December 12, 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.

Tenth Circuit Announces Inflationary Fee Increases

The Tenth Circuit Court of Appeals announced that, effective December 1, 2016, certain fees will be increased to account for inflation. The fee increases will affect the fee for conducting a search of the court of appeals and bankruptcy appellate panel records, which will increase from $30 to $31; the fee for reproducing recordings of proceedings, which will increase from $30 to $31; the fee for reproducing the record in any appeal in which the court of appeals does not require an appendix, which will increase from $83 to $86; the fee for original admission of attorney to practice, including a certificate of admission, which will increase from $176 to $181 (the current total admission fee for the Tenth Circuit Bar will remain the same at $225); and the fee for a duplicate certificate of admission or certificate of good standing, which will increase from $18 to $19.

Colorado Court of Appeals: TABOR Does Not Apply to Aspen’s Grocery Bag Waste Reduction Fee

The Colorado Court of Appeals issued its opinion in Colorado Union of Taxpayers Foundation v. City of Aspen on Thursday, November 5, 2015.

Summary Judgment—TABOR—Waste Reduction Fee—Tax Versus Fee.

In 2011, the City of Aspen adopted an ordinance prohibiting grocers from providing customers with disposable plastic bags and requiring grocers to charge customers a waste reduction fee of $.20 for each disposable paper bag provided. For the first year, grocers were permitted to retain 25% of each fee collected up to $1,000 per month. Thereafter, grocers were permitted to retain no more than $100 per month. The remaining fees were deposited into the City’s Waste Reduction and Recycling Account. In August 2012, the Colorado Union of Taxpayers Foundation (Foundation) sued the City, alleging that the enactment of the ordinance without first obtaining voter approval violated TABOR. After a hearing on cross-motions for summary judgment, the district court concluded that the ordinance was neither subject to nor unconstitutional under TABOR.

On appeal, the Foundation argued that the trial court erred in finding that the ordinance created a fee rather than a tax and therefore was not subject to TABOR. The Court of Appeals disagreed. The primary purpose of the ordinance was to reduce waste, and the majority of the funds raised from the fee went to providing reusable bags to residents and visitors. The rest of the funds were used to finance particular services related to the reduction of trash and waste, and to fund education about those matters. The fees do not revert to the general fund but stay in an account to fund the foregoing. To date, there had been no surplus revenues from the funds.

There is a presumption that the court should choose an interpretation of TABOR that would create the greatest restraint on the growth of government. That presumption applies where multiple interpretations of TABOR are equally supported by the text. Here, the Court found that the text of the ordinance did not equally support the Foundation’s interpretation of the fee as a tax. Therefore, the presumption did not apply. The judgment was affirmed.

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

CJD 08-02 Amended Regarding Cost Recovery Fees for Electronic Access to Court Records

On September 11, 2014, the Colorado Supreme Court amended CJD 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 CJD 08-02 are effective October 1, 2014.

The changes to CJD 08-02 affect criminal e-filing fees and e-service fees. The changes were made in preparation for the launch of the pilot criminal e-filing system in Pueblo on October 6, 2014.

For the full text of CJD 08-02, click here. For all the Chief Justice Dirctives, click here.

Filing Fees Amended Along with Forms in Domestic, Probate, Seal My Case, and Other Categories

The Colorado State Judicial Branch continues to revise its JDF forms. In February and March 2014, forms were revised in the Adoption, Appeals, Domestic, Garnishment & Judgment, Probate, and Seal My Case categories, and the filing fees were also amended. Additionally, forms were added to the Seal My Case category regarding juvenile contacts with law enforcement that do not result in referrals to other agencies.

Forms are available here for download in PDF format. Forms are available as Word documents from the State Judicial website.

