November 30, 2015

Changes to 10th Circuit Local Rules and Federal Rules of Appellate Procedure Posted

The Tenth Circuit Court of Appeals has posted changes to its local rules and the Federal Rules of Appellate Procedure, which will take effect January 1, 2016. The changes to the Tenth Circuit Local Rules are outlined in a memo, which is available here. A redline of the changes to the Federal Rules of Appellate Procedure, including the corresponding Tenth Circuit Local Rules, is available here.

The Federal Rules of Civil Procedure are also changing, effective December 1, 2015. The most significant change in the new Rules is that the scope of discovery is changing, as outlined below:

Rule 26.   Duty to Disclose; General Provisions Governing Discovery

(b)    Discovery Scope and Limits.

(1)    Scope in General.  Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.  Information within this scope of discovery need not be admissible in evidence to be discoverable.— including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

A redline of the proposed changes to the Federal Rules of Civil Procedure is available here.

CJD 11-02, Pilot Project Rules, Repealed and Reenacted by Colorado Supreme Court

On Monday, November 23, 2015, the Colorado Supreme Court issued repealed and amended Chief Justice Directive 11-02, “Adopting Pilot Rules for Certain District Court Civil Cases.” The amendments affect cases filed between January 1, 2012, and June 30, 2015. For all cases filed on or after July 1, 2015, the Colorado Rules of Civil Procedure have been amended to included provisions of the pilot project rules.

For the amended version of CJD 11-02, click here. For all of the Colorado Supreme Court’s Chief Justice Directives, click here.

Colorado Court of Appeals: No Requirement that Complaint be “Well Pleaded” Before Entry of Default

The Colorado Court of Appeals issued its consolidated opinion in Dickinson v. G4S Secure Solutions (USA) Inc. and Dickinson v. Lincoln Building Corporation on Thursday, November 19, 2015.

Premises Liability—Entry of Default—Comparative Negligence and Pro Rata Liability.

This is a consolidated appeal in a premises liability case brought by Charlene Dickinson against Lincoln Building Corporation (LBC); Wells Fargo Bank National Association (Wells Fargo); and G4S Secure Solutions (USA), Inc. (G4S). Dickinson sought damages for shoulder injuries sustained when she attempted to open a door leading to her workplace that allegedly was locked or malfunctioning.

LBC and Wells Fargo admitted they were served but failed to enter an appearance or file an answer. The district court entered default against them, and they filed a joint motion to set it aside, which the court denied. On appeal, LBC and Wells Fargo argued the default should have been set aside because it was entered in violation of their right to due process of the law and it was not well pleaded. The Court of Appeals disagreed. LBC and Wells Fargo were properly served with the complaint and summons, and they failed to enter an appearance or file an answer until almost a year later, well after the court had entered default. As to the argument that the trial court had to first find that the complaint was “well-pleaded,” the Court could find absolutely no support for any such requirement.

LBC and Wells Fargo also argued that they should have been permitted to present evidence of Dickenson’s comparative negligence and G4S’s pro rata liability at the damages hearing after entry of default. The Court disagreed, finding that the default constituted an admission of liability that precluded them from thereafter presenting evidence of others’ comparative fault. The damages hearing was only to determine the amount of damages owed and any discussion of liability underlying that award is prohibited.

Dickenson argued that the trial court erred in rejecting a tendered negligence per se instruction as to G4S. The Court affirmed, finding that the tendered instruction did not apply to G4S, a security company, but to the manufacturer of the door’s locking mechanism. Moreover, even if it did apply, no evidence was presented that the code section regarding the door’s locking mechanism was intended to protect against injuries stemming from attempting to open a locked exit door. The judgments and orders were affirmed.

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

Colorado Court of Appeals: Jury Instructions on Implied Warranty of Suitability Insufficient

The Colorado Court of Appeals issued its consolidated opinion in Rogers v. Forest City Stapleton, Inc. and Rogers v. Forest City Stapleton, Inc. on Thursday, November 19, 2015.

