March 23, 2018

Archives for March 2018

Colorado Court of Appeals: Announcement Sheet, 3/22/2018

On Thursday, March 22, 2018, the Colorado Court of Appeals issued nine published opinions and 43 unpublished opinions.

People v. Wakefield

People v. Palmer

Colorado Medical Board v. Boland

Maralex Resources, Inc. v. Colorado Oil and Gas Conservation Commission

Colorado Medical Board v. McLaughlin

CAW Equities, L.L.C. v. City of Greenwood Village

Choice Johnson v. Denver Civil Service Commission

Minshall v. Johnston

People in Interest of B.C.

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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

Several JDF and C.R.C.P. Forms and Instructions Amended in January

The Colorado State Judicial Branch amended 41 forms in January, including forms in the adoption, appellate, civil, criminal, domestic relations, and name change categories. Several bills were amended in February also; these will be discussed in a future post.

The forms amended in January are available here as PDF downloads, and are available as Word documents and templates from the State Judicial forms page. Additionally, the Filing Fees (JDF 1) were revised in November 2017, along with six other forms, all of which are available here.


  • JDF 340 – “Oath or Affirmation of Confidentiality Regarding Motion to Open Adoption and Relinquishment Files” (Revised 1/18)
  • JDF 341 – “Motion and Affidavit to Open Adoption File by Adoptive Parent or Custodial Grandparent” (Revised 1/18)
  • JDF 342 – “Motion and Affidavit to Open Adoption File by Sibling of an Adoptee or Half-Sibling of an Adoptee” (Revised 1/18)
  • JDF 343 – “Motion and Affidavit to Open Adoption File by Adoptee” (Revised 1/18)
  • JDF 454 – “Verified Statement of Fees Charged” (Revised 1/18)
  • JDF 501 – “Petition for Adoption” (Revised 1/18)
  • JDF 502 – “Petition for Stepparent Adoption” (Revised 1/18)
  • JDF 503 – “Petition for Custodial Adoption” (Revised 1/18)
  • JDF 504 – “Petition for Second Parent Adoption” (Revised 1/18)
  • JDF 505 – “Petition for Kinship Adoption” (Revised 1/18)
  • JDF 508 – “Consent to Adoption – Sole Legal Parent” (Revised 1/18)
  • JDF 509 – “Consent to Adoption – Custodial Parent” (Revised 1/18)
  • JDF 510 – “Consent to Adoption – Non-Custodial Parent” (Revised 1/18)
  • JDF 511 – “Consent to Adoption – Child Over 12 Years of Age” (Revised 1/18)
  • JDF 517 – “Motion and Affidavit for Publication of Notice” (Revised 1/18)
  • JDF 527 – “Petition for Validation of Foreign Decree of Adoption” (Revised 1/18)
  • JDF 528 – “Petition for Adult Adoption” (Revised 1/18)


  • JDF 131 – “Instructions for An Agistor’s Lien” (Revised 1/18)


  • JDF 605 – “Instructions for Appealing Property Tax Assessments with the District Court” (Revised 1/18)
  • JDF 640 – “Notice of Limited Appearance by an Attorney with Consent of Pro Se Party Under C.A.R. 5 in an Appellate Matter” (Revised 1/18)
  • JDF 641 – “Consent to Limit Appearance by an Attorney Under C.A.R. 5 in an Appellate Matter” (Revised 1/18)


  • JDF 105 – “Pattern Interrogatories Under C.R.C.P. 369(g) – Individual” (Revised 1/18)
  • JDF 108 – “Pattern Interrogatories Under C.R.C.P. 369(g) – Business” (Revised 1/18)
  • JDF 253 – “Motion and Order to Set Aside Dismissal/Default Judgment” (Revised 1/18)
  • JDF 256 – “Notice of Representation by Attorney” (Revised 1/18)
  • JDF 622 – “Proposed Case Management Order” (Revised 1/18)


