January 20, 2017

Colorado Court of Appeals: Terms of Settlement Offer were Valid and Enforceable When Accepted

The Colorado Court of Appeals issued its opinion in Kovac v. Farmers Insurance Exchange on Thursday, January 12, 2017.

Personal Injury—Underinsured Motorist—Statute of Limitations—Summary Judgment.

Kovac was seriously injured in a car accident with Filipelli. It was undisputed that Filipelli was at fault. Kovac’s medical expenses exceeded $1.4 million. Filipelli was covered by Shelter Insurance Company (Shelter) with a liability limit of $100,000. Kovac was insured under two different automobile policies with Farmers Insurance Exchange (Farmers).

Kovac settled with Shelter for its policy limits. Later, Farmers offered to settle Kovac’s remaining claims for $80,000, but the parties could not reach a settlement. Kovac sued Farmers on April 3, 2015 for recovery of UIM benefits, tortious bad faith breach of contract, and unreasonable delay and denial of insurance benefits. Farmers moved for summary judgment on the grounds that the Shelter settlement check was tendered to Kovac’s attorney on April 2, 2013 and the statute of limitations therefore ran on April 2, 2015. The district court agreed and dismissed the suit.

On appeal, Kovac argued that although her attorney received the check and settlement offer on April 2, it was not accepted until April 5 when the release was signed and the check endorsed. Therefore, the statute of limitations ran on April 5, 2015 and her complaint was timely filed on April 3, 2015. C.R.S. § 13-80-107.5(b) provides that the statute of limitations runs two years from the date when the insured “received payment of the settlement” on the underlying bodily injury claim. The court of appeals determined that Kovac released her claims against Filipelli on April 5, 2013.  Therefore the statute of limitations had not run when she filed her complaint against Farmers.

The summary judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Denial of Attorney Fees Not Error in Close Case with No Vexatious, Groundless Claims

The Colorado Court of Appeals issued its opinion in In re Estate of Fritzler on Thursday, January 12, 2017.

Wills—Business Records Exception—Jury Instruction—Presumption of Undue Influence—Attorney Fees—Costs.

Fritzler and his wife executed numerous wills during the last 10 years of their lives. The last will was drafted just a few years before they each passed away. In all of the wills, the Fritzlers sought to distribute their farm in a generally equitable manner among their five children, but the last will increased son Glen’s portion over son Steven’s portion. Steven contested the will, contending that Glen unduly influenced Fritzler. After a lengthy trial, a jury concluded that the will was valid. Following the verdict, the estate and the personal representative (PR) sought attorney fees and costs. The court denied the award of fees, finding that the case was “close” and Steven did not lack substantial justification. The court partially denied costs, concluding that it lacked equitable authority to grant fees without concurrent statutory authority.

On appeal, Steven contended that the trial court abused its discretion by excluding Fritzler’s hospital medical records because they were admissible under the business records exception. Although the exclusion was an abuse of discretion, any error was harmless because the records were cumulative of other admitted evidence.

Steven also contended that the trial court erred by refusing to instruct the jury on the presumption of undue influence. However, the PR offered sufficient evidence to rebut this presumption. Thus it would have been improper for the court to instruct the jury thereon.

The PR contended that the trial court erred by denying her request for attorney fees under C.R.S. § 13-17-102 and by denying her certain costs as the prevailing party under C.R.C.P. 54(d). The trial court noted that this was a close case and found that even though Steven did not prevail, his claims were not groundless, frivolous, or vexatious. Therefore, the court did not err by denying the request for fees. As to the costs, the trial court awarded most of the requested costs to the PR after a hearing, denying only some that it found to be unreasonable. Therefore, the court did not err in its award of costs.

The judgment and orders were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: District Court Must Take Active Role in Managing Discovery Request of Non-Party in Dissolution Proceeding

The Colorado Supreme Court issued its opinion in In re Marriage of Gromicko on Monday, January 9, 2017.

