May 23, 2018

Archives for August 22, 2012

Theresa Slade Appointed as Eighteenth Judicial District Court Judge

On Wednesday, August 22, 2012, Governor John Hickenlooper appointed Theresa Slade to serve as District Court Judge in the Eighteenth Judicial District, which covers Arapahoe, Douglas, Elbert, and Lincoln counties. Slade will fill the vacancy created by the resignation of the Honorable Valeria Spencer, effective immediately.

Slade currently serves as a magistrate in the Eighteenth Judicial District, a position she has held since May 2011. In this role, she has a domestic relations docket with additional duties including preliminary hearings in felony criminal matters, juvenile court trials and mental health hearings. Prior to being a magistrate she ran a private practice, Slade & Associates, from 2000 to 2011. Previously, she was an associate municipal judge for the City of Lone Tree and an associate municipal/teen court judge for the Town of Castle Rock. In these capacities, Slade dealt with all municipal cases including theft, drug and alcohol violations, and traffic.

Slade earned her bachelor’s degree from Colorado State University and her law degree from the University of Denver Sturm College of Law.

Colorado Revised Statutes Now an eBook for Mobile Devices

We are excited to announce that Circuit Media, in partnership with CBA-CLE, has developed a 3-volume, digital version of the Colorado Revised Statutes (C.R.S.). An essential part of any attorney’s work day, the C.R.S. eBook will be available for purchase and download on any eReader (this includes your iPad, iPhone, Droid, and Kindle) for research on the go.

Benefits of using the C.R.S. eBook:

  1. Officially sanctioned version using the official text of the C.R.S. – ensuring accuracy and integrity
  2. Access anywhere, any time – no Internet connection needed
  3. Provides you with productivity tools to make your work easier including highlighting, copy and paste, bookmark and note creation
  4. Keyword and text search capabilities
  5. All 43 Titles accessible at your fingertips without the headache (and backache!)

The C.R.S. eBook will be utilized by thousands of attorneys daily. Looking for attorney referrals to increase your brand awareness or your business? Advertising within the C.R.S. eBook is an easy and cost-effective way to expand your net.

For all the details, email info@circuitmedia.com.

The complete eBook information guide and advertising order form can be read below, or click here to download or print it.

Colorado Revised Statutes Now an eBook

Professors Calhoun and Wilkinson Named Winners of Jules Milstein Scholarship Award

Editor’s Note: Celebrate the opening of the Supreme Court’s next term. Details below.

The University of Colorado School of Law has announced professors Emily Calhoun and Charles Wilkinson as the 2012 winners of the Jules Milstein Scholarship Award. Prof. Calhoun is the author of Losing Twice, while Prof. Wilkinson was recognized for The People are Dancing Again. As noted on the CU Law website, the award is given to “Colorado Law faculty . . . for a substantial published work that best demonstrates excellence in legal scholarship. It is normally given once a year at the end of the spring semester for a work published at any point in the preceding two calendar years.”

Prof. Calhoun began her legal career in the early 1970s as a civil rights attorney with the Southern Regional Office of the ACLU. She has consulted with organizations and attorneys on civil rights issues, and has worked to protect faculty rights and privileges through administrative and other service at the University of Colorado. She teaches and writes in the areas of civil rights, intractable disputes, and federal jurisdiction. In addition to her faculty responsibilities, Professor Calhoun currently serves as both a mediator and an ombudsperson for faculty disputes at the University. In Losing Twice, Prof. Calhoun argues that Supreme Court decisions often inflict a second loss on the losing parties and that the outrage generated by well-known decisions such as Gonzales v. Carhart and Bowers v. Hardwick is a consequence of this second loss.

Prof. Wilkinson worked with the Native American Rights Fund and taught at the University of Oregon, the University of Michigan, and the University of Minnesota before coming to CU Law in 1987. Prof. Wilkinson’s scholarship and teaching focus on federal public land law and Indian law. He is the author of thirteen books, ranging from text books on public land law and Indian law to books aimed at a general audience. Prof. Wilkinson received the 2005 Colorado Book Award in the History category for Blood Struggle: The Rise of Modern Indian Nations and the 2000 Colorado Book Award in the Colorado/West category for Messages From Frank’s Landing. His latest book, The People Are Dancing Again: The Siletz Tribe Of Western Oregon, explores the history of Oregon’s Siletz tribe from initial contact with Europeans through termination of the tribe and eventual restoration of the tribe’s official status.