  • C.R.C.P. Form 4 – “Petition for Post-Conviction Relief Pursuant to Crim. P. 35(c)” (Revised 1/18)
  • JDF 221 – “Instructions for Filing a Municipal or County Court Criminal Appeal” (Revised 1/18)
  • JDF 301 – “Instructions to File an Expungement Juvenile “JV” or Municipal Case” (Revised 11/17)
  • JDF 302 – “Petition for Expungement of Records” (Revised 11/17)
  • JDF 304 – “Order of Expungement of Records” (Revised 11/17)
  • JDF 323(a) – “Instructions to File a Petition to Seal Records Related to Illegal Possession or Consumption of Alcohol or Marijuana by an Underage Person (MIP) or Possession of Marijuana Paraphernalia (Offenses Committed Prior to July 1, 2014)” (Revised 1/18)
  • JDF 323(b) – “Instructions to File a Petition to Seal Records Related to Illegal Possession or Consumption of Alcohol or Marijuana by an Underage Person (MIP) or Possession of Marijuana Paraphernalia (Offenses Committed After July 1, 2014)” (Revised 1/18)
  • JDF 324 – “Petition for Expungement of Records for a Law Enforcement Contact Not Resulting in Referral to Another Agency” (Revised 11/17)
  • JDF 326 – “Order of Expungement of Records for a Law Enforcement Contact Not Resulting in Referral to Another Agency” (Revised 11/17)
  • JDF 460I – “Instructions to Discontinue Sex Offender Registration for a Colorado and Non-Colorado Conviction” (Revised 1/18)
  • JDF 477 – “Motion to Seal Criminal Justice Records” (Revised 10/17)
  • JDF 611 – “Instructions to File a Petition to Seal Criminal Conviction Records Involving Controlled Substances and Petty Offenses and Municipal Violations” (Revised 1/18)


  • JDF 1111 – “Sworn Financial Statement” (Revised 1/18)
  • JDF 1801 – “Instructions for Completing an Income Assignment Based on Child Support and/or Maintenance Orders” (Revised 1/18)
  • JDF 1816 – “Motion and Affidavit for Citation for Contempt of Court” (Revised 1/18)
  • No JDF Number – “Income Withholding for Support Information” (Revised 1/18)


  • JDF 1 – “Filing Fees, Surcharges, and Costs in Colorado Courts” (Revised 11/17)


  • C.R.C.P. Form 26 – “Writ of Continuing Garnishment” (Revised 1/18)
  • C.R.C.P. Form 30 – “Claim of Exemption to Writ of Garnishment with Notice” (Revised 1/18)
  • JDF 100 – “Instructions for Forcible Entry and Detainer (FED)/Eviction” (Revised 1/18)


  • JDF 420 – “Instructions for Filing a Change of Name (Minor)” (Revised 1/18)
  • JDF 427 – “Public Notice of Petition for Change of Name” (Revised 1/18)


  • JDF 396 – “Instructions for Protected Person Motion to Modify/Dismiss Protection Order” (Revised 1/18)

For all of State Judicial’s JDF forms, click here.

Tenth Circuit: District Court Erred in Excluding Evidence That has the Necessary Effect of a Dismissal

The Tenth Circuit Court of Appeals issued its opinion in HCG Platinum, LLC v. Prederred Product Placement Co. on Tuesday, October 17, 2017.

HCG Platinum, LLC (HCG) and Preferred Product Placement Corporation (PPPC) entered into a marketing and non-circumvention agreement, where PPPC agreed to place HCG products into specified retailers in exchange for a percentage of the proceeds, PPPC would disclose details of negotiations and projects with other business associates, and HCG would be prevented from interfering with PPPC’s agreements with any third-parties. The following year, HCG filed a breach of contract action against PPPC, alleging that PPPC breached the agreement by failing to execute a sales agreement with certain retailers. PPPC filed a counterclaim alleging that HCG breached the agreement by failing to pay outstanding commissions and by interfering with PPPC’s third-party relationships. The damages PPPC put forth were void of evidential support or significant written explanation.

HCG then moved to preclude PPPC from presenting any evidence of damages under the agreement. HCG argued that PPPC’s initial disclosures described projections that would be inadmissible without expert testimony and PPPC should not be able to put on any evidence of damages.