In 2015, Lisa Dawn Gromicko (Wife) filed a petition for dissolution of marriage, naming Nickifor Nicholas Gromicko (Husband) as respondent. The petition requested equitable division of marital assets and debts. In order to evaluate Husband’s income, Wife requested records from Husband’s employer, InterNACHI, a nonprofit organized as a § 501(c)(6) trade association. Although Husband initially stated he would not object to the production of certain records, he did not provide them, and Wife requested a status conference. Husband’s counsel, who was also InterNACHI’s general counsel, filed a motion in response to Wife’s discovery request, arguing (1) the only InterNACHI relevant to the divorce proceeding were those reflecting Husband’s compensation and expense reimbursements; (2) the court could not consider InterNACHI a marital asset because Wife did not allege grounds in her dissolution petition to pierce the corporate veil; and (3) the court could authorize Wife to serve a subpoena duces tecum on InterNACHI to produce the relevant documents. The court held the status conference but did not rule on the discovery issues.

Wife then served a subpoena duces tecum on InterNACHI requesting (1) Husband’s employment and compensation; (2) the employment by InterNACHI of any person related to Husband; (3) InterNACHI’s bookkeeping, accounting, and tax return or Form 990 preparation; and (4) InterNACHI’s conflict-of-interest policy. InterNACHI moved to quash the subpoena, arguing that many of the requested documents were privileged, confidential, and irrelevant to the dissolution proceeding. InterNACHI also renewed its motion that Wife did not allege any grounds sufficient to claim that InterNACHI was Husband’s alter ego and pierce the corporate veil. The court denied InterNACHI’s motion to quash, and it filed a C.A.R. 21 interlocutory appeal.

On appeal, InterNACHI argued that the district court abused its discretion in refusing to quash or modify Wife’s subpoena because (1) Wife was required to, but did not, plead in her dissolution petition a claim for piercing InterNACHI’s corporate veil and (2) certain of Wife’s discovery requests were irrelevant to her veil-piercing claim and thus were outside the scope of discovery permitted by C.R.C.P. 26. The court first analyzed the discovery requirements in domestic relations cases, which are governed by C.R.C.P. 16.2, and found that Wife was not required to plead in her dissolution petition a claim seeking to pierce InterNACHI’s corporate veil. However, the supreme court concluded the district court did not use the correct standard in evaluating InterNACHI’s objection to the requested discovery.

The court compared C.R.C.P. 16.2 to the discovery requirements in civil cases, governed by C.R.C.P. 26. The court found the two rules analogous. The court found that its holding in DCP Midstream, LP v. Anadarko Petroleum Corp., 2013 CO 36, applied in this case and required the district court to take an active role in managing discovery. The supreme court found that the district court should initially have granted Wife only such discovery as would reasonably have been necessary to allow her to attempt to establish the existence of the alter ego relationship that she claimed. The supreme court noted that if, after receiving limited discovery, Wife could prove that InterNACHI was Husband’s alter ego, she may then be entitled to receive the information in her initial request, but the court must actively monitor discovery pursuant to DCP Midstream.

The supreme court made its rule to show cause absolute and returned the case to the district court for further proceedings.

Colorado Court of Appeals: Exculpatory Clauses in Fitness Agreement Did Not Bar PLA Claim

The Colorado Court of Appeals issued its opinion in Stone v. Life Time Fitness, Inc. on Thursday, December 30, 2016.

Summary Judgment—Negligence—Premises Liability Act—Liability Release—Assumption of Risk.

Stone was a member of a fitness club owned by defendants (collectively, Life Time). She fell and fractured her ankle in the club’s women’s locker room after a workout. Stone asserted a general negligence claim and a claim under Colorado’s Premises Liability Act (PLA), alleging that Life Time allowed a trip hazard and dangerous condition to exist and thus failed to exercise reasonable care.

Life Time moved for summary judgment, relying on assumption of risk and liability release language contained in the agreement Stone signed when she joined the club. The district court granted the motion, without distinguishing between the negligence and PLA claims, finding that the agreement was valid and enforceable and that Stone had released Life Time from all the claims asserted in the complaint.

On appeal, Stone contended that the district court erred in entering summary judgment and dismissing her action. As to the negligence claim, the Court of Appeals determined that the PLA provides the sole remedy for injuries against landowners on their property and abrogates common law negligence claims against landowners. Thus Stone could not bring a common law negligence claim against Life Time.