Implied Warranty of Suitability—Developer—Homeowner—Vacant Lot—Nuisance—Sanctions—Discovery Violation.

Defendants (collectively, Forest City) served as the master developer for the redevelopment of the old Stapleton International Airport. Forest City sold the vacant residential lot at issue here to a homebuilder, with which plaintiff Rogers contracted to build a home. Rogers paid the builder an extra fee to include a basement that could later be finished. After learning that his lot was not suitable for a home with a basement that could be finished, Rogers brought claims for breach of implied warranty, nuisance, and negligent misrepresentation.

On appeal, Forest City argued that the trial court erred by instructing the jury that it could find that an implied warranty runs from a developer to a homeowner under the circumstances of this case. An implied warranty of suitability exists between a developer of a vacant lot and the owner of a home on that lot who is not the first purchaser if (1) the developer improves the lot for a particular purpose, and (2) all subsequent purchasers rely on the developer’s skill or expertise in improving the lot for that particular purpose. Here, the trial court did not adequately instruct the jury on this law. Consequently, the judgment was reversed and the case was remanded for a new trial on the implied warranty claim.

Forest City also argued that the trial court erred in denying its motion for judgment notwithstanding the verdict on Rogers’s nuisance claim, arguing that there was insufficient evidence to support the nuisance verdict as a matter of law. Because the jury was instructed that Forest City placing RABC in the roads was a necessary element of the nuisance claim, and the record reveals no evidence that Forest City placed RABC, or anything else, in the roads in Stapleton, the evidence was insufficient to support the jury’s nuisance verdict. The trial court therefore erred by denying Forest City judgment notwithstanding the verdict on that claim pursuant to CRCP 59(e)(1).

Rogers argued that the trial court erred in the amount of sanctions awarded to Rogers and against Forest City’s counsel for the late disclosure of discovery documents. Because the trial court found that (1) the late disclosed documents were of “slight use” to Rogers, (2) Forest City’s counsel acted with “candor and professionalism,” and (3) the violation was an unintentional “oversight,” the trial court acted within its broad discretion by awarding only $10,000 of the $90,000 that Rogers requested.

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

Medicolegal Aspects of Marijuana: Issues Facing Colorado Practitioners

By Jay Tiftickjian

MedicolegalMJOn December 4, CLE in Colorado will present Medicolegal Aspects of Marijuana, an all-day event that focuses on the forensic and regulatory aspects of legal and medical cannabis in Colorado. The seminar will feature most of the authors of the textbook of the same name, available from Lawyers and Judges Publishing. This event is co-sponsored by the Colorado Bar Association Cannabis Law Committee.

Colorado voters approved Amendment 20 in 2000, making Colorado the only state at the time to legalize medical marijuana in its own constitution. Twelve years later, in 2012, Colorado citizens passed Amendment 64 with 55 percent of the vote, making Colorado the first state to legalize the recreational use of marijuana. Criminal, civil, and regulatory law has since been rapidly developing and changing in this area.

Because of these rapid changes, Colorado practitioners are faced with an ever-expanding array of marijuana-related issues:

  • Regulation of Marijuana Sales: Dispensaries must abide by strict and constantly evolving state and local laws and regulations. The program explores regulations that cover both medical dispensaries and recreational stores, and includes two major economic issues: I.R.C. 280E and the lack of access to banking.
  • Driving Under the Influence: Since recreational marijuana use was legalized by Amendment 64 for persons 21 and older, the issue of driving under the influence of drugs is in the law enforcement spotlight. Denver criminal defense attorney and program chair Jay Tiftickjian will explore the drug recognition examinations and more-permissive chemical testing that are being used, and will look at controversial studies and research regarding these methods.
  • Blood Testing for DUI-D Cases: The active substance in marijuana, THC, remains detectable in the blood for only a few hours, but some research has shown that residual levels can be found in chronic marijuana users for up to 24 hours. The program includes a discussion on blood testing for marijuana to help educate practitioners about the legal intricacies.
  • Employment Issues: In June, the Colorado Supreme Court, in Coats v. Dish Network, held that employers could terminate employees for using medical marijuana because it is illegal under federal law. The program includes a discussion of the impact this decision will have for hundreds, if not thousands, of employees who use medical and/or recreational cannabis.
  • Tension Between Federal and Colorado Controlled Substance Laws: Under federal law, the punishment for persons convicted of marijuana charges is steep, and possession continues to be a misdemeanor subject to up to one year’s imprisonment. Possession of larger quantities of marijuana could lead to a felony conviction and a substantial prison term. Even under Colorado law, illegal cultivation and distribution is a felony. Program presenters will review and contrast Colorado controlled substance law and the federal Controlled Substance Act.

