February 20, 2018

Archives for May 2012

UPDATED: Colorado Supreme Court Amends Several Rules of Judicial Discipline

Editor’s Note: On June 20, 2012, the Colorado Supreme Court announced that a different rule change will be categorized as Rule Change 2012(06). This rule change will now be categorized as 2012(07). Click here to review the redline changes (still labeled as 2012(06)) and click here to review a clean copy of the finalized Rules of Judicial Conduct (labeled as 2012(07)) .

The Colorado Supreme Court has amended several Rules of Judicial Discipline. Many changes were made to the rules, including some renumbering. Affected rules include:

  • Rule 4. Jurisdiction and Powers
  • Rule 5. Grounds for Discipline
  • Rule 18.5. Special Masters [formerly Rule 24]
  • Rule 21.5. Discovery
  • Rule 33. Record of Proceedings
  • Rule 33.5.  Disability Proceedings
  • Rule 36.5. Conviction of a Crime
  • Rule 37. Recommendation and Notice
  • Rule 40. Decision

These amendments were adopted on March 22, 2012 and are effective immediately.

Click here to review the red line changes to the Rules of Judicial Discipline, outlined as Rule Change 2012(06).

Tenth Circuit: Jury Properly Instructed that Burden of Proving Affirmative Defense Rested on Defendant and that Jury Could Infer Defendant’s Associates Knew Vehicle Was Stolen

The Tenth Circuit Court of Appeals published its opinion in United States v. Burks on Tuesday, May 29, 2012.

The Tenth Circuit affirmed the district court’s conviction. Petitioner “provided codes to an auto-theft ring that were used to create working keys for specific vehicles. One such vehicle—an Escalade—was stolen in Nevada, stripped to its frame, and subsequently discovered and auctioned by authorities. Several months later, the same Escalade, now reassembled, was identified in Utah. Based on this discovery, [Petitioner] was charged and convicted of aiding and abetting the possession and transportation of a stolen vehicle . . . . On appeal, [Petitioner] argues that the jury was improperly instructed on the affirmative defense of withdrawal and was allowed to make an improper inference that [Petitioner’s] associates knew the vehicle was stolen.”

The Court disagreed with Petitioner’s contentions. “First, assuming that withdrawal is an affirmative defense to a conviction premised on accomplice liability, [the Court held] that the jury was properly instructed that the burden of proving the defense rested on[Petitioner]. Second, [the Court held] that the jury was properly instructed that it could infer that [Petitioner’s] associates knew the vehicle was stolen.” The Court also rejected Petitioner’s claims “that there was insufficient evidence to support his conviction and that the district court erred in its restitution order.”

Tenth Circuit: Unpublished Opinions, 5/29/12

On Tuesday, May 29, 2012, the Tenth Circuit Court of Appeals issued one published opinion and nine unpublished opinions.

Williams v. Jones

United States v. Pena-Martinez

Tillis v. Ezell

Schwartz v. Khalsa

Kaitov v. Holder, Jr.

Clemmons v. FC Stapleton, II

United States v. Porras-Rubi

Morris, Jr. v. Cabela’s Wholesale, Inc.

Bartel v. Tri-State Contractors, Inc.

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado Supreme Court: Parental Consent Is Not Required for a Nonparent to Establish Standing to Petition for an Allocation of Parental Responsibilities

The Colorado Supreme Court issued its opinion in In the Interest of B.B.O.: Olds v. Berry on May 29, 2012.

Allocation of Parental Responsibilities—Nonparent Standing—Fundamental Rights of Parents.

The Supreme Court considered whether a parent must consent to a nonparent caring for a child before a nonparent may establish standing to petition for an allocation of parental responsibilities under CRS § 14-10-123(1)(b) or (c). The Court concluded that the plain language of the statute does not require parental consent for nonparent standing. The Court also concluded that it is not necessary to read a consent requirement into the statute to protect the fundamental rights of parents in the care, custody, and control of their children. Accordingly, the Court held that parental consent is not required for a nonparent to establish standing to petition for an allocation of parental responsibilities under CRS § 14-10-123(1)(b) or (c). The judgment was reversed.