The district court stated that PPPC’s failure to supplement the damages aspect of its initial disclosures meant that PPPC could not introduce evidence of damages unless its discovery deficiency proved harmless or substantially justified. The district court then described an established “four factor test” regarding: (1) the prejudice or surprise to the party against whom the damages evidence would be offered, which is HCG; (2) HCG’s ability to cure that prejudice; (3) the extent to which the introduction of new damages evidence would disrupt the trial; and (4) whether bad faith or willfulness motivated PPPC’s discovery failures.

The district court addressed the fourth factor and found no support for a finding of bad faith. The district court then focused on prejudice and harmlessness and allowed arguments from both parties for the right way to think about the issue. HCG argued that the law compelled exclusion due to PPPC’s failure to disclose precise quantifications of damages, as well as claiming that the prejudice proved incurable and disruptive because reopening discovery and reviewing new documents would be burdensome and expensive. PPPC emphasized that its conduct caused only slight prejudice, which could be easily remedied through limited additional discovery.

The district court concluded that PPPC could not proceed to trial and entered a judgement in favor of HCG. PPPC appealed. The Tenth Circuit Court of Appeals reviewed the district court’s decision.

The Tenth Circuit concluded that the district court abused its discretion by imposing a discovery sanction that barred PPPC from pursing its counterclaims. The court  based this conclusion on the fact that the district court misapplied the four-factor test described above, and found that the record reflected that the district court reached an arbitrary outcome that overlooked all but the last factor of the test.

The Tenth Circuit reversed the district court’s judgment in favor of HCG on PPPC’s counterclaims and remanded to allow the district court to reevaluate the exclusion of PPPC’s damages evidence under the four factor test.

The Tenth Circuit also mentioned that district courts should consider the effectiveness of lesser sanctions, where the exclusion of evidence has the necessary force and effect of a dismissal. There are three reasons for this. First is that dismissal constitutes an extreme sanction that typically is appropriate only in cases of bad faith or willful misconduct. Second, the Federal Rules of Civil Procedure expressly empower the district courts to impose sanctions short of exclusion. And third is the notion that district courts should consider the appropriateness of lesser sanctions, where their discovery rulings have the effect of dismissal, which is in accord with the decisions of other circuits.

The Tenth Circuit held that where the exclusion of evidence has the necessary effect of a dismissal, as in this case, the district courts should, in conjunction with the traditional four factor test, consider the efficacy of less drastic alternatives, reserving the sanction of dismissal for cases involving bad faith or willfulness or instances where less severe sanctions would prove futile.

The Tenth Circuit Court of Appeals REVERSED the district court’s judgment in favor of HCG and REMANDED with instructions that the district court reevaluate the exclusion of PPPC’s damage evidence.

Tenth Circuit: Unpublished Opinions, 3/22/2018

On Thursday, March 22, 2018, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Crosby v. Fox

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

On the Third Hand…

Will the machines take over the jobs? Ask a bunch of economists, and you’ll get opinions organized around competing ideologies, reflecting individual cognitive, emotional, and political biases. That’s been the experience of Martin Fordentrepreneur, TED talker, and New York Times bestselling author of Rise of the Robots: Technology and the Threat of a Jobless Future:

In the field of economics the opinions all too often break cleanly along predefined political lines. Knowing the ideological predisposition of a particular economist is often a better predictor of what that individual is likely to say than anything contained in the data under examination. In other words, if you’re waiting for the economists to deliver some sort of definitive verdict on the impact that advancing technology is having on the economy, you may have a very long wait.[1]

In this Psychology Today article, Dr. Karl Albrecht[2] offers a neurological explanation for polarized thinking:

Recent research suggests that our brains may be pre-wired for dichotomized thinking. That’s a fancy name for thinking and perceiving in terms of two — and only two — opposing possibilities.

These research findings might help explain how and why the public discourse of our culture has become so polarized and rancorous, and how we might be able to replace it with a more intelligent conversation.

[O]ur brains can keep tabs on two tasks at a time, by sending each one to a different side of the brain. Apparently, we toggle back and forth, with one task being primary and the other on standby.

Add a third task, however, and one of the others has to drop off the to-do list.

