May 19, 2013

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Colorado Supreme Court: Trial Court Erred by Failing to Balance Privacy Right with Need for Information in Discovery Dispute

April 16, 2013 by Leave a Comment

The Colorado Supreme Court issued its opinion in In re Gateway Logistics, Inc. v. Smay on Monday, April 15, 2013.

Privacy Interests—CRCP 26.

In this original proceeding brought under CAR 21, the Supreme Court concluded that the trial court abused its discretion by granting a motion to compel discovery without making findings of fact balancing defendants’ asserted privacy interest with plaintiffs’ need for the information sought, as required by In re District Court, 256 P.3d 687 (Colo. 2011). Accordingly, the Court made the rule absolute, vacated the portion of the trial court’s order compelling the discovery, and remanded the case to the trial court.

Summary and full case available here.

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Colorado Court of Appeals: Action Seeking to Enforce Contractual Agreements In Personam in Nature; Maritime Law Not Implicated

April 16, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in BDG International, Inc. v. Bowers on Thursday, April 11, 2013.

Subject Matter Jurisdiction—Maritime Law—Finality of Judgment—Contract—Duress—Offsetting—Attorney Fees.

Defendants Robert J. Bowers and Auxiliary Graphic Equipment, Inc. (AGE) appealed the judgment entered after a bench trial in favor of plaintiff BDG International, Inc. (BDG). The judgment was affirmed.

AGE purchased printing presses from a seller in Australia for a client located in Colorado. AGE contracted with Fortner Graphic Solutions, Inc. (Fortner) to dismantle the printing presses and transport them to Colorado. Fortner then subcontracted with BDG and other firms to perform its contractual duties. BDG was responsible for transoceanic shipping, and another company was responsible for packing and inland transportation to the client’s site in Colorado. BDG brought this action after defendants failed to pay all costs for inland and ocean freight for the dismantling and shipping of the presses and failed to make payment as required by the agreements to release the resulting liens. The court entered a judgment in favor of BDG and against defendants, jointly and severally.

On appeal, defendants contended that the trial court lacked subject matter jurisdiction over this case, because it involved admiralty or maritime law and exclusive jurisdiction resided with the federal courts. Contrary to defendants’ arguments, however, this action is not in rem in nature; rather, it is a proceeding in personam, because it sought to enforce the contractual agreements against defendants personally and not against the cargo or another type of property of a maritime nature. Accordingly, jurisdiction in this case did not lie exclusively in the federal courts, and the trial court did not lack subject matter jurisdiction to hear this case.

Defendants also contended that the judgment was not final because it does not dispose of the litigation. The judgment entered by the trial court resolved BDG’s and the third-party claim; dismissed the counterclaim with prejudice; and awarded a sum certain for damages, collection costs, and prejudgment interest. Although the trial court provided directions with regard to how the proceeds of any sums recovered by Bowers or AGE should be applied to the judgments they obtained against Fortner in Colorado and Missouri, those directions do not alter the finality of the underlying judgment.

Defendants also contended that the trial court erred in not finding the contracts voidable on the basis of duress. Although defendants may have felt economic pressure to sign the releases to obtain possession of the cargo, the lienholders did not engage in wrongful conduct to coerce payment from defendants.

Defendants further contended that the trial court erred in failing to set off against one another the judgments in this case. Contrary to defendants’ contention, however, the principle of offsetting judgments does not apply, because the judgments are not against the same parties.

BDG collection costs primarily were attorney fees amounting to 40% of the principal due under the agreements signed by defendants. The Court of Appeals therefore ruled that the trial court did not err in awarding BDG collection costs.

Summary and full case available here.

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HB 13-1259: Making Several Amendments to Procedures for Civil Actions Involving Parental Rights and Responsibilities in Cases Involving Abuse and Neglect

April 11, 2013 by Leave a Comment

On March 11, 2013, Rep. Beth McCann and Sen. Linda Newell introduced HB 13-1259 - Concerning Civil Actions, and, in Connection Therewith, Procedures for Allocating Parental Rights and Responsibilities in the Best Interests of the Child in Cases Involving Child Abuse and Neglect and Domestic Violence; Provisions Relating to Parenting Time Orders; Provisions Relating to Parenting Time Evaluations and Reports; and Amending and Relocating Provisions Relating to Civil Protection Orders. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill makes amendments to various provisions of law relating to civil actions and orders.

