October 2, 2015

Resolve Client Conflicts Through Narrative Mediation

ADR2015Editor’s Note: This article is excerpted from materials written by C. Adam Foster of Hoban & Feola, LLC, who will present “Once Upon a Mediation: The Role of Narrative in Alternative Dispute Resolution” at CLE’s 9th Annual Colorado ADR Conference on October 7, 2015. See below for registration information.

Each person tells themselves a story about how their past experiences have shaped them as a person and how these experiences, along with their goals and values, define what is important to them in life. In other words, personal narrative gives meaning to past experiences, which define the individual’s self-image in the present and in turn circumscribes how they view their relationships with others and how they evaluate their choices moving forward. Individuals create multiple narratives in different contexts that inform how they see themselves in various social roles, for instance as professionals, spouses, parents and friends. These individual narratives stand in dialog with larger social narratives involving class, race, gender, sexual orientation, religion and many other aspects of identity. Moreover, the existence of these narratives and their effect on the construction of identity may be more or less consciously acknowledged depending on the individual and their circumstances at any given time. Regardless of whether consciously or (more often) subconsciously, each individual crafts a narrative that reaffirms his or her values and identity. Thus, “[t]he stories that one constructs fit into a wider web of stories relating to other stories created by the same individual, to stories created by members of one’s social network, and even to cultural stories on a societal level” (Hansen, 2003). The notion of interrelated individual narrative and larger scale social discourse has been adopted into the practice of Narrative Mediation. Kure & Winslade (2010) elaborate:

In particular, narrative mediators focus on what can be coined “relational discourses,” which are local systems of meaning that shape the identities of parties in a relationship. These relational discourses map on to larger, more pervasive, discourses, or orders of discourse, but at the personal level, they are manifest through the ‘positioning ’of each of the parties in a power relation.

This idea of individual identity as a product of multiple individual and group discourses and narratives dovetails with the concept of “discursive positioning.” As Winslade (2003) writes: “As people speak, they position themselves not just in immediate relation to other person(s) in the conversation, but also in relation to utterances in other conversations.” Furthermore, discursive positioning occurs not just in relation to past conversations that the parties have had with each other, but innumerable conversations they have had with third parties.

The statement of facts is the most important portion of any legal brief because citation to legal authorities is meaningless unless the decision maker understands the specific factual context of the case. Judges, juries and arbitrators want to achieve a fair outcome. A properly crafted narrative creates moral tension, suggests a proper result and makes the decision maker care about the outcome. Moreover, a great deal of trial strategy focuses on advancing the client’s narrative and suppressing or disrupting the opposing party’s narrative. A compelling narrative has “integrity” in the sense that the facts fit together in a logical fashion and support the party’s message.

Attorneys must recognize that the audience is different in a bench trial, jury trial, arbitration or mediation—and attorneys should tailor this narrative to the appropriate audience while telling the story the client needs to tell. Moreover, each individual—the parties but also the attorneys and mediator, arbitrator, judge, jury, etc.—is trying to make sense of two related, but distinct, narratives: (i) a narrative regarding the facts of case and a desirable outcome; and (ii) a meta-narrative regarding who they are as a person and how case fits in with their life story.

In mediation making sure that the parties feel heard is critical. Parties want to achieve a favorable outcome but also to feel heard and validated in the process, so a good settlement accomplishes both. A party who achieves favorable financial outcome but doesn’t feel heard feels dissatisfied and may try to undermine the settlement when the opportunity arises.

Common sense dictates that it will usually be more important for parties to agree on certain elements of a joint narrative if they will be in a continuing relationship (e.g., in a workplace or parenting time dispute) versus a one-off transaction (e.g., a tort settlement for money damages). But it is often necessary to establish legal and factual stipulations to settle any type of dispute. Litigation will result in a judgment, but may not further agreement on a joint narrative.

C. Adam Foster, Esq., serves as Special Counsel at Hoban and Feola, where his practice focuses on the representation of business owners and mediation of business cases. He received a B.A. in Anthropology in 1998 from the University of Colorado at Boulder and was elected to Phi Beta Kappa. Adam returned to the University of Colorado at Boulder to attend law school, where he served as the Articles Editor of the University of Colorado Law Review, won the CU-DU Cup Mock Trial Competition, and received the Legal Aid Award for Outstanding Advocate. Adam joined Hoban & Feola in September of 2010 and today focuses on representing small to medium-sized business owners—including entrepreneurs within the burgeoning cannabis and industrial hemp industries—in transactions and litigation. He also mediates cases involving business, partnership and employment disputes. He speaks Spanish fluently and volunteers regularly, providing pro bono legal referrals through the Colorado Lawyers Committee Legal Nights and Project Homeless Connect.


