December 11, 2017

Archives for March 16, 2017

Application Period Open for Sedgwick County Court Vacancy

On Tuesday, March 14, 2017, the Colorado State Judicial Branch announced an upcoming vacancy on the Sedgwick County Court in the 13th Judicial District. The vacancy will be created by the resignation of Hon. Tera N. Neugebauer, effective May 1, 2017.

Applications are now being accepted for the vacancy. Eligible applicants must be qualified electors of Sedgwick County and must have graduated high school or attained the equivalent. Application forms are available on the State Judicial website or from the ex officio chair of the 13th Judicial District Nominating Commission, Justice Monica Marquez. Applications must be received no later than 4 p.m. on April 4, 2017, to be considered. Anyone wishing to nominate another must do so no later than March 28, 2017.

For more information about the vacancy, click here.

Colorado Court of Appeals: Independent Expenditure Committee Not Required to Disclose Donation to Pay Legal Fees

The Colorado Court of Appeals issued its opinion in Campaign Integrity Watchdog, LLC v. Colorado Republican Party Independent Expenditure Committee on Thursday, March 9, 2017.

Campaign Finance Laws—Independent Expenditure Committee.

Campaign Integrity Watchdog LLC (CIW) alleged that the Colorado Republican Party Independent Expenditure Committee (CORE) violated various campaign finance laws. CIW’s claims stemmed from two earlier campaign finance proceedings against CORE. An administrative law judge (ALJ) imposed a penalty of $200 against CORE in the first case, and in the second case, an ALJ imposed a $600 aggregate penalty and awarded $255 in costs. The Colorado Republican Party paid these amounts on CORE’s behalf. CORE did not disclose these payments on its periodic campaign finance disclosure reports. Around the same time, a private party paid $50,000 to a law firm to settle CORE’s legal expenses. CORE disclosed this payment as a “contribution” in its periodic campaign finance disclosure report.

CIW alleged that CORE did not comply with the disclosure requirements of Colo. Const. art. 28, the Fair Campaign Practices Act (FCPA), and the Colorado Secretary of State’s Rules Concerning Campaign and Political Finance. CIW maintained that the payments by the Republican Party should have been disclosed as “donations” or “contributions” and the payments should have been disclosed as “expenditures.” The ALJ granted CORE’s motion to dismiss the complaint for failure to state a claim under C.R.C.P. 12(b)(5).

On appeal, CIW again contended that CORE was required to report some payments as donations or contributions, and all payments as expenditures. CORE was not required to report some payments as donations because (1) the donations were not made for the purpose of an independent expenditure and so were not required to be reported; (2) the law requiring some entities to report contributions does not apply to an independent expenditure committee; and (3) the payments here were not expenditures under the relevant statutory and constitutional definitions.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Senior Living Facilities Constitute “Residential Property” for CDARA Purposes

The Colorado Court of Appeals issued its opinion in Broomfield Senior Living Owner, LLC v. R.G. Brinkmann Co. on Thursday, March 9, 2017.

Senior Facility—Residential—Commercial—Breach of Contract—Construction Defect Action Reform Act—Homeowner Protection Act of 2007—Accrual—Statute of Limitations—Public Policy—Manifestation of a Defect.

Broomfield Senior Living Owner, LLC (Broomfield) brought claims against R.G. Brinkmann Company (Brinkmann) for breach of contract, negligence, negligence per se, negligent misrepresentation, and breach of express warranties in connection with Brinkmann’s construction of Broomfield’s facility. Brinkmann moved for summary judgment, raising both contractual limitations and statutory limitations defenses to all of Broomfield’s claims. The trial court granted Brinkmann’s motion for summary judgment, reasoning that the two-year statute of limitations applicable to civil claims had expired before Broomfield filed its complaint and that Broomfield had waived its rights to assert claims for repairs under the contract by failing to give Brinkmann timely notice of defects or adequate time to make repairs.

On appeal, Broomfield contended that the trial court erred in granting summary judgment and applying the accrual provisions of the contract rather than the accrual provision of the Construction Defect Action Reform Act (CDARA), titled the “Homeowner Protection Act of 2007” (HPA). Under the parties’ contract, the contractual limitations period expired independent of when the acts or failures to act were discovered, while CDARA links the accrual of construction defect claims to their discovery. The HPA renders a contract’s limitation or waiver of CDARA’s rights and remedies void as against public policy in cases involving claims arising from residential property. The Colorado Court of Appeals determined that the term “residential” is “unambiguous and means an improvement on a parcel that is used as a dwelling or for living purposes.” Here, the building is used as a home for senior residents. Accordingly, the senior facility is “residential property,” Broomfield is a “residential property owner,” and the HPA applies. As such, the contract’s terms limiting the accrual of claims are void as a matter of public policy, and the relevant statutory claims accrual periods apply, making Broomfield’s action timely.

Broomfield also contended that the trial court erred in precluding its breach of warranty claim based on its failure to give Brinkmann an opportunity to correct the defects. The court determined that genuine issues of material fact remain regarding whether Brinkmann received prompt notice of the defects and whether it had an adequate opportunity to correct its work.

Broomfield further argued that the trial court erred in concluding that its negligence claims were barred and that it failed to establish that Brinkmann performed design services. The court concluded that these claims were not barred and the parties offered conflicting design services evidence. Further, a genuine issue of fact remains concerning whether the alleged defects are patent or latent.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 3/16/2017

On Thursday, March 16, 2017, the Colorado Court of Appeals issued no published opinion and 33 unpublished opinions.

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

Tenth Circuit: Unpublished Opinions, 3/15/2017

On Wednesday, March 15, 2017, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Vue v. Allbaugh

Society of Professional Engineering Employees in Aerospace v. Spirit Aerosystems, Inc.

United States v. Tucker

United States v. Munoz

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