June 24, 2017

Colorado Court of Appeals: Double Recovery Not Considered in Forum Non Conveniens Determination

The Colorado Court of Appeals issued its opinion in Cox v. Sage Hospitality Resources, LLC on Thursday, May 4, 2017.

Forum Non Conveniens—Judicial Inefficiency—Double Recovery.

Cox, a Colorado resident, stayed at a hotel in California owned by defendant Sage Hospitality Resources, LLC. Sage’s members are Colorado residents, and its principal place of business is in Denver. WS HDM, LLC, incorporated in Delaware and licensed to do business in California, owns and operates the hotel. Cox fell on the hotel property and fractured his femur. Cox sued Sage in Denver District Court and WS HDM in California state court. Sage’s motion to dismiss the action in Denver District Court under the doctrine of forum non conveniens was granted.

On appeal, Cox argued that the Denver District Court erred in granting Sage’s motion to dismiss because there were no unusual circumstances sufficient to overcome the strong presumption in favor of Colorado courts hearing cases brought by Colorado residents. Colorado law is clear that the doctrine of forum non conveniens has “only the most limited application in Colorado courts.” Thus, unless there are “most unusual circumstances,” a Colorado resident’s choice of a Colorado forum will not be disturbed. Cox is a Colorado resident and claims to prefer to sue Sage in Colorado. Even though Cox filed a related suit in California state court, the existence of that lawsuit does not trump Cox’s choice of forum in Colorado. Further, the California state court suit is against a different defendant, and the record does not indicate that the joinder of Sage in Cox’s California state court suit is mandatory. Nor does the risk of double recovery overcome the presumption in favor of Colorado courts hearing suits filed by Colorado resident plaintiffs. The Denver District Court erred in dismissing Cox’s action.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: UCCJEA Vests Issuing State with Exclusive Jurisdiction to Modify Custody Order

The Colorado Court of Appeals issued its opinion in People in Interest of M.S. on Thursday, May 4, 2017.

Dependency and NeglectAllocation of Parental ResponsibilitiesSubject Matter JurisdictionUniform Child-Custody Jurisdiction and Enforcement Act.

The Mesa County Department of Human Services (Department) assumed temporary custody of 8-year-old M.S. and initiated a dependency and neglect proceeding. Mother lived in Texas.

The court, by stipulation, adjudicated M.S. dependent or neglected. The Department then moved for a permanent allocation of parental responsibilities (APR) for M.S. to mother. The magistrate determined it was in M.S.’s best interests to be placed with mother and issued an order granting permanent APR to mother.

Father appealed, and a court of appeals division dismissed for failure to obtain district court review. Father then filed a petition for district court review, which was denied, and he appealed again.

Initially, the court of appeals addressed the Department’s argument that the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) does not apply to dependency and neglect proceedings once a child has been adjudicated dependent and neglected. The UCCJEA does not exempt any stage of a dependency and neglect proceeding from its purview.

The court, sua sponte, concluded that the magistrate lacked jurisdiction under the UCCJEA to issue the permanent APR order. Under the UCCJEA, the court that makes an initial custody determination generally retains exclusive, continuing jurisdiction. As a result, a Colorado court, absent temporary emergency jurisdiction, may only modify a custody order issued by an out-of-state court under limited circumstances. Here, a California court had issued a custody order before the initiation of the dependency and neglect proceeding. The magistrate did not confer with the California court that issued the custody order or make a determination as to whether the California court had lost exclusive, continuing jurisdiction. Consequently, the magistrate failed to acquire jurisdiction under the UCCJEA before issuing the APR order that effectively modified the California custody order.

The judgment was vacated and the matter was remanded to the district court to direct the magistrate to determine whether it has jurisdiction to issue an APR order that modifies the California custody order.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: No Personal Jurisdiction Over Out-of-State Employer in Workers’ Comp Case

The Colorado Supreme Court issued its opinion in Youngquist v. Miner on Tuesday, February 21, 2017.

Workers’ Compensation—Personal Jurisdiction—Specific Jurisdiction.

