June 22, 2018

Archives for July 22, 2013

Eighth Judicial District Phone Numbers Will Change August 9, 2013

The Eighth Judicial District, which includes Jackson County and Larimer County, announced that all of its phone numbers will be changing on August 9, 2013. The phone numbers to change include the district court, county court, Loveland County Court, clerk of court, court administration, and all probation department locations.

The changes will be effective at 12:00 a.m. on Friday, August 9, 2013. The new numbers are listed below.

  • Clerk of Court main number Larimer County Justice Center – 970-494-3500.
  • Jury Commissioner – 970-494-3555.
  • Probation Larimer County Justice Center – 970-494-3900.
  • Probation Midpoint Office – 970-494-3960.
  • Loveland County Court main number – 970-622-2100.
  • Probation Loveland Police and Courts – 970-622-2150.
  • Probation Loveland 6th Street – 970-622-2180.

For more information, visit the webpage of the Eighth Judicial District or click here.

Tenth Circuit: EPA Had Authority to Review and Reject Oklahoma’s BART Determination Under Clean Air Act

The Tenth Circuit Court of Appeals published its opinion in State of Oklahoma v. United States Environmental Protection Agency on Friday, July 19, 2013.

Under the Clean Air Act (CAA), the Environmental Protection Agency (EPA) must create and review national ambient air quality standards for certain pollutants. States then have the responsibility to adopt state implementation plans (SIPs), which provide for implementation, maintenance, and enforcement of those primary and secondary air quality standards.

States, however, exercise this authority with federal oversight. The EPA reviews all SIPs to ensure that the plans comply with the statute. The EPA may not approve any plan that would interfere with any  requirement of the Clean Air Act.

At issue in this case were the portions of the CAA that seek to protect visibility at certain national parks and wildlife areas. A state—or the EPA, when promulgating a FIP—must: 1) determine which eligible sources in their state contribute to visibility impairment; and then 2) determine the “best available retrofit technology” (BART) for controlling the emissions causing that impairment at that source.

In 2005, the EPA issued an updated version of its Regional Haze Rule that required states to submit SIP revisions by December 17, 2007. On January 15, 2009, the EPA took final action in finding that Oklahoma failed to submit a SIP that addressed any of the Regional Haze elements by this deadline. This triggered the EPA’s duty to promulgate a federal implementation plan within two years. Before the EPA promulgated a FIP, however, Oklahoma submitted its SIP. After notice and comment, the EPA published the final rule enacting emissions limits. On February 24, 2012, the State of Oklahoma and the Oklahoma Industrial Energy Consumers filed in this court a petition seeking review of the EPA’s final rule.

In these consolidated petitions for review, petitioners challenged the final rule promulgated by the EPA. The petitioners argued that the EPA impermissibly rejected Oklahoma’s plan to limit the emissions of sulfur dioxide at Oklahoma Gas and Electric Company power plants and replaced it with its own more stringent regulations, which petitioners contended usurped the state’s authority and required sizable expenditures on unnecessary technology.

The Tenth Circuit agreed with the EPA that the statute provided the agency with the power to review Oklahoma’s BART determinations. The EPA rejected Oklahoma’s SIP because the BART determinations failed to comply with the required guidelines. The statute and the legislative history supported the Court’s conclusion that the EPA could reject BART determinations that do not comply with the guidelines. States have the ability to create SIPs, but they are subject to EPA review.  The Tenth Circuit therefore held that the EPA had authority to review the state’s BART plan.

The Tenth Circuit then had to determine whether the EPA lawfully exercised that authority when it rejected Oklahoma’s SIP. Petitioners argued that the EPA took arbitrary and capricious action in rejecting two sets of cost estimates they used in determining BART. In following the standards of the Administrative Procedure Act (APA) in reviewing the EPA’s actions under the CAA, the Tenth Circuit held that the EPA lawfully exercised its authority in rejecting Oklahoma’s SIP and promulgating its own. The EPA considered the relevant data and rationally explained its decision. The Court found petitioners’ arguments to be without merit.