Please join Prof. Calhoun at the CBA-CLE offices on October 1, 2012, as we celebrate the opening of the Supreme Court’s next term. Prof. Calhoun will discuss Losing Twice, and encourages participants to bring examples of U.S. Supreme Court constitutional rights decisions that they consider to be outrageous. These decisions will be used to explore Professor Calhoun’s argument about losing twice in rights disputes.

CLE Program: Losing Twice – Harms of Indifference in the Supreme Court with Emily Calhoun

This CLE presentation will take place on Monday, October 1. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.

Colorado Court of Appeals: Corporation Incorporated in Another State May Be Considered “Citizen” of This State for C.R.C.P. 102 Purposes

The Colorado Court of Appeals issued its decision in Old Republic National Title Insurance Co. v. Kornegay on August 16, 2012.

Prejudgment Attachment.

Roger Kornegay appealed three trial court orders sustaining a prejudgment attachment obtained by Old Republic National Title Insurance Company (Old Republic) in connection with its pending civil action against him. The orders were affirmed.

Old Republic paid its insured $250,000 following the insured’s purchase of property from Kornegay that Kornegay did not own. Old Republic then sued Kornegay, alleging that its losses were the result of a fraud scheme he had perpetrated. Old Republic also filed an ex parte motion for a prejudgment writ of attachment pursuant to CRCP 102.

Old Republic’s investigator, Pollock, submitted a supporting affidavit and, on that basis, Old Republic alleged there was “a real threat that [Kornegay] or individuals he is close to will further transfer or hide his assets,” thereby rendering execution unavailable in the event of a judgment against him. The trial court granted the motion and issued the writ without requiring Old Republic to post a bond.

Old Republic served the writ, along with a writ of continuing garnishment in aid of attachment, on four banks, several Colorado county treasurers, and the clerk and recorder of El Paso County, where Kornegay owned real property. Kornegay, who was incarcerated in Nebraska, was served with copies.

Through counsel, Kornegay moved to dismiss and discharge the attachment and quash the garnishment. He also filed a traverse, a counterclaim for wrongful attachment, and a notice of a claimed homestead exemption. In three orders entered the same day, the trial court denied Kornegay’s motions and dismissed his counterclaim. Kornegay appealed.

Kornegay did not challenge the sufficiency of the Pollock affidavit to establish the grounds for attachment under CRCP 102. Rather, he argued that the attachment was wrongful because (1) Old Republic is not a Colorado resident and thus cannot avail itself of the remedy of prejudgment attachment; (2) the procedural requirements of CRCP 102 (d), (h), (i), and (n) were not met; (3) the trial court should not have sustained the attachment without addressing his homestead exemption claim; and (4) the trial court erred in dismissing his counterclaim for wrongful attachment. The Court of Appeals found no grounds for reversal.

Old Republic is registered to conduct business in Colorado and has three offices in the state, but its principal place of business is in Minnesota. Colorado courts have not addressed whether a foreign corporation authorized to conduct business in Colorado and having offices here may be considered a “resident of this state” for purposes of CRCP 102. The Court looked to cases from other jurisdictions for edification.

A corporation generally is considered to be domiciled in, and a citizen of, its place of incorporation, but it may for some purposes be considered a resident of more than one state. The Court found that Old Republic is a “resident of this state” for purposes of CRCP 102. It has a presence (three offices) and “no present intention of definite and early removal.” It therefore may avail itself of the remedy of prejudgment attachment.

As to Kornegay’s arguments regarding the other sections of CRCP 102, the Court held that use of a private process server to serve the writ on a defendant incarcerated in another state complied with the rule and that it wasn’t necessary for the sheriff to serve the writ. As to CRCP 102(h), the tax liens were security interests in real property, and serving writs of garnishment in aid of attachment on the treasurers of the counties where the property was located satisfied the requirements of the rule.

The failure to post a bond was not error because Old Republic offered to post a bond in a nominal amount if required to do so, and the trial court waived bond. Kornegay argued this was not waivable; Old Republic replied that the court effectively set the bond at zero. The Court found this an appropriate exercise of the court’s discretion, given the resources of Old Republic to satisfy any damages or costs Kornegay might incur if the attachment was wrongful.