Stone also argued that the exculpatory clauses in the agreement, while applying to the workout areas, did not clearly and unambiguously apply to injuries incurred in the women’s locker room. Exculpatory agreements are generally disfavored. A court must consider four factors to determine whether an exculpatory agreement is valid: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties was expressed in clear and unambiguous language. As to the first factor, the Colorado Supreme Court has specified that no public duty is implicated if a business provides recreational services. On the second factor, courts have consistently held that recreational services are neither essential nor a matter of practical necessity. With respect to the third factor, recreational service contracts of this type are generally considered to be fairly entered into. These three factors weighed in favor of the enforceability of the agreement. On the fourth prong, however, in waiving future negligence claims, the intention of the parties must be expressed in clear and unambiguous language. After scrutinizing the exculpatory clauses, the court of appeals concluded that the agreement used excessive legal jargon, was unnecessarily complex, and created a likelihood of confusion. Thus, the agreement did not bar Stone’s PLA claim.

The judgment on the negligence claim was affirmed, the judgment on the PLA claim was reversed, and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Top Ten Programs and Homestudies of 2016: Litigation

The year is drawing to a close, which means that the compliance period is ending for a third of Colorado’s attorneys. Still missing some credits? Don’t worry, CBA-CLE has got you covered.

Today on Legal Connection, we are featuring the Top Ten Litigation Programs and Homestudies. Litigation encompasses several practice areas, including commercial litigation, tort/insurance, civil litigation, and more, but some things are common to all trial attorneys. CBA-CLE offers many great programs for litigators, and our litigation library contains both helpful treatises and reference guides. Find the program, homestudy, or book you need at cle.cobar.org/Books/Litigation.

And now, for the Top Ten Litigation Programs and Homestudies of 2016.

10. Expert Witness Introduction for Colorado Practitioners: Top 10 Tips
This CLE covers key basics of Colorado expert witness practice: who is an expert witness (CRE 702);  what are the requirements of being an expert (CRE 702); when may an expert witness testify (CRE 702); what are the discovery requirements applicable to expert witnesses (CRCP 26(a)(2)(B); what is the timing for required disclosure of expert witnesses (CRCP 26(a)(2)(C) and the sanctions for failing to disclose expert witnesses properly and timely (CRCP 37(c)(1))? This CLE will be based on Colorado law, but will present a comparison to federal law, and identify key federal cases under analogous Rules where Colorado law is absent. Order the Video OnDemand here and the MP3 here. Available for 1 general credit.

9. Making Your Record: The Why, When, and How of Appellate Advocacy in Trial Court
Learn how to “make your record” in state and federal court to preserve your issue on appeal in the Pre-trial, Trial, and Post Trial phases. Attorney Kendra Beckwith will cover Pleadings, Pre-Trial Motions, Discovery Disputes, Trial Objections and Motions, Jury Instructions and Verdict Forms, Post-Trial Motions, and Notice of Appeal. Order the Video OnDemand here and the MP3 here. Available for 1 general credit.

8. Deposition Practice: Nuts and Bolts
You will leave this half-day program immediately prepared to plan and implement more effective depositions. This is a skills building program that covers every aspect of the deposition process, filled with tips on questions that will draw out information, obtain admissions, support motion practice and set up successful cross examination at trial. You will also learn how to prepare your witness to be deposed, conveying information truthfully while avoiding manipulation. Your seasoned presenter and litigator has extensive knowledge and experience, and will provide you with invaluable pointers and information. Trial lawyers of all experience levels will pick up tips, ideas, and insights. This program is about the art as well as the science of discovery practice. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits.

7. Direct & Cross Examination and Opening & Closing: Top To-Dos
You know from many a sleepless night and anxious day that your examinations of witnesses, and your openings and closings at trial must be independently effective and collectively coordinate as part of a winning strategy. The best part is that you don’t have to change your style and personality to develop the skills to become more effective in court! This program will be full of tips, methods and suggestions about how to build immediately on your abilities as a litigator to be that much more effective and persuasive right now in your trial practice. This program will help you be a better trial lawyer now and set you on the path to be an even better lawyer as you continue to work on what you will learn in this program. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits.

6. New Technology for Evidence Preservation: Drones, Black Boxes, and More
Drones, computers in vehicles, and Event Data Recorders (EDRs) have evolved in popularity and sophistication. This program will focus on data to be collected and preserved following an accident, including physical data, electronic data, and photographs. In addition, there will be a review of some of the ethical issues involved including the use of investigators, data collected, and privacy issues.  Relevant Case law and the Colorado Rules of Professional Conduct will be referenced. Order the Video OnDemand here and the MP3 here. Available for 2 general credits.