Summary and full case available here.

Colorado Supreme Court: Disgorgement of Commissions Is Not an Available Remedy Against Seller of Securities

The Colorado Supreme Court issued its opinion in Capital Securities of America, Inc. v. Griffin, Treasurer of Jefferson County on May 29, 2012.

Purchase of Unlawful Securities—CRS § 24-75-601.1—Common Law Disgorgement as a Remedy.

In 2006, Jefferson County purchased securities through Capital Securities of America, Inc. The county later determined the purchase was unlawful under CRS § 24-75-601.1. The county sued Capital Securities and, among other things, sought to disgorge the commissions earned by Capital Securities under a theory of common law restitution. Both the trial court and the court of appeals concluded that restitution was appropriate and ordered Capital Securities to disgorge their commissions.

The Supreme Court held that disgorgement is not an available remedy against Capital Securities. Although the Colorado Legislature expressly provided a damages remedy (and specified how damages were to be calculated), an equitable remedy (repurchase), and a regulatory remedy (license revocation), it did not provide a disgorgement remedy under a theory of common law restitution. Under these circumstances, the Court concluded that the addition of disgorgement would impermissibly alter the extensive and detailed remedial scheme adopted by the legislature. Accordingly, the judgment was reversed.

Summary and full case available here.

Colorado Supreme Court: Fees of Appellate Attorneys Associated on a Case to Represent a Client Constitute Expense of Litigation; Payment of Fees Does Not Violate CRPC 1.8

The Colorado Supreme Court issued its opinion in Mercantile Adjustment Bureau, L.L.C. v. Flood on May 29, 2012.

Attorney Fees and Costs—Rules of Professional Conduct—Appeals From the County Court to the District Court.
The Supreme Court affirmed the district court’s judgment in part, holding that the fees of appellate attorneys associated on a case to represent a client constitute an expense of litigation under Rule 1.8(e) of the Colorado Rules of Professional Conduct, and therefore an attorney’s payment of these fees does not violate Rule 1.8. The Court reversed the district court’s order applying Colorado Appellate Rules 28(b) and 39.5 to an appeal from the county court to the district court. The Court remanded the case to the district court to return it to the county court for proceedings to determine whether respondent is entitled to attorney fees and costs as the prevailing party in this appeal and, if so, the amount of those fees and costs.

Summary and full case available here.

Colorado Court of Appeals: No Error for Trial Court to Allow Jury Instruction or Testimony on Noneconomic Damages

The Colorado Court of Appeals issued its opinion in Hendricks v. Allied Waste Transportation, Inc. on May 24, 2012.

Negligence—Noneconomic Damages—Subject Matter Jurisdiction—Administrative Remedies—Jury Instructions—Costs.

In this negligence action, defendant Allied Waste Transportation, Inc. (Allied) appealed a jury verdict awarding plaintiffs Paul and Linda Hendricks $160,100 in damages. The judgment was affirmed.

While driving an Allied garbage truck, an Allied employee backed into the corner of the Hendrickses’ house in the City of Englewood (City). After Allied admitted liability, the trial focused on the amount of damages. The Hendrickses’ expert testified that because the damage could not be repaired due to structural deficiencies, the damaged portion of the home would need to be torn down and rebuilt.

Allied contended that the trial court lacked subject matter jurisdiction because the Hendrickses failed to exhaust their administrative remedies by failing to complete the building permit application process before the damages trial. However, the Hendrickses’ complaint did not seek review of an administrative action, and the building permit process does not provide a remedy for the Hendrickses’ injury. Accordingly, the Hendrickses were not required to exhaust administrative remedies before seeking judicial review.