CLE Program: 9th Annual Colorado ADR Conference

This CLE presentation will take place Wednesday, October 7, 2015 at the Renaissance Hotel in Denver. Live program only – click here to register or call (303) 860-0608.

Colorado Court of Appeals: Zip Line at Public School Inherently Dangerous So CGIA Does Not Apply

The Colorado Court of Appeals issued its opinion in Loveland v. St. Vrain Valley School District RE-1J on Thursday, September 24, 2015.

Governmental Immunity—Recreation Area Waiver.

In 2008, 9-year-old Alexa Rae Loveland was playing in her public elementary school’s playground. While using a zip line, she fell and fractured her wrist and right forearm. Alexa and her parents filed a tort action against the school’s principal and St. Vrain Valley School District RE-1J (District).

The District moved to dismiss under CRCP 12(b)(1), asserting lack of subject matter jurisdiction because public school districts and their employees are immune from tort liability under the Colorado Governmental Immunity Act (CGIA). The Lovelands argued immunity was waived under CRS§ 24-10-106(1)(e) because the injury arose from a “dangerous condition” of a “public facility located in any park or recreation area maintained by a public entity.” The trial court granted the District’s motion, finding that playground equipment is not a public facility.

On interlocutory appeal, a division of the Court of the Appeals reversed, holding that the zip line constituted a public facility located in a recreation area. The Supreme Court granted certiorariand held that “an individual zip line apparatus on a public playground does not qualify as a ‘public facility’ under the recreation area waiver when that apparatus is divorced from the rest of the playground.” Because the trial court made no findings of fact regarding “the remaining requirements of the recreation area waiver,” however, the Supreme Court remanded the case. On remand, the District again moved to dismiss and the trial court again granted the motion.

On this second appeal, the Lovelands argued that it was error for the trial court to conclude they had not satisfied the requirement that the injury was a result of a dangerous condition that was a result of the physical condition of the public facility. The Court of Appeals agreed. The zip line was inherently dangerous and its mere presence was the physical condition of the playground, the use of which created the dangerous condition that caused Alexa’s injuries.

The trial court also found that the Lovelands had not shown that the particular zip line constituted an unreasonable risk to public health or safety. The Court held there was not enough evidence presented on this issue and, thus, it was error for the trial court to hold this was not shown as a matter of law. A hearing is therefore necessary to make factual findings on this issue.

The Court further held that the trial court properly dismissed the claims against the principal because there was no allegation that she was involved in the decision to install the zip line. Rather, the allegations went to claims of negligent supervision, which are barred by the CGIA. Because an award of attorney fees is mandatory when a trial court dismisses an action under CRCP 12(b), the principal is therefore entitled to her reasonable attorney fees on appeal as they relate to the claims against her. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

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

Colorado Court of Appeals: Subrogated Insurers Held Right to Pursue Claims On Behalf of Insureds

The Colorado Court of Appeals issued its opinion in American Family Mutual Insurance Co. v. American National Property & Casualty Co. on Thursday, September 24, 2015.

Inverse Condemnation—Motion for Limited Discovery.

Plaintiffs are 25 insurance companies (collectively, carriers). On March 22, 2012, the Colorado State Forest Service initiated a prescribed burn on land owned by Denver Water. On March 26, high winds carried embers from the burn onto land located outside the prescribed burn’s perimeter. What became known as the Lower North Fork Fire ignited and spread rapidly, resulting in loss of life and significant property damage.

This subrogation lawsuit followed and, with 25 insurance companies, the pleadings are “voluminous.” The carriers relied on inverse condemnation claims against the Colorado Department of Public Safety (Department) and the Denver Water Board (Denver Water).

The Department moved to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. To respond, the carriers moved to conduct limited discovery. The district court denied the motions to conduct discovery, granted the motions to dismiss, and certified the order for purposes of appeal. As to the motions to dismiss, the court found that the carriers had failed to allege a public purpose for the taking of their insureds’ properties.