Scans of brain activity during this task switching have led to the hypothesis that the brain actually likes handling things in pairs. Indeed, the brain itself is subdivided into two distinct half-brains, or hemispheres.

Curiously, part of our cranial craving for two-ness might be related to our own physiology: the human body is bilaterally symmetrical. Draw an imaginary center line down through the front of a person and you see a lot of parts (not all, of course), that come in pairs: two eyes, two ears, two nostrils, matching teeth on left and right sides, two shoulders, two arms, two hands, two nipples, two legs, two knees, and two feet. Inside you’ll find two of some things and one of others.

Some researchers are now extending this reasoning to suggest that the brain has a built-in tendency, when confronted by complex propositions, to selfishly reduce the set of choices to just two. Apparently it doesn’t like to work hard.

Considering how quickly we make our choices and set our opinions, it’s unlikely that all of the options will even be identified, never mind carefully considered.

“On the one hand this, on the other hand that,” we like to say. Lawyers perfect the art. Politics and the press also thrive on dichotomy:

Again, our common language encodes the effect of this anatomical self reference. “On the one hand, there is X. But on the other hand, we have Y.” Many people describe political views as being either “left” or “right.”

The popular press routinely constructs “news” stories around conflicts and differences between pairs of opposing people, factions, and ideologies. Bipolar conflict is the very essence of most of the news.

So, are robots and artificially intelligence going to trash the working world, or not?

Hmmm, there might be another option — several, actually. Dr. Albrecht urges us to find them:

Seek the “third hand” — and any other “hands” you can discover. Ask yourself, and others, “Are there other options to be considered?”

We’ll consider some third hand perspectives about the rise of the robots in the coming weeks.

[1] Martin Ford is also the consulting expert for Societe Generale’s new “Rise of the Robots” investment index, which focuses on companies that are “significant participants in the artificial intelligence and robotics revolution.”

[2] According to his website, Karl Albrecht is “is an executive management consultant, futurist, lecturer, and author of more than 20 books on professional achievement, organizational performance, and business strategy. He is also a leading authority on cognitive styles and the development of advanced thinking skills. The Mensa Society honored him with its lifetime achievement award, for significant contributions by a member to the understanding of intelligence. Originally a physicist, and having served as a military intelligence officer and business executive, he now consults, lectures, and writes about whatever he thinks would be fun.”


Kevin Rhodes writes about individual growth and cultural change, drawing on insights from science, technology, disruptive innovation, entrepreneurship, neuroscience, psychology, and personal experience, including his own unique journey to wellness — dealing with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning.

Check out Kevin’s latest LinkedIn Pulse article: When We Move, We Can Achieve the Impossible.”

Colorado Rules of Civil Procedure Updated Regarding Legal and Judicial Education

On Tuesday, March 20, 2018, the Colorado State Judicial Branch released Rule Change 2018(04), adopted by the Colorado Supreme Court on March 15, 2018, and effective on July 1, 2018. The rule change adds C.R.C.P. 250 and amends C.R.C.P. 260, both rule sets titled “Mandatory Continuing Legal and Judicial Eduction.”

The new Rules 250.1 through 250.10 comprehensively define the continuing education requirements of lawyers and judges. The new rules make some changes from the previously enacted rules. Specifically, the definition of which activities will be accredited has been expanded, and now activities related to wellness, diversity, law practice management, leadership, professionalism, and more may qualify for accreditation.

Another major change enacted with the new rules is that lawyers are required to track compliance with CLE requirements until age 72. Lawyers who had previously aged out under the former limit of age 65 will now be required to continue tracking credits until they reach age 72, beginning with the effective date of the new rules (July 1, 2018).

The new rules also clarify that lawyers may receive CLE credit for certain pro bono activities, participation in the CAMP program, and mentoring. Attorneys who mentor can receive CLE credit for mentoring each year, while mentees can only receive CLE credit one time.

The former rules, codified at C.R.C.P. 260 through 260.8, were amended to reference the new rules, as appropriate.

