November 23, 2017

Archives for January 3, 2013

Colorado Court of Appeals: Plaintiffs’ Unexplained Delay in Filing Complaint Not Attributable to Defendant and Therefore Extension of Statute of Limitations Not Applicable

The Colorado Court of Appeals issued its opinion in Damian v. Mountain Parks Electric, Inc. on Thursday, December 27, 2012.

Colorado Consumer Protection Act—Deceptive Trade Practices—Statute of Limitations—Extension—Equitable Tolling.

Plaintiffs Ann Damian and John Taylor, Jr. appealed the summary judgment in favor of defendant Mountain Parks Electric, Inc. The judgment was affirmed.

Plaintiffs filed a complaint against defendant, asserting claims under the Colorado Consumer Protection Act (CCPA) for damages allegedly caused by defendant’s deceptive trade practices in the marketing and sale of a heating system.

Plaintiffs contended that the district court erred in not applying the one-year extension of the statute of limitations set forth in CRS § 6-1-115. The CCPA provides for a limitations period of three years, but extends that limitations period by one year if the plaintiff proves that the defendant caused the plaintiff to delay or refrain from filing the action. Here, it was not defendant’s conduct that caused the statute to run, but rather plaintiffs’ unexplained eighteen-month delay in instituting the administrative proceeding through the Colorado Public Utilities Commission.. Therefore, the district court did not err in ruling that the one-year extension of the statute of limitations was not applicable based here.

Plaintiffs also argued that the district court should have held that the statute of limitations was equitably tolled in light of the facts and procedural history of this case. Because the CCPA already provides a one-year extension of the limitations period if a defendant engages in conduct calculated to induce the plaintiff to refrain from or postpone the commencement of the action, application of the equitable tolling doctrine to the CCPA would be redundant. Accordingly, the district court did not err in dismissing plaintiffs’ complaint on statute of limitations grounds.

Summary and full case available here.

Colorado Court of Appeals: Review of Sexually Violent Predator Designation is Issue of Law and Not Discretionary

The Colorado Court of Appeals issued its opinion in People v. Brosh on Thursday, December 27, 2012.

Sexual Assault of a Minor—Sexually Violent Predator Designation—Crim.P. 35(b).

Defendant Jeffrey Brosh appealed the trial court’s order denying his Crim.P. 35(b) motion. The order was affirmed.

Brosh was charged with multiple counts arising from incidents in which he sexually assaulted and provided alcohol to a 12-year-old. Brosh pleaded guilty to one count of sexual assault on a child by one in a position of trust in exchange for dismissal of the other charges.

On appeal, Brosh contended that the trial court should have reconsidered the sexually violent predator (SVP) designation under Crim.P. 35(b) because it is part of his sentence. Sex offender registration is not an element of a defendant’s sentence. Review of an SVP designation is an issue of law, and, unlike the determination of a sentence within the sentencing range, it is not discretionary. Accordingly, discretionary reconsideration of an SVP designation by the trial court under Crim.P. 35(b) is not available.

Brosh also contended that the trial court applied an incorrect legal standard when it determined that it could not grant his Crim.P. 35(b) motion without infringing on the Executive Branch’s authority. The trial court correctly found that it could not modify a sentence based solely on evidence of defendant’s conduct during incarceration. Accordingly, the court did not misapply the law in denying Brosh’s Rule 35(b) motion.

Summary and full case available here.

Colorado Court of Appeals: Plaintiff in Personal Injury Action Has No Affirmative Duty to Mitigate Medical Expenses when Pain is Unresolved

The Colorado Court of Appeals issued its opinion in Banning v. Prester on Thursday, December 27, 2012.

Automobile Accident—Injuries—Jury Instructions—Mitigation of Damages—Collateral Source Rule—Testimony.

In this automobile accident case, plaintiff Michelle Banning appealed the judgment awarding her damages following a jury verdict against defendant William Prester. The judgments were reversed and the case was remanded for a new trial.

Prester negligently drove his vehicle, causing a low-speed rear-end collision with Banning’s vehicle. Banning sought medical attention for neck and back pain. Her billed medical expenses eventually reached approximately $140,000.

On appeal, Banning asserted that the trial court erred in instructing the jury concerning Prester’s mitigation of damages defense by allowing the jury to find she failed to mitigate if she “continued to undergo expensive treatment when it was not resolving her pain.” Plaintiffs do not have an affirmative duty to cease medical treatment when it is “expensive” and “fails to resolve a complaint of pain.” Therefore, the court erred in so instructing the jury, and the erroneous instruction was prejudicial to Banning. Accordingly, the case was remanded for a new trial on damages.