The Court of Appeals first rejected the Department’s argument that the carriers had not established standing. The insureds had a right to pursue inverse condemnation claims and the carriers stood in their shoes by virtue of the alleged subrogation relationships.

The Court next addressed the carriers’ argument that the district court erred in dismissing the claims because they did plead a public purpose. To prove an inverse condemnation claim under the Colorado Constitution, a property owner must show (1) that there has been a taking or damaging of a property interest; (2) for a public purpose; (3) without just compensation; (4) by a governmental or public entity that has the power of eminent domain, but which has refuse to exercise that power. The finding of a public purpose requires inquiring into whether the condemnation’s essential purpose is to obtain a public benefit. None of the carriers’ allegations explained how the alleged taking of their insureds’ private property furthered the purposes for which the prescribed burn was initiated, and there were no allegations that the taking itself was accomplished for a public purpose. Therefore, the carriers failed to allege, and could not allege, a public purpose for the taking of their insureds’ properties.

The Court also held that the district court did not err in denying the carriers’ motion to conduct discovery to respond to the motions to dismiss. In denying the motion, the district court cited CRCP 16(b)(1), which states that, except as provided in CRCP 26(d), discovery may commence 42 days after the case is at issue, and this case was “not close to being at issue . . .” Moreover, the purpose of a CRCP 12(b)(5) is to test the legal sufficiency of a claim that, by definition, does not involve factual matters outside the pleadings. The Court agreed with the district court’s reasoning and found no abuse of discretion. The order and judgment were affirmed.

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

Colorado Court of Appeals: Promissory Note Void When Issued in Exchange for Leniency in Criminal Trial

The Colorado Court of Appeals issued its opinion in Rademacher v. Becker on Thursday, September 24, 2015.

Settlement Agreement—Promissory Note— Criminal Action—Void Against Public Policy.

Defendant and plaintiff were involved in a 10-year extramarital relationship. During a confrontation, defendant’s wife threw coffee on plaintiff and kicked over the chair she was sitting in. Wife was criminally charged with assault. After negotiating with plaintiff, defendant entered into a settlement wherein plaintiff agreed not to pursue any claims against wife or defendant and to ask the district attorney’s office to offer wife a deferred sentence. In exchange for these promises, defendant executed a $300,000 promissory note payable to plaintiff. At the same meeting where the settlement agreement was signed, plaintiff signed a letter to the district attorney indicating her desire that wife be offered a deferred sentence. Plaintiff later filed suit to enforce the note, and the jury found in favor of plaintiff. Defendant appealed.

An agreement in which money or other valuable consideration is paid in exchange for a crime victim’s efforts to obtain leniency in connection with a criminal charge is void as against Colorado public policy. Here, counsel for both plaintiff and defendant acknowledged that part of the consideration for the settlement payment was the settlement of the pending criminal matter. Because at least part of the consideration for execution of the settlement agreement and promissory note was given in an attempt to hinder or stifle the plenary prosecution against wife, the entire agreement and promissory note are void. The judgment was reversed and the case was remanded to the trial court to dismiss the action.

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

Learn to Negotiate Effectively – Gain the Edge!®

Everyone negotiates. If you are a lawyer – regardless of your practice area – your ability to negotiate effectively may be one of the most critical skills you possess.

Like any skill we possess, our negotiation techniques will grow and develop as we feed them. Our upcoming Gain the Edge!® Negotiation Strategies for Lawyers seminar with Marty Latz will help lawyers hone their skills and become more effective negotiators. The video clip above shows you just one of Marty’s tips for handling negotiations successfully.

As Marty explained to us “There’s basically a right way to negotiate, and there’s a wrong way to negotiate.” While most of us tend to wing it while negotiating, Marty will share decades of proven expert research to help you sharpen your negotiating skills by navigating away from an instinctive or intuitive mindset towards a more strategic method.

This program has something for everyone. “Everybody benefits. Negotiation is truly a life skill,” as Marty says. Whether you are a litigator, family lawyer, or real estate practitioner, negotiations come into your practice. Perhaps you are trying to close a business deal, encountering discovery disputes, trying to solve a taxation issue, or negotiating your office lease. Whatever it is that you do, this program will provide you tips for negotiating in any professional legal environment. By attending, you’ll gain tools to negotiate more successfully with all of the people you encounter: your bosses, co-workers, employees, clients, and other lawyers.

