April 22, 2018

Archives for March 17, 2014

e-Legislative Report: March 17, 2014

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

The LPC did not meet on Friday, March 14.

At the Capitol—Week of March 10

A scorecard of the committee and floor work follows.

In the House

Monday, March 10

Passed 3rd Reading:

  • HB 14-1141. Concerning the confidentiality of social security numbers under the “Colorado Consumer Protection Act.” Vote: 63 yes, 0 no, and 2 excused.
  • SB 14-97. Concerning the immunity of public agencies against liability arising from the wildfire mitigation activities of insurance companies. Vote: 63 yes, 0 no, and 2 excused.
  • SB 14-138. Concerning civil immunity for community volunteers assisting at an emergency. Vote: 63 yes, 0 no, and 2 excused.
  • SB 14-121. Concerning financial assistance for local governments after a declared disaster emergency. Vote: 63 yes, 0 no, and 2 excused.
  • SB 14-96. Concerning renaming state veterans’ nursing homes to veterans community living centers to more accurately reflect the wide array of services provided to state veterans. Vote: 63 yes, 0 no, and 2 excused.

Tuesday, March 11

  • SJM14-1. Memorializing former Senator Ken Gordon. Vote: 63 yes, 0 no, and 2 excused. In a joint-session, the House and Senate met to consider SJM14-001 Memorializing former Senator Ken Gordon.

Wednesday, March 12

Passed on 3rd Reading:

  • HB 14-1136. Concerning exempting a continuing professional education program that is approved by a state professional licensing board from regulation by the division of private occupational schools in the department of higher education. Vote: 63 yes, 0 no, and 2 absent or excused.
  • HB 14-1216. Concerning required safety markings for certain towers over fifty feet in height that are located in unincorporated areas of the state. Vote: 63 yes, 0 no, and 2 absent or excused.
  • HB 14-1131. Concerning harassment against a minor by using an interactive computer service.Vote: 54 yes, 10 no, and 1 excused.
  • HB 14-1149. Concerning making acts related to the advertisement of children for the purposes of transferring their care to others trafficking in children. Vote: 64 yes, 0 no, and 1 excused.
  • SB 14-80. Concerning the elimination of the list of certain additional qualifications that apply to property valuation appeal arbitrators. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1280. Concerning limits on liability for agritourism. Vote: 64 yes, 0 no, and 1 excused.

Thursday, March 13

Passed on 3rd Reading:

  • HB 14-1277. Concerning eligibility requirements for recipients of grants from the military family relief fund. Vote: 61 yes, 2 no, and 2 absent or excused.
  • SB 14-63. Concerning the mandatory review of existing executive branch agency rules conducted by each principal department. Vote: 63 yes, 0 no, and 2 absent or excused.

In the Senate

Monday, March 10

Passed on 3rd Reading:

  • SB 14-125. Concerning the regulation of transportation network companies, and, in connection therewith, requiring transportation network companies to carry liability insurance, conduct background checks on transportation network company drivers, inspect transportation network company vehicles, and obtain a permit from the public utilities commission; and making an appropriation. Vote: 29 yes and 6 no.
  • HB 14-1172. Concerning exempting certain public safety departments from certain statutory requirements related to the impact of a criminal conviction on state employment opportunities. Vote: 35 yes and 0 no.

Tuesday, March 11

  • SJM14-1. Memorializing former Senator Ken Gordon. Vote: 63 yes, 0 no, and 2 excused. In a joint-session, the House and Senate met to consider SJM14-001 Memorializing former Senator Ken Gordon.

Wednesday, March 12

Passed on 3rd Reading:

  • SB 14-32. Concerning elimination of restrictions on the ability of alternative health care providers to treat children. Vote: 18 yes and 17 no.
  • HB 14-1224. Concerning a set aside goal in state procurement for service-disabled veteran owned small businesses. Vote: 27 yes and 8 no.