Kornegay argued that CRCP 102(n) was not complied with because no hearing was held on his traverse. The Court found that Kornegay did not file an effective traverse, so no hearing was required. The traverse was ineffective because it was not supported by an affidavit.

The Court also found that Kornegay’s claimed homestead exemption was properly rejected because neither Kornegay nor his wife resided at the subject property. Accordingly, the orders were affirmed.

Summary and full case available here.

Colorado Court of Appeals: Where Liability Admitted in Workers’ Compensation Case, Burden Shifts to Respondent if Liability Later Disputed

The Colorado Court of Appeals issued its opinion in Rodriguez v. Industrial Claim Appeals Office on August 16, 2012.

Compensable Accidental Employment Injuries—Burden of Proof—Admission of Liability.

Helen M. Rodriguez appealed from an order issued by the Industrial Claim Appeals Office (Panel) in favor of the City of Brighton and its insurer, CIRSA (collectively, Brighton). The order was set aside and the case was remanded with directions.

Rodriguez works for the City of Brighton as a special events coordinator. One morning, she fell while descending the stairs to her office. She was taken to the emergency room, where she received a CT scan and an MRI. The tests revealed unruptured brain aneurysms.

Brighton initially admitted liability for Rodriguez’s disability and medical benefits. It later sought to withdraw its admission, arguing the injuries did not arise out of her employment.

An administrative law judge (ALJ) found that (1) because Brighton initially admitted liability, it bore the burden of proof under CRS § 8-43-201(1); (2) Rodriguez’s fall was not caused by her aneurysms but was “unexplained”; and (3) because her fall was unexplained, her injuries were not compensable. Brighton therefore sustained its burden of proving non-compensability and could withdraw its admission of liability. Rodriguez appealed to the Panel, which affirmed the ALJ’s order.

Rodriguez argued the ALJ erred in ruling her injury was not compensable. The Court of Appeals agreed. An employee may recover for accidental injuries “arising out of and in the course of the employee’s employment.” It was undisputed Rodriguez was injured in the course of her employment; the question was on the “arising out of” prong. Ordinarily, the plaintiff bears the burden of proving this element. Here, the burden was shifted to the employer because of Brighton’s initial admission of liability. Consequently, the finding that the fall was unexplained was a failure of proof on Brighton’s part. Because Brighton failed to sustain its burden of proof, the ALJ erred in allowing it to withdraw its admission of liability. The Panel’s order was set aside and the case was remanded to the ALJ with directions to reinstate Brighton’s general admission and to conduct further proceedings as necessary.

Summary and full case available here.

Colorado Court of Appeals: Disciplinary Matrix Mandatory Subject of Collective Bargaining; Balancing Test Applied

The Colorado Court of Appeals issued its decision in Denver Firefighters Local No. 858, IAFF, AFL-CIO v. City & County of Denver on August 16, 2012.

Preliminary Injunction—Collective Bargaining—Discipline as a Term and Condition of Employment.

Defendants, the City and County of Denver (City) and Alex J. Martinez, the Manager of Safety (Manager), appealed from the trial court’s order granting a preliminary injunction in favor of Denver Firefighters Local No. 858, IAFF, AFL-CIO (Firefighters). The judgment was affirmed.

Firefighters are City employees subject to the supervision and control of the Manager, who is appointed by the Mayor. In 1971, Denver voters passed an amendment to the City Charter granting Firefighters the right to collectively bargain with the City over certain working conditions. The parties have had a collective bargaining agreement every year since the amendment. The current agreement (Agreement) has been in effect since January 1, 2010 and expires on December 31, 2012.

The instant dispute arose from defendants’ proposed unilateral creation and implementation of a discipline matrix for Firefighters, which does not have such a matrix but does have a system for imposing discipline that has been in place for decades. The discipline matrix would change the current system. The issue presented was whether defendants may do so without first negotiating with Firefighters.

In October 2010, the Manager indicated a desire to form a Discipline Advisory Group (DAG) to create a discipline matrix. Firefighters responded that a discipline matrix is a mandatory subject of collective bargaining. The Manager did not reply.

In March 2011, the same sequence of events occurred. In May 2011, Firefighters learned that the DAG had been created and would start holding meetings. Firefighters attended the first meeting to assert that the matrix was a mandatory subject of collective bargaining. Defendants disagreed and continued with their process to create the matrix.