The bill amends provisions of article 10 of title 14, Colorado Revised Statutes (C.R.S.), as follows:

  • Includes additional rights of children with respect to the determination of parenting time in section 14-10-123.4, C.R.S.;
  • In the determination of the best interests of a child with respect to the allocation of parental rights and responsibilities pursuant to section 14-10-124, C.R.S.:
    • Requires a court to follow certain procedures in actions where a claim of child abuse or neglect or domestic violence has been made to the court or when the court has reason to believe that a party has committed child abuse or neglect or domestic violence;
    • In contested hearings on final orders, requires the court to make findings on the record concerning the factors the court considered and the reasons for the allocation of rights and responsibilities;
    • Permits the court to allocate mutual decision-making for a child in a case that involves domestic violence, over objections, if the court makes certain findings;
    • Requires the court to consider the current statutory factors concerning the best interests of the child in light of any finding of child abuse or neglect or domestic violence;
    • Includes certain factors that the court may consider when formulating or approving a parenting plan in cases where one of the parties has committed child abuse or neglect or domestic violence;
    • Permits the court to order a domestic violence evaluation and subsequent evaluations and to require a party to participate in domestic violence treatment; and
    • Includes general procedures that may be included in parenting plans;
  • Provides that a court is not required to order a parenting time evaluation pursuant to section 14-10-127, C.R.S., and includes a list of factors that the court shall consider in determining whether to order an evaluation; and
  • In section 14-10-129, C.R.S., expands language relating to domestic violence and increases the time within which the court must hear and rule on an emergency motion to restrict parenting time from 7 days to 14 days.

The bill amends, repeals, and relocates the provisions of part 1 of article 14 of title 13 relating to civil protection orders, as follows:

  • Moves the legislative declaration currently contained in section 13-14-102 (1), C.R.S., to a new section and adds additional language to the legislative declaration;
  • Amends section 13-14-101, C.R.S., containing definitions for article 14 to include a new definition for “contact” and “sexual assault or abuse,” and amends existing definitions for “domestic abuse,” “protection order,” and “stalking”;
  • Repeals section 14-13-102, C.R.S., and relocates provisions of that section, with amendments, to other sections in article 14;
  • Adds additional behaviors to the list of behaviors for which a court may enter an emergency protection order;
  • Repeals section 13-14-104, C.R.S., relating to foreign protection orders and relocates those provisions, with amendments, to the new section 13-14-110, C.R.S.;
  • Creates a new section 13-14-104.5, C.R.S., that includes provisions relating to temporary civil protection orders that are relocated from 13-14-102, C.R.S., with amendments, that:
    • Adds to the list of behaviors for which a temporary civil protection order may be entered;
    • Clarifies that a petitioner is not required to show that: he or she has reported the act that is the subject of the complaint to law enforcement, that charges have been filed, or that he or she is participating in the prosecution of the criminal matter; and
    • An order awarding temporary care and control of the child may be extended for not more than one year;
  • Creates a new section 13-14-105, C.R.S., that contains provisions that are relocated from section 13-14-102, C.R.S., with amendments, and adding additional provisions that a court may include as part of a civil protection order;
  • Creates a new section 13-14-106, C.R.S., that contains provisions that are relocated from section 13-14-102, C.R.S., with amendments, relating to procedures for permanent civil protection orders and clarifies that the court need not find that the petitioner is in imminent danger in order to grant a permanent civil protection order; and that the court may continue a temporary civil protection order and the show cause hearing for one year for good cause;
  • Creates a new section 13-14-107, C.R.S., that contains provisions that are relocated from section 13-14-102, C.R.S., with amendments, relating to enforcement of protection orders and duties of peace officers;
  • Creates a new section 13-14-108, C.R.S., that contains provisions that are relocated from section 13-14-102, C.R.S., with amendments, relating to the modification and termination of civil protection orders that:
    • Allows a restrained party to file for modification or dismissal of a permanent civil protection order 2 years after the order was entered or after the disposition of a prior motion; and
    • Permits the court to consider whether the protection order has been successful in preventing harm to the protected person as grounds to deny the modification or dismissal of a permanent civil protection order;
  • Creates a new section 13-14-109, C.R.S., that contains provisions that are relocated from section 13-14-102, C.R.S., with amendments, relating to civil protection orders fees and costs; and
  • Creates a new section 13-14-110, C.R.S., that contains provisions that are relocated from section 13-14-104, C.R.S., with amendments, relating to foreign protection orders.

