April 24, 2014

e-Legislative Report: April 21, 2014

CBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (“LPC”) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association.

Friday, April 18
The LPC did not meet on Friday, April 18, 2014.

At the Capitol—Week of April 14

A scorecard of the committee and floor work follows.

In the House

Monday, April 14

Passed on 3rd reading.

  • HB 14-1269. Concerning the circumstances under which a person who sells items subject to sales tax must collect such sales tax on behalf of the state. Vote:  36 yes, 26 no, and 3 excused.
  • HB 14-1279. Concerning the creation of a state income tax credit to reimburse a business for personal property taxes paid in the state, and, in connection therewith, reducing an appropriation. Vote:  60 yes, 2, no, and 3 excused.
  • HB 14-1036. Concerning drunk driving offenses, and, in connection therewith, making and reducing appropriations. Vote:  56 yes, 6 no, and 3 excused.
  • HB 14-1144. Concerning measures to improve the performance of district attorneys, and, in connection therewith, making and reducing appropriations. Vote:  58 yes, 4 no, and 3 excused.
  • HB 14-1162. Concerning protection of the victim of a sexual assault in cases where a child was conceived as a result of the sexual assault, and, in connection therewith, making legislative changes in response to the study by and the report of the recommendations from the task force on children conceived through rape. Vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1333. Concerning the funding of Colorado water conservation board projects, and, in connection therewith, making an appropriation. Vote: 61 yes, 1 no, and 3 excused.
  • HB 14-1344. Concerning the use of electronic means to document transactions related to the business of insurance. Vote:  60 yes, 2 no, and 3 excused.
  • HB 14-1322. Concerning the Colorado probate code. Vote:  62 yes, 0 no, and 3 excused. CBA sponsored legislation.
  • HB 14-1205. Concerning the veterans assistance grant program. Vote:  51 yes, 11 no, and 3 excused.
  • HB 14-1349. Concerning the creation of an exemption from property taxes for qualifying business entities controlled by nonprofit organizations that are formed for the purpose of qualifying for federal tax credits. Vote:  58 yes, 4, no and 3 excused.
  • SB 14-163. Concerning clarifying changes to provisions related to the sentencing of persons convicted of drug crimes. Vote:  62 yes, 0 no, and 3 excused.
  • SB 14-160. Concerning removing limitations on a transitional living program for a person with a brain injury. Vote:  56 yes, 6 no, and 3 excused.
  • HB 14-1323. Concerning restrictions on the ability of a government entity to access an individual’s personal medical information. Vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1214. Concerning an increase in the penalties for certain offenses committed against an emergency medical service provider, and, in connection therewith, making an appropriation. Vote 51 yes, 11 no, and 3 excused.
  • HB 14-1296. Concerning the enforcement of prohibitions against designer drugs by the division of liquor enforcement within the department of revenue. Vote:  55 yes, 7 no, and 3 excused.

Tuesday

Passed 3rd Reading:

  • HB 14-1012. Concerning income tax credits that promote investment in Colorado advanced industries, and, in connection therewith, making and reducing appropriations. Vote:  41 yes, 20 no and 4 excused.
  • HB 14-1023. Concerning the provision of social workers to juveniles, and, in connection therewith, making and reducing appropriations. Vote:  37 yes, 24 no, and 4 excused.
  • HB 14-1032. Concerning the provision of defense counsel to juvenile offenders, and, in connection therewith, making and reducing appropriations. Vote:  40 yes, 22 no, and 3 excused.
  • HB 14-1093. Concerning the establishment of the creative district community loan fund, and, in connection therewith, making and reducing appropriations. Vote:  39 yes, 24 no and 2 excused.
  • HB 14-1096. Concerning an underfunded courthouse facilities grant program, and, in connection therewith, making and reducing appropriations. Vote:  38 yes, 25 no, and 2 excused.
  • HB 14-1101. Concerning a partial business personal property tax exemption for community solar gardens. Vote:  38 yes, 25 no, and 2 excused.
  • HB 14-1124. Concerning in-state tuition classification for American Indians from tribes with historical ties to Colorado, and, in connection therewith, making and reducing appropriations. Vote:  39 yes, 25 no, and 1 excused.
  • HB 14-1303. Concerning the receipt of public testimony from remote locations around the state by legislative committees, and, in connection therewith, making and reducing appropriations. Vote:  64 yes, 0 no, and 1 excused.
  • HB 14-1326. Concerning tax incentives for alternative fuel trucks, and, in connection therewith, making an appropriation. Vote:  48 yes, 15, no and 2 excused.
  • SB 14-156. Concerning a requirement that a public benefit corporation file an annual report. Vote:  40 yes, 24 no, and 1 excused.
  • HB 14-1347. Concerning statutorily established time periods that are multiples of seven days. 64 yes, 0 no, and 1 excused.