We hope you’ll join us and Marty for Gain the Edge! ® Negotiation Strategies for Lawyers. You can learn more about the topics Marty will cover by viewing the program brochure. As a bonus, each attendee will receive a copy of Marty’s book, Gain the Edge! Negotiating to Get What You Want. To reserve your spot now, click here to register online or call (303) 860-0608.

Then mark your calendar and come prepared to improve your skills and have fun at the same time. Marty’s other seminar attendees have told him that they “not only find [the information] useful, practical, and interesting but they also really enjoy themselves.”

We hope you’ll enjoy it too!

CLE Program: Gain the Edge! ® Negotiation Strategies for Lawyers

This CLE presentation will take place Friday, October 2, 2015 at the CLE offices. All class attendees will receive a copy of Marty Latz’s book, Gain the Edge! Negotiating to Get What You Want. Live program only – click here to register.

Editor’s Note: A version of this post originally appeared on the blog of the Legal Education Society of Alberta on July 28, 2015. Reprinted with permission.

Associate’s Mind: Book Review — Writing to Win

keith-lee-birmingham-alabama-attorneyEditor’s Note: This post originally appeared on July 12, 2012, on Keith Lee’s blog, Associate’s Mind. Reprinted with permission.

CLE in Colorado is hosting two half-day programs presented by Writing to Win author Steven Stark; see below for registration information.

Roughly a month ago I received a review copy of Steven Stark’s Writing To Win. It’s taken this long for me to get the review up because A) I’ve been busy and B) I always fully read any book I receive and Writing To Win is long and dense – albiet in the all the best ways possible. Writing To Win now sits next to Ross Guberman’s Point Made as one of my favorite books on legal writing.

In my review of Point Made I stated:

Point Made is not an introductory level book. If you’re not familiar with basic legal writing, you might be better off starting somewhere else. But it might be the best technique oriented legal book I’ve ever read . . . Point Made is a tactical book. Point Made provides granular-level advice that can immediately be implemented in your writing.

Writing To Win is the introductory book I would hand anyone looking to learn about legal writing. If I were to design a legal writing course, it would be the course textbook.

Writing To Win’s strength is in its organization and clarity of purpose. Both of which are what Stark emphasizes again and again as fundamental tenant of strong legal writing. The book is broken into four section:

  1. The Fundamentals of Legal Writing
  2. The Fundamentals of Argument for All Lawyers
  3. Writing in Litigation
  4. Writing in Legal Practice

The first section, The Fundamentals of Legal Writing, begins with a focus on organization. It then moves into the actual construction of text. Like every other good book on legal writing in emphasizes core points:

  • Avoid legal jargon
  • Keep it short
  • Keep it simple
  • Write for the reader, not for yourself

But Stark lays it out in a very effective way. Each topic is broken down, examined, then placed into context of the the larger purposes of legal writing. Each topic also flows directly into the next one while building on top of the previous material. It’s masterfully done – the text is a perfect example of the type of writing Stark is discussing.

The second section, The Fundamentals of Argument for All Lawyers, takes a very different approach to crafting legal arguments than I imagine is taught in most law schools. For example this section:

So any time you compose an argument . . . my advice would be to do enough research first to get a general sens of the law. No matter how complex the matter, this research should never take more than an hour or so. Then put all you research aside ask yourself, if I had to explain to a judge, or another lawyer, or a client why we should win without resorting to any precedent or law, what would I say? In laymen’s terms, why are we right? Then write those reasons down. . .

Outline the argument, research it later.

Which I have found to be an excellent tool in my own writing. It’s just a shame that I had to come to it on my own and was not taught it in law school. I was also pleased to see that Stark gave heavy emphasis to the advertising industry. Like I stated in my post about the writing blogs I follow, I think lawyers could gain a lot my studying the techniques the advertising industry uses to persuade consumers. It’s nice to see it echoed in Writing To Win. 

Also, Stark emphasizes the use of narrative in argument. A well constructed narrative is the difference between a slog of a brief and one that pulls the reader along. Stark quotes Chief Justice John Roberts in this section, which makes the point most succinctly:

Every lawsuit is a story, I don’t care if its about a dry contract interpretation; you’ve got two people who want to accomplish something, and they’re coming together – that’s a story. And you’ve got to tell a good story.