ADOPTION

  • JDF 526 – “Affidavit of Diligent Efforts” (R2/14)

APPEALS

  • JDF 126 – “Instructions to File a Small Claims or County Civil Appeal” (R2/14)

DOMESTIC

  • JDF 211 – “Motion to Reduce Payment for ODR Services and Supporting Financial Affidavit” (R3/14)
  • JDF 1804 – “Income Withholding for Support” (R2/14)

FEES

  • JDF 1 – “Filing Fees, Surcharges, and Costs in Colorado Courts” (R2/14)
  • JDF 205 – “Motion to File Without Payment of Filing Fee/Waive Other Costs Owed to the State and Supporting Affidavit” (R3/14)

GARNISHMENTS & JUDGMENTS

  • JDF 125 – “Order for Revival of Judgment” (R3/14)

PROBATE

  • JDF 998 – “Instructions for Completing Affidavit for Collection of Personal Property” (R2/14)
  • JDF 999 – “Collection of Personal Property by Affidavit” (R2/14)

SEAL MY CASE

  • JDF 301 – “Instructions to File an Expungement Juvenile ‘JD’ Case, Criminal ‘CR’ Case, or Municipal Case” (R3/14)
  • JDF 302 – “Petition for Expungement of Records” (R3/14)
  • JDF 303 – “Notice of Hearing on Petition for Expungement” (R3/14)
  • JDF 304 – “Order of Expungement of Records” (R3/14)
  • JDF 324 – “Petition for Expungement of Records for a Law Enforcement Contact Not Resulting in a Referral to Another Agency” (Added 3/14)
  • JDF 325 – “Notice of Hearing on Petition for Expungement of Records for a Law Enforcement Contact Not Resulting in a Referral to Another Agency” (Added 3/14)
  • JDF 326 – “Order of Expungement of Records for a Law Enforcement Contact Not Resulting in a Referral to Another Agency” (Added 3/14)

Click here for all of State Judicial’s JDF forms.

HB 14-1193: Limiting the Amount of Fees Allowed Under Colorado Open Records Act

On January 30, 2014, Rep. Joe Salazar and Sen. John Kefalas introduced HB 14-1193 – Concerning Requirements Governing the Imposition of a Fee for the Research and Retrieval of Public Records under the “Colorado Open Records Act.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill allows a custodian of public records under the “Colorado Open Records Act” to impose a fee in response to a request for the research and retrieval of such records only if the custodian has, prior to the date of receiving the request, either posted on the custodian’s web site or otherwise published a written policy that specifies the applicable conditions concerning the research and retrieval of public records by the custodian. The bill prohibits the custodian under any circumstances from charging an hourly fee for the research and retrieval of public records that exceeds four times the state minimum wage.

The bill passed out of the House on Feb. 24 and has been assigned to the State, Veterans, & Military Affairs Committee in the Senate.

HB 14-1186: Restructuring Fee Schedule for Medical Records Requested by Someone Other Than the Patient

On January 29, 2014, Rep. Sue Schafer and Sen. Irene Aguilar introduced HB 14-1186 – Concerning the Release of Medical Records to a Person other than the Patient, and, in Connection Therewith, Setting Reasonable Fees to be Paid for the Release of the Medical RecordsThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

As introduced, the bill clarifies that medical records in the custody of a health care facility or an individual health care provider may be released to a third party with a valid subpoena or other valid authorization. The bill requires the facility or provider to deliver the medical records in electronic format if requested and if there is no additional cost to the facility or provider. The bill defines what reasonable fees may be charged for the copies of the medical records.

On Feb. 20, the Health, Insurance, & Environment Committee amended the bill and sent it to the full House for consideration on 2nd Reading.

Since this summary, the 2nd Reading was laid over.

Colorado Court of Appeals: Plaintiffs who Generate Nearly All Revenue Through “Use” of Airport May Be Assessed Percentage-Based Fee

The Colorado Court of Appeals issued its opinion in Colorado Airport Parking, LLC v. Department of Aviation on Thursday, February 27, 2014.

Ground Transportation Rules and Regulations—Privilege Fee—Airport Expenses—Reasonable Apportionment.