Wednesday

Passed on 3rd reading.

  • HB 14-1037. Concerning enforcement of laws against designer drugs, and, in connection therewith, making and reducing appropriations. Vote:  63 yes, 0 no, and 2 excused.

Thursday

Passed 3rd Reading:

  • HB 14-1015. Concerning an extension of the transitional jobs program, and, in connection therewith, making and reducing appropriations. Vote:  39 yes and 26 no.
  • HB 14-1297. Concerning an analysis to determine whether oil and gas operations have an impact on human health along the front range, and in connection therewith, making and reducing appropriations. Vote:  38 yes and 27 no.
  • SB 14-158. Concerning the harmonization of statutory recall election provisions with the recall provisions in the state constitution to reflect the manner in which contemporary elections are conducted, and, in connection therewith, aligning circulator regulation and petition requirements with initiative and referendum circulator and petition requirements. Vote:  37 yes and 28 no.
  • HB 14-1335. Concerning campaign contribution limits that are applicable to candidate committees for candidates who are not affiliated with a major political party. Vote:  60 yes and 5 no.

Friday, April 11

The House did not meet on Friday, April 18.

In the Senate

Scorecard

Monday

  • SB 14-13. Concerning resources received by a recipient of an old age pension, and, in connection therewith, making and reducing appropriations. Vote:  34 yes, 0 no, and 1 excused.
  • HB 14-1130. Concerning the disposition of moneys charged to borrowers for costs to be paid in connection with foreclosure. Vote:  34 yes, 0 no, and 1 excused.
  • HB 14-1295. Concerning residential mortgage foreclosures, and, in connection therewith, requiring a single point of contact and prohibiting dual tracking. Vote:  27 yes, 7 no and 1 excused.
  • HB 14-1312. Concerning efforts to reduce the number of foreclosures in Colorado, and, in connection therewith, continuing the foreclosure deferment program. Vote:  24 yes, 10 no, and 1 excused.
  • SB 14-152. Concerning the standardization of financial transaction requirements applicable to insurers. Vote:  34 yes, 0 no, and 1 excused.
  • SB 14-64. Concerning restricting the use of long-term isolated confinement for inmates with serious mental illness, and, in connection therewith, making and reducing appropriations. Vote:  34 yes, 0 no, and 1 excused.
  • SB 14-8. Concerning the creation of the wildfire information and resource center in the division of fire prevention and control in the department of public safety, and, in connection therewith, making and reducing appropriations. Vote:  32 yes, 2 no and 1 excused.

Tuesday

Passed on 3rd Reading:

  • HB 14-1291. Concerning authorizing a charter school to employ a school security officer by contract to carry a concealed handgun if the person has a valid concealed carry permit. Vote:  34 yes and 1 no.
  • HB 14-1302. Concerning the addition of a judgment against a debtor or transferee who acts with actual intent as an available remedy for a creditor in a fraudulent transfer action. Vote:  35 yes and 0 no.
  • SB 14-179. Concerning the creation of a flood debris cleanup grant account to facilitate watershed cleanup efforts in areas affected by the September 2013 flood, and, in connection therewith, making an appropriation. Vote:  34 yes, 0 no, and 1 excused.
  • SB 14-151. Concerning the use of moneys derived from civil penalties imposed on nursing facilities to fund innovations in nursing home care, and, in connection therewith, making an appropriation. Vote:  35 yes and 0 no.
  • SB 14-130. Concerning an increase to the personal needs allowance for persons in nursing care facilities, and, in connection therewith, making and reducing appropriations. Vote:  35 yes and 0 no.
  • SB 14-75. Concerning the registration of motor vehicles for members of the United States armed forces who are deployed outside the United States, and, in connection therewith, making and reducing appropriations. Vote:  35 yes and 0 no.
  • SB 14-88. Concerning the creation of the suicide prevention commission, and, in connection therewith, making and reducing appropriations. Vote:  22 yes and 13 no.

