem, and L.H. and R.H. v. A.C., and the People in the Interests of A.M. v. N.M., 2012CO16M (February 25, 2013; Modified March 18)

As family structures change, so do the way in which we determine what may be in the best interests of a child. In dependency and neglect (D&N) proceedings, which can lead to the termination of parental rights, courts consider many factors and take evidence from many sources. With this opinion, the Court holds that foster parents of a child in the middle of a D&N proceeding can fully participate in such hearings, so long as they meet the requirements for intervention in CRS 19-3-507. A parent’s due process rights at a hearing are preserved by ensuring notice and using higher evidentiary standards. Full foster parent participation still provides the parental protections in Mathews v. Eldridge. Here, foster parents properly gave opening and closing statements, cross-examined witnesses, raised objections, and fully participated in the termination hearing without limitation.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC53.pdf [Opinion modified, and as modified, Petition for Rehearing DENIED (March 18, 2013).]

http://www.cobar.org/opinions/opinion.cfm?opinionid=8837&courtid=2

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Filed under Constitutional, Family Law

Raptor Education Foundation, Inc., v. Colorado Department of Revenue, Division of Motor Vehicles, 2012COA219 (December 27, 2012)

The individual freedom to contract, enshrined in the US and Colorado Constitutions and known as the Contract Clause, can add another case to its storied history – specialty license plates. In 2000, the Raptor Education Foundation contracted with the Department of Revenue for the exclusive right to buy a specialty plate. In 2002, the Department was court-ordered to sell the plates only to members of the REF. In 2009, the Legislature amended the law (CRS 42-3-208) to allow non-REF members to buy the plates. The REF sued. The court of appeals, after finding that the constitutional challenge could be addressed even though it was not raised in a pleading, struck down the legislation as unconstitutional. The law violated the Contracts Clause because it was not directed at a general social problem and was an unforeseeable substantial impairment to the existing contractual relationship.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2446-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8787&courtid=1

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Filed under Appellate Review Challenged, Constitutional, Contracts, Government

BSLNI, Inc. v. Russ Diamonds, Inc, 2012COA214 (December 6, 2012)

Win the battle, lose the war. In this construction contract case, on the evening before trial and after a year of litigation, Defendant moved to dismiss Plaintiff’s tort claim on the grounds that it was barred by the economic loss rule. The trial court did so, ostensibly under CRCP 12(b), but allowed Plaintiff to add a breach of contract claim. Plaintiff won at trial. Defendant sought, but was denied, mandatory attorneys’ fees because the tort claim was dismissed. The court of appeals held that, because Defendant moved to dismiss after the answer was filed, it was a CRCP 12(c) motion, so fee awards are not mandatory. The court also held that when a construction contract provides its own standard by which work must be performed, the contract’s standard applies, not industry standards. And, if a lay person could apply that standard, expert testimony may not be, and was not required here.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2078-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8774&courtid=1

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Filed under Contracts, Evidence, Torts