Firefighters then filed this action requesting the issuance of a preliminary injunction. The trial court granted the motion and issued an order enjoining defendants from implementing a disciplinary matrix without first negotiating with Firefighters. Defendants appealed.

The Court of Appeals agreed with the trial court’s conclusion that the proposed discipline matrix is a mandatory subject of collective bargaining. The parties had no previous negotiated provision on discipline, so the Court looked to the Charter. Under the Charter, discipline is a subject of management authority; however, the Charter also makes discipline, as a term and condition of employment, a subject of collective bargaining. Each side argued that the Charter provision upholding their position should control. The Court looked to numerous cases from other jurisdictions and chose to apply a balancing test that weighs the impact that mandated collective bargaining on the subject will have on each of the parties’ interests. If the balance falls in favor of the employees, the subject is a mandatory subject of collective bargaining; if the balance falls in favor of the employer, it is not.

Here, in weighing the impact on each party, the Court concluded that the balance falls in favor of the employee and that discipline thus is a mandatory subject of bargaining. Accordingly, the order for a preliminary injunction was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Fractional Ownership Interests in Real Estate Development Do Not Constitute “Lots” Under HUD Definitions; Arbitrator’s Award Affirmed

The Colorado Court of Appeals issued its opinion in PFW, Inc. v. Residences at Little Nell Development, LLC on August 16, 2012.

Contract Rescission—Interstate Land Sales Full Disclosure Act—Arbitration Award.

PFW, Inc. (PFW) appealed the trial court’s judgment in favor of Residences at Little Nell Development, LLC (Little Nell) on its rescission claim arising under the Interstate Land Sales Full Disclosure Act (ILSFDA). PFW also appealed the trial court’s order denying its motion to vacate an arbitration award in favor of Little Nell on other non-ILSFDA claims. The judgment was affirmed.

In 2005, Little Nell began developing a private residential complex comprising eight hotel units, eight affordable housing units, three commercial units, and twenty-six condominium units at the base of Aspen Mountain. Little Nell sold one-eighth interests in the condominium units.

By December 2006, a one-eighth interest in a condominium unit sold for $3 million. Miller entered into a purchase agreement with Little Nell for such an interest at that price. He tendered $450,000 in escrow as earnest money. In May 2008, Miller assigned his rights under the purchase agreement to PFW, of which he is owner and president.

The construction completion deadline and closing date were in December 2008. The price had fallen due to the downturn in the economy. Before completion, PFW sent Little Nell a notice of its intent to rescind the agreement based on ILSFDA violations and contract breaches, and demanded release of its earnest money. PFW sued Little Nell, asserting eleven claims, including breach of ILSFDA and the Colorado Consumer Protection Act, breach of contract, and fraudulent inducement.

PFW alleged the same claims in arbitration pursuant to the arbitration clause of the agreement. The arbitrator found PFW in default under the agreement and entered interim and final awards in favor of Little Nell on all counts. PFW moved to vacate the award in May 2010; the motion was denied. Following a hearing, the trial court entered judgment in favor of Little Nell on the two ILSFDA claims in July 2011. PFW appealed.

PFW argued it was error to deny its statutory claim to rescind solely because the court held that Little Nell’s condominium project was exempt from ILSFDA’s registration and disclosure requirements. The Court of Appeals held that the fractional interests in the project’s twenty-six condominium units are not “lots” under the ILSFDA and therefore were exempt from registration and disclosure requirements. The Court looked to the ILFSDA and regulations promulgated by the U.S. Department of Housing and Urban Development (HUD) to determine whether an interest is a “lot.”

The ILFSDA’s registration and disclosure requirements do not apply to “the sale or lease of lots in a subdivision containing fewer than one hundred lots.” The term “lot” is not defined. HUD’s implementing regulations define “lot” as “any portion, piece, division, unit, or undivided interest in land located in any State or foreign country, if the interest includes the right to the exclusive use of a specific portion of the land.” HUD’s interpretive rules also provide further guidance.

The purchase agreement was for an “undivided [one-eighth] fee simple ownership interest as a tenant in common” in a four-bedroom “fractional ownership unit.” The Declaration further elaborated on the ownership interest. PFW argued that the twenty-six condominium units, each divided into eight fractional interests, constitute 208 “lots” under ILSFDA. The trial court disagreed, finding “no right of exclusive possession attaches to . . . ownership” of the fractional interests. Therefore, the development was exempt because it contained fewer than one hundred lots. PFW argued this was error because the fractional ownership interests in the Little Nell units are like ownership of traditional condominiums, which the Secretary of HUD has treated as lots.

