“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.
Tag Archives: Waiver
Annette Berenson v. USA Hockey and Colorado Ice Hockey Referees Association, 2013COA138 (Oct. 10, 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.
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.
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.
“[T]here is great general interest among television viewers in fascinating true stories with interesting characters and real life dramas … this case certainly has those elements.” A producer of a TV episode called Tragedy in Telluride said that about the facts of this case. In that episode, Sam Shoen implied his brother Mark Shoen, both part of the U-Haul family, was involved in the murder of Sam’s wife. Mark sued Sam for defamation and lost. The court of appeals first held that Mark waived a choice-of-law issue that Colorado defamation law should not apply because the issue was not raised prior to the trial court ruling on dispositive motions. Second, it held that Sam’s statements on TV about the murder of his wife, including criticizing the adequacy of the investigation, were matters of public concern, and thus Mark was required to prove defamation by clear and convincing evidence.
“Nonmutual offensive issue preclusion” (NOIP) sounds like the kind of issue that would come out of a fight at a college party. It did. This case clarifies the requirements for asserting a NOIP: the usual elements plus 4 more: 1) did the claimant “wait and see?” 2) was there a prior incentive to litigate the issue? 3) would it be inconsistent with another decision? and 4) are there procedural protections in place? This case also warns litigators about timeliness and foresight – it’s important to bring a NOIP claim to court ASAP. In the trial court, Plaintiff lost his negligence and battery claims although defendant pled guilty in a criminal case. But he lost his appeal by waiving claims, not preserving issues for appeal, and inviting error.