August 20, 2014

Colorado Court of Appeals: Breach of Fiduciary Duties Arising from Trust Agreement Against Trustees Not Barred by Governmental Immunity; Barred Against Colleges

The Colorado Court of Appeals issued its opinion in Casey v. Colorado Higher Education Insurance Benefits Alliance Trust on August 16, 2012.

Trust—CRCP 12(b)—Subject Matter Jurisdiction—Colorado Governmental Immunity Act—Tort—Contract—Breach of Fiduciary Duty—Economic Loss Rule—Breach of Covenant of Good Faith and Fair Dealing—Mistake—Inverse Condemnation.
In this class action suit, defendants, the Colorado Higher Education Insurance Benefits Alliance (CHEIBA) Trust, the eight other colleges that participated in the original trust and that continue to participate in the new CHEIBA Trust, and the trustees of the CHEIBA Trust, appealed the court’s order denying their CRCP 12(b) motion to dismiss the claims of plaintiffs, a class of employees who participated in the trusts at issue in this case. The order was affirmed in part and reversed in part, and the case was remanded for further proceedings.

Beginning in 1992, employees of nine Colorado colleges, including Mesa State College, contributed to a trust designed to provide long-term disability benefits for them if they were to become disabled. The trust agreement required the employees and Mesa State to make these contributions. The original trust was succeeded in 2003 by the CHEIBA Trust. Mesa State withdrew from the CHEIBA Trust in 2005 and created a new disability trust. CHEIBA refused Mesa State’s request to release to its new disability trust approximately $1 million from the reserve fund that Mesa State and its employees had contributed to the original trust and to the CHEIBA Trust. This interlocutory appeal was limited to determine only issues of sovereign immunity.

On appeal, defendants contended that the probate court lacked subject matter jurisdiction because all of the employees’ claims are barred by the Colorado Governmental Immunity Act (CGIA). The CGIA bars any action against a public entity or its employees that lies in tort or could lie in tort regardless of the form of relief chosen by the claimant. The CGIA does not apply to contract actions. The trust agreements are the source of the trustees’ fiduciary duty described in the employees’ breach of contract claim. As a result, the economic loss rule bars the employees from any tort recovery from the trustees. Therefore, the employees’ breach of fiduciary duty and breach of the covenant of good faith and fair dealing claims arising from the trust agreement against the trustees is not barred by the CGIA. However, the allegation that the colleges breached any fiduciary duties they owed the employees did lie, or could have lied, in tort as the trust agreement did not place any fiduciary duties on the colleges. Therefore, this portion of the breach of contract claim against the colleges is barred by the CGIA. On the other hand, the claim that the colleges violated the implied covenant of good faith and fair dealing is not barred because it does not, and cannot, lie in tort.

Defendants also contended that the CGIA bars the employees’ inverse condemnation claim. Because an inverse condemnation claim could not lie in tort, it is not barred by the CGIA.

Defendants further asserted that language in the trust agreements bars the employees from obtaining the relief they seek. Specifically, both trust agreements explicitly provide that contributions are irrevocable unless a majority of the trustees votes to dissolve the trusts. Plaintiffs claim that their contributions to the CHEIBA trust are null and void because of either unilateral or mutual mistake. The doctrine of mistake allows the mistaken party to avoid the contract and lies or could lie in tort. Therefore, this part of the declaratory judgment claim is barred by the CGIA.

Summary and full case available here.

Denver Probate Court No Longer Accepting Faxes as of September 2012

As of September 1, 2012, faxes will no longer be accepted in the Denver Probate Court without permission of the Judge.

Pro se litigants without an attorney may file in paper format with the court. Attorneys in probate cases should use LexisNexis File and Serve to submit filings to the Court. Attorneys in mental health cases should submit filings via email at DenverProbateMH@judicial.state.co.us.

Further details about this change are contained in Presiding Judge Order 12-02: Order Regarding Fax Filings in the Denver Probate Court.

Filing Fees Temporarily Reduced in Certain Civil Actions

The Colorado Supreme Court has issued a new Chief Justice Directive, which temporarily reduces the filing fees for certain civil actions, effective January 23, 2012.

CJD 12-02 temporarily decreases filing fees credited to the Justice Stabilization fund.  Pursuant to Colorado Revised Statutes, cash funds must maintain no more than a 16 percent excess fund balance, and it is projected that the fund will exceed this target reserve limit.  In order to comply with the statutory requirement, Chief Justice Bender has temporarily reduced filing fees.