Allied also contended that the trial court erred by providing jury instructions that misstated the law about noneconomic damages and by admitting testimony about noneconomic damages. The trial court instructed the jury that recoverable damages included “damages and losses suffered by the plaintiffs as a result of the defendant’s conduct, including loss of enjoyment, annoyance, discomfort, and inconvenience,” which are not emotional distress damages. Therefore, the jury was properly instructed on noneconomic damages.

Allied next contended that the trial court erred by permitting Mrs. Hendricks to testify about “pure emotional damages.” Mrs. Hendricks testified that she was “dismayed” and “distraught” by the damage to her property, which are recoverable components of noneconomic damages. Therefore, the trial court did not err in admitting her testimony.

Allied further contended that the trial court was required to grant its request for a hearing on the reasonableness of the Hendrickses’ bill of costs. The Hendrickses’ bill of costs included costs that were statutorily allowed or otherwise subject to a fixed standard, as well as costs for expert witnesses that cannot be validated by statute or a fixed standard. The trial court did not abuse its discretion in denying the request for a hearing on costs where Allied did not specify which costs it contested and offered no reason for its challenge other than a bare statement that the costs were unreasonable.

Allied also argued that the trial court erred by awarding the Hendrickses prejudgment interest from the date their property was damaged. Because the jury returned a general verdict form that did not apportion damages, the trial court appropriately awarded prejudgment interest from the date the Hendrickses’ house initially was damaged, which also is when any noneconomic damages began accruing.

Summary and full case available here.

Colorado Court of Appeals: District Court Erred in Denying Class Certification Where Homeowners’ Damages Were Different but Nexus Existed Between Claims

The Colorado Court of Appeals issued its decision in Devora v. Strodtman on May 24, 2012.

Class Action—Homeowners—Notice of Appeal—Typicality—Adequacy—CRCP 23(a)—Damages.

In this case involving allegations of deceptive trade practices, civil theft, and racketeering, plaintiffs Jesus Devora, Julian Martinez, and Manuel Moreno (collectively, homeowners) appealed the district court’s order denying their motion to certify the case as a class action lawsuit against defendants J. Mark Strodtman and JS Real Estate LLC. The judgment was vacated and the case was remanded.

Defendants built homes in Weld County that were purchased by homeowners. Homeowners alleged in their complaint that defendants induced them to buy homes under prices and terms they could not afford, misrepresented and failed to disclose loan financing terms, engaged in a pattern of racketeering, and intended to permanently deprive mortgage lenders of the proceeds defendants had received from the loans.

The Court of Appeals first determined whether plaintiffs’ notice of appeal was timely filed. Where a named plaintiff chooses not to file an interlocutory appeal of an order denying class certification under CRS § 13-20-901(1), the plaintiff does notwaive the right to appeal that order by requesting and obtaining a CRCP 54(b) certification of final judgment, or on a final judgment on the merits. Because homeowners chose not to appeal the district court’s order under CRS § 13-20-901(1), they had the option of awaiting a final judgment on the merits of their individual claims or requesting a CRCP 54(b) order. Homeowners obtained a Rule 54(b) order and filed a timely notice of appeal. Therefore, this Court had jurisdiction to consider plaintiffs’ appeal.

Homeowners contended that the district court erred in finding they did not meet the typicality and adequacy requirements of CRCP 23(a) because the class members had differing damages from one another. The class representatives, however, need to establish only “a nexus between the class representatives’ claims or defenses and the common questions of fact or law which unite the class” to meet the typicality requirement. The typicality requirement may be satisfied even though there is disparity in the damages claimed by the class representatives and the putative class members. Here, the district court erred as a matter of law in finding that homeowners had failed to prove the typicality element of CRCP 23(a), because their damages might or would be different from those of the potential class members. The district court did not make specific findings regarding the remaining requirements of CRCP 23(a) and (b)(3). Thus, it is unknown whether homeowners established those requirements. Therefore, the case was remanded to the district court for further findings of fact and a determination whether homeowners’ class action lawsuit should be certified.