Sorry lawyers, you’ve got to be good authors too. But most of you probably secretly want to do that anyway.

The last two sections, Writing in Litigation and Writing in Legal Practice, provide detailed strategies for tackling a number of styles of legal writing. From affidavits to appeals, from memos to emails, Stark provides concrete methods for making smooth, organized, flowing language that should make the text easier to parse for readers. The sections are littered with tips like study a cookbook or board game to improve your technical writing (taking a complex set of rules and systems and explaining them in a way that anyone can understand). It’s too much to go into here, but it Stark does an excellent job covering the most common writing scenarios lawyers deal with day to day.


Earlier I stated that Writing To Win “is the introductory book I would hand anyone looking to learn about legal writing.” This not because the book is simple or a beginner level book – it’s because it is one of the clearest and most well organized books on legal writing I’ve had the pleasure to read. Any law student or new lawyer looking to brush up on their writing skills would do well to pick up this book. Highly recommended.

Worth noting, the Appendix of the book contains 8 General Rules for Professionalism in Legal Writing. The number one rule?

Never lie under any circumstance. 

Sometimes I think lawyers forget that.

Keith Lee is a lawyer in Birmingham, Alabama. He is the founder and editor-in-chief of Associate’s Mind, one of the most popular legal blogs in the US. Associate’s Mind has been linked to by the New York Times, the Wall Street Journal, Above the Law, ABA Journal, dozens of  blogs and websites, and has been featured as an Editor’s Pick at the Browser. It is frequently featured in the national newsletter, Technolawyer, and many of its articles were syndicated to LexisNexis. Associate’s Mind was selected as one of the “Blawg 100″ by the ABA Journal for 2011. Keith also writes a weekly column for Above The Law.

CLE in Colorado is hosting two half-day programs presented by Writing to Win author Steven D. Stark on October 1, 2015: “Legal Writing in the Smartphone Age” in the morning and “Writing to Win” in the afternoon. All attendees of the afternoon program will receive a copy of Writing to Win. To register, click the links below or call (303) 860-0608.

CLE Programs: Legal Writing in the Smartphone Age AND Writing to Win

These CLE presentations will take place Thursday, October 1, 2015 at the CLE offices. Click here to register for “Legal Writing in the Smartphone Age,” click here to register for “Writing to Win,” and click here to register for both programs. These programs are also available as webcasts.

Comment Period Open for Proposed Changes to Colorado Rules of Probate Procedure

The Colorado State Judicial Branch announced the proposed repeal and reenactment of the Colorado Rules of Probate Procedure. The proposed changes involve reordering and renumbering of the rules, with several reserved spots for future rules.

A redline of the proposed changes is available here. Comments regarding the changes may be emailed to the clerk of the Colorado Supreme Court, Christopher Ryan, at christopher.ryan@judicial.state.co.us, or they may be mailed or delivered to the courthouse at 2 E. 14th Ave., Denver, CO 80203. The comment period will end at 5 p.m. on December 1, 2015. Written comments will be posted on the State Judicial website after the comment period closes.

For more information, visit the Adopted & Proposed Rule Changes page of the Colorado Supreme Court website.

Colorado Court of Appeals: Test Drive Constituted Joint Venture Between Driver and Dealership

The Colorado Court of Appeals issued its opinion in American Family Mutual Insurance Co. v. AN/CF Acquisition Corp. on Thursday, September 10, 2015.

Summary Judgment—Vicarious Liability for Negligence—Joint Venture in Operating an Automobile.

Hart asked to test drive a car she was interested in buying from defendant Go Courtesy Ford, a car dealership. A salesman accompanied Hart as a passenger on the test drive. The salesman chose the route and told her where to turn. During the drive, Hart negligently attempted to turn left in front of oncoming traffic and collided with a car driven by Kelly.

Kelly filed a claim with her insurer (American Family) for damages. American Family paid the claim and then filed this negligence action as Kelly’s subrogee against Hart and Go Courtesy Ford to recover the amount it had paid and the deductible. Hart did not defend, and the court entered a default judgment against her. She did not appeal.

Cross-motions for summary judgment were filed. American Family argued the test drive was a joint venture between Go Courtesy Ford and Hart, making Go Courtesy Ford vicariously liable for Hart’s negligence. Go Courtesy Ford argued the test drive was not a joint venture because the participants had adverse financial interests. The district court granted Go Courtesy Ford’s motion and denied American Family’s.