Wednesday

Passed on 3rd Reading:

  • SB 14-173. Concerning the recommendation that certain persons be offered a test for the hepatitis C virus. Vote:  27 yes and 8 no.
  • HB 14-1123. Concerning implementation of recommendations of the committee on legal services in connection with legislative review of rules and regulations of state agencies. Vote:  33 yes and 2 no.
  • HB 14-1017. Concerning measures to expand the availability of affordable housing in the state, and, in connection therewith, making modifications to statutory provisions establishing the housing investment trust fund, the housing development grant fund, and the low-income housing tax credit. Vote:  19 yes and 16 no.
  • SB 14-174. Concerning the creation of the prosecution fellowship program. Vote:  26 yes and 9 no.
  • SB 14-166. Concerning the development of mobile application software in the Colorado office of economic development that users may access to identify local businesses, and, in connection therewith, making and reducing appropriations. Vote:  27 yes and 8 no.
  • SB 14-157. Concerning the commission of a report by the department of military and veterans affairs that examines the comprehensive value of United States military activities centered in Colorado, and, in connection therewith, making and reducing appropriations. Vote:  34 yes and 1 no.
  • SB 14-87. Concerning issuance of identification cards to people who are lawfully present in the United States but may have difficulty with certain documentary evidence, and, in connection therewith, making and reducing appropriations. Vote:  32 yes and 3 no.
  • SB 14-2. Concerning transferring the safe2tell program to the department of law, and, in connection therewith, making and reducing appropriations. Vote:  35 yes and 0 no.
  • SB 14-73. Concerning the state income tax credit for the environmental remediation of contaminated land in the state, and, in connection therewith, making and reducing appropriations. Vote:  32 yes, 2 no.

Thursday, April 10

  • SB 14-133. Concerning the regulation of private investigators by the department of regulatory agencies, and, in connection therewith, making appropriations. Vote:  18 yes and 17 no.
  • SB 14-5. Concerning alternative administrative remedies for the processing of certain wage claims, and, in connection therewith, amending the provisions for written notices of a wage claim, and in connection therewith, making and reducing appropriations. Vote:  21 yes and 14 no.

Friday, April 11

The Senate did not meet on Friday, April 18.

Stay tuned for 10 Bills of Interest.

 

Budget Bills, HOA Transfer Fee Bill, and More Signed by Governor

Governor Hickenlooper signed nine more bills into law last Friday, bringing the total of signed bills up to 147 with two vetoed bills. The nine signed on April 18, 2014, are summarized here.

  • HB 14-1057Concerning the Colorado Fraud Investigators Unit, by Rep. Clarice Navarro and Sen. Steve King. The bill increases the fraud investigation surcharge on Uniform Commercial Code (UCC) filings with the Secretary of State from $3 to $4 per filing, effective July 1, 2014, through June 30, 2017.
  • HB 14-1100Concerning the Use of Title Documents to Give Notice of Characteristics of Motor Vehicles that Affect a Vehicle’s Value, and, In Connection Therewith, Making an Appropriation, by Reps. Spencer Swalm & Dan Pabon and Sen. Kevin Grantham. The bill requires that a branding be placed on the title of a motor vehicle if the vehicle meets certain criteria, such as if the vehicle is non-repairable, was constructed from two or more vehicles, is junk, and so on.
  • HB 14-1141Concerning the Confidentiality of Social Security Numbers Under Statutes Protecting the Privacy of Individuals, by Rep. Don Coram and Sen. Ellen Roberts. The bill amends a statute within the Colorado Consumer Protection Act to provide that an organization may not require disclosure of an individual’s SSN in order for that individual to serve on the organization’s board of directors.
  • HB 14-1186Concerning the Release of Medical Records to a Person Other Than the Patient, and, In Connection Therewith, Setting Reasonable Fees to be Paid for the Release of the Medical Records, by Rep. Sue Schafer and Sen. Irene Aguilar. The bill requires health care facilities and providers to release medical records to anyone with a valid authorization or subpoena, and sets reasonable costs for copying the medical records.
  • HB 14-1254Concerning a Requirement to Disclose Fees Charged to a Unit Owners’ Association by a Community Association Manager, by Rep. Jeanne Labuda and Sen. David Balmer. The bill requires a licensed community association manager who provides services to an HOA to fully disclose all fees and costs that will be charged to the HOA or unit owners.
  • HB 14-1282Concerning the Specification of What Materials May Be Provided in a Language Other Than English by an Insurer to a Customer, by Rep. Dan Pabon and Sen. Lois Tochtrop. The bill specifies that an insurer providing materials to a customer in a language other than English need only supply copies in English of the insurance policies, endorsements, and riders.
  • HB 14-1308Concerning Procedures for a Department to Vary an Appropriation, by Rep. Cheri Gerou and Sen. Pat Steadman. The bill, a Joint Budget Committee bill, allows agencies to overexpend appropriations or transfer funds between agencies to cover certain costs in certain situations.
  • HB 14-1340Concerning the State Toxicology Laboratory, and, In Connection Therewith, Making an Appropriation, by Rep. Cheri Gerou and Sen. Kent Lambert. The bill, a Joint Budget Committee bill, requires the Colorado Bureau of Investigation to operate a State Toxicology Laboratory on or before July 1, 2015 in order to assist local law enforcement authorities in their enforcement of DUI laws.
  • HB 14-1341Concerning a Transfer of Moneys from the State General Fund to the Department of State Cash Fund for the Purpose of Repaying a Prior Transfer, by Rep. Jenise May and Sen. Pat Steadman. The bill, a Joint Budget Committee bill, requires the state treasurer to make a one-time transfer of general fund moneys to the Department of State cash fund in order to repay moneys borrowed during the 2008-2009 fiscal year.