In this case, the Colorado Supreme Court considered whether Colorado has jurisdiction to award benefits for out-of-state work-related injuries and impose a statutory penalty on an employer under C.R.S. § 8-41-204 when the employer is not a citizen of Colorado and has no offices or operations in Colorado but hired a Colorado citizen within the state. The court concluded that under the facts of this case, Colorado lacks personal jurisdiction over the employer and therefore the employer cannot be subject to the Workers’ Compensation Act of Colorado, C.R.S. §§ 8-40-101 to 8-47-209. Accordingly, the court reversed the judgment of the court of appeals.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Construction Defect Claims Filed Against Subcontractors were Time-Barred

The Colorado Court of Appeals issued its opinion in Sopris Lodging, LLC v. Schofeld Excavation, Inc. on Thursday, October 20, 2016.

Construction Defect—Summary Judgment—Time Bar.

TDC was the general contractor for construction of a hotel owned by Sopris Lodging (Sopris). On March 11, 2011, Sopris sent TDC a notice of claim regarding alleged construction defects at the hotel. On May 24, 2013, Sopris filed a complaint in district court asserting construction defect claims against one of the subcontractors of the hotel and against TDC’s individual principals, who had guaranteed TDC’s performance. On the same date, Sopris and TDC entered into an agreement to toll the statute of limitations for Sopris’s claims against TDC.

In 2014, TDC filed third-party claims against several subcontractors including Schofield and CEC for breach of contract, negligence, contribution, and indemnification. CEC and Schofield moved for summary judgment, asserting the claims were barred by the two-year statute of limitations in C.R.S. § 13-80-102. TDC did not dispute that the claims accrued on or before March 11, 2011 but argued C.R.S. § 13-80-104(1)(b)(II) tolled the statute of limitations for a defendant’s third-party clams until 90 days after a settlement or final judgment on the plaintiff’s claims against the defendant. The district court entered summary judgment in favor of CEC and Schofield.

On appeal, Sopris (standing in the shoes of TDC following a settlement and assignment of the third-party claims) argued it was error to find the claims time-barred. C.R.S. § 13-80-104(1)(b)(II) gives a contractor the option to bring indemnity or contribution claims against subcontractors in a separate lawsuit after the underlying claims are resolved and tolls the statute of limitations for such claims. But because TDC asserted third-party claims in the original construction defect litigation, the tolling section does not apply. Thus TDC’s third-party claims were time barred.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Parties Should Assume Finality in Face of Agency Ambiguity and File Protective Appeal

The Tenth Circuit Court of Appeals issued its opinion in Tulsa Airports Improvement Trust v. Federal Aviation Administration on Friday, October 14, 2016.

Tulsa Airports Improvement Trust (TAIT) has been working to reduce noise from the Tulsa airport through grants from the Federal Aviation Administration (FAA). In 2002, while waiting for some FAA grants to go through, TAIT instructed its contractors to place projects on hold. As a result, some contractors terminated their contracts or demanded increases, causing TAIT to pay them approximately $700,000. TAIT sought reimbursement from the FAA. The FAA initially reimbursed TAIT, but then demanded repayment of approximately $656,000, finding the costs were not allowable under the grants. TAIT repaid the FAA, but in 2010, TAIT sought reconsideration, and the FAA provided reimbursement for approximately $559,000.

In October 2012, TAIT informed the FAA that it had reviewed the remaining unpaid expenses and had found several categories that it believed were eligible for reimbursement. The FAA responded on October 24, 2012, that it had reviewed the information and could not make a favorable determination. TAIT appealed to the FAA’s Associate Administrator for Airports on December 6, 2012, and on December 31, 2012, the FAA issued a letter stating that the FAA was unable to find potentially eligible costs that had not been reimbursed, and stating that TAIT should submit any further information to the FAA. TAIT did not respond to the letter.

On November 14, 2013, TAIT filed a breach of contract action in the Court of Federal Claims, invoking jurisdiction under the Tucker Act and arguing that the FAA had wrongfully determined the payments in question were not allowable grant costs. The Court of Federal Claims found that it did not have subject matter jurisdiction because 49 U.S.C. § 46110 or 49 U.S.C. § 47111 vested exclusive jurisdiction in the United States Court of Appeals, and transferred the case to the Tenth Circuit. The Tenth Circuit considered it a petition for review of agency action.

The Tenth Circuit concluded that § 47111 did not apply, because it only applies to the withholding of payments that are determined to be allowable. Since the payments in question were never determined to be allowable, § 46110 governed review. The Tenth Circuit next found that the December 31, 2012, letter from the FAA was a final order. The letter constituted a final determination that the costs were not allowable, and although the FAA invited TAIT to submit further information for review, that did not affect the finality of the letter.