Thursday, March 13

Passed on 3rd Reading:

  • Consent Calendar: Vote 33 yes, 0 no, and 2 excused.
    1. SB 14-51. Concerning access to records relating to the adoption of children, and, in connection therewith, making an appropriation.
    2. HB 14-1103. Concerning the criteria that certain securities must meet to qualify as legal investments for public funds.
  • SB 14-131. Concerning the removal of certain identifying information from a motor vehicle registration card. Vote: 33 yes, 0 no, and 2 excused.
  • SB 14-117. Concerning the reauthorization of the regulation of real estate appraisers by the board of real estate appraisers through a recreation and reenactment of the relevant statutes incorporating no substantive amendments other than those approved during the first regular session of the 69th general assembly. Vote: 30 yes, 3 no, and 2 excused.
  • HB 14-1077. Concerning an increase in the statutory cap on the two-year average of the unobligated portion of the oil and gas conservation and environmental response fund. Vote: 27 yes, 6 no, and 2 excused.

Friday, March 14

Passed on 3rd Reading:

  • SB 14-23. Concerning an authorization of the voluntary transfer of water efficiency savings to the Colorado water conservation board for instream use purposes in water divisions that include lands west of the continental divide. Vote: 25 yes, 9 no, and 1 excused.
  • HB 14-1152. Concerning passive surveillance records of governmental entities. Vote: 34 yes, 0 no and 1 excused.

Colorado Supreme Court: Announcement Sheet, 3/17/2014

On Monday, March 17, 2014, the Colorado Supreme Court issued three published opinions.

Trujillo v. Colorado Division of Insurance

People v. Novotny and People v. Vigil

People v. Alfaro

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

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

Colorado Court of Appeals: ICAO Exceeded Its Authority by Finding Worsening of Condition Despite ALJ’s Ruling to the Contrary

The Colorado Court of Appeals issued its opinion in Apex Transportation, Inc. v. Industrial Claim Appeals Office on Thursday, March 13, 2014.

Worker’s Compensation—Injury—Temporary Total Disability Benefits—Factual Determinations.

Claimant worked as a truck driver for Apex when he sustained an injury to his shoulder. He refused medical attention at the time because it was “Apex’s busiest season” and he “thought the pain would go away.” When the pain did not subside, claimant obtained a “pain pill” containing morphine from his brother. Claimant thereafter reported the injury to his employer, and was sent to employer’s workers’ compensation healthcare provider to be examined and treated. Under employer’s policies, any employee who sustains a work-related injury must submit to a drug test when initially examined. The test proved positive for morphine. Because claimant did not have a prescription for the medication, he was terminated. Several days after being terminated, claimant returned to the medical clinic, and a physician found that his condition had worsened, gave claimant pain medication, and ordered him “off work.” The administrative law judge (ALJ) thereafter denied claimant’s request for temporary total disability (TTD) benefits. The Industrial Claim Appeals Office (Panel), on the other hand, concluded that because the physician’s work restrictions were imposed post-termination, the work restrictions, not the termination, caused claimant’s wage loss, entitling him to TTD benefits.

On appeal, employer contended that the Panel exceeded its authority when it set aside the ALJ’s original order denying claimant’s request for TTD benefits. Because the factual determination of whether claimant’s termination was volitional and that his condition had not worsened after he was terminated fall squarely within the ALJ’s province, the Panel exceeded its authority by reweighing the evidence. Substantial evidence supported the ALJ’s factual findings that claimant had not suffered a worsened condition and that his for-cause termination led to his wage loss. The Panel’s final order was set aside and the case was remanded with directions to reinstate the ALJ’s original order.

Summary and full case available here.

Colorado Court of Appeals: County Court’s Judgment was Final Determination of Fraud and Plaintiffs Could Recover on Surety Bond

The Colorado Court of Appeals issued its opinion in Mendoza v. Pioneer General Insurance Co. on Thursday, March 13, 2014.

Surety Bond Recovery—Declaratory Judgment—Colorado Consumer Protection Act Fraud Claim.