Governor Hickenlooper plans to sign HB 14-1337Concerning an Increase in the General Fund Reserve, a Joint Budget Committee bill, today, April 21, 2014, at a press conference.

For a list of Governor Hickenlooper’s legislative decisions, click here.

HB 14-1312: Extending the Foreclosure Deferment Program Until September 1, 2015

On March 10, 2014, Rep. Angela Williams and Sen. Jessie Ulibarri introduced HB 14-1312 - Concerning Efforts to Reduce the Number of Foreclosures in Colorado and, in Connection Therewith, Continuing the Foreclosure Deferment Program. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill continues the existing foreclosure deferment program, which is scheduled to expire in 2014, until 2015.

The bill passed out of the House on March 15. The bill has moved through the Senate having passed the Judiciary Committee on April 7 and the full Senate on 2nd Reading on April 10.

Since this summary, the bill passed both 2nd and 3rd Reading in the Senate with no amendments.

HB 14-1295: Amending Statutes Related to Foreclosure of Residential Loans

On February 26, 2014, Rep. Beth McCann and Sen. Jessie Ulibarri introduced HB 14-1295 - Concerning Residential Mortgage Foreclosures, and, In Connection Therewith, Requiring a Single Point of Contact and Prohibiting Dual Tracking. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

As amended, the bill requires a lender to establish a single point of contact for a borrower to communicate with the lender concerning foreclosure matters within 45 days after the borrower becomes delinquent in payments. The bill also prohibits “dual tracking,” in which a lender simultaneously negotiates with the borrower for a loan modification and pursues foreclosure through the public trustee. The CBA Real Estate Section participated in a collaborative process with the sponsors and other stakeholders to amend the bill into a consensus final form.

The bill passed out of the House on March 25. On April 10, the bill passed on 2nd Reading in the Senate.

Since this summary, the bill passed 3rd Reading in the Senate, and will head back to the House for consideration of the Senate’s amendments before going to the governor.

Colorado Court of Appeals: No Fiduciary Duty Owed by Party to Real Estate Transaction so Attorney Fee Award Inappropriate

The Colorado Court of Appeals issued its opinion in In the Interest of Delluomo v. Cedarblade on Thursday, April 10, 2014.

Revocable Living Trust—Trustee—Beneficiary—Breach of Fiduciary Duty—Undue Influence—Attorney Fees—Breach of Trust Exception.

Respondent Phillip Delluomo created a revocable living trust. He named himself trustee and Wells Fargo Bank as co-trustee. The beneficiaries of the trust were his niece, appellant Brenda Cedarblade, and his nephew, Timothy Corcoran. A few months after the creation of the trust, Delluomo transferred five parcels of real property from the trust to Cedarblade.

The court thereafter appointed Janice Eder as Delluomo’s conservator. Eder initiated an action on Delluomo’s behalf to quiet title, seeking to set aside the real property transactions involving Cedarblade on the basis of undue influence and breach of fiduciary duty. A jury found that Cedarblade had exerted undue influence on Delluomo with regard to the conveyances of property into joint tenancy. Thus, the court set aside the property transfers to Cedarblade and awarded attorney fees to plaintiffs.

Cedarblade argued on appeal that the court erred in awarding attorney fees to plaintiffs. Cedarblade was not a trustee or custodian of funds (or other trust assets). Although she breached her duty as an individual, she did not breach any duty owed based on a relationship to manage property.

Because the circumstances of this case did not fit within the breach of trust exception to the general rule that parties in a lawsuit must pay their own legal expenses, the Court of Appeals ruled that the district court erred when it denied Cedarblade’s motion for directed verdict and allowed the jury to award attorney fees to plaintiffs. The portion of the judgment awarding attorney fees was vacated.

Summary and full case available here.

e-Legislative Report: April 7, 2014

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

The LPC did not meet on Friday, April 4.

At the Capitol—Week of March 31

A scorecard of the committee and floor work follows.

In the House

Monday, March 31

No bills were heard on 3rd reading.