5. Courtroom Technology & Voir Dire
If you are a litigator, you are always looking for ways to gain the edge in the courtroom: with the judge, with the jury, and with opposing counsel. From pre-trial discovery and depositions through jury instructions and closing argument, every step is vital to winning your case. Watch this half-day homestudy on courtroom technology and voir dire that will give you the edge in your next case. Find out the latest in courtroom technology, voir dire tips, and hear the fascinating case study of the voir dire in the Oklahoma City bombing case! Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits.

4. Preparing the Case for Trial: Motions, Mock Trials, and Motions In Limine
This program explains the benefits of mock trials, including how to prepare for a mock trial and what you will learn; motions practice and oral advocacy, including organization and presentation of arguments, how to interact with the judge, how to handle questions, and how to effectively implement oral persuasion skills; and Schreck challenges and motions in limine, including laying the foundation for admission or striking of expert testimony, the different standards for Schreck challenges and Daubert motions, and how to make effective motions in limine. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits.

3. E-Discovery 2016
Law and technology intersect on a continuing – and accelerating – basis.  Attorneys in all areas of practice must become familiar with new electronic devices and the media through which they and their clients communicate and conduct business.  At the same time, existing state and federal rules that govern civil and criminal proceedings and the Rules of Professional Conduct must address technologies such as social media, webpages, and shared work places.  Electronic information impacts all aspects of an attorney’s practice, whether litigation, transactional, or otherwise. For example, electronically stored information affects all employers and information governance professionals.  This program is a must-attend for any attorney practicing today and tomorrow. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 8 general credits, including 1 ethics credit.

2. Collecting Judgments: Strategies for Success
This program presents a practical approach to maximizing your ability to collect judgments within the bounds of the law and ethics rules. Your expert faculty will guide you through the process and let you know the options that are available. They will tell you how, when, and why to select one strategy over another. In addition, you receive a primer on the Fair Debt Collections Practices Act and the perspective of the court. Learn the dos and don’ts of effective and ethical collections practice. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits and 1 ethics credit.

1. Winning at Trial 2016: Practical Pointers
This is your annual one day trial advocacy program presented by the Colorado Chapter of the American College of Trial Lawyers. Its distinguished faculty are highly experienced litigators and strategists who will share with you practical pointers for winning your clients’ cases. Topics include Jury Selection, Creating Trial Themes and Graphics, Taking Depositions, Opening Statement, Direct Examination, Cross Examination, and Social Media. Don’t Miss This Opportunity to Learn from Those Who Know Trial Law Inside and Out! Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits.

Jury Selection in a High-Profile Death Penalty Case

On April 19, 1995, a Ryder truck filled with explosives parked outside the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, and detonated. The blast damaged 324 buildings in a 16-block radius, 168 people were killed in the attack, and 680 were injured. Many of the deceased were children; an “America’s Kids” child care center was inside the federal building, and 15 of the 21 infants and children at the child care center were killed.

Approximately 80 minutes after the attack, Timothy McVeigh was pulled over for a missing registration tag on his 1970s yellow Mercury. When the officer stopped McVeigh’s vehicle, McVeigh got out of the car and the officer could see the outline of a gun under his jacket. McVeigh admitted he had the weapon and it was loaded, and the trooper arrested him and booked him into jail. Within days of the attack, the Ryder truck was linked to McVeigh and his friend Terry Nichols, McVeigh’s Army buddy.

McVeigh and Nichols were charged with eleven counts: (1) conspiracy to use a weapon of mass destruction; (2) use of a weapon of mass destruction; (3) destruction by explosive related to the Murrah building; and (4) through (11) first degree murder, for the deaths of seven federal law enforcement officers who died in the Murrah building. McVeigh and Nichols were tried separately.

Both defendants moved to disqualify the federal judge presiding over the case. Only Nichols appealed for mandamus from the denial; the Tenth Circuit found that because the judge’s own chambers were destroyed in the blast, it would be difficult for the judge to be fair and impartial. Venue was moved in Nichols’ case to Colorado.

