September 24, 2017

Archives for October 12, 2016

Colorado Court of Appeals: Evidence of Decedent’s Driving History Properly Excluded

The Colorado Court of Appeals issued its opinion in Alhilo v. Kliem on Thursday, October 6, 2016.

Wrongful Death—Exemplary Damages—Habitual Traffic Offender—Evidence—Flight from Scene—Circumstantial Evidence—Noneconomic Damages Cap—Comparative Negligence.

Alhilo died in a collision between his motorcycle and a car driven by defendant Kliem. Alhilo’s mother, the plaintiff, brought this wrongful death action against Kliem. The jury allocated the fault and awarded noneconomic and exemplary damages. Kliem appealed the judgment entered on the verdict.

On appeal, Kliem contended that the trial court erred by excluding evidence of the deceased’s driving record and his status as a habitual traffic offender (HTO). Kliem argued that this evidence was admissible under the exception in C.R.S. § 42-4-1713; however, this case does not support admitting either type of evidence under this statute. Admissibility of HTO status evidence is subject to the rules of evidence, primarily CRE 401 and 403. Here, both rules weigh against admission. Therefore, the trial court did not abuse its discretion by precluding evidence of the deceased’s status as an HTO and his driving record.

Kliem also contended that the trial court erred by admitting evidence of Kliem’s two prior convictions for driving while impaired. The trial court found this evidence relevant, and acknowledging the potential for prejudice, gave an appropriate limiting instruction. Therefore, the trial court did not abuse its discretion in allowing evidence of Kliem’s prior alcohol offenses for purposes of exemplary damages.

Kliem further contended that the trial court erred by admitting evidence that he fled the accident scene. Evidence of Kliem’s flight was relevant to explain why plaintiff was unable to present direct proof of Kliem having been impaired by alcohol, such as a breath test or blood draw shortly after the accident occurred. Further, evidence of Kliem’s flight showed his consciousness of liability. For these reasons, the trial court did not abuse its considerable discretion in allowing evidence of Kliem’s post-accident flight.

Kliem next contended that there was insufficient evidence to prove plaintiff was entitled to exemplary damages. However, the alcohol containers found in Kliem’s vehicle, and the facts that he failed to immediately seek medical attention for his severe injuries, fled the accident scene, and failed to immediately turn himself in to police constitute sufficient circumstantial evidence to support the exemplary damages award.

Kliem also argued that exemplary damages were improper because his left-hand turn was legal. There is no authority requiring that a traffic law violation be shown before exemplary damages can be awarded.

Finally, Kliem contended that the noneconomic damages cap in C.R.S. § 13-21-203 must be applied to an award of noneconomic damages before comparative negligence is apportioned. Once the amount of a plaintiff’s recovery is determined, the noneconomic damages cap in C.R.S. § 13-21-203 comes into play, which merely limits a plaintiff’s recovery to a specified maximum amount. Therefore, the trial court properly determined the amount of plaintiff’s recovery by first apportioning the percentage of comparative negligence attributable to Kliem and then applying the noneconomic damages cap in C.R.S. § 13-21-203 to that amount.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Notice of Appeal Timely Filed 49 Days After Denial of Motion for Reconsideration

The Colorado Court of Appeals issued its opinion in Semler v. Hellerstein on Thursday, October 6, 2016.

Notice of Appeal—Timeliness—Amended Complaint—Jurisdiction—Motion to Dismiss—Fraud—Concealment—Misrepresentation—Civil Conspiracy—Breach of Fiduciary Duty—Breach of Contract—Third Party Beneficiary—Attorney Fees.

Plaintiff Semler and defendant Perfect Place, LLC are both members of the 1940 Blake Street Condominium Association (Association). Defendant Hellerstein owns and controls both Perfect Place, LLC and Bruce S. Hellerstein, CPA P.C. (collectively, Perfect Place defendants). Hellerstein also served as treasurer of the Association. Defendant Bewley is an attorney employed by defendant law firm Berenbaum Weinshienk, P.C. At all relevant times, Bewley represented Hellerstein and his two corporate entities.

The current litigation stems from a related quiet title action in which Perfect Place asked the court to determine that it was the rightful owner of parking spaces C, D, and E. The court presiding over the quiet title action determined that Semler owned parking spaces C and D, while Perfect Place owned parking space E. Semler then brought the current suit, claiming that Bewley and Hellerstein devised a scheme to gain title to Semler’s parking spaces C and D. Semler’s first amended complaint alleged claims only for breach of fiduciary duty against Hellerstein, aiding and abetting that breach against Bewley, and civil conspiracy against all defendants. The court granted defendants’ motions to dismiss. Semler then moved to amend his complaint a second time, proposing to add claims for fraud, nondisclosure and concealment, negligent misrepresentation, negligent supervision, vicarious liability, and breach of contract. He also more clearly explained that he was seeking damages for lost income opportunities he suffered as a result of having to defend against the quiet title action. The court denied Semler’s second motion to amend based on lack of standing to pursue alleged fraud or misrepresentation against the prior owner of the parking spaces and awarded attorney fees in favor of defendants.

On appeal, defendants asserted that Semler’s notice of appeal was untimely and, therefore, the Colorado Court of Appeals lacked jurisdiction to consider the appeal. The court determined that Semler timely filed his notice of appeal 49 days after the court denied his C.R.C.P. 59 motion for reconsideration.

Semler contended that the trial court erred by denying his motion for leave to amend his complaint a second time. The court’s dismissal of the action was specifically premised on Semler’s fraud claims, which were new to the second amended complaint. It was therefore apparent to the court that although the trial court denied the motion to amend, it considered the claims in the second amended complaint when ruling on the motion to dismiss.