Tuesday, April 1

Passed 3rd Reading:

  • HB 14-1315. Concerning the enactment of certain model acts adopted by the national association of insurance commissioners, and, in connection therewith, enacting the credit for reinsurance model act and the portion of the insurer receivership model act that governs netting agreements. Vote: 65 yes and 0 no.
  • HB 14-1313. Concerning a requirement that the owner of a pet animal provide a valid rabies vaccination certificate prior to registering the animal with a county. Vote: 40 yes and 25 no.
  • HB 14-1045. Concerning the continuation of the breast and cervical cancer prevention and treatment program, and, in connection therewith, making an appropriation. Vote: 50 yes and 15 no.
  • HB 14-1281. Concerning the allowance for terminally ill patients to have access to investigational products that have not been approved by the federal food and drug administration that other patients have access to when they participate in clinical trials. Vote: 65 yes and 0 no.
  • HB 14-1302. Concerning the addition of a judgment against a debtor or transferee who acts with actual intent as an available remedy for a creditor in a fraudulent transfer action. Vote: 65 yes and 0 no.

Wednesday, April 2

No bills were heard on 3rd reading.

Thursday, April 3

Passed 3rd Reading:

  • SB 14-135. Concerning the repeal of certain provisions concerning the purchasing of firearms in states that are contiguous to Colorado. Vote: 61 yes, 1 no, and 3 excused.

Friday, April 4

Passed on 3rd Reading:

  • SB 14-103. Concerning the phase-out of the sale of certain low efficiency plumbing fixtures. Vote: 35 yes, 28 no, and 2 excused.
  • HB 14-1001. Concerning the creation of a property tax reimbursement for a taxpayer that owes property tax on property that has been destroyed by a natural cause, and, in connection therewith, making and reducing appropriations. Vote: 46 yes, 17 no, and 2 excused.

In the Senate

Monday, March 31

Passed on 3rd Reading:

  • HB 14-1195. Concerning the diversion of revenue collected by the division of insurance to cash funds. Vote: 35 yes and 0 no.

Tuesday, April 1

Passed on 3rd Reading:

  • SB 14-163. Concerning clarifying changes to provisions related to the sentencing of persons convicted of drug crimes. Vote: 33 yes, 0 no, and 2 excused.
  • SB 14-160. Concerning removing limitations on a transitional living program for a person with a brain injury. Vote: 33 yes, 0 no, and 2 excused.
  • HB 14-1141. Concerning the confidentiality of social security numbers under statutes protecting the privacy of individuals. Vote: 33 yes, 0 no, and 2 excused.

Wednesday, April 2

No bills were heard on 3rd Reading.

Thursday, April 3

Passed on 3rd Reading:

  • The Senate spent numerous hours debating various 2nd Reading amendments to HB 14-1336. Concerning the provision for payment of the expenses of the executive, legislative, and judicial departments of the state of Colorado, and of its agencies and institutions, for and during the fiscal year beginning July 1, 2014, except as otherwise noted—“the Budget bill.”

Friday, April 4

Passed on 3rd Reading:

  • HB 14-1282. Concerning the specification of what materials may be provided in a language other than English by an insurer to a customer. Vote: 34 yes, 0 no, and 1 excused.
  • HB 14-1336. Concerning the provision for payment of the expenses of the executive, legislative, and judicial departments of the state of Colorado, and of its agencies and institutions, for and during the fiscal year beginning July 1, 2014, except as otherwise noted—“the Budget bill.” Vote: 26 yes, 8 no, and 1 excused.

Stay tuned for 10 Bills of Interest.

 

e-Legislative Report: March 31, 2014

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

The LPC met on Friday, March 28, and voted to support HB 14-1032. Concerning the provision of defense counsel to juvenile offenders—with necessary amendments.

At the Capitol—Week of March 24

A scorecard of the committee and floor work follows.

In the House

Monday, March 24

Passed 3rd Reading:

  • SB 14-98. Concerning clarifications to statutory language on crimes against at-risk elders. Vote: 55 yes, 6 no, and 4 excused.
  • HB 14-1288. Concerning personal belief exemptions to immunization requirements for children prior to attending school. Vote: 42 yes, 19 no, and 4 excused.
  • SB 14-54. Concerning the ability of an alcohol beverage licensee to petition the licensing authority to pay a fine in lieu of a license suspension ordered by the licensing authority. Vote: 61 yes, 0 no, and 4 excused.
  • SB 14-28. Concerning an expansion of eligibility for the receipt of disbursements from the electric vehicle grant fund for the installation of electric vehicle charging stations. Vote: 38 yes, 23 no, and 4 excused.

Tuesday, March 25

Passed 3rd Reading:

  • HB 14-1295. Concerning residential mortgage foreclosures, and, in connection therewith, requiring a single point of contact and prohibiting dual tracking. Vote: 38 yes and 27 no.
  • HB 14-1312. Concerning efforts to reduce the number of foreclosures in Colorado, and, in connection therewith, continuing the foreclosure deferment program. Vote: 46 yes and 19 no.
  • SB 14-22. Concerning certified community development financial institutions, and, in connection therewith, authorizing such institutions to serve as a qualified holder and to present a request for full or partial release of collateral pledged without presentation of the original promissory note. Vote: 38 yes and 27 no.