Petitioners further challenged many decisions made by the EPA in promulgating the FIP. The Court reviewed these challenges under the same arbitrary and capricious standard it used to evaluate the EPA’s rejection of the SIP and rejected all of the petitioners’ arguments.

In addition to these arguments concerning the EPA’s substantive analysis, the petitioners raised a number of challenges to the procedures the EPA used in promulgating the rule. The CAA creates a high bar for any petitioner challenging an EPA action on procedural grounds. The petitioner must prove: 1) that the failure to observe the procedure was arbitrary and capricious; 2) that the objection was raised with reasonable specificity during the period for public comment; and 3) that the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made. The Tenth Circuit did not agree that the EPA’s actions violated the procedural requirements of the Clean Air Act.

In summary, the Tenth Circuit held that the EPA had the authority to review Oklahoma’s BART determinations. Moreover, it exercised that authority properly. Accordingly, the Court denied the petition for review of the EPA’s final rule.  The stay pending hearing by the merits panel was lifted.

Colorado Court of Appeals: Multiple Errors by District Court in Review of Water Quality Control Commission Decision

The Colorado Court of Appeals issued its opinion in Chostner v. Water Quality Control Commission on Thursday, July 18, 2013.

Municipal Water—Federal Clean Water Act—Public Notice—Antidegradation Reviews.

The regulation of water quality in Colorado is the domain of the Colorado Water Quality Control Commission (Commission) and the Water Quality Control Division (Division). These consolidated appeals arose from a decision of the Division to grant conditional certification to the Southern Delivery System (SDS)—a municipal water delivery project involving the construction of a fifty-three-mile pipeline—under § 401 of the federal Clean Water Act. Given its scope and magnitude, the SDS was the most expansive project reviewed by the Division in several decades.

The District Attorney for the Tenth Judicial District, the Office of the District Attorney for the Tenth Judicial District, and the Rocky Mountain Environment and Labor Coalition (collectively, Coalition) appealed the Division’s 401 certification to the Commission. The Commission affirmed the Division’s conditional certification. The Coalition then appealed the Commission’s decision to the district court. The district court reversed the Commission’s final agency action. The Commission, Commission Director Steven H. Gunderson, and Colorado Springs Utilities (collectively, Colorado Springs) appealed the district court’s judgment, and the Colorado Court of Appeals reversed.

On appeal, Colorado Springs and the Commission contended that the district court misapplied the relevant standard of review. The district court erred to the extent that it reweighed the evidence and made credibility determinations based on information outside the administrative record, including previous condemnation cases before it involving the SDS.

Colorado Springs and the Commission also contended that the district court erred in rejecting the Commission’s finding that the Division complied with the public notice requirements set forth in the Commission’s regulations. Wildhorse Creek and Lower Arkansas segment 1b did not need to be included in the public notice of the Division’s antidegradation review determination because they were classified as “use-protected.” Further, the Division’s draft 401 certification determination sufficiently identified the impacted water basin. The Division’s error in failing to include in its final public notice specific antidegradation language or information about changes it made to its § 401 certification based on public comment was harmless. Therefore, the public notices were sufficient.

Colorado Springs and the Commission further contended that the Commission’s findings were neither arbitrary and capricious nor contrary to rule or law. The Division properly conducted antidegradation reviews of the relevant stream segments, there was substantial evidence in the administrative record that the Division conducted these reviews, and there was a reasonable basis for the Division’s methodology in conducting its antidegradation reviews. Therefore, the administrative record supports the Commission’s findings, the Commission did not act in an arbitrary or capricious manner or contrary to law, and the district court erred in finding otherwise.

Colorado Springs and the Commission also contended that the district court erred as a matter of law in finding that federal law required the Division, as a prerequisite to issuing its 401 certification, to establish Total Maximum Daily Loads (TMDLs) for certain impaired stream segments. Because the Division’s 401 certification of the SDS does not involve issuance of a point source pollutant discharge permit, the Division was not required to develop a TMDL as a prerequisite to certification. Accordingly, the district court erred in concluding that a TMDL was required.