Semler argued that the trial court erred in granting defendants’ motions to dismiss. Semler’s fraud, concealment, and misrepresentation claims were all premised on conversations and transactions between the prior owner of the parking spaces and defendants in which Semler was not involved. Semler lacked standing to bring those claims. Semler’s claims for lost opportunity damages are too remote and unforeseeable to be recoverable under these claims. Therefore, these claims failed to state a claim upon which relief could be granted and should have been dismissed under C.R.C.P. 12(b)(5).

Semler also contended that defendants conspired with each other to obtain his parking spaces. He is not entitled to relief on a civil conspiracy claim against Bewley because a director cannot conspire with the corporation that he serves, which is the premise of Semler’s argument. Additionally, because Hellerstein was not acting in his role as treasurer when he engaged in the allegedly fraudulent conduct, Semler’s breach of fiduciary duty claim against Hellerstein fails. Because these claims fail, Semler’s aiding and abetting breach of fiduciary duty claim against Bewley and negligent supervision and vicarious liability claims against Bewley’s law firm, Berenbaum Weinshienk, fail as well.

As to his breach of contract claim, although Semler was not a party to the contract between Berenbaum Weinshienk and the Association in which Berenbaum Weinshienk agreed that it would not represent one Association member against another, Semler sufficiently pleaded a third-party beneficiary breach of contract claim pursuant to this agreement. Therefore, the case was remanded to the trial court for further proceedings on this claim.

Semler also contended that if the dismissal order is reversed, the attorney fees award in favor of defendants must also be reversed. Only Semler’s breach of contract claim survives C.R.C.P. 12(b) dismissal. Thus, because that claim was not pleaded against the Perfect Place defendants, the attorney fees award to them remains undisturbed. The order awarding fees award under this statute to Bewley and Berenbaum Weinshienk was reversed.

The orders were affirmed in part and reversed in part, and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Town’s Special District Cannot Include Unincorporated Land Without County Approval

The Colorado Court of Appeals issued its opinion in Bill Barrett Corp. v. Sand Hills Metropolitan District on Thursday, October 6, 2016.

Summary Judgment—Special District Act—Altering District Boundaries and Service Plan—Material Modification Requiring Approval of County Commissioners.

In 2004, the town of Lochbuie approved a proposed service plan (2004 plan) and the district court issued an order and decree organizing the Altamira Metropolitan District No. 6 (the Altamira District). The Altamira District’s boundaries were entirely within Lochbuie. The Altamira development was to include single family homes and commercial space within Lochbuie’s boundaries, but it never occurred.

70 Ranch, LLC owns acreage approximately 30 miles northeast of Lochbuie in unincorporated Weld County. In 2009, the district purported to include the 70 Ranch property within its boundaries, and the district court granted the inclusion. In 2010, the district changed its name from Altamira District to the Sand Hills Metropolitan District. In 2011, the court entered an order granting the district’s exclusion from its boundaries of all the land in Lochbuie that originally comprised the Altamira District. Through this sequence of events, the district relocated itself from Lochbuie to encompass only the 70 Ranch property. No notice was given or approval obtained from the Board of County Commissioners of Weld County.

Bill Barrett Corporation and Bonanza Creek Energy (taxpayers) and Noble Energy, an involuntary plaintiff-appellee (Noble), are oil and natural gas exploration companies that lease mineral interests at 70 Ranch. In 2008, the district’s board of directors approved certification of a mill levy for the district’s general operating expenses. Taxpayers have paid millions of dollars since 2009 (when 70 Ranch was included) in ad valorem taxes to the district.

Despite its 2009 and 2011 actions, the district did not prepare a revised service plan to reflect its new location and adjusted purpose until 2013. Taxpayers sued Sand Hills (the district, United Water and Sanitation District, and Lochbuie (collectively Sand Hills))  in 2013, claiming it exceeded its authority and violated parts of the Special District Act, C.R.S. §§ 32-1-101 to -1807, and the Colorado Constitution. Cross-motions for summary judgment were filed and each was granted in part. The trial court found that (1) the district lost its legal authority to collect taxes after April 28, 2011 when it unilaterally removed itself entirely from Lochbuie, so taxpayers are entitled to a tax refund for taxes paid for tax years 2011, 2012, and 2013; and (2) the district had the authority to tax taxpayers from April 29, 2009 until April 28, 2011, when the District’s boundaries included the 70 Ranch property and the original Altamira District property.

On appeal, Sand Hills argued that it was error to find that the district lost its authority to tax when it relocated itself in 2011. On cross-appeal, taxpayers argued that it was error to find that the district had authority to impose taxes on their mineral interests from 2009 to 2011.

The Colorado Court of Appeals’ analysis of the case focused on applying the plain meaning of C.R.S. § 32-1-207(2)(a), which provides a nonexhaustive list of factors specifying when a district’s modification of its service plan is considered material and requires a petition to and approval from the board of county commissioners. The district court concluded, and the court of appeals agreed, that the district’s failure to comport with the purposes of the 2004 plan along with its complete geographic overhaul in 2011 constituted a material departure from the original service plan. The district was required to obtain approval from the board of county commissioners for such a change. Therefore, the court affirmed the trial court’s grant of taxpayers’ motions for summary judgment as to the time period after April 28, 2011.

The court also concluded that the district’s geographic shift in 2009 to include the 70 Ranch property was a material modification of the district’s 2004 plan that required, but did not receive, the approval of the board of county commissioners. Therefore, the district also did not have taxing authority after 2009. The court reversed the trial court’s judgment as it relates to Sand Hills’ motion for summary judgment for the time period from 2009 until 2011.

The court further concluded that the relief granted to taxpayers applies also to Noble.

The judgment was affirmed in part and reversed in part, and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 10/11/2016

On Tuesday, October 11, 2016, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Kirkpatrick v. Colvin

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