At the request of the Family Law Section, the CBA Legislative Policy has voted to oppose the bill in its current form. On April 4, the Public Health Care & Human Services Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact.

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Colorado Supreme Court: Summary Judgment Affirmed Where Action Not Filed Within Statutory Limitations Period

March 5, 2013 by Leave a Comment

The Colorado Supreme Court issued its opinion in Pham v. State Farm Auto Insurance Co. on Monday, March 4, 2013.

Statute of Limitations—Uninsured/Underinsured Motorist Claims—CRS § 13-80-107.5.

Steven Pham, representing the estate of the driver of a car involved in a traffic accident, as well as the deceased driver’s parents and the five passengers in his car at the time, sought review of the court of appeals’ judgment. The court of appeals affirmed a summary judgment in favor of State Farm Automobile Insurance Company on the ground that plaintiffs’ claims were barred by the statute of limitations governing underinsured motorist claims, found at CRS § 13-80-107.5(1)(b).

The Supreme Court affirmed. The Court held that plaintiffs failed to file this action or demand arbitration of their underinsured motorist claims within either three years of the accrual of their cause of action or within two years after receiving payment of a settlement or judgment on an underlying bodily injury liability claim that had been preserved as prescribed by the statute.

Summary and full case available here.

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Colorado Court of Appeals: Plaintiffs’ Unexplained Delay in Filing Complaint Not Attributable to Defendant and Therefore Extension of Statute of Limitations Not Applicable

January 3, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Damian v. Mountain Parks Electric, Inc. on Thursday, December 27, 2012.

Colorado Consumer Protection Act—Deceptive Trade Practices—Statute of Limitations—Extension—Equitable Tolling.

Plaintiffs Ann Damian and John Taylor, Jr. appealed the summary judgment in favor of defendant Mountain Parks Electric, Inc. The judgment was affirmed.

Plaintiffs filed a complaint against defendant, asserting claims under the Colorado Consumer Protection Act (CCPA) for damages allegedly caused by defendant’s deceptive trade practices in the marketing and sale of a heating system.

Plaintiffs contended that the district court erred in not applying the one-year extension of the statute of limitations set forth in CRS § 6-1-115. The CCPA provides for a limitations period of three years, but extends that limitations period by one year if the plaintiff proves that the defendant caused the plaintiff to delay or refrain from filing the action. Here, it was not defendant’s conduct that caused the statute to run, but rather plaintiffs’ unexplained eighteen-month delay in instituting the administrative proceeding through the Colorado Public Utilities Commission.. Therefore, the district court did not err in ruling that the one-year extension of the statute of limitations was not applicable based here.

Plaintiffs also argued that the district court should have held that the statute of limitations was equitably tolled in light of the facts and procedural history of this case. Because the CCPA already provides a one-year extension of the limitations period if a defendant engages in conduct calculated to induce the plaintiff to refrain from or postpone the commencement of the action, application of the equitable tolling doctrine to the CCPA would be redundant. Accordingly, the district court did not err in dismissing plaintiffs’ complaint on statute of limitations grounds.

Summary and full case available here.

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Colorado Court of Appeals: Plaintiff in Personal Injury Action Has No Affirmative Duty to Mitigate Medical Expenses when Pain is Unresolved

January 3, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Banning v. Prester on Thursday, December 27, 2012.

Automobile Accident—Injuries—Jury Instructions—Mitigation of Damages—Collateral Source Rule—Testimony.

In this automobile accident case, plaintiff Michelle Banning appealed the judgment awarding her damages following a jury verdict against defendant William Prester. The judgments were reversed and the case was remanded for a new trial.

Prester negligently drove his vehicle, causing a low-speed rear-end collision with Banning’s vehicle. Banning sought medical attention for neck and back pain. Her billed medical expenses eventually reached approximately $140,000.

On appeal, Banning asserted that the trial court erred in instructing the jury concerning Prester’s mitigation of damages defense by allowing the jury to find she failed to mitigate if she “continued to undergo expensive treatment when it was not resolving her pain.” Plaintiffs do not have an affirmative duty to cease medical treatment when it is “expensive” and “fails to resolve a complaint of pain.” Therefore, the court erred in so instructing the jury, and the erroneous instruction was prejudicial to Banning. Accordingly, the case was remanded for a new trial on damages.