Plaintiffs own large parking lots located on private land proximate to Denver International Airport (DIA), and provide their customers with shuttle service to and from the airport. This dispute arose when defendants (department) implemented Rule 100.22 of its Ground Transportation Rules and Regulations, which assessed a “privilege fee” of 8% of the gross revenues of off-site parking lot operators (such as plaintiffs).

Plaintiffs argued that Rule 100.22 should be invalidated because it violated § 5-16(e) of the Denver Revised Municipal Code regarding allocation of airport expenses. After a two-day hearing, the hearing officer issued an order denying plaintiffs’ petitions. After reviewing the administrative record but without holding a hearing, the district court issued an order denying all of plaintiffs’ requests for relief.

Plaintiffs contended that the district court’s order must be reversed because the hearing officer misapplied the law in his determination that the department reasonably apportioned the expenses of the airport. Because plaintiffs generate all, or almost all, of their revenues through “use” of the airport—unlike taxis, hotel shuttles, mountain express vehicles, and limousines, which are not entirely dependent on the airport for their revenues—it is not unreasonable for the department to employ a different method to assess plaintiffs’ fees based on those revenues. Additionally, it is rational to use revenues as the basis for assessing fees and apportioning costs to users of airport facilities. Further, it is rational for the department to employ a revenue collection method that achieves cost savings. However, because the hearing officer did not make any findings on how the department arrived at the 8% figure, the case was remanded for further findings on this issue to determine whether the use of the 8% figure results in a reasonable apportionment of costs.

Summary and full case available here.

Licensing Fees for Wyoming State Bar Increasing

The Wyoming State Bar announced on Thursday, August 1, 2013, that fees for attorneys licensed in Wyoming will increase effective October 1, 2013. As previously reported by Legal Connection, registration fees for Colorado attorneys will increase on September 1, 2013.

The fees for the Wyoming State Bar will increase $50 for all categories. Active attorneys will now pay $355 for licensing, inactive attorneys will pay $237.50, and new attorneys will pay $242.50.

For more information, visit the Wyoming State Bar webpage.

Rules Governing Admission to the Bar Amended by Colorado Supreme Court

On Thursday, July 25, 2013, the Colorado State Judicial Branch released Rule Change 2013(09), concerning Chapter 18 of the Colorado Rules of Civil Procedure, Rules Governing Admission to the Bar. The rule change was approved on June 27 and is effective September 1, 2013.

The change to Rule 201.2, “Board of Law Examiners,” clarifies where fees collected under the rule will be held and for what purposes they will be used. The changes to Rule 221, “Out-of-State Attorney — Pro Hac Vice Admission,” increase the fee for pro hac vice admission from $250 to $300. The changes to Rule 222, “Single Client Counsel Certification,” increase the fee for single client counsel certification from $725 to $1,000.

Rule 227 was changed extensively. Some of the changes to Rule 227 involve increasing attorney registration fees. The fee for an active Colorado attorney who has been practicing more than three years will increase from $225 to $325. Fees for attorneys who are in their first three years of practice increased from $180 to $190. Fees for inactive attorneys also increased, from $95 to $130.

The changes to Rule 227 also include clarification about how the fees are used, what should be included on a statement, registration of non-attorney judges, and other minor changes.

For a copy of Rule Change 2013(09), click here. For all of the Colorado Supreme Court’s rule changes, click here.

Colorado Court of Appeals: Town’s Fees Regarding Oil and Gas Wells Clearly Prohibited by Statute

The Colorado Court of Appeals issued its opinion in Town of Milliken v. Kerr-McGee Oil & Gas LP on Thursday, May 9, 2013.

Oil and Gas Well Safety and Security Inspection Fees—CRS § 34-60-106(15).

The Town of Milliken (Town) appealed the trial court’s summary judgment in favor of Kerr-McGee Oil & Gas Onshore LP (Kerr-McGee). The judgment was affirmed.