In March 2009, plaintiffs Mendoza and Gonzales bought an action against Fitzgerald Automotive Group, alleging a claim that Fitzgerald violated CRS § 6-1-708, a provision of the Colorado Consumer Protection Act (CCPA) that expressly prohibits motor vehicle dealers from engaging in certain specified deceptive trade practices. After a trial to a jury, the jury found in favor of plaintiffs on their CCPA claim and also found in a special interrogatory that Fitzgerald had engaged in bad-faith conduct under CRS § 6-1-113(2)(a)(III), which allows for an award of treble damages. Judgment was entered in the amount of $3,500, which was trebled. The court also awarded attorney fees of $15,475 and costs of $436.61.

Fitzgerald then ceased operations and plaintiffs were not able to recover on their judgment. They brought this action against Pioneer General Insurance Company (Pioneer), requesting a declaratory judgment that the motor vehicle dealer’s licensing bond required by CRS § 12-6-111 “is available to consumers who have been damaged by car dealers that commit deceptive trade practices . . . and that the bond is applicable to costs and attorney fees incurred by the consumer. . . .” The district court denied the motion.

On appeal, plaintiffs argued the district court erred because the county court’s judgment was a final determination of fraud or fraudulent representation that was sufficient to satisfy CRS § 12-6-111(2)(b). The Court of Appeals agreed.

Plaintiffs argued that CRS §§ 6-1-708 and 12-6-111 should be read together to accomplish their legislative purpose of providing remedies for consumer fraud. The Court held that § 6-1-708(1)(a)(I) has “at the very least, the element of an intent to deceive.” In essence, the Court found that a prohibited deceptive trade practice requires, as a matter of law, an intent to deceive, which, if found guilty of so doing, is a determination of fraud or fraudulent misrepresentation sufficient to satisfy CRS § 12-6-111(2)(b).

The Court also found that because the CCPA specifically authorizes the recovery of costs and reasonable attorney fees, plaintiffs can recover those fees and costs from Pioneer, as the surety on the bond, in addition to their actual damages of $3,500. Accordingly, the judgment denying plaintiffs’ motion for declaratory judgment was reversed and the case was remanded.

Summary and full case available here.

Colorado Court of Appeals: Funds Received in Arbitration Award Determined to be “General Intangibles”; Prevailing Party Entitled to Attorney Fees

The Colorado Court of Appeals issued its opinion in Millenium Bank v. UPS Capital Business Credit on Thursday, March 13, 2014.

Summary Judgment—Creditors’ Rights— Uniform Commercial Code.

UPS Capital Business Credit (UPS) loaned Superior Plaster and Drywall, Inc. (Superior) $1,027,000, secured by Superior’s assets. Millennium Bank (Millennium) loaned Superior $1.5 million, also secured by Superior’s assets. Millennium and UPS entered into an Intercreditor Agreement to establish the respective priority of their secured interests in Superior’s assets. Under the Intercreditor Agreement, (1) Millennium had first priority, and UPS second priority, in Superior’s accounts receivable; and (2) UPS had first priority, and Millennium second priority, in Superior’s general intangibles.

This case arose when Millennium and UPS disputed their rights to funds awarded to Superior in an arbitration proceeding. Superior had subcontracted with Beck Development, LLC (Beck) to perform drywall and paint work as part of the construction of two condominium towers. Superior claimed Akzo Nobel Paints, LLC (Akzo) had supplied defective paint; Akzo countered that Superior’s application techniques were to blame. Superior repainted the project four times at Beck’s insistence. The problem was not fixed, and Beck terminated Superior, without paying Superior for the costs incurred in repainting.

Superior sued Beck and Akzo, claiming (1) breach of contract by Beck and Akzo; (2) breach of warranty by Akzo; and (3) the right to receive payment on a mechanic’s lien it had filed on the condominium towers for work performed on the subcontract. The three entities agreed to arbitrate the claims against Akzo.