Banning also contended that the trial court erred in admitting evidence of amounts her health insurer paid to her medical providers. On remand, the trial court should apply the collateral source rule to this evidence.

Banning further asserted that the trial court erred when it allowed Dr. Lambden, Prester’s expert witness, to provide testimony about the “delta forces” involved in the accident, as well as testimony concerning Banning’s history of being subjected to domestic abuse. Contrary to Banning’s assertion, however, Dr. Lambden did not mention delta forces again after Banning’s objection to this testimony was sustained by the court. Further, the reference to Banning’s history of domestic abuse was relevant to Banning’s claim of depression after the accident and Prester’s assertion that Banning suffered from delayed recovery syndrome. Therefore, the court did not err in this regard.

Summary and full case available here.

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Colorado Supreme Court: Amended Opinion – General Steel Domestic Sales LLC v. Bacheller III

December 23, 2012 by Leave a Comment

The Colorado Supreme Court amended its opinion in General Steel Domestic Sales LLC v. Bacheller III on Thursday, December 20, 2012.

First Amendment—Right to Petition—Trebled Exemplary Damages.

The Supreme Court held that Protect Our Mountain Environment, Inc. v. District Court, 677 P.2d 1361 (Colo. 1984) (POME), is inapplicable where, as here, the underlying alleged petitioning activity was the filing of an arbitration complaint that led to a purely private dispute. Under POME, a plaintiff must meet a “heightened standard” when suing a defendant for the “alleged misuse or abuse of the administrative or judicial processes of government.” Here, Bacheller sued General Steel Domestic Sales, LLC (General Steel), Discount Steel Buildings, LLC (Discount Steel), and the presidents of both companies for abuse of process, malicious prosecution, and civil conspiracy, based on their filing an arbitration complaint against him. The trial court denied defendants’ request to include additional elements reflecting POME’s heightened standard in the malicious prosecution jury instruction. Because POME is inapplicable here, the Court affirmed the trial court’s ruling.

The Court also held that the trial court did not abuse its discretion by trebling the exemplary damages award against General Steel and Discount Steel. After the jury returned verdicts in Bacheller’s favor on several claims and awarded actual and exemplary damages, the trial court granted Bacheller’s motion to treble the exemplary damages award but only against General Steel and Discount Steel. Because the record supports the trial court’s finding that defendants acted willfully and wantonly during the pendency of the action and further aggravated Bacheller’s damages, the Court affirmed the trial court’s ruling.

Summary and full case available here.

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Tenth Circuit: Employees Were At-Will and Had No Legitimate Expectation in Continued Employment

December 19, 2012 by Leave a Comment

The Tenth Circuit issued its opinion in Gonzales v. City of Albuquerque on Monday, December 17, 2012.

The City of Albuquerque (the City) has a 311 Citizen Contact Center (CCC) to handle calls placed to the City’s non-emergency telephone number. The City’s Merit System divided employees into classified and unclassified service. Unclassified employees were defined as employees at will who could be dismissed for any reason. All CCC positions were designated unclassified. Plaintiffs acknowledge they were unclassified.

Plaintiffs were terminated from CCC between 2005 and 2009. Plaintiffs filed suit in New Mexico state court on five claims. The City removed to federal court and moved for summary judgment. The district court granted the City’s motion on all claims. Plaintiffs appealed.

On appeal, Plaintiffs argue the City never told them that they were employed at will, and to the contrary, that management imparted the message that they could only be fired for just cause. Plaintiffs contend that they had (1) a reasonable expectation of continued employment and thus a protected property interest, and (2) an implied contract of employment that protected against arbitrary discharge.

First, under New Mexico law, a property interest in the employment context consists of a legitimate expectation in continued employment. There was ample evidence in the record that Plaintiffs knew they were unclassified, at-will employees, including signed forms to this effect from each of them. Therefore, there was no issue as to any material fact on this point.

Second, Plaintiffs argue that they had an implied employment contract, which the City breached in terminating them without cause. Since Plaintiffs failed to allege specific facts that create an implied employment contract, they failed to raise an issue of fact that the City’s policies, representations, or conduct created an implied employment contract.

AFFIRMED.

