Tag Archives: Standard of Review

Michele Fry v. Kurtis Lee and The Denver Post, LLC, 2013COA100 (June 20, 2013)

“Denver city council candidate [Fry] caught up in plagiarism charge.” That headline landed The Denver Post in court for defamation. It started with a questionnaire answered by a Denver City Council candidate that appeared to be plagiarized. The candidate, upon reviewing the Post’s information, agreed, confessed, contacted the person from whom she took her responses and apologized. Afterwards, the Post ran the headline. Buried deep in the article, it quoted Fry: “I would never intentionally lift from another source and should have been more careful.” The district court found that the article was not false simply because it omitted the fact that Fry admitted her mistake. The court of appeals conducted a detailed exegesis of the article and agreed with the trial court. It held that an average reader would not conclude that ‘caught up’ and ‘charge’ suggested a crime. Case dismissed.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1575-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8992&courtid=1

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Filed under Torts

Mile High Cab, Inc. v. Colorado Public Utilities Commission and SuperShuttle International Denver, Colorado Cab Company, and MKBS, LLC 2013CO26 (April 22, 2013)

Proof by a preponderance of the evidence means probable not possible. Here, a taxi service sought a Certificate of Public Convenience and Necessity from the Public Utilities Commission so it could operate in Denver. Existing taxi companies objected, claiming another taxi service would cause oversupply in the market and not lead to robust competition. An ALJ concluded there was a significant “possibility” the objectors were right. The PUC affirmed, using “possibility” and “probability” interchangeably. The Court held that “probable” expresses higher confidence than “possible,” and is closer to “preponderance.” Thus, objectors must prove, and the PUC must clearly manifest an intent to apply a preponderance standard to find that a Certificate was not required, and issuing one would actually be detrimental. The PUC did not do so; the denial of the Certificate was reversed.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SA312.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8912&courtid=2

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Filed under Administrative, Evidence, Government, Proceedure

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.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SA83.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8823&courtid=2

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Filed under Appellate Review Challenged, Attorney Regulation, Personal Injury, Torts

Target Corp. v. Prestige Maintenance USA, 2013COA12 (January 31, 2013)

At the heart of contract law is a principle of risk management and allocation. This case involves Prestige indemnifying Target for injuries caused by a Prestige employee. Target sued Prestige after its employee fell and claimed workers’ compensation. The trial court found for Target and awarded damages for past and future damages. Prestige appealed the award of future damages. The court of appeals held: 1) future damages are a substantive issue, not one of judicial administration, so MN law applied as stated in the contract. But, CO law applied to matters regarding the conduct of the litigation: whether an issue was preserved for appeal and the standard of review; 2) the issue was preserved because future damages were addressed during closing and by the court; 3) the award was supported by evidence that the damages were reasonably likely to occur as estimated by an expert. Affirmed.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0445-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8815&courtid=1

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Filed under Appellate Review Challenged, Contracts, Evidence, Personal Injury, Torts

People in the Interest of A.V. and J.V., Children, and Concerning M.V., 2012COA210 (November 21, 2012)

“You can lead a horse to water, but you can’t make it drink.” This statement is a sad reality when attempting to rehabilitate parents before terminating their parental rights. In this case, a child enrolled in the Cherokee Nation was adjudicated dependent and neglected and removed from the mother’s care. The trial court entered a treatment plan for Father, who was addicted to drugs. Father was provided with substance abuse services and treatment, parenting education, supervised visits, and other help—all to no avail. Three years later, Father’s parental rights were terminated. On appeal, Father argued that “active efforts” were not made to rehabilitate him as required by the Indian Child Welfare Act. The court of appeals upheld the termination, and noted the Act does not require expert testimony to support a finding that active efforts were made and were later unsuccessful.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0829-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8760&courtid=1

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Filed under Family Law