The arbitration panel determined that Akzo’s paint was the cause of the paint problems. The panel awarded consequential damages to Beck and Superior. To Superior, the damages encompassed (1) the amount due on Superior’s lien for work performed under the subcontract on the towers; (2) Superior’s costs for excess labor and excess materials in repainting the towers; and (3) punitive damages. Two weeks later, Superior filed for bankruptcy. Approximately one year later, Beck successfully moved, without objection, for dismissal of Superior’s claims against it.

The funds awarded in the arbitration became part of Superior’s bankruptcy estate. Millennium and UPS asserted their rights in those funds as secured creditors under Colorado’s version of the Uniform Commercial Code (UCC). They disputed only the priority rights with respect to the part of the funds representing the excess costs in labor and materials ($638,226.83) incurred by Superior in repainting the towers (challenged funds).

Millennium asserted the challenged funds were the proceeds of an account, on which it had first priority; UPS asserted they were the proceeds of an intangible right, on which it had first priority. The bankruptcy court determined it lacked jurisdiction to adjudicate the priority dispute and ordered the trustee to deliver the challenged funds to Millennium and UPS jointly for state law determination of their interests in the funds.

After the parties filed a statement of undisputed facts and cross-motions for summary judgment, the district court entered summary judgment for UPS, concluding that the challenged funds were general intangibles, rather than accounts. Millennium appealed and the Court of Appeals affirmed.

The parties agreed the resolution of the case depended on whether, as a matter of law, the challenged funds were, under the UCC, proceeds of an “account” or the proceeds of a “general intangible.” The “general intangible” category of assets traditionally encompassed proceeds from the right to pursue many types of lawsuits between a debtor and a party other than the interested creditor. However, this category, under the UCC, does not include “accounts.”

Here, the challenged funds were from an arbitration award Superior recovered from Akzo on a breach of warranty claim, not the right to payment of a monetary obligation for services rendered or to be rendered. Thus, the funds recovered from Akzo were not proceeds from an “account,” but rather proceeds of a “general intangible.” The district court’s classification of the funds was affirmed.

UPS requested its attorney fees incurred on appeal pursuant to a prevailing party fee provision in the Intercreditor Agreement. The Court agreed that UPS was entitled to those fees and remanded the case to the district court to award a reasonable amount of attorney fees incurred on appeal.

Summary and full case available here.

Colorado Court of Appeals: Motion for Reconsideration Did Not Toll Time Period for Filing C.A.R. 4.2 Petition for Interlocutory Review

The Colorado Court of Appeals issued its opinion in People in Interest of A.M.C. on Thursday, March 13, 2014.

Interlocutory Appeal—CAR 4.2.

On October 23, 2013, the Denver Department of Human Health Services (Department) filed a petition in dependency and neglect, asserting that the minor child was dependent or neglected by respondent parents. At a custody hearing eleven days later before a magistrate, the respondent mother denied the allegations and requested a jury trial.

On November 5, 2013, the Department disclosed to mother and her attorney that a paralegal employed by the city attorney’s human services legal staff was the aunt of the father. Even though the father’s whereabouts were unknown and he had not participated in the case, mother asserted to the juvenile court on November 12 that this created a conflict of interest. The juvenile court agreed and ordered appointment of a special prosecutor.

On November 20, the Department filed a motion for reconsideration. The juvenile court orally denied the motion on December 10. The Department filed a motion for certification of the disqualification order for the purpose of interlocutory appeal on December 23, 2013. The juvenile court granted the motion on January 2, 2014, and the Department filed its petition in the Court on January 9, 2014.

The Court of Appeals questioned the timeliness of the motion for certification and requested that the parties provide briefs on the issue. The Department submitted a brief. The Court held that the disqualification order was not timely sought and that the Department had not demonstrated good cause to enlarge the time prescribed in CAR 4.2.

CAR 4.2(c) requires that a party seeking to file an interlocutory appeal move for certification or submit a stipulation signed by all parties “within 14 days after the date of the order to be appealed.” CAR 4.2(d) provides that after the trial court certifies an order for interlocutory appeal, “the party seeking an appeal shall file a petition to appeal with the clerk of the court of appeals with an advisory copy served on the clerk of the trial court within 14 days of the date of the trial court’s certification.”