The sole issue on appeal was whether, as a matter of law, the test drive constituted a joint venture. For a joint venture to exist in the operation of an automobile, “two or more persons must unite in pursuit of a common purpose” and “each person must have a right to control the operation of the automobile in question.” This doctrine has been used to hold defendant passengers vicariously liable for drivers’ negligence for nearly a century. No published Colorado case has considered the joint venture doctrine in the context of a test drive. The majority rule in other jurisdictions is that when a dealer’s representative is a passenger during the test drive, the dealer is liable for the prospective purchaser’s negligence.

The Court found the district court erred in finding that Go Courtesy Ford and Hart did not share a common purpose. The test drive itself constituted a common purpose. Further, Go Courtesy Ford’s salesman had a right to control the car because the dealership owned it. Therefore, the test drive constituted a joint venture and, as a matter of law, Go Courtesy Ford was liable for Hart’s negligence during the test drive. The judgment was reversed and the case was remanded with directions.

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

Colorado Court of Appeals: Instruction on Highest Degree of Care Unnecessary in Ambulance PI Case

The Colorado Court of Appeals issued its opinion in Bedee v. American Medical Response of Colorado on Thursday, September 10, 2015.

Negligence—Jury Instruction—Highest Degree of Care.

Bedee was a member of a medical team that transported a neonate in an ambulance owned by American Medical Response of Colorado (AMR). On the return trip, Bedee rode in the back of the ambulance, which was equipped with lap belts for occupants. The ambulance allegedly hit a series of dips in the road so severe that Bedee was lifted off her seat and slammed back down causing her lower back to twist and torque. Bedee sought damages for a lower back injury, alleging the drivers were negligent because they didn’t slow down when hitting the dips.

Before trial, Bedee submitted a trial brief arguing that a jury instruction should be given that the ambulance drivers owed its passengers the highest degree of care because of their control of the ambulance and her lack of freedom of movement during the ride. AMR rebutted this, arguing that ambulances are not common carriers under a Colorado statute and therefore the higher degree of care should not apply. The trial court did not give the instruction. The jury returned a verdict in favor of AMR, finding that AMR did not act negligently or cause Bedee’s injuries. Bedee appealed, arguing it was reversible error to not give the highest standard of care instruction.

The Court of Appeals discussed the elements of a negligence action and the factors set forth under Lewis v. Buckskin Joe’s, 396 P.2d 933 (Colo. 1964),for the highest degree of care instruction. It noted these factors have only been applied in Colorado to ski lift operators and operators of amusement rides. It also noted that a trial court may instruct a jury on the highest degree of care only where “all minds concur” that a business by its very nature is “fraught with peril to the public.” In addition, if a defendant is a “common carrier,” it has the duty to exercise the highest degree of care to its passengers.

Here, the Court found no evidence of an increased degree of risk on the return ambulance trip. Just as any other driver in Colorado, there was no reason to hold the ambulance driver to a higher degree of care than that of reasonable care. To hold otherwise would to establish precedent that every driver owes a higher degree of care than reasonable care to its passengers.

The Court also rejected the argument that the ambulance was a common carrier. The Court found that most jurisdictions based this determination on their statutes. In Colorado, the statutory definition in Title 40 does not encompass ambulances, and in fact, they are specifically excluded in CRS § 40-10.1-105(1)(d). The judgment was affirmed.

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

Colorado Court of Appeals: Hotels Lacked Standing to Challenge Economic Development Commission Decision

The Colorado Court of Appeals issued its opinion in 1405 Hotel, LLC v. Colorado Economic Development Commission on Thursday, September 10, 2015.

Standing—Timeliness—CRCP 106(b)—CRS § 24-4-106(4).

In 2009, the General Assembly enacted the Colorado Regional Tourism Act (RTA) to provide a mechanism through which as many as two local governments per year can obtain sales tax increment financing for the development of large-scale regional tourism projects. Before approving a project, the Colorado Economic Development Commission (CEDC) is required to make several specific findings and to adopt a resolution with specific funding and authorization provisions.