Wednesday, March 26

Passed on 3rd Reading:

  • SB 14-131. Concerning the removal of certain identifying information from a motor vehicle registration card. Vote: 65 yes and 0 no.
  • HB 14-1187. Concerning consumer protection from excess damages for repair of rental vehicles. Vote: 65 yes and 0 no.
  • HB 14-1289. Concerning the reinvestment of unused governmental moneys held by a financial institution that are in excess of the amount insured by the federal deposit insurance corporation in accounts of other financial institutions. Vote: 65 yes and 0 no.

Thursday, March 27

Passed 3rd Reading:

  • The House spent 10 hours debating various 2nd Reading amendments to HB 14-1336. Concerning the provision for payment of the expenses of the executive, legislative, and judicial departments of the state of Colorado, and of its agencies and institutions, for and during the fiscal year beginning July 1, 2014, except as otherwise noted—“the Budget bill.”

Friday, March 28

Passed on 3rd Reading:

  • HB 14-1336. Concerning the provision for payment of the expenses of the executive, legislative, and judicial departments of the state of Colorado, and of its agencies and institutions, for and during the fiscal year beginning July 1, 2014, except as otherwise noted—“the Budget bill.” Vote: 37 yes, 27 no, and 1 excused.
  • HB 14-1337. Concerning an increase in the general fund reserve. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1339. Concerning the creation of the hazardous substance site response fund. Vote: 49 yes, 15 no, and 1 excused.
  • HB 14-1340. Concerning the state toxicology laboratory, and, in connection therewith, making an appropriation. Vote: 63 yes, 1 no, and 1 excused.

In the Senate

Monday, March 24

Passed on 3rd Reading:

  • HB 14-1254. Concerning a requirement to disclose fees charged to a unit owners’ association by a community association manager. Vote: 32 yes and 3 no.

Tuesday, March 25

Passed on 3rd Reading:

  • HB 14-1193. Concerning requirements governing the imposition of a fee for the research and retrieval of public records under the “Colorado Open Records Act.” Vote: 32 yes, 1 no, and 1 excused.
  • HB 14-1047. Concerning restrictions on the publishing of basic identification information on commercial web sites. Vote: 23 yes, 11 no, and 1 excused.
  • HB 14-1274. Concerning the modification of certain limitations on the managers of a bank chartered by Colorado. Vote: 34 yes, 0 no, and 1 excused.

Wednesday, March 26

Passed on 3rd Reading:

  • HB 14-1136. Concerning exempting a continuing professional education program that is approved by a state professional licensing board from regulation by the division of private occupational schools in the department of higher education. Vote: 32 yes, 0 no, and 3 excused.
  • HB 14-1271. Concerning extending a mental health provider’s duty to warn to include specific entities that, if purposefully damaged or attacked as a result of a mental health patient’s violent behavior, would jeopardize public health and safety. Vote: 32 yes, 0 no, and 3 excused.

Thursday, March 27

Passed on 3rd Reading:

  • SB 14-156. Concerning a requirement that a public benefit corporation file an annual report. Vote: 25 yes and 10 no.
  • HB 14-1186. Concerning the release of medical records to a person other than the patient, and, in connection therewith, setting reasonable fees to be paid for the release of the medical records. Vote: 24 yes and 11 no.
  • HB 14-1277. Concerning eligibility requirements for recipients of grants from the military family relief fund. Vote: 35 yes and 0 no.

Friday, March 28

Passed on 3rd Reading:

  • SB 14-158. Concerning the harmonization of statutory recall election provisions with the recall provisions in the state constitution to reflect the manner in which contemporary elections are conducted, and, in connection therewith, aligning circulator regulation and petition requirements with initiative and referendum circulator and petition requirements. Vote: 18 yes and 17 no.
  • HB 14-1149. Concerning making acts related to the advertisement of children for the purposes of transferring their care to others trafficking in children. Vote: 35 yes and 0 no.
  • HB 14-1100. Concerning the use of title documents to give notice of characteristics of motor vehicles that affect a vehicle’s value, and, in connection therewith, making an appropriation. Vote: 35 yes and 0 no.
  • SB 14-115. Concerning procedural requirements applicable to state water plans, and, in connection therewith, making and reducing an appropriation. Vote: 28 yes and 7 no.
  • SB 14-161. Concerning the modernization of provisions of the “Uniform Election Code of 1992” that ensure voter access for eligible electors, and, in connection therewith, reducing the deadline by which a voter registration application must be submitted via certain methods, altering procedures pertaining to national change-of-address searches, allowing emergency ballots to be obtained for nonmedical reasons, amending provisions relating to military and overseas voters, increasing the penalty for providing false residential information, making the aiding or abetting the provision of false residential information a new felony offense, and making and reducing an appropriation. Vote: 22 yes and 13 no.

