May 26, 2017

Archives for September 16, 2016

J. Jay Williford and Colleen Clark Appointed to Arapahoe County Court

On Wednesday, September 14, 2016, the Colorado State Judicial Branch announced Governor Hickenlooper’s appointment of J. Jay Williford and Colleen Clark to the Arapahoe County Court in the Eighteenth Judicial District. Williford and Clark will fill vacancies created by the retirement of Hon. Addison Adams and Hon. Alex R. Bencze. Clark’s appointment is effective September 30, 2016, and Williford’s appointment is effective January 1, 2017.

Clark is currently a Municipal Judge for the City of Aurora, a Magistrate in the Eighteenth Judicial District in the truancy division, and a hearing officer for Aurora Public Schools. She previously has worked in the Eighteenth Judicial District Attorney’s Office, the Fifth Judicial District Attorney’s Office, and the Seventeenth Judicial District Attorney’s Office. She received her undergraduate degree from the University of Rochester and her law degree from from Boston University.

Williford is currently a Chief Deputy District Attorney in the Eighteenth Judicial District. Williford joined the District Attorney’s Office in 2007, where he has worked in the special victims unit. He worked in the Adams County District Attorney’s Office from 2003 through 2007. He received his undergraduate degree from Wheaton College and his law degree from the University of Denver.

For more information about the appointments, click here.

John “Clay” McKisson, III, Appointed to Huerfano County Court

On Thursday, September 15, 2016, the Colorado State Judicial Branch announced the governor’s appointment of John “Clay” McKisson, III, to the Huerfano County Court. McKisson will fill a vacancy created by the retirement of Hon. Gary R. Stork, effective January 10, 2017.

McKisson is currently a probation officer in Walsenburg. He has also worked at the Third Judicial District Attorney’s Office; the Jackson, Michigan Office of the Independent Medical Monitor; and at the Law Office of J. Clay McKisson P.L.L.C. in DeWitt, Michigan. McKisson received his undergraduate degree from Ohio University and his law degree from Thomas Cooley Law School.

For more information about the appointment, click here.

Colorado Court of Appeals: Probate Court Lacked Authority to Order “Chemical Castration”

The Colorado Court of Appeals issued its opinion in People in Interest of C.J.R. on Thursday, September 8, 2016.

Probate Court Authority—Chemical Castration—Medina Factors.

C.J.R. is a long-term patient at a state hospital, where he is treated for a form of psychosis. He has also engaged in “sexually inappropriate behavior” for some time. C.J.R. was treated for years with antipsychotic drugs. After a change in his drug therapy, his sexually inappropriate behavior worsened. As a result, a psychiatrist prescribed Depo-Provera by injection every 90 days. The use of Depo-Provera for this purpose is commonly called chemical castration. C.J.R. refused to take the drug voluntarily, and the People sought authorization from the Denver Probate Court to administer it involuntarily. The probate court authorized the involuntary administration of Depo-Provera and use of a nasogastric tube to administer other drugs. C.J.R. appealed.

In People v. Medina, the Colorado Supreme Court formulated a four-factor test that the People must satisfy before a court may order a patient to be forcibly medicated. Medina dealt with antipsychotic drugs. The court of appeals held that it does not apply to a request to involuntarily administer the synthetic equivalent of progesterone as part of the treatment for a mentally ill male patient at a state hospital for the express purpose of controlling his sexually inappropriate behavior.

In addition, the court found that even if the Medina test were applicable here, the People did not prove by clear and convincing evidence that the requirements of Medina were established because (1) there was not record support that there were no less intrusive alternative treatments available, and (2) C.J.R.’s need for treatment with medication was not sufficiently compelling to override “any bona fide and legitimate interest of the patient in refusing treatment.”

The part of the probate court’s order authorizing involuntary administration of Depo-Provera was reversed. That part of the order authorizing the use of a nasogastric tube to administer other medications was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Statute of Repose Acts as Absolute Bar to Bringing Suit After its Expiration

The Colorado Court of Appeals issued its opinion in Sierra Pacific Industries, Inc. v. Bradbury on Thursday, September 8, 2016.

Construction Defect Action Reform Act—Summary Judgment—Statute of Repose.

Sierra Pacific Industries, Inc. hired Bradbury to install windows and doors on a condominium construction project. Bradbury began and completed this work in 2002.Sierra Pacific attended to leaks and water damage between 2004 and 2011, including two substantial retrofit repairs in 2005 and 2011. Bradbury did some repair work in 2004. Construction defect litigation resulted over the cost of the repairs.

In 2014 Sierra Pacific filed this indemnification action against Bradbury to recover losses incurred in the settlement of the defective construction case and damages for related contractual breaches. Bradbury filed for summary judgment under C.R.C.P. 56(b), asserting that the claims, brought nearly 10 years after Bradbury ceased repair efforts, were time barred by the six-year statute of limitation in Colorado’s Construction Defect Action Reform Act. The trial court granted Bradbury’s motion for summary judgment.

On appeal, Sierra Pacific argued it was error to find that its claims were barred by the six-year statute of repose because under C.R.S. § 13-80-104(1)(b), it was allowed to file claims against Bradbury within 90 days of settling the underlying case in 2014, notwithstanding the statute of repose. This exact argument was previously rejected by a division of the court of appeals and the court here rejected it for the same reasons. The court concluded that the settlement in the underlying case did not impact the application of the statue of repose.

Sierra Pacific also contended that summary judgment was inappropriate because there remains a dispute of material fact as to when the statute of repose expired. Sierra Pacific argued that even if the statute of repose was not tolled by the settlement, the period of repose did not commence until the improvements to the property were completed in 2011. C.R.S. §§ 13-80-104(1)(a) and (2) provide a statute of repose that expires six years after substantial completion of improvements to real property, unless it is extended two years because the underlying cause of action arose during the fifth or sixth year after such substantial completion. Sierra Pacific argued that “substantial completion” did not occur until the repairs were finished in 2011. The court reasoned that a subcontractor has substantially completed its role in the improvement at issue when it finishes working on the improvement, and the statute of repose commences upon substantial completion. Here, the project was substantially completed in 2002, or in no event later than 2004, when the last repairs by Bradbury were completed. Moreover, there is no tolling of the statute of repose based on another’s efforts to repair work.

Under the applicable statute of repose, Sierra Pacific’s claims against Bradbury were time barred, and the district court properly granted Bradbury’s motion for summary judgment. The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Chief Judges Appointed in 6th and 8th Judicial District

On Thursday, September 15, 2016, the Colorado State Judicial Branch announced the appointment of Jeffrey R. Wilson as Chief Judge of the Sixth Judicial District and Judge Stephen E. Howard as Chief Judge of the Eighth Judicial District.

Judge Wilson will replace Chief Judge Gregory Lyman, who will retire from the bench on January 10, 2017. Judge Wilson was appointed to the Sixth Judicial District Court in 2002. Prior to his appointment, he was in private practice as the founder of Wilson & Crawford, and also served as a district attorney in the Twenty-Second Judicial District.

Judge Howard will replace Chief Judge Stephen J. Schapanski, who will retire from the bench on January 10, 2017. Judge Howard was appointed to the district court bench in 2011. Prior to his appointment to the bench, he was an attorney in private practice in Fort Collins from 1978 through 2011, where he had a general practice emphasizing business and real estate litigation.

Tenth Circuit: Unpublished Opinions, 9/15/2016

On Thursday, September 15, 2016, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

Stetzel v. Holubek

United States v. Belin

United States v. Jenkins

Romero-Raigoza v. Lynch

Wagner v. Cruz

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