Banning also contended that the trial court erred in admitting evidence of amounts her health insurer paid to her medical providers. On remand, the trial court should apply the collateral source rule to this evidence.

Banning further asserted that the trial court erred when it allowed Dr. Lambden, Prester’s expert witness, to provide testimony about the “delta forces” involved in the accident, as well as testimony concerning Banning’s history of being subjected to domestic abuse. Contrary to Banning’s assertion, however, Dr. Lambden did not mention delta forces again after Banning’s objection to this testimony was sustained by the court. Further, the reference to Banning’s history of domestic abuse was relevant to Banning’s claim of depression after the accident and Prester’s assertion that Banning suffered from delayed recovery syndrome. Therefore, the court did not err in this regard.

Summary and full case available here.

Colorado Court of Appeals: Announcement Sheet, 1/3/13

The Colorado Court of Appeals issued no published opinions and three unpublished opinions on Thursday, January 3, 2013.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 1/2/13

On Tuesday, January 2, 2013, the Tenth Circuit Court of Appeals issued no published opinions and five unpublished opinions.

Leo v. Garmin International

United States v. Perez-Lopez

United States v. Swearingen

Smith v. Nichols

United States v. Rocha-Roman

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

Change Without Judgment — Tension and Release (Part 6)

rhodesThis is Part 6 of a six-part series. Part 1Part 2Part 3, Part 4, and Part 5 are available here, so go back and read them now — you’ll be glad you did.

Happy New Year! Did you make any resolutions? If so, take them out and look them over. Do they contain the usual “I’m unhappy about X and need to change it or I’ll be in trouble” kinds of resolutions? If so, and if you’ve been following this series of posts, you know I don’t think they’re going to work for you. Here’s one last explanation why not, and then we’ll move on to another topic.

We’ve been talking about how all those should’s and ought’s come loaded with judgment – against ourselves and our lives, against others, and against life itself. Those kinds of fearful and critical judgments build up a mass of unprocessed negative energy in our souls that weighs us down and impedes us from moving ahead. We need to learn to release it, and get it moving and working for us instead.

Sports psychologists talk about learning to control arousal tension and release. (No, not that kind of arousal and release!) An athlete or team that’s too hyped up can lose focus, make dumb mistakes, and burn out too quickly. Or if they’re under-aroused – e.g., if they’ve hit the wall or they’re dragging in the fourth quarter – they need to build the energy back up.

In the same way, we can control our own internal tension and release practice in order to create sustainable change energy. If we’ve created negative judgment energy around our goals, we can move it out of the way by creating a sense of urgency that releases positive, change-making energy in its place. If we don’t do this, those negative judgments will just pile up inside, keeping us stuck in status quo.

The simplest approach I know is to create a two-a-day habit:  do two things every day to move toward your goal. You can do more if you like, but the next day you still need to do two more. Every day – write two things down, do them, cross them off (always a happy moment!), and then write two more for the next day.

That’s it. Simple but powerful. Do this day after day, and negative energy has no time to build up. Instead, you’re constantly moving your goal, which is its own reward. How about you try this with your resolutions this year?

Five years ago, Kevin Rhodes left a successful 20+ years career in private practice to pursue a creative dream. He recently gave himself the title “Change Guru” to describe his work helping individuals and organizations to make transformative changes. He leads lead workshops on that topic for a variety of audiences, including the CBA’s Job Search and Career Transitions Support Group. To learn more, see http://kevin-rhodes.com/.

Colorado Real Estate Commission Forms Effective January 1, 2013 (Revised)

The Colorado Real Estate Commission amended several forms in 2012, which are effective January 1, 2013 and mandatory for use by licensed real estate brokers. The forms are available as PDFs that may be downloaded from a zip file on the Colorado Real Estate Commission website.

