September 30, 2014

C.R.C.P. 26 and 121 Amended Regarding Privilege Claims in Discovery and Motions to Reconsider

The Colorado Supreme Court released Rule Change 2014(11) on Monday, September 22, 2014. Rule Change 2014(11) creates a new subparagraph (B) in C.R.C.P. 26(b)(5), which addresses claims of privilege for information inadvertently disclosed during discovery, as follows:

(B) If information produced in disclosures or discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must not review, use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and shall give notice to the party making the claim within 14 days if it contests the claim. If the claim is not contested within the 14-day period, or is timely contested but resolved in favor of the party claiming privilege or protection of trial-preparation material, then the receiving party must also promptly return, sequester, or destroy the specified information and any copies that the receiving party has. If the claim is contested, the party making the claim shall within 14 days after receiving such notice present the information to the court under seal for a determination of the claim, or the claim is waived. The producing party must preserve the information until the claim is resolved, and bears the burden of proving the basis of the claim and that the claim was not waived. All notices under this rule shall be in writing.

Rule Change 2014(11) changed C.R.C.P. 121, § 1-15, to add a new subparagraph 11:

11. Motions to Reconsider. Motions to reconsider interlocutory orders of the court, meaning motions to reconsider other than those governed by C.R.C.P. 59 or 60, are disfavored. A party moving to reconsider must show more than a disagreement with the court’s decision. Such a motion must allege a manifest error of fact or law that clearly mandates a different result or other circumstance resulting in manifest injustice. The motion shall be filed within 14 days from the date of the order, unless the party seeking reconsideration shows good cause for not filing within that time. Good cause for not filing within 14 days from the date of the order includes newly available material evidence and an intervening change in the governing legal standard. The court may deny the motion before receiving a responsive brief under paragraph 1(b) of this standard

The committee comment to Rule 121, § 1-15, was amended as well to clarify the limits of subparagraph 11.

Rule 411, “Appeals,” was amended to allow the clerk to certify records.

For the full text of the rule change, click here. For all of the Colorado Supreme Court’s rule changes, click here.

Colorado Court of Appeals: Wife’s Failure to Disclose Financial Records Not Fraud or Misconduct Under Rule 16.2(b)(2)

The Colorado Court of Appeals issued its opinion in In re Marriage of Roddy and Betherum on Thursday, July 31, 2014.

Modification of Child Support—Abuse of Discretion—Financial Disclosures—CRCP 16.2(e)(10)—CRCP 60(b)(2) and (5).

When the parties’ 2003 decree of dissolution was entered, the court adopted their stipulation that wife would be the primary residential parent for the parties’ minor child and husband would pay her $3,000 in monthly child support. Eight years later, husband moved to modify child support on the bases that his parenting time had increased and his income had decreased since the order. After a hearing, the district court increased husband’s child support obligation to $4,604 per month.

On appeal, husband contended that the district court erred in its child support calculation. Because husband’s appeal from the child support order was untimely, this part of husband’s appeal was dismissed.

Husband also argued that the district court abused its discretion when it denied his motion for post-trial relief after he established that wife had withheld financial information. The plain language of CRCP 16.2(e)(10) does not allow a court to re-determine a child support award. Further, although husband’s post-hearing evidence demonstrated that wife was “inconsistent” insofar as her finances were concerned, the court already made a finding at the child support hearing that wife’s testimony in that regard was “inconsistent” and “incredible.” Additionally, the parties did not dispute that their combined gross incomes exceed the uppermost guideline limits. Therefore, an exact income for wife was not required, because the court had discretion to deviate from the guidelines and enter an appropriate support order. As a result, the district court did not err by denying husband’s motion for relief.

Husband further argued that the court should have granted relief under CRCP 60(b)(5). Because husband alleged that wife either fraudulently failed to disclose or misrepresented her income, his motion fell squarely under CRCP 60(b)(2). In such cases, the residual provision of CRCP 60(b)(5) is not applicable. The appeal from the child support order was dismissed and the post-decree order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

C.R.C.P. 42.1, Consolidated Multidistrict Litigation Rule, Changed by Supreme Court

On Monday, May 5, 2014, the Colorado Supreme Court issued Rule Change 2014(06), amending Rule 42.1 of the Colorado Rules of Civil Procedure. Rule 42.1, “Consolidated Multidistrict Litigation,” was amended to clarify the procedures for filing original procedures in consolidated matters, as shown by this redline:

(k)(2) Original pleadings regarding consolidated matters shall thereafter be filed with the clerk of the transferee court and copies filed with the clerk of the transferor court.