The district court further erred in concluding that the Division was required to assess the potential impacts of future population growth as part of its § 401 review process for the SDS. There is no regulation or statute requiring the Division to consider future population growth and development in conducting its § 401 review. Moreover, the Coalition did not present any evidence that the SDS will cause population growth.

Summary and full case available here.

Colorado Court of Appeals: Comparative Negligence May Have Been An Issue in Personal Injury Case

The Colorado Court of Appeals issued its opinion in Reid v. Berkowitz on Thursday, July 18, 2013.

Premises Liability—Injuries—Licensee—Duty of Care—Apportionment—Non-Delegable Duty—Comparative Negligence.

In this premises liability action under CRS § 13-21-115, defendant Daniel Berkowitz, doing business as Shimon Builders, appealed the judgment entered against him following a jury verdict in favor of plaintiff Rodney Reid. The judgment was affirmed in part and reversed in part, and the case was remanded.

Plaintiff, a construction worker, had accompanied his friend, a painter, to a house that was being constructed by defendant in Denver. Plaintiff sustained significant injuries when he tripped at the top of the stairs, grabbed a handrail that gave way, and fell three stories to the floor below.

Defendant contended that the trial court erred in determining that plaintiff was a licensee at the time of the incident. The trial court found that plaintiff was a licensee because (1) he had an ongoing business relationship with defendant; (2) he had worked on the construction site in question; (3) it was customary for workers on the project to help each other and defendant was aware of this custom; (4) workers had flexibility as to how and when they could perform their work; and (5) at the time of the accident, plaintiff was on the property helping the painter while waiting for a ride. Furthermore, defendant maintained an “open worksite,” meaning that it was acceptable for workers to bring additional help to the site to complete a task without defendant’s knowledge. These facts and circumstances are sufficient to support the trial court’s findings and conclusion that plaintiff had permission or consent to be on the premises.Therefore, the trial court did not err in concluding that plaintiff was a licensee.

Defendant also contended that the trial court erred in refusing to instruct the jury that it could apportion liability and fault to the two coworkers who had installed the handrail. Because the two coworkers owed plaintiff a duty of care, defendant was entitled to a jury instruction directing the jury to measure the fault of the two coworkers in addition to the fault of defendant. Thus, the trial court erred in rejecting defendant’s tendered instruction. However, any error was harmless because defendant had a non-delegable duty as a landowner to maintain the premises in a safe condition, and under the non-delegability doctrine, any fault of the two coworkers would be imputed to defendant in any event.

Defendant further asserted that the trial court erred in refusing to instruct the jury on plaintiff’s comparative negligence. There was evidence that plaintiff did not see the cords over which he claimed to have tripped; the cords might have been disclosed by the use of adequate light; and had he seen the cords, he might not have tripped. Therefore, there was sufficient evidence that justified giving an instruction on comparative negligence, and the trial court erred in rejecting it. The part of the judgment rejecting a comparative negligence instruction was reversed, and the case was remanded for a new trial on liability only.

Summary and full case available here.

Colorado Court of Appeals: Compensation of Fact Witness Does Not Per Se Require Exclusion of Witness’s Testimony; Rather, Trial Court Should Determine if Witness Should Be Excluded as Sanction

The Colorado Court of Appeals issued its opinion in Just in Case Business Lighthouse LLC v. Murray on Thursday, July 18, 2013.

Fraudulent Misrepresentation—Business Sale—Nonparty at Fault—CRE 1006—Summary Witness—Economic Loss Rule.

This case involved alleged fraud in the negotiated termination of agreements concerning a commission payable for facilitating the sale of a business. Defendant Patrick Murray appealed the judgment entered on a jury verdict against him on the fraudulent misrepresentation and concealment claim of plaintiff, Just In Case Business Lighthouse, LLC, which is solely owned and operated by Joseph Mahoney. The judgment was vacated and the case was remanded.

