June 26, 2017

Archives for October 28, 2016

State Judicial Performance Commission Seeks Public Input

On Thursday, October 27, 2016, the State Commission on Judicial Performance issued a request for public input on the state’s Judicial Performance Evaluation. The Commission is conducting a sunset review, as it is due to sunset in 2019. The Commission will hold several meetings throughout Colorado on the following dates and times:

  • Denver (November 14 – 11:00 AM – 1:00 PM Ralph L. Carr Judicial Center Room 1E)
  • Alamosa (November 15 – Noon to 2 PM Rio Grande Water Conservation District Office)
  • Pueblo (November 16 – Noon to 2 PM Jury Assembly Room Pueblo Combined Court)
  • Colorado Springs (November 16 – 4:00 PM Jury Assembly Room El Paso County Judicial Building)
  • Grand Junction (November 17 – Noon to 2 PM Jury Assembly Room Mesa County Justice Center)
  • Breckenridge (November 18 –Noon – 2 PM Jury Assembly Room Summit County Justice Center)
  • Durango (November 18 – Noon to 2 PM Jury Assembly Room La Plata County Courthouse)
  • Lamar (November 21 – Noon to 2 PM Large Courtroom Prowers County Combined Court)
  • Greeley (November 22 – Noon to 2 PM Jury Assembly Room Weld County Centennial Center)
  • Fort Collins (November 22- 4:00 PM Jury Assembly Room Larimer County Justice Center)
  • Denver (December 5 – 11:00 AM – 1:00 PM Ralph L. Carr Judicial Center Room 1E)

During these meetings, the Commission requests that the public offer input on the following questions:

  1. Do you rely on Judicial Performance Evaluations when you vote for judges?  Why or why not?
  2. Are we collecting the right information about judges?
  3. Are we evaluating and reporting the evaluations properly?
  4. Does the quality and usefulness of the evaluation information meet your expectations?
  5. What other attributes of judges should we be gathering feedback on?
  6. What suggestions do you have to improve the system?

The Commission is not seeking input about particular judges or a particular judge’s particular decisions at this meeting.  The focus will be on the evaluation process itself.

If you cannot attend one of these meetings, you may submit comments regarding the program at www.ojpe.org. Click on the “Citizens Feedback” button at the top of the page to begin the process.  For further information contact the Office of Judicial Performance Evaluation, (303) 928-7777 or email Kent Wagner, Executive Director, at kent.wagner@judicial.state.co.us.

Colorado Court of Appeals: C.R.C.P. 106 Action Inappropriate for Challenge to Temporary Protection Order

The Colorado Court of Appeals issued its opinion in Martin v. Arapahoe County Court on Thursday, October 20, 2016.

C.R.C.P. 106(a)(4)—Temporary Civil Protection Order—Subject Matter Jurisdiction.

The county court entered a temporary civil protection order pursuant to C.R.S. § 13-14-104.5 against Martin based on L.O.’s complaint. Martin filed a motion to vacate the temporary order and dismiss L.O.’s complaint. The motion was denied, but the hearing on the permanent order was continued to allow briefing from the Attorney General’s office on the constitutionality of the statutes. Before the rescheduled hearing, Martin filed this action in district court, naming as defendants the Arapahoe County Court and magistrates of that court and seeking review of the temporary protection order under C.R.C.P. 106(a)(4).

The county court defendants moved to dismiss the C.R.C.P. 106 action for lack of subject matter jurisdiction, arguing that (1) the temporary order was not a final decision reviewable under C.R.C.P. 106 and (2) Martin had other adequate remedies because he could challenge the temporary order at the permanent order hearing and appeal the permanent order if one was issued. The motion to dismiss was granted.

On appeal, Martin argued it was error for the trial court to find it lacked subject matter jurisdiction. The Colorado Court of Appeals disagreed, ruling on this as an issue of first impression. The court found that a temporary protection order issued under C.R.S. § 13-14-104.5 is not the county court’s final decision on a plaintiff’s request for a civil protection order and is therefore not subject to review in a C.R.C.P. 106 action. It also found that the permanent order hearing and ordinary appellate review procedures provide adequate alternative remedies for challenging a temporary restraining order.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Claim Preclusion Bars Relitigation of Attorney Fee Issue in CDARA Case

The Colorado Court of Appeals issued its opinion in Layton Construction Co., Inc. v. Shaw Contract Flooring Services, Inc. on Thursday, October 20, 2016.