The Court disagreed, noting that HUD’s regulations expressly require that an ownership interest “include[] the right to exclusive use of a specific portion of the land.” Here, the fractional ownership interest allowed for exclusive use of a designated unit type for four weeks every year, but not a specific unit. The owners do not obtain exclusive use of any portion of the project. It was not error for the trial court to deny PFW’s ILSFDA claims.

PFW then argued it was error not to vacate the arbitration award on the non-ILFSDA claims because the award was procured by fraud. The Court disagreed. PFW contended that Little Nell procured the arbitration award by fraudulently concealing that it had not properly registered with the Colorado Division of Real Estate (Division) when it executed the purchase agreement and therefore the agreement was “voidable by the purchaser and unenforceable by the developer.” The Court held that this was an issue for the arbitrator. Because it was not raised during the arbitration, it was not properly before the trial court. Therefore, the trial court correctly denied PFW’s motion to vacate the award.

Summary and full case available here.

Colorado Court of Appeals: Statute of Limitations for Breach of Contract Continued to Accrue for Each Successive Breach But Tolled for First Breach

The Colorado Court of Appeals issued its opinion in Neuromonitoring Assocs. v. Centura Health Corp. on August 16, 2012.

Breach of Contract—Statute of Limitations—Equitable Tolling—Genuine Issues of Material Fact—Continuing Breach.

In this action for breach of an exclusivity clause in a professional services contract, plaintiff Neuromonitoring Associates appealed the district court’s summary judgment entered in favor of defendants Centura Health Corporation, Catholic Health Initiatives Colorado, and Portercare Adventist Health System. The judgment was affirmed in part and reversed in part, and the case was remanded.

On January 5, 2010, plaintiff commenced this action seeking to recover damages arising out of defendants’ alleged breaches of an Intraoperative Nerve Monitoring Agreement (agreement), which became effective on July 1, 2004 and was valid for a term of one year with automatic renewals for additional one-year terms, unless otherwise terminated with proper notice. Defendants moved for summary judgment, arguing that plaintiff’s claims were barred by the three-year limitations period because plaintiff became aware of the alleged breach in 2005. The court dismissed plaintiff’s claims.

Plaintiff contended the district court erred in applying the three-year limitations period in CRS § 13-80-101(1)(a) rather than the six-year limitations period in CRS § 13-80-103.5(1)(a). Because the amounts plaintiff sought were not ascertainable by reference to the agreement or by simple computation, they are not “liquidated or determinable” within the meaning of § 13-80-103.5(1)(a). Consequently, the three-year breach of contract limitations period applied to plaintiff’s action.

Plaintiff next contended that the district court erred in concluding that defendants’ conduct did not warrant equitable tolling of the limitations period. Plaintiff failed to present evidence indicating that defendants wrongfully impeded its ability to bring its claims, or that it was ignorant of relevant facts that prejudiced its decision whether to file the action. Consequently, the district court properly concluded that equitable tolling of the limitations period was unwarranted.

Plaintiff further contended that there were genuine issues of material fact concerning when its cause of action first accrued. The undisputed evidentiary materials establish that plaintiff was aware beginning in April 2005 that defendant was breaching the agreement’s exclusivity provision. Therefore, the district court properly concluded there was no genuine factual controversy that the three-year limitations period on plaintiff’s cause of action began accruing in April 2005.

Plaintiff alternatively contended that the “continuing nature” of defendants’ conduct resulted in “repeated, successive breaches” and that its breach of contract cause of action must be deemed timely at least as to any breaches occurring within the three years preceding the January 5, 2010 filing of the complaint. In circumstances where a contract contains this type of continuing duty to perform, generally a new claim accrues for each separate breach and the plaintiff may assert a claim for damages from the date of the first breach within the period of limitation. Here, Each time defendants allowed another entity to perform services at one of the designated hospitals, a new alleged contract breach occurred. Insofar as plaintiff seeks recovery based upon alleged breaches occurring in the three-year period before January 5, 2010, when it commenced this action, plaintiff’s action was timely and the district court erred in concluding otherwise. Consequently, the case was remanded for reinstatement of those claims. Defendants’ request for attorney fees and costs incurred in defending this appeal were denied.

Summary and full case available here.