Medicolegal Aspects of Marijuana will provide an extensive overview of the areas of law most affected by legal cannibals in Colorado. Colorado practitioners in all areas of the law are encouraged to attend this program. More information about the program can be found here.

CLE Program: Medicolegal Aspects of Marijuana in Criminal Law, Civil Regulations, and Forensic Science

This CLE presentation will take place Friday, December 4, 2015, in the CLE Large Classroom. Click here to register for the live program and click here to register for the webcast, or call (303) 860-0608.

Can’t make the live program? Order the homestudy here: CDMP3 audioVideo OnDemand.


Jay M. Tiftickjian, Esq., is widely considered one of the best DUI attorneys in Colorado. He was named “Barrister’s Best DUI Lawyer” by Colorado Law Week multiple times, voted “People’s Choice-Best DUI Lawyer” multiple times, is Preeminent AV® Rated by Martindale-Hubbell, and is listed in Super Lawyers. He is the elected Secretary of the Colorado Criminal Defense Bar and in succession to be the president in 2018, and has been published numerous times on the subject of DUI defense and drug law. Mr. Tiftickjian is the co-author of Colorado DUI Defense: The Law and Practice, and the editor of the Colorado Criminal Defense Bar’s DUI Defense Manual as well as Medicolegal Aspects of Marijuana. He frequently lectures to attorneys, judges, and students about criminal law, law practice management, and ethics, and provided legal expertise to The New York Times, The Denver Post, 9News, Colorado Public Radio, 850KOA, and many other local and national media outlets. Mr. Tiftickjian is president of Tiftickjian Law Firm, PC, which represents clients out of the firm’s offices in Denver and Aspen.

CJD 15-01, CJD 11-02 and CJD 85-27 Repealed by Colorado Supreme Court

On Wednesday, November 18, 2015, the Colorado State Judicial Branch announced the repeal of two Chief Justice Directives: CJD 11-02, authorizing the Colorado Civil Access Pilot Project, and CJD 85-27, concerning indigency determinations for drug and alcohol treatment. Earlier in November, the Colorado Supreme Court repealed CJD 15-01 regarding public records. CJD 11-02 was repealed because the pilot project has ended and the Colorado Rules of Civil Procedure were amended to incorporate provisions of the pilot project. CJD 15-01 was repealed because the Supreme Court issued new rules regarding public access to records of the judicial branch.

For a complete list of the Colorado Supreme Court’s Chief Justice Directives, click here.

Tenth Circuit: User Manual Adequately Described Risk of Injury so Manufacturer Not Negligent

The Tenth Circuit Court of Appeals issued its opinion in Kirkbride v. Terex USA, LLC on Tuesday, August 25, 2015.

Larry Kirkbride was injured when a jammed piece of metal flew out of a rock crushing plant. Kirkbride brought claims against the plant’s manufacturer, Terex, for negligent manufacturing and design, negligence in providing inadequate warnings and instructions, strict products liability for failure to warn and manufacturing and design defects, and breach of express and implied warranty. Terex removed the case to the U.S. District Court for the District of Utah based on diversity jurisdiction. Before trial, Kirkbride narrowed his claims to negligence, strict products liability, breach of express warranty, and breach of the implied warranty of merchantability. Terex unsuccessfully moved for judgment as a matter of law when Kirkbride rested his case at trial. At the close of evidence, Kirkbride withdrew his express warranty and negligence claims, and the verdict form asked whether (1) Terex failed to adequately warn users of the risk of injury from the jaw crushers, (2) Terex manufactured a part that was used on the machine that day, the part was defective, and the defect was a cause of Kirkbride’s injury, and (3) Terex breached an implied warranty of merchantability because the defective part caused Kirkbride’s injury. The jury found for Kirkbride on all three claims and awarded him over $3.5 million in damages. Terex appealed.