The Tenth Circuit then concluded that TAIT’s appeal was not timely filed. TAIT had sixty days to file an appeal, but did not do so until eight months after the expiration of the statutory period. TAIT did not offer any reasonable grounds to justify its delay. The Tenth Circuit noted that agency-created confusion had been recognized in some circuits as a basis for justifying delay, but in this case there was no agency-created confusion. The Tenth Circuit agreed with the D.C. Circuit that parties should assume finality in the face of ambiguity and file protectively for review.

The Tenth Circuit dismissed the appeal as not timely filed.

Colorado Court of Appeals: Trial Court Lacked Subject Matter Jurisdiction Over Plaintiff’s Claims

The Colorado Court of Appeals issued its opinion in Golden Run Estates, LLC v. Town of Erie on Thursday, October 6, 2016.

Annexation—Subject Matter Jurisdiction—Contract Claims—Annexation Act.

Defendant Town of Erie entered into a pre-annexation agreement with Harber for his property located in unincorporated Boulder County. Harber intended his company, Golden Run Estates, to develop a mixed-use community over approximately 50 years. An annexation agreement and a detailed development plan were supposed to follow the pre-annexation agreement. Golden Run Estates and Harber sued Erie after an annexation agreement was not reached following annexation of the property. They brought two contract claims, a claim for declaratory relief, and a claim for a judicial disconnection decree. The trial court found it had subject matter jurisdiction over the contract claims and entered a judgment for damages. It also ordered judicial disconnection, but concluded it did not have subject matter jurisdiction over the declaratory relief claim.

The sole issue on appeal was the jury award on the two contract claims. Erie argued that the trial court erred in concluding that it had subject matter jurisdiction over the contract claims and in upholding the breach of contract verdict because plaintiffs did not bring their claims within the 60-day limitation period under C.R.S. § 31-12-116(2)(a)(I). The court of appeals determined that the C.R.S. § 31-12-116(2)(a)(I) limitation period is jurisdictional and its time limits cannot be tolled or waived.

Erie also raised arguments relating to the sufficiency of the evidence concerning lost opportunity costs and the property manager’s testimony. Because the court determined that the trial court did not have subject matter jurisdiction over plaintiffs’ contract claims, it did not address these contentions.

Plaintiffs argued that their contract claims did not challenge the annexation of the property but were to enforce the terms of the pre-annexation agreement, so C.R.S. 31-12-116 was inapplicable. The court found plaintiffs’ claims were actually impermissible collateral attacks on the annexation and there was no separate breach of contract claim that wasn’t an argument regarding the annexation itself. The court held that the trial court did not have subject matter jurisdiction over the contract claims and vacated that part of the judgment and the damages award. The case was remanded with directions to grant Erie’s motion for directed verdict and for a determination of the amount of attorney fees incurred by Erie in the appeal.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Test Enunciated to Determine Personal Jurisdiction for Non-resident Company Based on In-state Contacts

The Colorado Supreme Court issued its opinion in Griffith v. SSC Pueblo Belmont Operating Co. on Monday, September 26, 2016.

Constitutional Law—Personal Jurisdiction—Corporations and Business Organizations—Related or Affiliated Entities.

The Colorado Supreme Court held that, to exercise personal jurisdiction over a nonresident parent company based on the in-state contacts of its resident subsidiary, a trial court shall perform the following analysis: First, the trial court shall determine whether it may pierce the corporate veil and impute the resident subsidiary’s contacts to the nonresident parent company. If so, the court shall analyze all of the nonresident company’s contacts with Colorado, including the resident subsidiary’s contacts, to determine whether exercising either general or specific personal jurisdiction over the company comports with due process. Conversely, if the trial court concludes that it may not pierce the corporate veil, it shall treat each entity separately and analyze only the contacts that each parent company has with the state when performing the personal jurisdiction analysis. Here, because the trial court did not perform this two-step analysis when it determined that petitioners were subject to personal jurisdiction in Colorado, the court made its rule to show cause absolute.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Newly Announced Griffith Test Applied to Determine Personal Jurisdiction

The Colorado Supreme Court issued its opinion in Meeks v. SSC Colorado Springs Colonial Columns Operating Co. on Monday, September 26, 2017.