Summary and full case available here.

Colorado Court of Appeals: Multiple Errors in Trial Court for Consolidated Workers’ Compensation/Medical Malpractice Actions

The Colorado Court of Appeals issued its opinion in Schuessler v. Wolter on May 24, 2012.

Medical Malpractice—Workers’ Compensation Benefits—Jury Instruction—Negligence—Exclusion of Expert—Fair Debatability—Economic and Noneconomic Damages—Designated Nonparty—Comparative Fault—Prejudgment Interest—Subrogation Rights.

In these bad-faith cases, defendants James Wolter, MD and Pinnacol Assurance appealed the judgments entered on jury verdicts in favor of plaintiff Michael Schuessler, who cross-appealed certain trial court rulings. The judgment against Dr. Wolter was reversed and the case was remanded for a new trial as to him. The judgment against Pinnacol was affirmed in part and reversed in part, and the case was remanded for further proceedings.

Schuessler was injured on the job and filed a workers’ compensation claim with R. Merrill, Inc. (Merrill), his putative employer. Pinnacol, which provided workers’ compensation insurance coverage for Merrill, denied the claim. Dr. Wolter, a neurosurgeon, performed surgery on Schuessler for his injuries. The surgery caused damage to his spinal cord. Schuessler commenced a medical malpractice action against Dr. Wolter. Schuessler also filed a common law bad-faith breach of insurance contract action against Pinnacol, contending that it had wrongly denied him workers’ compensation benefits. The cases were consolidated, and a jury awarded damages to Schuessler against Pinnacol and Dr. Wolter.

On appeal, Dr. Wolter contended that the trial court erred in rejecting its proposed jury instruction, arguing that a physician does not guarantee or promise a successful outcome simply by treating or agreeing to treat a patient, and an unsuccessful outcome does not, by itself, mean the physician was negligent. Dr. Wolter’s expert specifically stated that the outcome could occur without negligence. Because the proffered instruction accurately stated the law and no other instruction informed the jury that Dr. Wolter could not be held liable merely because of a bad outcome, it was reversible error for the court to reject it.

Pinnacol asserted that the trial court erred in denying its motion for directed verdict or judgment notwithstanding the verdict. The defense of fair debatability is not in itself a complete defense to a bad-faith claim. Here, the reasonableness of Pinnacol’s conduct was disputed, and a reasonable person could reach the same conclusion as the jury. Accordingly, the trial court did not err in denying the motion.

Pinnacol also argued that the jury awarded excessive and duplicative economic and noneconomic damages to Schuessler, warranting a new trial. However, there was sufficient evidence in the record to support the award of economic damages. Additionally, there was support on record for the noneconomic damages award, and the amount awarded was not so grossly and manifestly excessive as to indicate that it was based on passion or prejudice.

Pinnacol further contended that the damages award was affected by the trial court’s erroneous failure to admit an exhibit it tendered at trial. Pinnacol’s exhibit depicted the amount and duration of its payments to Schuessler in chart form. Because the information contained in the exhibit was covered by other evidence introduced, the trial court abused its discretion in rejecting the exhibit.

Pinnacol asserted that the jury awarded duplicative damages because it awarded Schuessler the same amount of noneconomic damages that it awarded against Dr. Wolter. However, Pinnacol failed to overcome the presumptions that the jury followed the instruction not to award duplicative damages.

Pinnacol contended that the trial court erred in allowing Schuessler’s bad-faith insurance expert to testify at trial. There is no per se requirement that an expert should be excluded unless he or she has adjusted a workers’ compensation claim in Colorado, and Schuessler’s expert was otherwise qualified as an expert. Therefore, the court did not err in allowing this expert’s testimony.

Pinnacol asserted that the trial court erred in rejecting its tendered instruction concerning the liability of a designated nonparty. Pinnacol designated Merrill a nonparty at fault, but Pinnacol failed to establish that Merrill, as Schuessler’s employer, had a legal duty to Schuessler to maintain and immediately produce employment records such that a violation of that duty would give rise to a claim against it by Schuessler.