Stay tuned for 10 Bills of Interest.

Colorado Court of Appeals: Actual Knowledge Cannot Be Imputed in Fraudulent Concealment Claim

The Colorado Court of Appeals issued its opinion in Jehly v. Brown on Thursday, March 27, 2014.

Fraudulent Concealment—Imputed Knowledge.

Defendant owned real property and hired a general contractor to build a house on it. Before commencing, the contractor discovered that part of the property was located in a floodplain, but did not inform defendant of that fact.

Plaintiffs David and Peggy Jehly entered into a contact to purchase the house. Defendant filled out a Seller’s Property Disclosure form by writing “New Construction” diagonally across every page and not checking any of the boxes. Before buying the house, plaintiffs were never informed that part of the property was located in a floodplain.

Approximately five years after the home purchase, heavy rains caused severe flooding and damage to the basement of the house. Plaintiffs sued defendant, alleging he fraudulently concealed knowledge of the floodplain to induce plaintiffs to buy the house. During a bench trial, defendant denied having any personal knowledge of the floodplain at the time of the sale and denied that his general contractor or any subcontractors had so informed him. The trial court found in favor of defendant.

On appeal, plaintiffs asserted that it was error not to impute to defendant the general contractor’s knowledge that part of the property was in a floodplain. The Court of Appeals disagreed. To prevail on a claim of fraudulent concealment, a plaintiff must show that a defendant actually knew of a material fact that was not disclosed. It is not enough that defendant should have or might have known the fact.

Plaintiffs did not contest on appeal the trial court’s factual finding that defendant had no active or conscious belief or awareness of the existence of the floodplain. The trial court, therefore, did not apply the wrong legal standard, because defendant did not have the requisite actual knowledge of the information allegedly concealed.

The Court further concluded that the knowledge of the general contractor could not be imputed to defendant. Knowledge of an agent is generally imputed to the principal. However, “actual knowledge” in the context of a fraudulent concealment claim cannot be imputed to a principal through knowledge of its agent. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Lots Annexed by Development Were Not Annexed in Compliance with CCIOA

The Colorado Court of Appeals issued its opinion in Ryan Ranch Community Association, Inc. v. Kelley on Thursday, March 27, 2014.

Summary Judgment—Homeowners Association Assessments.

In early 2003, Charles Ochsner verbally agreed to sell John Kelley seven lots (Kelley Lots) of the Ryan Ranch property. In summer 2003, Kelley learned that Ochsner was going to sell the majority of the Ryan Ranch property to the Ryland Group, Inc. (Ryland), the entity that would eventually create Ryan Ranch Community Association, Inc. (HOA) and record the Declaration of Covenants, Conditions, and Restrictions (Declaration). Kelley confirmed with Ochsner and Ryland the verbal agreement to purchase and received assurances that Ryland was not purchasing the Kelley Lots. The parties agreed that the Kelley Lots would not be included in the HOA.

In September 2003, Ryland and Ochsner signed a contract for the sale of parcels in Ryan Ranch to Ryland in two phases, which specifically excluded the Kelley Lots. In October 2003, Ochsner and Kelley and his wife signed a contract for the Kelley Lots. They also signed an agreement providing that (1) the Kelley Lots would not be subject to the maintenance obligations of the HOA to be formed by Ryland, and (2) Ryland would record covenants excluding them from the HOA. No such exclusion covenants were ever recorded.

The 2003 contract excluding the Kelley Lots was reaffirmed by Ochsner and the Kelleys in May 2005. However, when the Ryan Ranch Filing 2 plat map was recorded on November 17, 2005, it included the Kelley Lots. The December 20, 2005 reconveyance deed conveying the Kelley Lots from Ryland back to Ochsner was recorded, as was the Ochsner deed conveying the Kelley Lots to the Kelleys. Ryland never intended to annex the Kelley Lots into the Ryan Ranch community.

In June 2006, the Kelleys sold one of the Kelley Lots to a contractor who constructed a home and sold the lot to the Zimmermans. In September 2010, the HOA asserted that the Kelley Lots had been “automatically annexed” to the HOA and sought to recover past assessments, penalties, and fees from the Kelleys and the Zimmermans. Defendants counterclaimed for a declaratory judgment that Ryland had not annexed the Kelley Lots in compliance with the Colorado Common Interest Ownership Act (CCIOA) or the Declaration, and asserted principles of equitable conversion operated to preclude the transfer of the Kelley Lots from Ochsner to Ryland.