In 1983, the Town enacted a series of ordinances that imposed fees on oil and gas wells within its boundaries. In 1996, the General Assembly amended existing state oil and gas law by enacting House Bill 96-1045. As relevant here, the new legislation, codified in part at CRS § 34-60-106(15), states:

No local government may charge a tax or fee to conduct inspections or monitoring of oil and gas operations with regard to matters that are subject to rule, regulation, order, or permit condition administered by the [Oil and Gas Conservation] [C]ommission. Nothing in this subsection (15) shall affect the ability of a local government to charge a reasonable and nondiscriminatory fee for inspection and monitoring for road damage and compliance with local fire codes, land use permit conditions, and local building codes.

In 2003, the Town enacted another ordinance concerning oil and gas wells that authorized the Town to inspect wells, equipment, and structures to determine compliance with the land use code, the Town fire code, the Town building code, and all other Town health or safety standards. The Town imposed an annual $400 inspection fee for each well within its boundaries that had not been plugged or abandoned. It was undisputed that the Town has never conducted the inspections described. In 2008, the Town enacted an ordinance imposing an annual $400 security inspection fee on each active oil and gas well within its boundaries. The fee was intended to offset the costs incurred by the Town’s police department for additional security checks that the well sites require. It was undisputed that the Town’s police conducted such checks on a regular basis before 2003. In 2010, the Town repealed and replaced the portion of the land use code containing both of the above provisions and replaced it with a provision authorizing inspections of wells and an annual $400 security fee on active oil and gas wells within the Town’s boundaries.

In 2010, the Town sued Kerr-McGee and others seeking to collect the security fees from 2003 onward. Kerr-McGee moved for summary judgment, which was granted in its favor. The district court held that the Town lacked the statutory authority to impose the fees. The Town appealed.

The Court or Appeals found it patently clear that oil and gas well safety and security are matters subject to rule, regulation, order, or permit condition administered by the Oil and Gas Conservation Commission. Thus, the Town’s fees under all of the ordinances above are clearly prohibited. The summary judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Trial Court Erred in Awarding State Farm Costs and Fees as Prevailing Party Based on Purely Procedural Victory on Class Certification

The Colorado Court of Appeals issued its opinion in Reyher v. State Farm Mut. Automobile Ins. Co. on April 12, 2012.

Jurisdiction—Final Order—Class Action—Prevailing Party—Costs.

Plaintiffs Pauline Reyher and Dr. Wallace Brucker appealed the trial court’s order awarding costs and attorney fees to defendant State Farm Mutual Automobile Insurance Company (State Farm), following the trial court’s dismissal of Reyher’s claims and denial of plaintiffs’ class certification motion. The order was reversed and the case was remanded with directions. During the briefing of this appeal, Reyher II was announced, reversing the dismissal of Reyher’s claims. At the time of this appeal, there were no class action claims pending in the trial court; however, the individual claims of Reyher and Dr. Brucker remained pending and unresolved.

State Farm argued that the Court of Appeals lacked jurisdiction over this appeal because the order awarding costs and fees was not a final, appealable order. The cost and fee order was related solely to the class certification claims and Reyher’s claims, which were both resolved by final orders pursuant to C.R.C.P. 54(b); the order was not based on any other claims pending in the trial court. Therefore, the cost and fee order was itself a final, appealable judgment.

Plaintiffs argued that the trial court prematurely determined that State Farm was the prevailing party under C.R.C.P. 54(d) based on its successful defense of class certification but before termination of the underlying litigation. The trial court erred to the extent that it awarded costs based on its misconception that it was required to do so and had no discretion in the matter. Additionally, whether a party has derived some of the benefits sought by the litigation requires an assessment in the context of the overall litigation. Therefore, because plaintiffs may yet obtain a judgment against State Farm on their individual claims, it was premature for the trial court to determine that State Farm was the prevailing party. Accordingly, the trial court erred in awarding State Farm its costs and fees as the prevailing party at this stage in the proceedings based on its purely procedural victory on the class certification. Plaintiffs also argued, State Farm conceded, and the Court of Appeals agreed that because the judgment dismissing Reyher’s claims was reversed in Reyher II, the costs and fees related to that dismissal also must be reversed.

Summary and full case available here.