Constitutional Law—Personal Jurisdiction—Corporations and Business Organizations—Related or Affiliated Entities.

The Supreme Court holds that the trial court must apply the test announced in Griffith v. SSC Pueblo Belmont Operating Co., 2016 CO 60, __ P.3d __, to determine whether nonresident parent companies may be haled into court in Colorado based on the actions of their resident subsidiaries. It also held that, although an evidentiary hearing is not always required for a ruling on a CRCP 12(b)(2) motion, this case requires a hearing to fully address this case’s complex record and to apply the fact-intensive Griffith test.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: District Court Lacked Authority to Rule on People’s Motion

The Colorado Court of Appeals issued its opinion in People v. Wood on Thursday, September 22, 2016.

Felony Murder—Second Degree Murder—Habeas Corpus Petition—State District Court—Federal Court—Jurisdiction.

In 1986, while attempting to rob a pizza delivery store, Wood shot and killed an assistant store manager. Wood was convicted of felony murder, second degree murder, aggravated robbery, and menacing. For the past 10 years, Wood has sought to remove his felony murder conviction. The Tenth Circuit conditionally granted Wood’s habeas corpus petition, noting that his felony murder conviction would be vacated unless a state court acted within a reasonable time to vacate either his felony murder conviction or his second degree murder conviction. Thereafter, the state district court granted the People’s request to vacate the second degree murder conviction, rather than the felony murder conviction.

On appeal, Wood contended that the People did not have authority to request that the state district court vacate his second degree murder conviction, nor did the court have the jurisdiction or authority to do so. The People had the authority to file their request to notify the state district court of the federal district court’s conditional grant of habeas corpus relief and request that the state court vacate the conviction. Though the district court had subject matter jurisdiction, it did not have the authority to vacate Wood’s second degree murder conviction. The conditional grants of habeas corpus relief by the Tenth Circuit and the federal district court did not require the state district court to act. If it did nothing, Wood’s mittimus would be corrected by the federal district court removing his felony murder conviction and the double jeopardy violations would be remedied. Accordingly, the state district court’s order was vacated, and the case was remanded with instructions for the state district court to vacate Wood’s felony murder conviction and correct the mittimus accordingly, leaving in place the second degree murder, aggravated robbery, and menacing convictions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Trial Court Lacked Jurisdiction to Order Declaratory Relief Because Ordinances Were Not Final Actions

The Colorado Court of Appeals issued its opinion in Public Service Co. of Colorado v. City of Boulder on Thursday, September 22, 2016.

At the November 2011 election, Boulder residents approved an amendment to the Boulder Home Rule Charter to authorize the creation of a new light and power utility if the Council could demonstrate that the new utility could acquire the existing utility and charge rates that do not exceed those charged by Xcel Energy by more than 25%. In August 2013, the Council approved an ordinance to carry out the legislation (the first ordinance). In May 2014, the Council approved another ordinance to establish the utility (the second ordinance). Twenty-eight days later, Xcel filed a complaint with respect to the second ordinance, seeking declaratory judgment under C.R.C.P. 57 or, alternatively, judicial review under C.R.C.P. 106(a)(4). The City filed a motion to dismiss Xcel’s complaint under C.R.C.P. 12(b)(1), arguing Xcel’s complaint attempted to challenge the first ordinance by challenging the second ordinance. The trial court granted the City’s motion and dismissed the complaint for lack of subject matter jurisdiction due to time bar.

On appeal, Xcel argued the trial court wrongly dismissed its complaint for lack of jurisdiction with respect to the 28-day limit in C.R.C.P. 106(a)(4). Xcel argued the first ordinance was not final and was legislative, not quasi-judicial, which made C.R.C.P. 106 inapplicable. The Colorado Court of Appeals first addressed finality. As to the first ordinance, the court found it was not final because (1) it did not establish the utility, (2) it referenced additional revisions to be made in planning the utility, and (3) the City made those additional revisions after the ordinance was passed.

The court evaluated Rule 106 and found that it governed “final decisions of the body or officer.” The court determined that neither the first nor the second ordinance was final for purposes of Rule 106 appeal. Because neither ordinance was final, judicial review under Rule 106 was premature. The court of appeals disagreed with the district court’s conclusion that Xcel’s complaint was time-barred, finding instead that it was premature.