On appeal, defendant argued that the trial court erred in allowing Preston Sumner, whom plaintiff hired and agreed to compensate on a contingent basis, to testify as a fact witness. Plaintiff hired Sumner, a longtime acquaintance of Mahoney, as an advisor to develop its case. Over the course of four years, Sumner spent between 500 and 1,000 hours examining business records and preparing summaries. Sumner’s agreement with plaintiff provided that he would receive 10% of any judgment or settlement obtained herein. Contingent compensation of a fact witness requires the trial court to determine whether the witness should be stricken as a sanction. Here, because the trial court misstated the law on contingent compensation of witnesses and did not rule on the propriety of a sanction, the case was remanded to address this issue.

Defendant also argued that the trial court erred in allowing Sumner to testify as a summary witness because he had no personal knowledge of the facts. However, Sumner only testified as to evidence that had already been admitted by the court, and his testimony assisted the jury in understanding the facts. Therefore, the court’s ruling to allow such testimony was not manifestly arbitrary, unreasonable, or unfair.

Defendant argued that the trial court erred in admitting exhibits prepared by Sumner, contending they were inadmissible under CRE 1006 because they were based on evidence already admitted during the trial and were unduly prejudicial. CRE 1006 allows for the admission of such summaries when the documents underlying the summary are voluminous. Here, more than 200 exhibits were admitted during the eight-day trial. Moreover, the underlying documents were admitted as evidenceand CRE 1006 does

not “require the fact finder to accept the information present on the summary charts as true.”Accordingly, the trial court did not abuse its discretion in admitting Sumner’s summary exhibits.

Defendant further contended that the trial court erred when it denied its motion for directed verdict because the evidence was insufficient to establish fraud. A letter of intent for the sale of a business was signed before defendant had a conversation with plaintiff about buying him out of the deal, and defendant failed to disclose this fact to plaintiff. Thus, the jury could have concluded that defendant fraudulently concealed facts material to the sale.

Defendant also contended that a directed verdict should have been entered because the economic loss rule bars plaintiff’s fraud claim. Defendant raised the economic loss rule in his motion for summary judgment, which was denied. Because defendant did not raise it when moving for a directed verdict, at any other time during the trial, or in a post-trial motion, he did not preserve this issue and the trial court did not err in denying the directed verdict motion.

Defendant contended that the trial court erred in declining to instruct the jury that Pearl Development Companywas a nonparty at fault. A defendant is not entitled to a nonparty-at-fault designation where the party’s fault is only vicarious. Accordingly, the trial court properly declined to instruct the jury on Pearl as a nonparty at fault.

Summary and full case available here.

Civil Unions Forms Added to Domestic Relations Category by State Judicial

The Colorado State Judicial Branch issued several new forms in the Domestic Relations category in July to be used for dissolutions of civil unions, legal separations of civil unions, and issues related to children of civil unions. Additionally, many other forms were revised, including several of the instructions.

Click the links below to download the forms, or visit the State Judicial forms page. Forms are available here as Adobe PDF documents; Word versions are available on State Judicial’s page.