For a complete list of the Colorado Supreme Court’s rule changes, click here.

Comment Period Open for Proposed Changes to Rules of Professional Conduct and Rules of Civil Procedure

The Colorado Supreme Court has announced proposed changes to the Colorado Rules of Professional Conduct. The public comment period for proposed changes to Comment [2A] of Colo. RPC 8.4 and a proposed new Rule 8.6 is now open. Written comments should be submitted to Christopher Ryan, Clerk of the Supreme Court, no later than 5 p.m. on February 25, 2014. There will be a public hearing on these proposed changes on March 6, 2014, at 1:30 p.m. at the Colorado Supreme Court courtroom.

Proposed changes to the Colorado Rules of Civil Procedure were also announced. Changes to C.R.C.P. 54(d) and C.R.C.P. 121, § 1-22 are submitted for public comment. Comments should be submitted in writing to Christopher Ryan by 5 p.m. on April 15, 2014, and the public hearing on the proposed changes will be held on April 29, 2014, at 1:30 p.m. in the Colorado Supreme Court courtroom.

Additional changes to the Colorado Rules of Professional Conduct were also announced, concerning the repeal and readoption of Colo. RPC 1.15. Comments regarding this proposed change are due no later than 5 p.m. on Tuesday, May 20, 2014, and should be submitted in writing to Christopher Ryan. The public hearing regarding this change will be held on June 5, 2014, at 1:30 p.m. in the Colorado Supreme Court courtroom.

For more information on these proposed changes or for the address at which to submit written comments, click here.

Changes to Colorado Rules of Civil Procedure, Rules for Magistrates, and County Court Civil Procedure Announced

On Wednesday, January 8, 2014, the Colorado State Judicial Branch announced the final rules changes of 2013, Rule Change 2013(17) and Rule Change 2013(18), amended and adopted by the supreme court on December 31, 2013.

Rule Change 2013(17) amends § 1-26 of C.R.C.P. 121 and Rule 305.5 of the Colorado Rules of County Court Civil Procedure. The changes outline amended procedures for use of the state’s electronic filing system, ICCES, by pro hac vice or other out-of-state attorneys. The Comments to these rules have also been amended to reflect that ICCES is now the official e-filing system for Colorado.

Rule Change 2013(18) amends § 1-15 of C.R.C.P. 121 and Rule 7 of the Colorado Rules for Magistrates. The changes to C.R.C.P. 121 amend the time in which affidavits may be filed in support of motions. The changes to C.R.M. 7 specify that an order that effectively ends a case shall be subject to de novo review.

For the complete list of the Colorado Supreme Court’s rules changes, click here.

Colorado Court of Appeals: Appeal Untimely When Filed After Resolution of Case but Not Within 45 Days of C.R.C.P. 54(b) Certification

The Colorado Court of Appeals issued its opinion in Colorado Community Bank v. Hoffman on Thursday, November 7, 2013.

Judicial Dissolution—CRCP 54(b)—Final Judgment—Receiver—Abuse of Process—Civil Conspiracy.

This action arose from the judicial dissolution of certain companies in the course of a receivership proceeding. Defendants appealed from orders certified as final under CRCP 54(b) and from orders granting summary judgment to intervenors Victor Harshberger, Kenneth Adelberg, and Robert Williams on defendants’ counterclaims for abuse of process and civil conspiracy. The appeal was dismissed in part and affirmed in part.

Walter E. Hoffman was the president and chief executive officer of Oxford Resource & Management (Oxford). Oxford, Adelberg, and Williams owned equity membership interests in KDGC Holdings, LLC (Holdings). Holdings was the parent of three operating subsidiaries, which served as the ownership structure for three golf courses. Hoffman served as general manager of all of the entities owned by Holdings. Plaintiff Colorado Community Bank (Bank) made several loans to finance Holdings’ acquisitions of two of the golf courses. Bank initiated this action after Hoffman and the subsidiary defaulted on this loan, and intervenors joined to appoint a receiver to remove Hoffman from control.

After the assets of Holdings and the subsidiaries were sold, the intervenors moved to certify the sale orders as final under CRCP 54(b). Over Hoffman’s objection, the district court granted the intervenors’ motion. Defendants contended that the district court erred in numerous ways when it issued the sale orders. The sale orders disposed of an “entire claim for relief” for purposes of CRCP 54(b) certification. Because defendants did not appeal this order within forty-five days of the certification, the Court of Appeals lacked jurisdiction over this issue and that portion of the appeal was dismissed.