The Tenth Circuit addressed Terex’s claim that the evidence was insufficient to support the jury’s findings and the trial court erred in denying its motion for judgment as a matter of law. The Tenth Circuit agreed. It first reviewed Terex’s challenge to the jury’s finding that it failed to warn of the dangers of removing jams from the jaw crushers. The rock crushing plant’s user manual warned of the exact injury suffered by Kirkbride, namely that stored energy could cause a jammed piece of non-crushable material to shoot out and hit the head of the person trying to remove it. When asked if he had read the manual, Kirkbride said “Why would you read a manual?” Additionally, other workers present at the time of Kirkbride’s injury testified that they had not read the manual, they were not trained on how to properly remove jammed material, and no one told Kirkbride to be very cautious when removing the jammed material. The Tenth Circuit found this evidence insufficient to support the jury’s finding of failure to warn and reversed.

Next, the Tenth Circuit addressed Terex’s argument that Kirkbride had not proven that the defective part caused his injuries. The defective part was a toggle plate that was designed to break when the jaw crushers got jammed, releasing stored energy and preventing other, more expensive parts from breaking. Kirkbride alleged that because the toggle plate was thicker than recommended in Terex’s manuals, it required more force to break, and therefore was defective. Kirkbride’s expert testified that a thicker plate would require more force to break, but did not address whether the recommended plate would have broken in the situation in which Kirkbride was injured. Because there was no evidence that a thinner plate would have broken, there was no support for the theory that Terex’s plate was defective or caused Kirkbride’s injury.

Finally, the Tenth Circuit addressed Kirkbride’s implied warranty claim and found it was largely subsumed by the products liability claim. Because the Tenth Circuit found the evidence insufficient to support Kirkbride’s strict products liability claim, his implied warranty claim also failed.

The Tenth Circuit reversed and remanded.

Colorado Supreme Court: Litigation Finance Companies are Lenders for UCCC Purposes

The Colorado Supreme Court issued its opinion in Oasis Legal Finance Group, LLC v. Coffman on Monday, November 16, 2015.

Uniform Consumer Credit Code—Litigation Finance Transactions—Loans.

The Supreme Court held that litigation finance companies that agree to advance money to tort plaintiffs in exchange for future litigation proceeds are making “loans” subject to Colorado’s Uniform Consumer Credit Code even if the plaintiffs do not have an obligation to repay any deficiency if the litigation proceeds are ultimately less than the amount due. These transactions create debt, or an obligation to repay, that grows with the passage of time. The court of appeals’ judgment was affirmed.

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

Congratulations to Justice Hobbs and Judge Davidson, Recipients of the 2015 Richard N. Doyle Award of Excellence

On Monday, November 16, 2015, CLE in Colorado hosted its annual Richard N. Doyle CLE Award of Excellence presentation at the Faculty and Author Thank You Reception. This year’s recipients of CLE’s Richard N. Doyle Award of Excellence were former Colorado Supreme Court Justice Gregory Hobbs and former Colorado Court of Appeals Chief Judge Janice Davidson. We at CLE in Colorado appreciate the contributions of all our volunteer faculty and authors. Thank you for graciously donating your time and energy to our programs and publications.

Justice Hobbs retired from the Colorado Supreme Court this past August. He was appointed to the Court in 1996, and authored over 250 majority opinions in his judicial career. He is an avid historian and proponent of water rights in Colorado. He has written and contributed to several books, including the Colorado Water Law Benchbook, two editions of the Public’s Water ResourceLiving the Four Corners: Colorado, Centennial State at the Headwaters, and Into the Grand. He is also a frequent speaker at CLE events, including water law and appellate practice events.