DOMESTIC

  • JDF 1099 – Instructions to File for Dissolution of Marriage or Legal Separation if There Are No Children of the Marriage (revised 7/13)
  • JDF 1100 – Instructions to File for Dissolution of Marriage or Legal Separation With Children of the Marriage (revised 7/13)
  • JDF 1215 – Evaluation of a Foreign Decree (revised 7/13)
  • JDF 1220 – Instructions to Register a Foreign Decree (revised 7/13)
  • JDF 1254 – Flowchart to Getting a Dissolution or Legal Separation of Civil Union with No Children (issued 7/13)
  • JDF 1255 – Flowchart to Getting a Dissolution or Legal Separation of Civil Union with Children (issued 7/13)
  • JDF 1264 – General Steps to Getting a Dissolution or Legal Separation of Civil Union with No Children (issued 7/13)
  • JDF 1265 – General Steps to Getting a Dissolution or Legal Separation of Civil Union with Children (issued 7/13)
  • JDF 1266 – Instructions for Filing a Dissolution or Legal Separation of Civil Union with No Children (issued 7/13)
  • JDF 1267 – Instructions for Filing a Dissolution or Legal Separation of Civil Union with Children (issued 7/13)
  • JDF 1268 – Instructions to File for a Declaration of Invalidity of Civil Union (Annulment) (issued 7/13)
  • JDF 1272 – Instructions to Convert Decree of Legal Separation of Civil Union to Decree of Dissolution of Civil Union (issued 7/13)
  • JDF 1325 – Instructions to Convert Degree of Legal Separation to Decree of Dissolution (revised 7/13)
  • JDF 1399 – Instructions to File Motion or Stipulation to Terminate Maintenance (revised 7/13)
  • JDF 1400 – Instructions to File Motion to Relocate Minor Children (revised 7/13)
  • JDF 1403I – Instructions to File Motion or Stipulation to Modify Child Support (revised 7/13)
  • JDF 1406I – Instructions to File Motion to Modify/Restrict Parenting Time (revised 7/13)
  • JDF 1411 – Instructions to File Motion or Stipulation to Modify Decision-Making Responsibility (revised 7/13)
  • JDF 1413I – Instructions for Petition for Allocation of Parental Responsibilities (revised 7/13)
  • JDF 1418I – Instructions to File Motion Concerning Parenting Time Disputes (revised 7/13)
  • JDF 1426 – Instructions to File Motion to Terminate Child Support (revised 7/13)
  • JDF 1524 – Instructions to File Motion to Modify or Set Aside Parentage (revised 7/13)
  • JDF 1600 – Instructions to File Declaration of Invalidity of Marriage (Annulment) (revised 7/13)
  • JDF 1700 – Instructions to File for Grandparent Visitation (revised 7/13)
  • JDF 1800 – Instructions for Filing Motions to Enforce Orders (revised 7/13)
  • JDF 1801 – Instructions for Completing an Income Assignment Based on Child Support Orders (revised 7/13)
  • Form 35.4 – Pattern Interrogatories – Domestic Relations (revised 7/13)
  • JDF 98 – Affidavit of Service (revised 7/13)
  • JDF 1000 – Case Information Sheet (revised 7/13)
  • JDF 1102 – Summons for Dissolution of Marriage or Legal Separation (revised 7/13)
  • JDF 1104 – Certificate of Compliance with C.R.C.P. 16.2(e) (revised 7/13)
  • JDF 1107 – Motion/Stipulation to Modify Petition (Marriage) (revised 7/13)
  • JDF 1111 – Sworn Financial Statement (revised 7/13)
  • JDF 1113 – Parenting Plan (revised 7/13)
  • JDF 1115 – Separation Agreement (Marriage) (revised 7/13)
  • JDF 1116 – Decree of Dissolution of Marriage or Legal Separation (revised 7/13)
  • JDF 1117 – Support Order (revised 7/13)
  • JDF 1120 – Notice of Domestic Relations Initial Status Conference (revised 7/13)
  • JDF 1121 – Notice of Domestic Relations Status Conference (revised 7/13)
  • JDF 1123 – Notice to Set Hearing (revised 7/13)
  • JDF 1124 – Notice of Hearing (revised 7/13)
  • JDF 1129 – Petitioner/Co-Petitioner/Respondent Pre-Trial Statement (revised 7/13)
  • JDF 1201 – Affidavit for Decree Without Appearance of the Parties (Marriage) (revised 7/13)
  • JDF 1250 – Petition for Dissolution of Civil Union or Legal Separation of Civil Union (issued 7/13)