Defendants also contended that the district court erred in granting summary judgment to the intervenors on defendants’ counterclaims for abuse of process and civil conspiracy. Although the evidence might have proved that the intervenors had an ulterior motive in bringing the receivership action, it did not establish the requisite improper use of process element. Therefore, defendant’s abuse of process claim failed. Because defendants’ conspiracy claims were based on the alleged underlying wrong of abuse of process, these claims also failed.

Summary and full case available here.

Colorado Supreme Court: Issue Preclusion Bars Claims But Incorrect Rule of Civil Procedure Applied in Dismissal

The Colorado Supreme Court issued its opinion in Bristol Bay Productions, LLC v. Lampack on Monday, October 21, 2013.

Issue Preclusion—CRCP 12(b)(5).

The Supreme Court held that the Colorado action brought by Bristol Bay Productions, LLC (Bristol Bay) is barred on issue preclusion grounds, because the identity of the defendants in this case is not relevant to the causation element Bristol Bay must prove to prevail on its fraud and fraud-based claims. The Court emphasized that Bristol Bay’s Colorado action is based on identical allegations concerning substantially identical misrepresentations to those Bristol Bay alleged in its previous California action.

The Court also held that the trial court erred by dismissing Bristol Bay’s Colorado action under CRCP 12(b)(5) without converting defendants’ motion to dismiss into a motion for summary judgment under CRCP 56. Because CRCP 56 was the appropriate procedure to resolve this case, Bristol Bay is not liable for attorney fees under Colorado’s attorney fee-shifting statute. The judgment was affirmed in part and reversed in part.

Summary and full case available here.

Changes to Rules of Civil Procedure, Probate Procedure, and County Court Civil Procedure Issued by Supreme Court

On Wednesday, October 16, 2013, the Colorado Supreme Court released Rule Changes 2013(13), 2013(14), and 2013(15), amending the Colorado Rules of Civil Procedure, the Colorado Rules of Probate Procedure, and the Colorado Rules of County Court Civil Procedure.

Rule Change 2013(13) amended Rule 411, “Appeals,” of the Colorado Rules of County Court Civil Procedure. The time limit for filing a Notice of Appeal and Appeal Bond was reduced from 21 days to 14 days. The time limit for filing objections to the record on appeal was also reduced from 21 days to 14 days.

Rule Change 2013(14) added Rule 37, “Discovery,” of the Colorado Rules of Probate Procedure. The rule establishes provisions and structure for conducting discovery in proceedings under Title 15 of the Colorado Revised Statutes.

Rule Change 2013(15) amended Form 1, “Summons,” of the Appendix to Chapters 1-17A of the Colorado Rules of Civil Procedure. The form now contains a warning to the recipient including information about responding to the summons and the content of the summons.

For all of the Colorado Supreme Court’s rule changes, click here.

Colorado Court of Appeals: Defendant’s Attorney’s Miscalculation of Deadline Is Not Excusable Neglect

The Colorado Court of Appeals issued its opinion in Sebastian v. Douglas County on Thursday, September 12, 2013.

CRCP 60(b)(1)—K-9 Dog—Intentional Seizure—Excusable Neglect—42 USC § 1983.

Plaintiff Fabian Sebastian appealed from the district court’s order, entered on remand from the Colorado Court of Appeals, denying his CRCP 60(b)(1) motion to set aside the court’s judgment entered in favor of defendants. The order was affirmed.

Deputy Black allowed a K-9 dog to give chase to two other suspects who fled. The dog stopped at a fence that the two suspects had successfully climbed. It returned to the suspect vehicle, where Sebastian remained seated, and proceeded to attack him.

Sebastian asserted that he was entitled to recover damages because the attack violated rights guaranteed him by the Fourth and Fourteenth Amendments to the U.S. Constitution. He claimed that Deputy Black was negligent, and that his conduct was outrageous. Sebastian failed to timely respond to defendants’ motion to dismiss the action for failure to state a claim on which relief could be granted. The court dismissed Sebastian’s complaint and later denied Sebastian’s motion to set aside the judgment of dismissal under CRCP 60(b)(1).

