April 19, 2018

Archives for March 23, 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On Thursday, March 22, 2018, the Colorado Court of Appeals issued nine published opinions and 43 unpublished opinions.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Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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.

ADOPTION

  • 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)

AGISTOR’S LIEN

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

APPELLATE

  • 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)

CIVIL

  • 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)

CRIMINAL

  • 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)

DOMESTIC RELATIONS

  • 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)

FILING FEES

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

GARNISHMENT/EVICTIONS

  • 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)

NAME CHANGE

  • 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)

PROTECTED PERSONS

  • 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.