For a redline of the rule change, click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Governor Signs Bill to Modernize “Mental Retardation” Terminology

Photo courtesy of DJ Shoaf, posted on the Next with Kyle Clark Facebook page (

On Wednesday, March 21, 2018, the governor signed into law SB 18-096, “Concerning Modernizing Statutory Provisions that Refer to Terms Related to “Mental Retardation,” sponsored by Sen. Beth Martinez Humenik and Rep. Dan Thurlow. The governor signed the bill on World Down Syndrome Day, a day on which people around the world people with Down syndrome and those who live and work with them organize and participate in activities and events to raise public awareness and create a single global voice for advocating for the rights, inclusion and well being of people with Down syndrome.

SB 18-096 is a Statutory Revisions Committee bill that modernizes and makes nonsubstantive changes to provisions of statute that use terms like ‘mental retardation’ or ‘mentally retarded’ by replacing the terms with more appropriate ‘intellectual and developmental disability’ language.

For a list of all of the governor’s 2018 legislative actions, click here.

Tenth Circuit: Unpublished Opinions, 3/21/2018

On Wednesday, March 21, 2018, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Ford

United States v. Grigsby

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

Why Everyone Needs a Long-Term Care Plan

In my previous blog I explained why I began, at age 26, a career in helping people plan for one of the biggest risks in life: needing chronic care for an extended period of time. Now, twenty-one years into my profession, I can absolutely say that everyone needs a plan for extended care, not necessarily LTC insurance!

According to the most recent data from the U.S. Department of Health and Human Services, 52.3% of persons turning 65 will need long-term care. Certainly, some care needs are just a few weeks or months. In other cases, the care event can last 10 years or more. In fact, 29.2% of those incurring LTC expenditures are expected to spend more than $250,000. The Alzheimer’s Association reports that caregivers for people with Alzheimer’s or other dementias provided approximately 18.2 billion hours of informal, unpaid assistance in 2016 valued at $230 billion – nearly 50% of Walmart’s revenue in 2016! Who are these caregivers? 80% of home care for people with Alzheimer’s and other dementias is provided by unpaid caregivers, most often family members. In my experience, family caregivers overwhelmingly agree that the emotional and physical consequences they experience are far more devastating than the financial costs.

Without planning, you or your client’s loved ones may be forced to make tough decisions. Do we make a placement into a nursing home or is someone willing and able to provide informal home care? Can we afford the best facility in the area or can we bring in 24/7 home care? Planning for extended care helps to mitigate the devastating emotional, physical and financial consequences of a long-term care event. Critical components of a long-term care plan include:

  • Who will be my caregiver if I am to remain at home? Will this person be physically and emotionally able to take care of me? Will he/she leave a career to be my caregiver? Sometimes the bigger question is who do I not want to set aside his or her life to care for me.
  • What type of care might I need? Care at home, an assisted living facility or a skilled nursing facility?
  • Where might I receive care? Will my children living in another community or state wish to move me closer to them? Would one of my adult children want me to move in with them, or would one of my adult children care to move in with me?
  • When is it likely to happen? What if I need care in my 50s, 60s, or 70s? Might I avoid dreaded diseases such as Alzheimer’s or Parkinson’s but live long enough to become frail and fragile and need help as a normal part of aging?
  • Why might I need extended care? Are there reasons to believe that I am more likely or less likely to need help than the average person? How much can I rely on family history?
  • How will I/we finance and coordinate care needs? If retirement funds and income are diverted to pay for care, how will our ability to meet ongoing obligations to loved ones be affected? Who will make decisions on my behalf?

LTC Planning Goals

I find that my clients’ planning goals often align nearly perfectly with my own personal reasons for owning some form of insurance against chronic care:

  1. If I need extended care, keep me at home for as long as possible without destroying the lives of my loved ones around me. Let them be my care manager, not my 24/7 caregiver.
  2. Preserve the retirement plan and other assets for my spouse and children and other worthwhile charitable pursuits.
  3. Keep intact our other planning devices such as the estate plan, charitable giving plan, tax avoidance plan, business succession plan, the special needs of a disabled child, etc.