Judge Davidson was appointed to the Colorado Court of Appeals in 1988, where she served until January 2014. Judge Davidson is now at IAALS, where she is a Senior Advisor to the Honoring Families Initiative. For years, Judge Davidson was the managing editor of the Colorado Appellate Handbook, and she helped form the majority of the book’s content, making it into an extraordinarily helpful litigation resource. Judge Davidson is also a speaker for CLE, most recently appearing at the Appellate Practice Hot Topics seminar.

We are grateful to Justice Hobbs, Judge Davidson, and all our outstanding faculty and authors. We couldn’t do it without you.


Gary Abrams, Executive Director of CLE in Colorado, gave the introductions.


Marc Painter, Chair of the CLE Board of Directors, introduced Justice Gregory Hobbs.


Justice Hobbs accepting his award.


Dawn McKnight, CLE’s Assistant Executive Director and Publications Director, presented the award to Judge Davidson.


Judge Davidson accepting her award.


Attorney Kim Willoughby provided Vanjak Vodka for the reception, and Odyssey Beerwerks in Arvada provided Lawyer’s Lager. Thank you both for the libations.


The food and camaraderie were terrific.


No CLE event would be complete without delicious desserts created by the masterful bakers on the CLE staff.

Colorado Court of Appeals: C.R.C.P. 12(b)(5) Motions Disfavored and Should Only Be Granted If No Facts Support Plaintiff

The Colorado Court of Appeals issued its opinion in Masters v. School District No. 1 in the City & County of Denver on Thursday, November 5, 2015.

Teacher Employment, Compensation, and Dismissal Act—Contract Clause—Due Process.

Plaintiffs were employed as full-time teachers by Denver Public Schools and had achieved non-probationary status under the Teacher Employment, Compensation, and Dismissal Act (TECDA). Plaintiffs brought the underlying action in district court, alleging that TECDA violated their rights under the Colorado Constitution’s contract clause and due process clause. The trial court granted defendant’s motion to dismiss both claims.

On appeal, plaintiffs contended that the district court erred by dismissing their contract clause claim. TECDA created a contractual relationship between school districts and teachers. Non-probationary status is achieved under TECDA after a teacher completes a probationary teaching period, and that status conferred on the teacher protections against dismissal. Therefore, the district court erred by dismissing plaintiffs’ contract clause claim under CRCP 12(b)(5) for failure to state a claim upon which relief can be granted.

Plaintiffs also contended that the district court erred by dismissing their due process challenge to the mutual consent provisions of TECDA. TECDA provides that non-probationary teachers may be dismissed only for statutorily specified reasons constituting “good and just cause” and only after certain procedures are followed. Before Senate Bill (SB) 191 was passed, TECDA required a school district to find a new position for a displaced non-probationary teacher, and the receiving school was required to accept the teacher. Such for-cause dismissal provisions create a constitutionally protected property interest in continued employment. Through SB 191, the legislature replaced this procedure with a “mutual consent” procedure whereby a displaced non-probationary teacher may be assigned to a position at another school only with the receiving principal’s consent and input from at least two teachers at the school, and the school district was authorized to place on unpaid leave any displaced non-probationary teacher who has not secured a mutual consent position in the district within 12 months or two hiring cycles, whichever is longer. Before being placed on unpaid leave, however, non-probationary teachers have a due process right to a hearing in which the teacher may attempt to show that the purported reason for which she was placed on unpaid leave was not the actual reason or that the placement was effected in an arbitrary or unreasonable fashion. Therefore, the district court erred in dismissing the plaintiffs’ due process claim for failure to state a claim upon which relief can be granted. The judgment was reversed and the case was remanded with directions.