During the RTA’s inaugural application cycle in 2011, the City of Aurora (Aurora) submitted a proposal to build a $824 million hotel and conference center (Gaylord Project). In May 2012, the CEDC announced its intention to approve the Gaylord Project’s requested $81 million tax increment subsidy if certain conditions were met within 120 days. Later that month, the developer announced it was going to withdraw from the Gaylord Project. During the May 2013 CEDC meeting, Aurora announced that RIDA Development Corp. (RIDA) had agreed to develop a project similar to the Gaylord Project and that Marriot International would operate it (IDA/Marriot Project). Aurora did not submit a new RTA application.

In July 2013, plaintiffs, eleven hotels along Colorado’s Front Range (collectively, Hotels), joined by others, submitted a petition to the CEDC requesting it require Aurora to submit a new RTA application for the RIDA/Marriot Project. In August 2013, the Attorney General denied the petition as untimely. In October 2013, the CEDC adopted a final resolution approving Aurora’s RTA application for the RIDA/Marriot Project.

In September 2013, the Hotels filed this action against the CEDC and Aurora. In December 2013, Aurora moved for a CRCP 12(c) judgment on the pleadings as to three of its claims and for judgment on the third claim. The district court granted the motion.

The Court of Appeals first addressed the issue of whether the Hotels’ claims were untimely, thereby depriving the court of subject matter jurisdiction. CRCP 106(b) requires a party seeking judicial review pursuant to CRCP 106(a)(4) to file a complaint within 28 days after the final decision of the tribunal being challenged. CSR § 24-4-106(4) provides for a 35-day window to challenge a final agency action. The issue here was when the “point of administrative finality” was for purposes of judicial review. The Court held it was in October 2013, when the CEDC adopted a resolution memorializing the terms of the award. Consequently, the Court had to consider whether the premature filing of a complaint by the Hotels in September 2013 rendered it untimely. The Court determined it did not and held that the district court obtained jurisdiction of the earlier filed complaint in October 2013.

The Court then turned to the Hotels’ argument that it was error to find they lacked standing to bring three of their four asserted claims for relief. Standing requires establishment of an “injury in fact” to a legally protected interest. The Court concluded that the Hotels’ alleged injury was “indirect and incidental” to Aurora’s alleged wrongdoing: even if the RIDA/Marriot Project would cause the Hotels economic harm by taking customers from them, the harm is not directly caused by the CEDC or Aurora’s conduct in allegedly failing to comply with the RTA. The Hotels therefore lacked standing to bring three of their four claims for relief.

Finally, because the remaining claim turned on finding that the May 2012 approval of the Gaylord Project constituted a final agency action, and the Court found that was not the case, it did not need to address the appeal of this claim. The order was affirmed.

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

Colorado Supreme Court: Judicial Evidentiary Rulings Control in Eminent Domain Valuation Hearings

The Colorado Supreme Court issued its opinion in Regional Transportation District v. 750 West 48th Ave., LLC on Monday, September 14, 2015.

Eminent Domain—Commissioner Proceedings—Duties of Trial Court.

The Supreme Court held that judicial evidentiary rulings control in eminent domain valuation hearings. A valuation commission is bound by the supervising court’s evidentiary rulings. Accordingly, the Court affirmed the portion of the court of appeals’ judgment that approved of the supervising judge’s instruction that the commission disregard previously admitted evidence as irrelevant. The Court reversed the portion of the judgment that permitted the commission to alter the judge’s in limine evidentiary ruling.

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

Colorado Court of Appeals: Municipality Waived Immunity for Dangerous Condition of On-street Parking Spot

The Colorado Court of Appeals issued its opinion in McKinley v. City of Glenwood Springs on Thursday, September 10, 2015.

Colorado Governmental Immunity ActInjuries—Parking Area—Municipal Street—Immunity—Waiver.

Linda McKinley pulled her car into a parking spot on a municipal street in the City of Glenwood Springs (City). She stepped out of her car and tripped in a four- to five-inch deep depression in the pavement of the parking area. The McKinleys filed a complaint seeking to hold the City liable for Linda McKinley’s injuries and William McKinley’s loss of consortium. The City moved to dismiss the complaint based on the Colorado Governmental Immunity Act (CGIA), which was denied by the trial court.

On appeal, the City argued that the trial court erred in denying its motion to dismiss based on the CGIA. CRS § 24-10-106(1)(d)(I) of the CGIA waives immunity for injuries occurring in parking areas of a municipal street. Because the trial court’s finding that the depression was a dangerous condition that interfered with traffic is supported by evidence in the record, the trial court’s order was affirmed.

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