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New IAALS Study Asks and Answers “What Has Happened with Rule 16.1 in Colorado?”

December 11, 2012 by Leave a Comment

IAALS has just released a Rule One Initiative research report entitled Measuring Rule 16.1: Colorado’s Simplified Procedure Experiment. In 2004, the Colorado Supreme Court put in place Rule 16.1, a voluntary pretrial process for smaller dollar-volume civil cases, with the hope of providing a more efficient path to resolution. This new report sets forth the results of an empirical study of Rule 16.1, including its role and impact. With growing interest in streamlined pretrial procedures, case differentiation, and optional processes, we felt it was important to examine one such rule that has existed for some time. Through this study, IAALS attempts to answer the question: What has happened with Rule 16.1 in Colorado?

Rule 16.1 is the default pretrial procedure in Colorado district court for typical types of civil actions with less than $100,000 in controversy between any two parties, although any party may “opt out” and elect to use the standard pretrial process instead. This “simplified” procedure generally replaces discovery with mandated disclosures, along with assurances of a faster route to trial. Recovery under Rule 16.1, including attorney fees but excluding costs, cannot exceed the $100,000 limit.

The study documented the highest rate of Rule 16.1 cases in consumer credit collection actions (95%) and other straightforward contract actions in which damages are fixed or liquidated. In 70% of cases proceeding under Rule 16.1, there is no appearance by any defendant, and more than half resolve by entry of default judgment. Overall, the perception among interviewed attorneys and judges is that the cap on damages and inflexible limits on discovery have discouraged attorneys from using the procedure. In other words, given the choice of opting out, many attorneys do just that.

In the 30% of Rule 16.1 cases that were contested and therefore invoked the provisions of the procedure, there is mixed evidence on the rule’s impact. With respect to time to disposition, the county in which the case is filed appears to play a larger role than Rule 16.1. In addition, Rule 16.1 cases have not been shown to have a higher trial rate. However, Rule 16.1 is associated with a decrease in the number of motions filed. It is not possible to know whether the results would have been different if the rule was more frequently applied in actively litigated cases.

Colorado’s experience may contain insight for other jurisdictions as they experiment with formulating sets of rules to more effectively secure the “just, speedy, and inexpensive” resolution of civil cases. Click here to read the full report.

Corina Gerety is Manager of Research for IAALS, the Institute for the Advancement of the American Legal System at the University of Denver. IAALS is a national, independent research center dedicated to continuous improvement of the process and culture of the civil justice system. This post originally appeared on IAALS Online, the IAALS blog, on November 28, 2012.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Filed Under: Practice Management Tagged With: , , , , , , ,

Empirical Findings Inform Different Approaches to Discovery Reform

November 26, 2012 by Leave a Comment

One of the principal goals of the Colorado Civil Access Pilot Project (CAPP) is to streamline the discovery process and thereby reduce the cost of litigation. Ultimately, CAPP’s success in reducing total litigation costs depends on how big of a problem the discovery process actually is. Suffice it to say, there is not agreement on this point, as best illustrated by the differing empirical findings of the Federal Judicial Center and the Institute for the Advancement of the American Legal System.

The Federal Judicial Center (FJC) is the education and research agency for the federal courts. The FJC surveyed more than 2,000 attorneys of record in federal civil cases terminated in the last quarter of 2008. 1 The FJC found median litigation costs, including attorney fees, of $15,000 for plaintiffs and $20,000 for defendants. It also found a strong correlation between the stakes of a case and total litigation costs. Specifically, all else being equal, if the stakes in a case double, litigation costs increase by 25 percent. Finally, the FJC found that the median percentage of total litigation costs accounted for by discovery was 20 percent for plaintiffs’ attorneys and 27 percent for defendants’ attorneys. The FJC researchers suggest that “before any further amendments to the discovery rules are proposed in the name of reducing costs, more effort must be made to define the problem that such rule amendments are supposed to address.” 2

The Institute for the Advancement of the American Legal System (IAALS), headquartered at the University of Denver, helped develop CAPP and is currently tracking its progress. IAALS surveyed the impressions of thousands of American College of Trial Lawyers Fellows nationwide. IAALS found that survey respondents overwhelmingly believed that the costs of litigation were not proportionate to the value of a case. Those surveyed also indicated that cases involving less than $100,000 are not cost effective to litigate. 3 Finally, the IAALS study found that the median estimate of the percentage of litigation costs attributable to discovery in cases not going to trial was 70 percent. 4

The differences in findings are stark. The FJC found that litigation costs are generally proportionate to the stakes in litigation; IAALS found the opposite. But perhaps the largest contrast is the share of litigation costs attributable to discovery. If the FJC is correct that the discovery process only accounts for 20 to 27 percent of total litigations costs, we would need to temper our expectations for CAPP’s goal of reducing total litigation costs. If, however, discovery accounts for 70 percent of total litigation costs, then we might remain optimistic that CAPP will significantly decrease costs and thereby improve access to the civil justice system.