N. Reid Neureiter represented Nichols in his death penalty case. He faced many difficult issues in jury selection and during trial. On Wednesday, December 21, 2016, he will discuss the case and the voir dire issues as part of a half-day program, “Courtroom Technology and Voir Dire.” To register, call (303) 860-0608 or click the links below.

 

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CLE Program: Courtroom Technology and Voir Dire

This CLE presentation will occur on December 21, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 9 a.m. to 12 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: CD • MP3Video OnDemand.

Colorado Supreme Court: Insurer Failed to Show Documents in Question Contained Trade Secrets

The Colorado Supreme Court issued its opinion in In re Rumnock v. Anschutz on Monday, December 5, 2016.

Pretrial Procedure—Protective Orders—Trade Secrets—Commercial Information.

The Colorado Supreme Court discharged its rule to show cause and affirmed the trial court’s partial denial of defendant American Family Mutual Insurance Company’s request for a protective order to restrict plaintiff’s use of alleged trade secrets. The court held that American Family failed to meet its burden to show that the documents were in fact trade secrets or other confidential commercial information.

Summary provided courtesy of The Colorado Lawyer.

When Your Client’s Kid Needs Help: Juvenile Criminal Justice for Every Attorney

pow6qw4fks1i955Every lawyer has had the experience of their client asking questions about an area of law in which they don’t practice. A tax lawyer may field questions about her client’s DUI matter. An immigration attorney may receive a question from his client about preparing an estate plan. A domestic relations attorney may hear questions about her client’s business. Regardless of an attorney’s area of expertise, clients will ask legal questions and expect informed answers.

So what do you do when your client tells you his kid might be in trouble with the law? Because few matters are more important to a parent than the well-being of his or her child, knowing what to say and when to recommend that your client seek a juvenile defense attorney is vital.

From the legalization of marijuana in Colorado to the perils of social media, kids live in a different world than a generation ago. These days, it seems there are more and more ways for kids to find themselves in trouble with the law, not because of criminal intent, but because the children or their families do not understand what behavior the law criminalizes. The pitfalls kids face in the criminal system and school disciplinary settings can be extraordinary, and the consequences can be far-reaching—even lifelong.

In seeking to protect the client’s children from lifelong consequences, it is imperative and ethically required for an attorney to fully understand the laws applicable to the matter, or to find someone who specializes in juvenile law to provide guidance. The Criminal Code and Children’s Code are complex, and children are frequently treated differently than adults in regard to criminal matters.

On Monday, December 12, 2016, attorney Lara Marks Baker will deliver a one-hour breakfast presentation on guiding your client through juvenile criminal justice issues. This program is a great way to learn about what to do when your clients need help with their kids. Lara will highlight the federal and state laws which are frequently implicated in matters of juvenile justice, and when to signal a client that criminal or disciplinary matters may be forthcoming. Register by calling (303) 860-0608 or by clicking the links below.

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CLE Program: When Your Client’s Kid Needs Help

This CLE presentation will occur on December 12, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 8:30 a.m. to 9:30 a.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Colorado Court of Appeals: Exhaustion of Administrative Remedies Required but Dismissal With Prejudice was in Error

The Colorado Court of Appeals issued its opinion in Grant Brothers Ranch, LLC v. Antero Resources Piceance Corp. on Thursday, December 1, 2016.

Subject Matter Jurisdiction—Summary Judgment—Exhaustion of Administrative Remedies—Dismissal Without Prejudice.

Antero Resources Piceance Corporation (Antero), an oil and gas exploration and production company, received approval from the Colorado Oil and Gas Conservation Commission (the Commission) to establish a drilling and spacing unit to produce oil and gas. Antero wanted to produce oil and gas underlying Grant Brothers Ranch, LLC’s (Grant Brothers) property, which was within the unit, but Grant Brothers refused Antero’s offer to lease the minerals or participate in their production. Antero then requested that the Commission pool all nonconsenting interests in the unit and allow Antero to produce and sell the oil and gas of the nonconsenting owners. Following a hearing, the Commission granted the request. A year and a half later, to produce from a deeper formation, Antero sought to establish a new unit within the same lands. Again, Antero asked Grant Brothers to participate in their production, and Grant Brothers refused. Following objection by Grant Brothers and a hearing, the Commission granted this request and issued an order pooling all nonconsenting interests in the second unit. Pursuant to these pooling orders, Grant Brothers was entitled to receive its interest in the proceeds from the production and sale of oil and gas from wells in the units after the wells reached “payout.” Antero was required to furnish Grant Brothers monthly statements concerning its costs and proceeds.