What about those who are single, divorced, or widowed? Most wish to stay at home without running out of money. And if an assisted living facility or nursing necessary, who wouldn’t want the best facility possible?

Without a plan for care, someone, not just the person needing care, will suffer the consequences. Often times the person in charge of making decisions may become confused and frustrated regarding options and choices. Someone in the family may feel that there is no choice but to get involved to make sure the loved one is safe and getting good care. And because the children typically do not contribute equally physically, emotionally, or financially, resentment and hard feelings can erupt.

The Role of Insurance

Simply put, the myriad insurance products on the market today (life insurance with accelerated benefits, hybrid asset-based policies, traditional LTC insurance, short-term care insurance, hybrid LTC annuities) provide funds to help meet the planning goals detailed above. In other words, proceeds from the insurance policy provide cash flow so that a loved one can stay at home as long as possible or afford the best facility around. Because a third party is helping to pay for care, the spouse/partner/family has the freedom to make the best choices for all concerned. And if there is a surviving spouse or partner, the money provided by the insurance policy means more money to live on and a better lifestyle.

My next blog will focus on why affluent clients need a plan for care, and local care costs. Until then, if there is anything I can do for you or your clients, please visit or call 303-659-0755.

Thank you,

Aaron R Eisenach, CLTC


Aaron R. Eisenach has specialized in long-term care planning and insurance-based solutions for 20 years. His passion for this topic stems from losing both his father and grandfather to Alzheimer’s Disease. As an insurance wholesaler, Mr. Eisenach represents ICB, Inc., the nation’s first general agency specializing in LTC insurance. As an educator, he provides workshops to consumers and teaches state-mandated continuing education courses to Colorado insurance agents selling LTC products. As a broker, Mr. Eisenach is the proprietor of and partners with financial advisors and agents who trust him to work with their clients. He is the immediate past president of the Producers Advisory Council at the Colorado Division of Insurance, serves as president of the nonprofit LTC Forum of Colorado, Inc, and has appeared on 9News and KMGH Channel 7. He recently served as an expert witness in a court case and was a contributing author to the American College curriculum on long-term care insurance.

Colorado Supreme Court: Encroaching Tree on Property Line Belongs to Party on whose Property Tree First Grew

The Colorado Supreme Court issued its opinion in Love v. Klosky on Monday, March 19, 2018.

Adjoining Landowners—Stare Decisis.

In this case, the supreme court considered whether to overrule Rhodig v. Keck, 421 P.2d 729 (Colo. 1966), which outlines the test for ownership of a tree that encroaches onto a neighbor’s land. Under that test, an encroaching tree remains the sole property of the owner of the land where the tree first grew, unless the tree was jointly planted, jointly cared for, or treated as a partition between the two properties. The supreme court upheld Rhodig. The court found that Rhodig’s approach remains sound and it failed to see how overruling Rhodig would do more good than harm.

The court then applied to Rhodig to the decision at hand. Here, the trial court found that the tree in question began life on Klosky’s land and encroached onto the Loves’ land, and there was no joint activity implying shared ownership of the tree. Because the Loves failed to prove any such shared property interest in the tree, the court concluded that the Loves cannot prevent Klosky from removing the encroaching tree.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Amendment to Information Narrowing Date Range Did Not Affect Defendant’s Substantial Rights

The Colorado Supreme Court issued its opinion in People v. Washam on Monday, March 19, 2018.

Crim. P. 7(e)—Time-Allegation Amendments.

In this case, the supreme court considered whether an amendment to an information narrowing the date range after trial began was permissible under Crim. P. 7(e). To do so, as required under Rule 7(e), the court analyzed whether the amendment was one of form or substance and whether it prejudiced defendant’s substantial rights. Because the amendment simply narrowed the date range in the information and did not prejudice defendant’s substantial rights, the court concluded that the amendment was one of form and was permissible after trial began. Hence, the trial court did not abuse its discretion in permitting the amendment to the information.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/20/2018

On Tuesday, March 20, 2018, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

Manni v. English

Thompson v. Romeo

United States v. Hopkins

Maryland Casualty Co. v. Mid-Continent Casualty Co.

United States v. Vann

Moore v. Raemisch

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