Pinnacol argued that the trial court erroneously rejected its instruction on the comparative fault of Schuessler. Pinnacol’s assertions that Schuessler was comparatively at fault because he asked for a postponement of the workers’ compensation hearing, failed to attend an appointment with a second doctor, and initially delayed several weeks before going to the doctor after the injury were insufficient to warrant an instruction.

Pinnacol asserted that the trial court’s award of costs should be reversed or reduced. The award of fees, which should be attributable only to the case against Dr. Wolter, should not be assessed against Pinnacol. The case was remanded to reverse this portion of the cost award.

Pinnacol also contended that the trial court improperly awarded prejudgment interest. Because Schuessler’s economic damages did not result from a personal injury inflicted by Pinnacol, the case was remanded for the court to properly compute the prejudgment interest on Schuessler’s economic damages based on the wrongful withholding statute, CRS § 5-12-102(1)(a).

Pinnacol argued that the trial court improperly ruled that it had waived its right to make a subrogation claim against Schuessler’s recovery from Wolter. Waiver is the intentional relinquishment of a known right. Here, Pinnacol did not waive its subrogation rights. Accordingly, on remand, Pinnacol may assert its subrogation rights.

Summary and full case available here.

Governor Hickenlooper Appoints More to Judicial Nominating Commissions

On Tuesday, May 29, 2012, Governor John Hickenlooper announced several Board and Commission appointments. The appointments were to the Second, Fifth, Sixth, Twelfth, and Twenty-First Judicial District Judicial Nominating Commissions.

Colorado’s twenty-two judicial districts have judicial district nominating commissions that select nominees for district and county judicial vacancies. Each district nominating commission is chaired by a justice of the Supreme Court, who is a non-voting member of the commission.

Commission members serve six-year terms. Non-lawyers, who are the majority of every nominating commission, are appointed by the governor. Lawyer members are appointed by joint action of the governor, attorney general, and chief justice.

The members appointed to the Second Judicial District Judicial Nominating Commission for terms expiring December 31, 2017, are:

  • Larry Allen Nelsen of Denver, to serve as a non-attorney and as a Republican from Denver County.
  • Andrew Dean Schneider of Denver, to serve as a non-attorney and as an Unaffiliated from Denver County.

The members appointed to the Fifth Judicial District Judicial Nominating Commission for terms expiring December 31, 2017, are:

  • Gregory V. Johnson of Edwards, to serve as a non-attorney and as a Republican from Eagle County.
  • Heather N. Scanlon of Leadville, to serve as a non-attorney and as a Democrat from Lake County.

The member appointed to the Sixth Judicial District Judicial Nominating Commission for a term expiring December 31, 2017, is:

  • Stephen C. Fearn of Silverton, to serve as a non-attorney and as a Democrat from San Juan County.

The member appointed to the Twelfth Judicial District Judicial Nominating Commission for a term expiring December 31, 2017, is:

  • Marvin K. “Zeke” Ward of Creede, to serve as a non-attorney and as a Republican from Mineral County.

The members appointed to the Twenty-First Judicial District Judicial Nominating Commission for terms expiring December 31, 2017, are:

  • Ivan Daniel Geer of Grand Junction, to serve as a non-attorney and as a Republican from Mesa County.
  • Beverly Jean Sewell of Grand Junction, to serve as a non-attorney and as a Republican from Mesa County.

Legal Writing Pro: Stop Cutting “That”

When I ask my audiences which words or phrases they like to cut from their drafts, someone often mentions the word “that.”

Not so fast, I suggest.

Read this sentence to see why:

After an evidentiary hearing, the court found Buffalo Wild Wings was not a fast-food restaurant and, hence, was not covered by the restrictive covenant.