  • JDF 1251 – Summons for Dissolution of Civil Union or Legal Separation of Civil Union (issued 7/13)
  • JDF 1252 – Response to Petition for Dissolution of Civil Union or Legal Separation of Civil Union (issued 7/13)
  • JDF 1253 – Motion/Stipulation to Modify Petition (Civil Union) (issued 7/13)
  • JDF 1256 – Separation Agreement (Civil Union) (issued 7/13)
  • JDF 1257 – Decree of Dissolution of Civil Union or Legal Separation of Civil Union (issued 7/13)
  • JDF 1258 – Affidavit for Decree Without Appearance of the Parties (Civil Union) (issued 7/13)
  • JDF 1259 – Motion to Convert Decree of Legal Separation of Civil Union to Decree of Dissolution of Civil Union (issued 7/13)
  • JDF 1260 – Order to Convert Decree of Legal Separation of Civil Union to Decree of Dissolution of Civil Union (issued 7/13)
  • JDF 1261 – Petition for Declaration of Invalidity of Civil Union (issued 7/13)
  • JDF 1262 – Summons for Declaration of Invalidity of Civil Union (issued 7/13)
  • JDF 1263 – Decree of Declaration of Invalidity of Civil Union (issued 7/13)
  • JDF 1270 – Response to Petition for Declaration of Invalidity of Marriage (issued 7/13)
  • JDF 1271 – Response to Petition for Declaration of Invalidity of Civil Union (issued 7/13)
  • JDF 1301 – Petitioner’s Verified Motion for Publication of Summons or Service by Certified Mail or Publication by Consolidated Notice (revised 7/13)
  • JDF 1302 – Order for Publication (revised 7/13)
  • JDF 1309 – Motion for Absentee Testimony Pursuant to C.R.C.P. 43 (revised 7/13)
  • JDF 1310 – Order for Absentee Testimony (revised 7/13)
  • JDF 1323 – Motion to Change Venue Pursuant to C.R.C.P. 98(c)(1) and 98(e) (revised 7/13)
  • JDF 1324 – Order to Change Venue Pursuant to C.R.C.P. 98(c)(1) and 98(e) (revised 7/13)
  • JDF 1401 – Motion to Modify or Terminate Maintenance (revised 7/13)
  • JDF 1402 – Order to Modify or Terminate Maintenance (revised 7/13)
  • JDF 1403 – Motion to Modify Child Support (revised 7/13)
  • JDF 1404 – Stipulation Regarding Child Support Modification (revised 7/13)
  • JDF 1405 – Order Regarding Child Support Modification (revised 7/13)
  • JDF 1406 – Motion to Modify/Restrict Parenting Time (revised 7/13)
  • JDF 1408 – Motion to Terminate Child Support (revised 7/13)
  • JDF 1409 – Order to Terminate Child Support (revised 7/13)
  • JDF 1413 – Petition for Allocation of Parental Responsibilities (revised 7/13)
  • JDF 1414 – Summons to Respond to Petition for Allocation of Parental Responsibilities (revised 7/13)
  • JDF 1422 – Order for Allocation of Parental Responsibilities (revised 7/13)
  • JDF 1602 – Summons for Declaration of Invalidity of Marriage (revised 7/13)
  • JDF 1603 – Decree of Declaration of Invalidity of Marriage (revised 7/13)
  • JDF 1804 – Income Withholding for Support (revised 7/13)
  • JDF 1805 – Notice of Pending Income Assignment (revised 7/13)
  • JDF 1809 – Notice to Employer to Deduct for Health Insurance (revised 7/13)
  • JDF 1813 – Verified Entry of Support Judgment (revised 7/13)
  • JDF 1814 – Motion to Clerk of Court to Transfer Title Pursuant to C.R.C.P. 70 (revised 7/13)
  • JDF 1815 – Order for Clerk of Court to Transfer Title Pursuant to C.R.C.P. 70 (revised 7/13)
  • JDF 1817 – Order to Issue Citation and Citation to Show Cause (revised 7/13)

Tenth Circuit: Unpublished Opinions, 7/19/13

On Friday, July 19, 2013, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

United States v. Dago

United States v. Cooper

Federated Service Insurance Company v. Martinez

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

Tenth Circuit: Unpublished Opinions, 7/18/13

On Thursday, July 18, 2013, the Tenth Circuit Court of Appeals issued no published opinions and seven unpublished opinions.

Rohr v. Allstate Financial Services

Gibbs v. Colvin

Georgacarakos v. Wiley

United States v. Oviedo-Tagle

United States v. Clark

Beltran v. Holder

Securities and Exchange Commission v. Fox

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