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

Colorado Appellate Rules and Colorado Rules of Criminal Procedure Amended by Colorado Supreme Court

On Tuesday, November 3, 2015, the Colorado Supreme Court issued Rule Change 2015(09) and Rule Change 2015(10). Rule Change 2015(09) amends Rules 36, 37, 38, and 39 of the Colorado Appellate Rules. Rule Change 2015(10) amends Rule 17 of the Colorado Rules of Criminal Procedure.

The changes to the Colorado Appellate Rules are extensive. Much of the text of Rule 36, “Entry and Service of Judgment,” was deleted, and the comment notes that the rule was amended for brevity and to conform to the current practice of the courts. The changes to Rule 37, “Interest on Judgments,” are relatively minor, changing syntax and clarifying instructions. Rule 38, “Sanctions,” was significantly amended, and a 2015 comment was added. The comment notes that prior subsections (b), (c), and (e) of the rule were deleted and the relevant portions thereof were added to subsection (a), and prior subsection (d) was renumbered. The comment further clarifies that the statement in former subsection (b) about the court dispensing with oral argument was deleted because it is always within the court’s discretion to dispense with oral argument. Rule 39, “Costs,” also underwent significant revisions and now contains a 2015 comment. The comment to Rule 39 notes that the rule was changed, in part, to be consistent with Federal Rule of Appellate Procedure 39, which governs costs. The comment further clarifies that the changes shift responsibility for taxing costs from the appellate courts to the trial courts, which reflects the current practice of the courts. The comment outlines specific numbering changes to Rule 39.

The changes to Crim. P. 17, “Subpoena,” are relatively minor, adding electronic signatures to acceptable methods of waiver of service.

For a redline of Rule Change 2015(09), click here. For a redline of Rule Change 2015(10), click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Tenth Circuit: Remand Order Non-Reviewable Where Based on Lack of Unanimity

The Tenth Circuit Court of Appeals issued its opinion in Harvey v. Ute Indian Tribe of the Uintah and Ouray Reservation on Thursday, August 13, 2015.

Ryan Harvey and other plaintiffs filed a complaint in Utah state court against the Ute Indian Tribe of the Uintah and Ouray Reservation, seeking a declaration regarding the authority of the Tribe over non-Indian businesses operating on certain categories of land. Plaintiffs also alleged three individuals affiliated with the Uintah Tribal Employment Rights Office had harassed and extorted Plaintiffs. Defendants filed a motion to dismiss, arguing that service of process had been insufficient, the state court lacked jurisdiction in the absence of a valid waiver of tribal immunity, the Tribe and its officers were immune from suit but were indispensable parties, and Plaintiffs failed to exhaust administrative remedies in tribal court. Following a hearing on the motion to dismiss, the state court ordered further briefing regarding whether the defendants’ motion constituted a general appearance. The court granted Plaintiffs’ motion to amend its complaint to add defendants.

Defendants filed a notice of removal in the U.S. District Court for the District of Utah, stating that certain defendants consented to removal and the others would consent. All except one eventually consented to removal. Plaintiffs then filed a motion to remand, arguing the initial defendants waived their right to remove by litigating in state court, removal was untimely, the defendants had not unanimously consented to removal, and the federal court lacked subject matter jurisdiction. The district court granted the motion to remand, finding the initial defendants waived their right to consent to removal because they manifested an intent to litigate in state court, and the unanimity requirement could not be met.

The Tenth Circuit first noted that 28 U.S.C. § 1447(d) specifies that a district court order remanding to state court is “not reviewable on appeal or otherwise.” Following Supreme Court precedent establishing that some orders are reviewable despite the statute’s plain language, the Tenth Circuit noted that § 1447(d) has been interpreted to preclude review only for lack of subject matter jurisdiction or defects in removal procedure. The Tenth Circuit commented that although the circuits are split on whether remand based on waiver is reviewable, it would only address remand for lack of unanimity. The Tenth Circuit evaluated whether the remand was based on lack of unanimity and found that it was. The Tenth Circuit declined to review the remand order.

The Tenth Circuit granted appellees’ motion to dismiss and dismissed the appeal.