The forms with a January 1, 2013 effective date are:

  • AE 41-9-12 – “Agreement to Amend/Extend Contract”
  • CBS1-9-12 – “Contract to Buy and Sell Real Estate (Residential)”
  • CBS2-9-12 – “Contract to Buy and Sell Real Estate (Income – Residential)”
  • CBS3-9-12 – “Contract to Buy and Sell Real Estate (Commercial)”
  • CBS4-9-12 – “Contract to Buy and Sell Real Estate (Land)”
  • CBSF1-9-12 – “Contract to Buy and Sell Real Estate (Colorado Foreclosure Protection Act)”
  • CL8-9-12 – “Closing Instructions”
  • CP40-9-12 – “Counterproposal”
  • EBA53-10-12 – “Exclusive Brokerage Listing Addendum to Listing Contract”
  • EM9-9-12 – “Earnest Money Receipt”
  • GD31-9-12 – “Green Disclosure (Energy)”
  • LB36-10-12 – “Licensee Buy-Out Addendum to Contract to Buy and Sell Real Estate”
  • LC50-9-12 – “Exclusive Right-to-Sell Listing Contract”
  • LP45-9-12 – “Lead-Based Paint Disclosure (Sales)”
  • LP46-9-12 – “Lead-Based Paint Disclosure (Rentals)”
  • NTC43-10-12 – “Inspection Objection”
  • NTC43R-10-12 – “Inspection Resolution”
  • NTT44-9-12 – “Notice to Terminate”
  • RA33-9-12 – “Residential Addendum to Contract to Buy and Sell Real Estate”

These forms and all other Colorado Real Estate Commission forms may be downloaded from the Colorado Real Estate Commission website.

Governor Hickenlooper Signs Executive Order to Formalize Amendments S and 65

On Wednesday, January 1, 2013, Governor Hickenlooper signed an Executive Order to make formal the vote of the people of Colorado approving Amendment S and Amendment 65.

Amendment S makes several changes to the state’s personnel system, including increasing preference for veterans, allowing more flexibility for rehiring seasonal employees, expanding criteria on which to base hiring procedures, and giving department heads more control over their departments.

Amendment 65 permits the legislature and state lawmakers to lobby for an amendment to the U.S. Constitution to limit campaign spending.

For the official press release from the governor’s office, click here.

Colorado State Judicial Branch Revises Appeals, Miscellaneous, and Seal My Case Forms

The Colorado State Judicial Branch released several revised forms in the categories of Appeals, Miscellaneous, and Seal My Case in late December and early January. Many of the forms pertained to juvenile proceedings, including dependency & neglect appeals and sealing underage convictions.

Most forms are available in Adobe Acrobat (PDF) and Microsoft Word formats; many are also available as Word and Excel templates. Download the new form from State Judicial’s individual forms pages, or below.

APPEALS

  • Form 6 – “Certificate of Compliance” (revised 12/12)
  • JDF 545 – “Notice of Appeal (Cross-Appeal) and Designation of Record” (revised 12/12)
  • JDF 546 – “Certificate of Diligent Search” (revised 12/12)
  • JDF 547 – “Supplemental Designation of Record” (revised 12/12)
  • JDF 548 – “Petition on Appeal” (revised 12/12)
  • JDF 549 – “Response to Petition on Appeal (Cross-Appeal)” (revised 12/12)
  • JDF 640 – “Notice of Limited Appearance of Attorney With Consent of Pro Se Party Under C.A.R. 5 in an Appellate Matter” (revised 12/12)
  • JDF 641 – “Consent to Limit Appearance by An Attorney Under C.A.R. 5” (revised 12/12)
  • JDF 642 – “Notice of Completion of Limited Appearance Under C.A.R. 5 in an Appellate Matter” (revised 12/12)

SEAL MY CASE

  • JDF 304 – “Order of Expungement of Records Juvenile or Criminal Case” (revised 12/12)
  • JDF 314  – “Order to Seal Pursuant to § 18-13-122(10), C.R.S.” (revised 12/12)
  • JDF 418 – “Order to Seal Arrest and Criminal Records Pursuant to § 24-72-308, C.R.S.” (revised 12/12)
  • JDF 419 – “Order and Notice of Hearing (Sealing of Records)” (revised 12/12)
  • JDF 615 – “Order to Seal Criminal Conviction Records for Offenses Involving  Controlled Substances Pursuant to § 24-72-308.5, C.R.S.” (revised 12/12)

MISCELLANEOUS

  • JDF 79 – “Instructions for Issuing a Subpoena” (revised 1/13)
  • JDF 80 – “District Court Subpoena to Attend, Attend and Produce, or Produce” (revised 1/13)
  • JDF 80.1 – “Notice to Subpoena Recipients” (issued 1/13)
  • JDF 80.2 – “County Court Subpoena to Attend or Attend and Produce” (issued 1/13)

All of State Judicial’s forms may be found here.