In my humble opinion, if there is a problem to be solved by CAPP, it’s that cases with relatively little at stake can cost so much that they are not cost-effective to litigate. While I find the FJC’s empirical results more persuasive than its IAALS counterparts, the FJC findings do indicate that litigation costs are more of a problem for cases with less at stake. 5 I believe that CAPP, if respected by attorneys and strictly enforced by judges, can reduce the overall costs for cases with less at stake (i.e., approximately $100,000 or less). 6 This may not be the far-reaching result that the CAPP creators envisioned, but it would certainly constitute progress.

Notes:

  1. For an in-depth summary of the differing empirical findings in this area, see Emery G. Lee & Thomas E. Willging, Defining the Problem of Cost in Federal Civil Litigation, 60 Duke L.J. 765 (2010). Unless otherwise indicated, all statistics in this blog are taken from this article. ↩
  2. Id. at 768. ↩
  3. A History and Overview of the Colorado Civil Access Pilot Project, available here. ↩
  4. To clarify, the IAALS survey inquired only about cases not going to trial, while the FJC study included all cases. Lee and Willging do not discuss this difference in their article, but given the very low percentage of cases that go to trial (according to the article cited in footnote 3, the district court civil trial rate in Colorado is 1 percent), I would not expect it to significantly affect the statistical outcome or the ability to accurately compare the FJC and IAALS numbers. ↩
  5. See Lee & Willging, supra note 1, at 788 figs. 1 & 2. ↩
  6. I will concede that CAPP’s effectiveness in this regard may be somewhat muted by the existing availability of CRCP 16.1. However, everything I have read indicates that Rule 16.1 is sparingly used. As CAPP is mandatory, it will most likely have a stronger impact on reducing costs. ↩

Michael Ley is an associate at Brosseau Bartlett Seserman, LLC and concentrates his practice on insurance, commercial, and civil litigation.. He contributes to the CBA’s SOLO in COLO blog, where this post originally appeared on November 8, 2012.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Filed Under: Practice Management Tagged With: , , , ,

Colorado Court of Appeals: No Bright Line Rule that Claims that Survive Summary Judgment Are Not Abuse of Process

November 13, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Health Grades, Inc. v. Boyer on Thursday, November 8, 2012.

Abuse of Process—Summary Judgment—Directed Verdict—Judgment Notwithstanding the Verdict—Sham Litigation.

Plaintiff Health Grades, Inc. appealed the trial court’s judgment following a jury verdict in favor of defendants Christopher Boyer and Patrick Singson on their abuse of process counterclaim. The judgment was reversed and the case was remanded with directions.

Health Grades is a Web-based information resource that provides health-care information and provider ratings online. Defendants are former Health Grades employees who resigned over a dispute as to whether websites they created improperly competed with Health Grades’ business.

Health Grades contended that the trial court erred by denying its motions for directed verdict and judgment notwithstanding the verdict as to defendants’ abuse of process counterclaim. Health Grades argued that, once its claims survived motions for summary judgment and directed verdict, they could not, as a matter of law, constitute “sham litigation.” However, there is no bright-line rule—and the Court of Appeals declined to adopt one—that states that any lawsuit that survives a motion for summary judgment or directed verdict cannot be the basis for an abuse of process claim. Thus, defendants’ abuse of process counterclaim was not automatically barred, because Health Grades’ claims survived motions for summary judgment and directed verdict. Nonetheless, the constitutional aspect of Health Grades’ defense to the abuse of process claims should have been decided by the court and should not have been submitted to the jury. Because the court failed to apply the heightened standard to determine whether the claims asserted by Health Grades were devoid of reasonable factual support or had no cognizable basis in law, the judgment was reversed and the case was remanded to the trial court to make this determination.