The Department asserted it motion for certification was timely filed because its motion for reconsideration does not toll the time period for filing, the oral order was on November 12, and therefore the motion for certification was due by November 26 but was not filed until December 23. CAR 26(b) allows the deadline in CAR 4.2(d) to be extended “for good cause shown.” To obtain such an extension, a party must establish that its failure to meet the applicable deadline was due to “excusable neglect.” The Court found that the Department’s belief that the motion for reconsideration tolled the time period did not constitute excusable neglect. The interlocutory appeal was dismissed.

Summary and full case available here.

Tenth Circuit: Rule of Lenity Does not Apply in Plain Error Review

The Tenth Circuit Court of Appeals published its opinion in United States v. Williamson on Monday, March 17, 2014.

Defendant John S. Williamson has been protesting taxes for 30 years. In May 2008 the Internal Revenue Service (IRS) levied his wife’s wages to collect his back taxes. The IRS sent a notice of the levy, which Defendant returned, writing across the document: “Refused for cause. Return to sender, unverified bill.” In June 2008, Defendant sent an invoice for $909,067,650.00 to two IRS agents who had worked on the matter. The invoice listed the value of real and personal property allegedly seized by the IRS, added damages for various alleged torts, and then trebled the total “for racketeering.”

In December 2008, Defendant and Mrs. Williamson filed with the clerk of Bernalillo County, New Mexico, a claim of lien against the agents’ real and personal property for the same amount as the invoice. A grand jury indicted Defendant and Mrs. Williamson on two counts: (1) “corruptly endeavor[ing] to impede the due administration of the Internal Revenue Code by filing a false and fraudulent Claim of Lien,” in violation of 26 U.S.C. § 7212(a); and (2) “fil[ing] . . . a false lien and encumbrance against the real and personal property [of the IRS agents] on account of the performance of [their] official duties,” in violation of 18 U.S.C. § 1521.

Defendant’s defense at trial was essentially that he genuinely believed his lien was proper. A forensic psychologist testified that Defendant suffered from a delusional disorder that prevented him from abandoning his beliefs even when confronted with overwhelming evidence that he was wrong. Defendant requested instructions that would support his “genuine belief” defense to both charges, but the court rejected them and the jury returned verdicts of guilty on the two charges.

Defendant argued on appeal that the jury instruction concerning § 7212 should have informed the jury that he could be guilty only if he intentionally violated a known legal duty. The Tenth Circuit reviewed for plain error because at trial, defense counsel only argued the instruction should also contain a definition of “unlawful.” The court held that there was no plain error and that the rule of lenity did not apply because the “doubt required for the rule of lenity must be doubt raised by an adequately preserved argument.”

The court also rejected Defendant’s challenge to the § 1521 jury instruction for not including his requested good-faith defense. The § 1521 statute prohibits filing a false lien “having reason to know” it was false as well as knowingly filing a false lien. “Having reason to know” includes an objective component. A reasonable person knowing what Defendant knew would know the lien Defendant filed was false. Therefore, Defendant was not entitled to a good-faith defense instruction. The court affirmed his convictions.

Tenth Circuit: Unpublished Opinions, 3/17/2014

On Monday, March 17, 2014, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Asebedo v. Kansas State University

Ajaj v. Federal Bureau of Prisons

Miskovsky v. Jones

Canales-Enrique v. Holder

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Bill to Increase Number of Judges in 18th Judicial District and More Signed by Governor

Governor Hickenlooper has continued to sign bills into law this week. Some of the legislation signed into law includes bills prohibiting greyhound racing, creating the Rural Economic Development Initiative, adding judges to the Eighteenth Judicial District, encouraging enrollment of people with developmental disabilities in appropriate programs, and regarding recording of deeds. These bills and more are summarized here.