As necessary, the Chief Justice may later increase these fees back to their statutorily permitted level.

The reduced fees apply across the board throughout Colorado courts and are outlined in Appendix A to CJD 12-02 – “Temporary Reduction of Filing Fees in Certain Civil Actions”

Questions about the change may be directed to Linda Bowers, Court Services Manager, at (720) 921-7839 or linda.bowers@judicial.state.co.us.

Colorado Supreme Court Amends Two Probate Forms

The Colorado Supreme Court has amended Appendix A (Colorado Probate Code Forms) to Chapter 27 of the Colorado Court Rules. The rule change required two probate forms to be revised, and the new forms have been provided by State Judicial. Practitioners should begin using the new forms immediately. The amended forms are:

Probate

  • JDF 800 – “Acknowledgment of Responsibilities Conservator and/or Guardian” (revised 9/11)
  • JDF 810 – “Court Visitor’s Report” (revised 9/11)

Currently, the forms are only available in Microsoft Word format. PDF and Word template formats are forthcoming and will be posted by State Judicial when available.

Click here to read the full release, Rule Change 2011(11), about these changes to the Probate Code Forms by the Colorado Supreme Court.

State Judicial Issues Many New and Revised Probate Forms

The Colorado State Judicial Branch has issued a large number of revised and new probate forms, including those regarding appointments of Guardians, Personal Representatives, and Special Administrators, Formal and Informal Probates, and Collection of Personal Property. Practitioners should begin using the new forms immediately.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats. Many are also available as Word templates; download the new forms from State Judicial’s individual forms pages, or below.

Probate

  • JDF 998 – “Instructions for Completing Affidavit for the Collection of Personal Property” (revised 8/11)
  • JDF 824 – “Petition for Appointment of Guardian for Minor” (revised 8/11)
  • JDF 841 – “Petition for Appointment of Guardian for Adult” (revised 8/11)
  • JDF 857 – “Petition for Appointment of Co-Guardian or Successor Guardian” (revised 8/11)
  • JDF 879 – “Petition for Appointment of Co-Conservator or Successor Conservator” (revised 8/11)
  • JDF 910 – “Application for Informal Probate of Will and Informal Appointment of Personal Representative” (revised 8/11)
  • JDF 916 – “Application for Informal Appointment of Personal Representative” (revised 8/11)
  • JDF 920 – “Petition for Formal Probate of Will and Formal Appointment of Personal Representative” (revised 8/11)
  • JDF 922 – “Petition for Adjudication of Intestacy and Formal Appointment of Personal Representative” (8/11)
  • JDF 924 – “Application for Informal Appointment of Special Administrator” (8/11)
  • JDF 926 – “Petition for Formal Appointment of Special Administrator” (8/11)
  • JDF 951 – “Application for Informal Appointment of Successor Personal Representative” (8/11)
  • JDF 999 – “Collection of Personal Property by Affidavit” (revised 8/11)

Colorado Court of Appeals: Heirs of Decedent Who Died Intestate Have Priority Over Creditors to Serve as or Nominate Personal Representative of Estate

The Colorado Court of Appeals issued its opinion in In re the Estate of Newton: Mojo Properties, LLC v. Woods on August 4, 2011.

Personal Representative—Priority—Nominee—Creditor.

Mojo Properties, LLC (creditor) appealed the district court’s order appointing Patrick Woods (nominee) to be personal representative of the estate of Kathryn E. Newton (decedent). The order was affirmed.

Decedent died in December 2009. She was survived by two daughters and nominee, who had lived with her for approximately ten years. She did not leave a will. In March 2010, both daughters nominated nominee to act as personal representative of decedent’s estate. Creditor requested to be appointed as personal representative of the estate; however, the district court rejected creditor’s argument that it had statutory priority to serve as personal representative of the estate, and appointed nominee.

Where, as here, an unmarried person dies intestate, his or her heirs have priority over creditors. Also, an heir or group of heirs may nominate a person to serve as personal representative. The nominee of one with a prior right to appointment stands in the shoes of his or her nominator with regard to that priority. Thus, the probate court properly appointed nominee as personal representative.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 4, 2011, can be found here.