The court also found that the district court could not enter a declaratory judgment under C.R.C.P. 57(b). The court noted that the lack of finality for the Rule 106 review also applied to declaratory judgments under Rule 57, and therefore it was premature for a declaratory judgment to issue.

The court declined to address whether the claims were quasi-legislative or quasi-judicial, and vacated the judgment of the district court.

Tenth Circuit: Jurisdictional Time Limit Not Tolled When Rule 4(a)(4)(A) Requirements Not Met

The Tenth Circuit Court of Appeals issued its opinion in Williams v. Akers on Tuesday, September 20, 2016.

George Rouse hanged himself shortly after being booked into the Grady County Law Enforcement Center in Oklahoma. His mother, Regina Williams, brought suit under 42 U.S.C. § 1983, arguing the defendants knew he was suicidal but failed to inform jail staff of that fact. Defendants asserted qualified immunity and moved to dismiss Williams’ § 1983 claim. The district court denied the motion on October 8, 2014, concluding Williams’ complaint adequately alleged facts showing defendants’ violated Rouse’s clearly established Fourth Amendment rights.

Eight months later, defendants filed a motion to reconsider the district court’s denial of their motion to dismiss. The district court denied the motion on July 31, 2o15. Defendants then filed an appeal of the October 2014 motion with the Tenth Circuit. Noting the jurisdictional defect, the Tenth Circuit requested additional briefing from the parties on August 24, 2015. Defendants argued that because their notice of appeal was filed only four days after the district court denied their motion to reconsider, it was timely filed as to the October 2014 motion to dismiss.

The Tenth Circuit disagreed. The Tenth Circuit noted that Fed. R. App. P. 4(a)(4)(A)(vi) allows a party to enlarge the 30-day time limit for filing an appeal if that party timely files a Rule 60(b) motion, in which case the time limit is tolled until 30 days after the entry of the order disposing of the motion for reconsideration. The Tenth Circuit remarked that it appears that defendants believed they could enlarge the time for filing their notice of appeal from the October 2014 order by filing a motion for reconsideration. However, because the motion for reconsideration was not filed within Rule 4(a)(4)(A)’s mandated 30-day time limit, the notice of appeal was not timely.

The Tenth Circuit also addressed the defendants’ attempt to change the focus of the appeal after the Tenth Circuit requested additional briefing on jurisdiction. Although the Tenth Circuit could look to the notice of appeal, the docketing statement, and the request for the district court to stay proceedings as evidence of defendants’ intent, the Tenth Circuit found only an intent to appeal the October 2014 order, not the July 2015 order. Due to the untimeliness of the appeal from the October 2014 order, the Tenth Circuit lacked jurisdiction to consider the defendants’ arguments.

The Tenth Circuit dismissed the appeal for lack of jurisdiction.

Colorado Supreme Court: Officer Entitled to Bring Interlocutory Appeal Regarding Whether Sovereign Immunity Applied

The Colorado Supreme Court issued its opinion in Martinez v. Estate of Bleck on Monday, September 12, 2016.

Colorado Governmental Immunity Act—Interlocutory Appeal—Sovereign Immunity—Willful and Wanton Conduct.

Bleck was injured when Officer Jeffrey Martinez’s firearm  discharged during an attempt to subdue Bleck. Bleck filed a state law battery claim against Martinez, and Martinez filed a motion to dismiss, claiming immunity under the Colorado Governmental Immunity Act (CGIA). The trial court found that Bleck had adequately pleaded willful and wanton conduct by Martinez and thus denied Martinez’s motion. Martinez then filed an interlocutory appeal with the Court of Appeals. The Court of Appeals held that it lacked jurisdiction to hear the appeal because Martinez was only entitled to qualified immunity, which is not appealable on an interlocutory basis, not sovereign immunity, which is. The Supreme Court reversed and concluded that whether a public employee’s conduct is willful and wanton under the CGIA implicates sovereign immunity. Thus, the plain language of the CGIA affords Martinez a right to an interlocutory appeal. The Court further held that the trial court erred in (1) not deciding the issue of whether Martinez’s conduct was willful and wanton, and (2) using a negligence standard to define willful and wanton. Accordingly, the Court remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.