On appeal, Sebastian contended that the district court erred in denying his 60(b)(1) motion. Sebastian’s failure to file a timely response, however, was not excusable based on his attorney’s miscalculation of the deadline. Further, he did not present a meritorious claim. The district court concluded that Sebastian’s allegations would not support a finding of the threshold issue—that is, an intentional seizure—to support his 42 USC § 1983 claim. Although the trial court did not analyze any equitable considerations in favor of granting Sebastian’s 60(b)(1) motion, the district court’s decision refusing to vacate the judgment of dismissal was not manifestly arbitrary, unreasonable, or unfair based on the first two factors. Thus, the court did not abuse its discretion.

Summary and full case available here.

Colorado Rules of Civil Procedure and Municipal Court Rules of Procedure Amended

On Monday, September 9, 2013, the Colorado Supreme Court announced Rule Changes 2013(10), 2013(11), and 2013(12).

Rule Change 2013(10) amends Rule 210of the Colorado Municipal Court Rules of Procedure, “Arraignment.” The rule change allows the court to designate violations and penalties for traffic infractions involving speeding 24 or less miles per hour over the speed limit. Previously, the limit was 19 miles per hour over the speed limit.

Rule Change 2013(11) amends Rule 232 of the Colorado Municipal Court Rules of Procedure, “Sentence and Judgment.” It adds subparagraph (f), mandating that any sentence imposed shall comply with the Compact for the Supervision of Adult Offenders at C.R.S. §§ 24-60-2801, et seq.

Rule Change 2013(12) amends Rules 4 and 15 of the Colorado Rules of Civil Procedure. Rule 4, “Process,” was amended to add a subsection (m), which sets a limit for service on a defendant to 63 days, unless good cause can be shown by the plaintiff why the service could not be completed in that time. This change also clarifies that the new subsection does not apply to service in foreign countries.

C.R.C.P. 15, “Amended and Supplemental Pleadings,” was amended in subsection (c) by clarifying that an amended pleading relates back to the original filing if notice of the amendment was served within the time frame elucidated in C.R.C.P. 4(m).

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

Colorado Court of Appeals: Insurance Company’s Limited Motion to Intervene Wrongfully Denied by Trial Court

The Colorado Court of Appeals issued its opinion in Mauro v. State Farm Mutual Automobile Insurance Co. on Thursday, August 1, 2013.

Intervention in Personal Injury Action—CRCP 24(b)—Protective Order.

State Farm Mutual Automobile Insurance Company (State Farm) appealed from the district court’s order denying its motion to intervene in this personal injury action filed by plaintiffs Maranda G. Mauro, by and through her father, Walter J. Mauro, Jr., and Walter J. Mauro, Jr., individually. The Court of Appeals reversed and the case was remanded with directions.

State Farm sought to intervene in the litigation pursuant to CRCP 24(b) for the limited purpose of opposing the protective order sought by Walter Mauro approving a proposed confidentiality agreement covering his and his daughter’s medical, school, employment, and tax records.

State Farm contended that the district court erred by denying its motion to intervene as a matter of right to challenge the protective order. State Farm’s ability to comply with state law and insurance regulations, as applicable to Maranda Mauro’s claim, is “an interest relating to the property or transaction which is the subject of the action,” as required under the first prong of CRCP 24(a)(2). In addition, State Farm has no other practical alternative for challenging the protective order but to request intervention. Finally, State Farm’s interest is not adequately represented by the existing parties to the action. Therefore, State Farm met all the requirements of CRCP 24(a) and had a limited right to intervene in this case. Accordingly, the district court’s order denying its renewed motion to intervene was reversed and the case was remanded to the district court to allow State Farm to challenge the protective order.

Summary and full case available here.

Colorado Supreme Court: Trial Court Must Become Involved in Discovery Process if Party Claims Information Not Relevant to Claim or Defense

The Colorado Supreme Court issued its opinion in In re DCP Midstream LP v. Anadarko Petroleum Corp. on Monday, June 24, 2013.

CRCP 26(b)—Attorney–Client Privilege.

The Supreme Court held that CRCP 26(b) requires trial courts to take an active role managing discovery when a scope objection is raised. The trial court must determine the appropriate scope of discovery in light of the reasonable needs of the case and tailor discovery to those needs. To resolve a dispute regarding the proper scope of discovery, the trial court should, at a minimum, consider the cost–benefit and proportionality factors set forth in CRCP 26(b)(2)(F). The Court also held that title opinions, like any document sought in discovery, may contain privileged attorney–client communications if the parameters of that doctrine are met.

Summary and full case available here.