I plucked this example from the first pages of an Illinois Court of Appeals opinion on Buffalo Wild Wings and on trailing modifiers in restrictive covenants (don’t ask).

In this sentence, and in millions more just like it, cutting “that” does more harm than good.

After all, the Buffalo Wild Wings restaurant wasn’t lost, so the court didn’t “find” it, despite what the court suggests.

Incidentally, we should also change “hence” to “thus” and cut the pair of commas.

So we end up with something like this:

After an evidentiary hearing, the court found that Buffalo Wild Wings was not a fast-food restaurant and thus was not covered by the restrictive covenant.

Other sentences in the opinion need similar fixes:

The court found the action was to determine the consequences of future action: in the event Reed returned the dozer, would Roland be obligated to accept it and return the purchase price?

The court didn’t find a lost action here; it found that the action had an aim.

Lopax appeals the court’s decisions (1) the restrictive covenant covered only fast-food restaurants serving primarily chicken, (2) the declaratory-judgment action was not barred by the doctrine of nonliability for past conduct, . . .

Lopax, for its part, didn’t appeal a “decision the restrictive covenant covered” (whatever that might mean); it appealed from a decision that the covenant covered a certain kind of restaurant.

Bottom line: give “that” a break. By doing so, you’ll be following the lead of our Supreme Court:

Anthony Kennedy, Citizens United v. Federal Election Commission, opinion:

Austin had held that Congress could prohibit independent expenditures for political speech based on the speaker’s corporate identity.

John Paul Stevens, Citizens United v. Federal Election Commission, dissent:

Yet in a variety of contexts, we have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms.

We have long since held that corporations are covered by the First Amendment, and many legal scholars have long since rejected the concession theory of the corporation.

And our new Solicitor General:

Donald B. Verrilli, Jr., FCC v. Fox Television Stations, merits brief:

Fox contends that past Commission orders involving those words could not have alerted it that the Billboard Music Awards broadcasts would be considered indecent because the prior orders involved the “repeated[]” use of the expletives.

Moreover, many programs are not rated at all, and even for rated programs, a recent study found that “only 5% of parents felt that television ratings were always accurate.”

While acknowledging that its own standards “generally do not permit” broadcast of the F-Word or S-Word, Fox contends that those standards are “irrelevant to the vagueness analysis.”

Donald B. Verrilli, Jr., HHS v. Florida, merits brief:

In particular, Congress found that without a minimum coverage provision, “many individuals would wait to purchase health insurance until they needed care,” taking advantage of the Act’s guaranteed-issue and community rating provisions, thereby driving up costs in the non-group market (and, indeed, threatening the viability of that market).

And even the Wall Street Journal:

The Georgia Supreme Court’s unanimous ruling concludes that the 1994 state law “restricts speech in violation of the free speech clauses” of the U.S. and Georgia constitutions.1

In congressional testimony on Thursday, Fed Chairman Ben Bernanke acknowledged that low rates penalize savers.2

Just to be clear, I’m not suggesting that you never cut “that.” I’m simply suggesting that confusing the reader even for a second is far worse than including one short four-letter word. So while “The court found the bank” can mislead, “I suggest you call him” cannot.

And that’s enough of “that.”


  1. Wall Street Journal, “Georgia Court Overturns Law Restricting Assisted Suicide,” Feb. 6, 2012.
  2. Wall Street Journal, “Itchy Investors Ramp Up the Risk,” Feb. 6, 2012.

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

Tenth Circuit: Unpublished Opinions, 5/24/12

On Thursday, May 24, 2012, the Tenth Circuit Court of Appeals issued one published opinion and nine unpublished opinions.

Ontiveros-Perez v. Medina

Battle v. J-M Manufacturing Co.

Hearron v. Voith Industrial Services, Inc.

Clinton v. United States

United States v. Anderson

Robinson v. Rudek

United States v. Richards

Marian v. Socorro Electric Cooperative of New Mexico

Witmer v. Grady County Jail

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.