Summary Judgment—Claim Preclusion.

Layton Construction Co., Inc. (Layton) hired Shaw Contract Flooring Services, Inc. (Shaw) to perform work on a project for BCRE, the property owner. BCRE subsequently terminated its contract with Layton and gave Layton notice of numerous construction defects, a few of which related to Shaw’s work. Layton sued BCRE, alleging BCRE had failed to pay for work and seeking damages. BCRE counterclaimed for defective workmanship. Layton then added claims against various subcontractors, including Shaw.

Pursuant to a clause in the subcontract, Layton sought indemnification from Shaw for all damages and costs arising from any liability it might have to BCRE, including Shaw’s failure to provide a defense or pay Layton’s costs. Later, after BCRE specifically identified Shaw’s allegedly defective work, Layton moved to dismiss its indemnification claim against Shaw with prejudice. Layton’s motion stated the dismissal would include “those claims that have been or could have been asserted in this lawsuit.” The district court dismissed Layton’s claims with prejudice.

After a subsequent bench trial, the court entered an award for Layton on its claims against BCRE. The subcontractors remaining in the case were found liable to Layton under the indemnification provisions in their subcontracts.

Layton then filed this case against Shaw and other subcontractors, asserting claims for contractual and common law indemnity and declaratory judgment seeking an award of attorney fees, costs, and expenses it had incurred in defending BCRE’s claims in the prior case. Layton asserted the indemnification claim against Shaw under C.R.S. § 13-80-104 of the Construction Defect Action Reform Act (CDARA). Shaw moved for summary judgment, arguing Layton’s indemnification claims were barred by claim preclusion because they had been dismissed with prejudice. The district court granted the motion.

On appeal, the Court of Appeals noted that for a judicial proceeding to be precluded by a previous judgment, there must exist finality of the first judgment, identity of subject matter, identity of claims for relief, and identity or privity between parties to the actions.

Layton argued that its claims were not identical to those asserted against Shaw in the prior case. Because Layton could have asserted an indemnity claim for attorney fees and costs in the prior case there is identity of claims.

Layton also argued that CDARA modifies the doctrine of claim preclusion in the construction defect context by requiring splitting of indemnification claims. The Court found nothing in CDARA that abrogates the doctrine of claim preclusion in this case.

Layton further argued that various exceptions to the claim preclusion doctrine applied. The Court found that the exceptions to the doctrine of claim preclusion do not apply to this case.

Shaw requested attorney fees incurred on appeal, arguing that Layton’s appeal was substantially frivolous and vexatious. The Court agreed that the appeal was substantially frivolous and found that Layton’s assertion that it raised “novel” issues was “nothing more than a reflection of their futility.”

The judgment was affirmed and the case was remanded for the district court to determine the reasonable amount of Shaw’s attorney fees incurred on appeal.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Denver’s Civil Service Commission May Impose Burden on Employee in Adverse Personnel Action

The Colorado Court of Appeals issued its opinion in Marshall v. Civil Service Commission of the City & County of Denver on Thursday, October 20, 2016.

Burden of Proof—Adverse Personnel Action.

Police officer Marshall was suspended by the Executive Director of Safety (Director). He appealed the Director’s decision, and a hearing officer found that he proved the Director’s actions to have been clearly erroneous. The Director appealed to the Civil Service Commission of the City and County of Denver (Commission), which reversed the hearing officer’s decision. Marshall then challenged the Commission’s decision in district court, and the court upheld the Commission’s decision. Marshall appealed.

Marshall’s sole contention on appeal was that the Commission violated the Denver City Charter (Charter) by imposing, by rule, the burden on him to show that the Director’s action was clearly erroneous.

The Court of Appeals noted that the Charter does not expressly address the burden of proof and it delegates unlimited rulemaking authority to the Commission regarding hearing procedures. The burden of proof in a hearing is a matter of procedure. The Commission may place the burden of proof on the employee by rule as long as the rule is consistent with the Charter. Here, the Court discerned no inconsistency.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 10/27/2016

On Thursday, October 27, 2016, the Tenth Circuit Court of Appeals issued one published opinion and no unpublished opinion.

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