Summary and full case available here.

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Colorado Court of Appeals: Claims Under Dog Bite Statute Not Excluded by Predator Control Dog Exclusion; Judgment Affirmed as to All Other Counts

October 31, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Legro v. Robinson on Thursday, October 25, 2012.

Summary Judgment—Civil Dog Bite Statute—Premises Liability Act—“Landowner.”

Plaintiffs Renee and Stephen Legro appealed the district court’s entry of summary judgment in favor of defendants Samuel and Cheri Robinson. The Legros also appealed the court’s denial of their motions to amend their complaint and to enforce an alleged settlement agreement. The Court of Appeals affirmed the summary judgment in part and reversed it in part; declined to address the motion to amend; affirmed the order denying enforcement of a settlement agreement; and remanded the case with directions.

On July 9, 2008, Renee Legro was in a bicycle race sponsored by the Vail Recreation District (District) when she was attacked by two of the Robinsons’ predator control dogs and sustained significant injuries. The attack was on a public road in the White River National Forest. The Robinsons had a permit, issued by the U.S. Forest Service, to graze sheep in the area of the attack. The District had a permit for the race on the road where the attack occurred.

The Legros sued, alleging negligence, negligence per se, loss of consortium, and strict liability pursuant to the civil dog bite statute, CRS § 13-21-124. The Robinsons moved for summary judgment, arguing that the common law claims were barred by the premises liability act (PLA) and that they could not be held liable under the predator control dog exclusion of the dog bite statute. The district court granted the Robinsons’ motion, agreeing with both arguments.

On May 25, 2011, the day of the district court’s order, the Legros filed a motion to reconsider, requesting the case proceed to trial as a PLA case and a separate motion to file an amended complaint alleging a PLA claim. The court never ruled on the motions; therefore, they were denied as a matter of law.

Twelve days after the summary judgment order, the Legros filed a motion to enforce a settlement agreement allegedly accepted by them fewer than two hours after the court’s summary judgment order. The district court did not rule on this either, but after remand from the Court of Appeals for that express purpose, the district court denied it on January 30, 2012.

On appeal, the Legros argued that it was error to conclude that the Robinsons were PLA landowners. The Court disagreed. The term “landowner” is broadly defined in the PLA. Under their sheep grazing permit, the Robinsons had a legal entitlement to be on the property. They were responsible for creating a condition, or conducting an activity, on the property that injured Legro;therefore, they qualified as landowners under the PLA.

The district court failed to determine whether the dog bite statute may prevail over the PLA, assuming the PLA abrogated the statutory dog bite claim. The Court held that the PLA does not abrogate the Legros’ statutory claim, nor does the dog bite statute prevail over the PLA; rather, both statutes may be given effect in this case.

Under the dog bite statute, a dog owner may be held strictly liable for economic damages if the dog bites a person who is lawfully on public or private property absent one of the statutory exclusions. If the incident occurs on a property where the defendant also qualifies as a PLA landowner, the plaintiff may seek damages beyond economic damages under the PLA and the landowner may avoid liability by demonstrating he or she met the duties imposed under the PLA.

The Legros further argued that the district court erred in finding that the undisputed facts supported application of the predator control dog exclusion to grant summary judgment under the dog bite statute. The Court agreed. The question was whether the predator control dogs were on “property of or under the control of” the Robinsons. The property was owned by the Forest Service, so the Court had to determine whether it was “under the control of” the Robinsons. The Court held that “control” of property as used in the statute means, at a minimum, sufficient control over the property such that a dog owner has the right to exclude persons from the property. Here, the Robinsons had a Taylor Grazing Act permit (43 USC § 315b), which is nonexclusive. The Court held they did not have control of the property within the meaning of the exclusion because they could not exclude others from the property. Therefore, it was error to enter summary judgment based on the exclusion.

The Court affirmed summary judgment barring the Legros’ common law claims under the PLA because the Robinsons are landowners. Because the dog bite statute also applies and the predator dog exclusion is not supported by the undisputed facts, the summary judgment was reversed as to that claim and the case was remanded, with specific instructions allowing the Legros to amend their complaint to state a PLA claim. The Court affirmed the order denying the Legros’ motion to enforce the alleged settlement agreement, because it was clearly withdrawn before its acceptance.

Summary and full case available here.

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