October 18, 2017

Colorado Supreme Court: Engagement Agreement Authorized Award of Post-Settlement Collection Costs

The Colorado Supreme Court issued its opinion in Laleh v. Johnson on Monday, October 2, 2017.

Contracts—Fees and Costs.

The supreme court reviewed the court of appeals’ opinion affirming a trial court’s order requiring a pair of litigants to pay a court-appointed accounting expert’s post-settlement collection costs. The trial court appointed the expert to help resolve the litigants’ complex accounting claims, and the litigants signed an engagement agreement with the expert setting forth the scope of his services and payment. After the expert commenced work, the litigants settled the case and the trial court dismissed the suit. The expert then informed the trial court that the litigants refused to pay both his outstanding fees and his costs incurred post-settlement in attempting to collect the outstanding fees. Relying on a provision in the engagement agreement stating that the litigants were responsible for payment of “all fees and expenses” to the expert, the trial court held that the expert was entitled to the post-settlement costs he incurred while trying to collect his outstanding fees. The court of appeals disagreed with the trial court’s interpretation of the engagement agreement, holding that the agreement was silent as to the expert’s post-settlement collection costs, but it nevertheless affirmed the trial court’s award of the expert’s post-settlement collection costs on the ground that the trial court had inherent authority to require the litigants to pay such costs. The court held that a separate provision of the engagement agreement not previously considered by the trial court or the court of appeals authorized the trial court’s award of the disputed post-settlement collection costs. The court therefore affirmed the award of these costs to the expert, albeit on different grounds.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Costs of SANE Exam Extraordinary and Therefore May Be Recovered as Restitution

The Colorado Supreme Court issued its opinion in Teague v. People on Monday, June 5, 2017.

Criminal Law—Sentencing and Punishment—Costs Taxable Against Defendant.

In this consolidated opinion, the supreme court addressed whether sexual offenders must shoulder the cost of their victims’ forensic medical examinations as criminal restitution. By statute, such restitution may include “extraordinary direct public . . . investigative costs.” The court therefore considered whether the cost of a sexual assault nurse examiner (SANE) examination is “extraordinary” for purposes of the statute. As both a medical and investigative response to a sexual offense, these examinations necessarily perform dual roles. The court concluded that the hybrid nature of these exams renders them, and their resulting costs, extraordinary. It further concluded that the state may therefore recover those costs as restitution.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Summary Judgment Affirmed for Employer in Title VII Case

The Tenth Circuit Court of Appeals published its opinion in Debord v. Mercy Health System of Kansas on Tuesday, November 26, 2013.

Sara Debord filed suit against her employer, Mercy Health Services of Kansas, for sexual harassment and retaliation in violation of Title VII. Debord claimed Mercy knew or should have known that her supervisor created a hostile workplace through unwanted touching and offensive sexual remarks. She also claimed that Mercy did not do enough to prevent sexual harassment in the workplace, and that, when she finally reported the harassment five years after it allegedly began, Mercy retaliated by firing her. The district court granted summary judgment for Mercy and ordered all parties to bear their own costs.

Debord argued that Mercy was directly liable for the harassment because it had actual notice of the harassment based on a complaint about the supervisor touching her made by another employee in 2001. The Tenth Circuit held that “notice of one instance of potential harassment of someone else cannot, without more, constitute actual notice of Debord’s sexual harassment three years later.” Debord also failed to show actual notice because she did not provide any evidence showing the extent, seriousness, or similarity of the prior misconduct.

Debord also argued Mercy had constructive notice of the harassment before 2009 when she told human resources about the unwanted touching. The court found evidence provided by Debord on this issue was not so “egregious, numerous, and concentrated” as to create a jury question on constructive notice.

The court applied the elements of the Faragher defense in determining the hospital could not be held vicariously liable. Debord failed to report the harassment even though Mercy provided sexual harassment training, annual reminders, an open-door policy with the management team, and an anonymous hotline to report harassment.

The court also found Debord failed to show pretext on her retaliation claim and affirmed summary judgment for Mercy. The court reversed the denial of costs to Mercy and remanded on that issue.

CJD 08-02, Regarding Cost Recovery Fees, Amended by Chief Justice Bender

On October 29, 2013, Chief Justice Bender signed changes to Chief Justice Directive 08-02, “Directive Concerning Assessment of Cost Recovery Fees for Maintaining the Technical Infrastructure Necessary to Support Electronic Access to Court Records.”

The changes to the Chief Justice Directive are intended to let parties know about a new feature in ICCES that allows parties to receive notifications. The Directive also updates some of the other cost recovery policies.

For the full Chief Justice Directive, click here. For all of the Chief Justice Directives, click here.

Colorado Court of Appeals: Costs of Hospital Care Incurred After Arrest but Before Booking Improperly Charged to Defendant

The Colorado Court of Appeals issued its opinion in People v. Sinovcic on Thursday, March 28, 2013.

Prosecution Costs—Medical Treatment—Costs of Care.

Defendant appealed the district court’s order assessing prosecution costs against him for hospital care he received after arrest but before booking. That part of the order was reversed and the case was remanded.

Defendant resisted arrest, and officers used a taser gun to subdue and handcuff him. Following his arrest, the officers transported defendant to a hospital for treatment. After defendant was medically cleared, the officers transported him to the Summit County Jail, where he was booked.

On appeal, defendant contended that the district court erred by assessing the hospital costs as costs of prosecution under CRS § 18-1.3-701(2)(j). It was undisputed that the medical treatment was provided before defendant was formally charged and before the criminal proceeding began. Because the costs of defendant’s medical care were not specifically listed in the statute, and were not litigation-related costs incurred after the filing of formal legal charges against a defendant, the court erred in awarding such costs. Furthermore, because defendant did not receive the treatment during his custody in a jail or correctional facility, the district court properly held that the medical costs do not constitute “costs of care” under CRS § 18-1.3-701(5)(a). The district court’s order was vacated as to the hospital costs, and the case was remanded to the district court to reduce the total assessed fines and costs by $2,717.

Summary and full case available here.