Three years after the second order, Grant Brothers asked Antero for permission to audit its books and records regarding the wells. Antero refused, stating it had been sending Grant Brothers the required monthly statements.

Two years later, Grant Brothers sued Antero and Ursa Operating Company, LLC (which assumed operation of the wells in 2012) (Operators), requesting an equitable accounting and alleging the wells had reached payout, but Operators had not paid Grant Brothers. Operators filed a motion for summary judgment arguing that Grant Brothers had not exhausted its administrative remedies under the Oil and Gas Conservation Act (the Act) and therefore the district court lacked subject matter jurisdiction. The court agreed and dismissed the action with prejudice.

On appeal, Grant Brothers argued that the district court improperly granted summary judgment because Grant Brothers was not required under the Act to exhaust its administrative remedies. The Colorado Court of Appeals noted that because the district court had not resolved a number of factual disputes and resolved Antero’s motion solely on the basis that the court lacked subject matter jurisdiction, the summary judgment motion was more properly characterized as a motion to dismiss for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1) and it therefore treated it as such.

The Act gives the Commission a broad grant of jurisdiction over operations for the production of oil and gas, including payment disputes, unless such dispute is one over interpretation of a payment contract, which would be resolved by a district court. In determining whether a court has subject matter jurisdiction where a party did not exhaust administrative remedies, courts examine whether (1) the claim was filed pursuant to the relevant statute, (2) the statute provides a remedy for the claim asserted, and (3) the legislature intended the statute to provide a “comprehensive scheme” addressing the issues underlying the claim.

First, Grant Brothers’ claim was one for payment of proceeds under C.R.S. §§ 34-60-116 and -118.5. Grant Brothers is entitled to receive payment only if and when payout occurs. Primary jurisdiction to make this determination rests with the Commission. Second, because there was no contract between the parties, Grant Brothers needed to first submit a written request for payment. If there is a payment dispute, Grant Brothers may request a hearing before the Commission, whose order would then be appealable to the courts. Third, the Act’s language and structure indicate that a proceeding before the Commission is the primary remedy for nonconsenting owners’ claims for the payment of proceeds when there is no contract between the parties. Grant Brothers was required to exhaust its administrative remedies and because it did not do so prior to filing suit in the district court, the court properly dismissed the action.

Grant Brothers also contended that the district court erred in dismissing its claim with prejudice solely on the basis that the court lacked subject matter jurisdiction. A dismissal under C.R.C.P. 12(b)(1) does not adjudicate the merits, but results from the court lacking the power to hear the claims asserted. Thus the dismissal is necessarily without prejudice.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Dram Shop Amendments Require Knowledge of Drinker’s Underage Status and Alcohol Consumption

The Colorado Court of Appeals issued its opinion in Przekurat v. Torres on Thursday, December 1, 2016.

Dram Shop Act—Intoxication—Knowledge—Evidence.

Sieck drove Przekurat home from a party in Przekurat’s car. Sieck, who was highly intoxicated at the time of the accident and was under 21 years old, drove at speeds in excess of 100 miles per hour before losing control of the car and colliding with an embankment. Przekurat sustained catastrophic injuries, including brain damage. Przekurat’s father sued the four hosts of the party, claiming they “knowingly provided [Sieck] a place to consume an alcoholic beverage” and thus were liable for his damages under the 2005 amendments to the Dram Shop Act. The trial court granted the hosts’ summary judgment motion.

On appeal, Przekurat argued that the district court erred when it held that C.R.S. § 12-47-801(4)(a)(I) of the Dram Shop Act requires actual knowledge of two separate elements: (1) that the defendant provided a place for the consumption of alcohol by a person under the age of 21, and (2) that the defendant knew that the person who consumed alcohol at that place was under age 21. The statutory requirement of “knowingly” applies to all of the elements of liability under the 2005 amendments. Therefore, the trial court correctly construed the 2005 amendments and also correctly determined that Przekurat failed to demonstrate a disputed issue of material fact regarding the hosts’ knowledge that Sieck was underage and was drinking at the party.