Colorado Judicial Institute to Honor Judges Kuenhold, Stewart, and Carney, and Magistrate Rubinstein at Excellence Dinner; CNN’s Jeffrey Toobin to be Keynote Speaker

The Colorado Judicial Institute (CJI) has announced that the 2011 Judicial Excellence Awards will be presented to the following outstanding judges and magistrates at the Judicial Excellence for Colorado Dinner on November 1, 2011:

  • District Court Chief Judge O. John Kuenhold (12th Judicial District)
  • District Court Presiding Judge C. Jean Stewart (Denver Probate Court)
  • County Court Judge Christine Carney (Larimer County)
  • Magistrate Stephanie Rubinstein (Mesa County).

Judicial Excellence Award honorees all display innovation, efficiency, and dedication to the law and are highly respected members of the Colorado Bar.

Jeffrey Toobin, one of the country’s leading experts on the intersection of politics, media, and the law, will be the keynote speaker for the ninth annual dinner event. Toobin is CNN’s senior legal analyst as well as a staff writer for The New Yorker. He is perhaps best known for his comprehensive analysis of some of the nation’s highest profile cases in recent years, including the O.J. Simpson murder trial, Kenneth Starr’s investigation and the impeachment of President Clinton, Florida’s recount of the 2000 presidential election, and Martha Stewart’s insider trading trial. In 2000, Toobin received an Emmy for his coverage of the Elian Gonzales custody saga. Toobin is also an accomplished author; his most recent book is The Nine: Inside the Secret World of the Supreme Court.

The Judicial Excellence Dinner generates significant funding for the Judicial Education Fund held at the Denver Foundation. The Fund provides grants to justices, judges, magistrates and full time judicial department personnel to attend educational courses.

The event will be held at the Denver Marriott City Center, 1701 California Street, in Denver, Colorado. A cocktail reception starts at 6:00 pm with the dinner event beginning at 7:00 pm.

For more information about the event, purchasing tickets, or becoming a sponsor, click here.

Revised Probate Form Issued by State Judicial

The Colorado State Judicial Branch has issued a revised probate form: JDF 940 – “Information of Appointment.” Practitioners should begin using the new form immediately.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats. Many are also available as Word templates; download the new form from State Judicial’s individual forms pages, or below.

Probate

  • JDF 940 – “Information of Appointment” (revised 7/11)

New Probate Court Judge Appointed in Denver County

On Wednesday, Governor John Hickenlooper announced the appointment of Elizabeth Leith to serve as Probate Court Judge in the Second Judicial District, which serves Denver County. Leith will replace the Honorable C. Jean Stewart, who is stepping down as of June 30, 2011. Leith, who is from Denver, will begin at the Denver Probate Court on July 1.

Leith is currently Magistrate Judge for the Second Judicial District, where she has served since 1999. Before becoming a magistrate, she served as an Assistant City Attorney for Denver, Human Services Section, and as Deputy District Attorney for the Fourth Judicial District, Child Enforcement Unit. Leith also spent time as an associate attorney and in private practice.

Leith earned her bachelor’s degree from Metropolitan State College of Denver and her law degree from the University of Denver College of Law.

Finalists Selected for Judgeship at the Denver Probate Court

Today, the Second Judicial District Nominating Commission announced their nomination of three candidates for the Denver Probate Court judgeship created by the resignation of the Honorable C. Jean Stewart, effective June 30, 2011.

Nominees for the bench are Sandra Franklin, Ruben M. Hernandez, and Elizabeth D. Leith. All finalists are from Denver and were selected by the commission on May 17, 2011.

Under the Colorado Constitution, Governor Hickenlooper has until June 2, 2011, to appoint one of the nominees as district court judge for the Denver Probate Court.

Comments regarding any of the nominees can be emailed to the Governor’s office.

Judge Stewart to Resign from the Denver Probate Court

The Second Judicial District Nominating Commission will meet at the Denver City and County Building on Tuesday, May 17, 2011, to interview and select nominees for appointment by Governor Hickenlooper to the office of district judge for the Probate Court in the Second Judicial District (Denver County).  The vacancy will be created by the resignation of the Honorable C. Jean Stewart on June 30, 2011.

Eligible applicants for appointment to fill the vacancy must be a qualified elector of the Second Judicial District and must have been admitted to the practice of law in Colorado for five years. The application deadline is Thursday, April 28, 2011. The appointed judge will serve an initial provisional term of two years before facing a retention election. Retained judges serve six-year terms.

Further information about the resignation of Judge Stewart and applying for the vacancy is available from the Colorado Judicial Branch.