  • HB 14-1146 – Concerning a Prohibition Against Greyhound Racing in Colorado, by Rep. KC Becker and Sen. Lois Tochtrop. The bill bans greyhound racing in Colorado; Colorado has not had a greyhound race track since 2008.
  • HB 14-1241 – Concerning a Supplemental Appropriation to the Department of Local Affairs, by Rep. Crisanta Duran and Sen. Pat Steadman. The bill allows the Office of Economic Development to administer grants to businesses to create jobs in rural areas.
  • HB 14-1050 – Concerning an Increase in the Number of Judges for the Eighteenth Judicial District, and, In Connection Therewith, Making an Appropriation, by Rep. Daniel Kagan and Sen. Lucia Guzman. The bill increases the number of judges in the Eighteenth Judicial District from 21 to 23.
  • HB 14-1051 – Concerning a Strategic Plan Enrolling all Eligible Persons with Intellectual and Developmental Disabilities into Programs at the Time Services and Supports are Needed, and, in Connection Therewith, Requiring the Department of Health Care Policy and Financing to Develop and Implement the Strategic Plan and to Report Annually on the Number of Persons Waiting for Services and Support, by Reps. Sue Schafer and Lois Landgraf and Sens. John Kefalas and Larry Crowder. The bill requires CDHCPF to develop plans to enroll eligible applicants in Home- and Community-Based Services at the time they are requested.
  • HB 14-1073 – Concerning the Recording of Legal Documents, by Rep. Dan Pabon and Sen. George Rivera. The bill amends several statutory sections regarding the recording of legal documents.
  • HB 14-1112 – Concerning Limited Authorization for a County Clerk and Recorder to Redact the First Five Digits of a Social Security Number from a Public Document Recorded with the Clerk and Recorder at the Request of the Individual to Whom the Social Security Number is Assigned, by Rep. Steve Lebsock and Sens. Jessie Ulibarri and Ellen Roberts. The bill requires county clerks and recorders to redact from public documents the first five digits from a person’s social security number if that person so requests.
  • HB 14-1166 – Concerning the Renewal of Concealed Handgun Permits by Colorado County Sheriffs, by Rep. Edward Vigil and Sen. Lois Tochtrop. The bill allows a holder of a concealed weapons permit to renew the permit with a sheriff other than the one who originally issued the permit.

To date, the governor has signed 57 bills into law this legislative session. For a complete list of Governor Hickenlooper’s 2014 legislative decisions, click here.

Hon. Lyndon K. Skinner of Sixth Judicial District to Retire

The Colorado State Judicial Branch announced the retirement of Hon. Lyndon K. Skinner of the Sixth Judicial District. Judge Skinner attended the University of Colorado from 1960 to 1965, joined the Army in 1965 and served until 1971, and then served on the Colorado State Patrol until 1997. In 1997, he was appointed as a municipal judge in Silverton, Colorado, and was appointed to the San Juan County Court in 2006. He is one of the few non-attorney judges serving in Colorado. His retirement will be effective July 1, 2014.

Applications are being accepted for the vacancy on the San Juan County Court bench. Eligible applicants must be qualified electors of San Juan County and must have graduated high school or achieved the equivalent. Application forms are available from the ex officio chair of the Sixth Judicial District Nominating Commission, Justice Brian Boatright, and are also available on the State Judicial website. Applications must be filed no later than 4 p.m. on April 14, 2014. Anyone wishing to nominate a candidate must do so no later than 4 p.m. on April 7, 2014.

Click here for more information about the judicial vacancy.

Income Eligibility Chart Revised by State Judicial; Several CJDs Updated

On Wednesday, March 12, 2014, the Colorado Supreme Court released revised versions of several Chief Justice Directives to reflect the January 2014 revisions to the income eligibility guidelines. The changes can be viewed by clicking the links below or visiting the Colorado Supreme Court portion of the State Judicial website.

For all of the Chief Justice Directives, click here.

Tenth Circuit: Unpublished Opinions, 3/13/2014

On Thursday, March 13, 2014, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

United States v. Yazzie

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.