Przekurat next argued that the district court’s summary judgment must be reversed because he offered abundant evidence that the hosts knew that they were hosting an “open” party and providing a venue to underage guests, including Sieck, to drink indiscriminately. Although circumstantial evidence is admissible to prove knowledge under the statute, Przekurat did not offer any evidence, circumstantial or direct, that would permit a reasonable inference that any of the hosts knew Sieck, much less that they knew his age, or that Sieck appeared to be obviously underage.

Przekurat next argued that the district court erred in concluding that it did not have jurisdiction to rule on his motion for reconsideration of summary judgment in favor of the hosts. The Colorado Court of Appeals agreed that the district court erroneously denied the C.R.C.P. 59 motion for lack of jurisdiction, but the error does not require reversal or a remand.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Privileges and Confidentiality in the Attorney-Client Relationship

EthicsConfidentiality is one of the cornerstones of the attorney-client relationship. It allows clients to feel comfortable discussing sensitive issues with their attorney without fear of disclosure. Colorado Rule of Professional Conduct 1.6 provides, “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted [in certain enumerated circumstances].” The counterpoint to this is the privilege that protects attorney-client communications. The attorney-client privilege in Colorado is governed by C.R.S. § 13-90-107(1)(b), which states, “An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment.”

These seemingly straight-forward rules have many nuances, including the scope of confidentiality versus the attorney-client privilege, the lawyer’s responsibility to reveal information to prevent a client’s misconduct, the lawyer as witness, the lawyer’s duty to prevent the disclosure of client information, and the extension of the attorney-client privilege to others in the attorney’s office.

The Colorado Bar Association Ethics Committee has tackled some of these issues in Formal Opinion 108, “Inadvertent Disclosure of Privileged or Confidential Documents,” and Formal Opinion 90, “Preservation of Client Confidences in View of Modern Communications.” As this guidance suggests, attorneys must always be aware of when issues of privileges and confidentiality may arise in their practices.

At 8:30 am on Wednesday, December 14, 2016, attorney John Palmeri will discuss the intricacies of privileges and confidentiality in one-hour CLE program co-sponsored by the CBA Lawyers Professional Liability Committee. Attendees will also receive a copy of Mr. Palmeri’s chapter inLawyers’ Professional Liability in Colorado with further discussion of the topic. Register here or by clicking the links below.

 

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CLE Program: Privileges and Confidentiality

This CLE presentation will occur on December 14, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 8:30 to 9:30 a.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Candor to the Tribunal and the Duty of Confidentiality: How to Broach This Ethical Pitfall

qtq80-uSztbKRule 3.3 of the Colorado Rules of Professional Conduct provides that a lawyer shall not “make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer” or “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” But what exactly does this mean in the everyday practice of attorneys in Colorado?

Suppose the lawyer faces a client who intends to give false testimony or who refuses to correct a misstatement. What is material? May or must the lawyer withdraw from representation? Must the lawyer take further remedial measures? What must the lawyer do in an ex parte situation? In sum, how must the lawyer balance his or her duties to the client (particularly the attorney-client privilege) and the tribunal?

The Colorado Bar Association Ethics Committee addressed these questions in Formal Opinion 123, “Candor to the Tribunal and Remedial Issues in Civil Proceedings.” Opinion 123 requires the attorney to first remonstrate with the client. If that is unsuccessful, the attorney may be required to withdraw from representation. As a final measure, the attorney may make disclosure to the tribunal under certain circumstances. However, “the disclosure to remedy such a false statement must be limited to the extent reasonably necessary to achieve such ends and must be made in the manner that is the least harmful to the client while satisfying the commands of Colo. RPC 3.3.”

At noon on Tuesday, December 6, 2016, attorney Paul Gordon will delve into the intricacies involved with Colo. RPC 3.3 in a timely one-hour CLE. Mr. Gordon will bring his expertise in representing plaintiffs in malpractice claims against lawyers throughout the United States. Attendees will also receive a copy of Mr. Gordon’s chapter in Lawyers’ Professional Liability in Colorado with further discussion of the topic. Register here or by clicking the links below.

 

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CLE Program: Lawyers’ Duty of Candor to the Tribunal and Remedial Measures in Civil Actions and Proceedings

This CLE presentation will occur on December 6, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from noon to 1 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.