The HOA moved for summary judgment and defendants requested the court to determine as a matter of law that the Declaration did not apply to their properties. The trial court granted the HOA’s motion and denied defendants’ motion.

On appeal, defendants’ argued it was error to grant summary judgment to the HOA because: (1) the Kelley Lots were not annexed in compliance with CCIOA; (2) Ryland did not annex the Kelley Lots in compliance with the Declaration; and (3) Ryland did not “own” the Kelley Lots at the time of the alleged annexation. The Court of Appeals agreed with the first argument and did not address the others.

CCIOA was the controlling statute in this case and prevails over the Declaration. To exercise a development right under CCIOA, a developer must comply with the plat and map requirements of CRS §38-33.3-209 and the recording requirements of CRS §38-33.3-217(3).

Defendants argued that to exercise a reserved development right, CCIOA requires the recording of an amendment to the declaration that must contain certain information and be properly indexed. The Court agreed that the recording of the Official Development Plan and the Declaration was not sufficient to meet these requirements. The original Declaration cannot logically be considered an amendment to itself such that it could annex the Kelley Lots. Moreover, nothing was denominated as an amendment, nothing assigned indentifying numbers to newly created units, there was no reallocation of interests among all units, and no common elements were described. Nothing on the Filing 2 plat map subjected the described property to the Declaration.

The Court’s determination resolved the HOA’s claims for breach of contract, recovery of unpaid assessments, and foreclosure of liens. However, it did not resolve the unjust enrichment claim. On remand, the trial court was ordered to revisit that claim. Attorney fees were awarded to defendants as prevailing parties under the Declaration and CRS §38-33.3-123(1)(c).

Summary and full case available here.

Bills Regarding Mineral Estates, Parent-Child Relationships, Property Valuation, and More Signed by Governor

On Tuesday, March 25, and Thursday, March 27, 2014, Governor Hickenlooper signed 31 more bills into law. Some of these are summarized here.

  • SB 14-009Concerning a Disclosure of Possible Separate Ownership of the Mineral Estate in the Sale of Real Property, by Sen. Mary Hodge and Rep. Dominick Moreno. The bill requires the disclosure of possible separate ownership of mineral estates in the sale of real property.
  • SB 14-062Concerning Reinstatement of the Parent-Child Legal Relationship, by Sens. Lucia Guzman & Ellen Roberts and Reps. Mike Foote & Bob Gardner. The bill allows parents whose parental rights have been terminated to have those rights reinstated in certain circumstances.
  • SB 14-080Concerning the Elimination of the List of Certain Additional Qualifications that Apply to Property Valuation Appeal Arbitrators, by Sen. Kevin Grantham and Rep. Rhonda Fields. The bill simplifies qualifications for arbitrators in property valuation appeals by mandating only that the arbitrator be experienced in property taxation and hold a Colorado real estate appraiser license.
  • SB 14-102Concerning the Addition of Employment Positions Held at Financial Institutions to the Circumstances Under Which an Employer May Use Consumer Credit Information for Employment Purposes, by Sen. Jessie Ulibarri and Reps. Bob Gardner and Paul Rosenthal. The bill allows bank to use consumer credit information during or before employment for employment purposes.
  • HB 14-1060Concerning the Authority of a Municipality to Compensate Members of a Municipal Planning Commission, by Rep. Diane Mitsch Bush and Sen. Gail Schwartz. The bill allows municipalities to compensate members of planning commissions.
  • HB 14-1079Concerning an Increase in the Monetary Amount Allowed for the Limited Offering Registration Procedure Under the “Colorado Securities Act,” by Rep. Pete Lee and Sen. Rachel Zenzinger. The bill increases the limited offering cap for small public offerings from $1 million to $5 million per year.
  • HB 14-1082Concerning a Requirement for Written Notice of Cancellation of Individual Life Insurance Policies, and, in Connection Therewith, Requiring Written Notice Prior to the Lapse of Individual Life Insurance Policies, by Rep. Pete Lee and Sen. Lois Tochtrop. The bill clarifies that life insurance policies can only be cancelled for reasons specified by statute, and written notice must be sent to the last known address of the insured prior to cancellation.
  • HB 14-1125Concerning the Circumstances Under which a Unit Owners’ Association May Disclose Contact Information for Members and Residents Under the “Colorado Common Interest Ownership Act,” by Rep. Diane Mitsch Bush and Sen. David Balmer. The bill allows owners’ associations to publish contact information for consenting members.
  • HB 14-1171Concerning Rules on Forensic Medical Evidence in Sexual Assault Cases, by Rep. Frank McNulty and Sen. Ellen Roberts. The bill eliminates the need for further rule-making regarding sexual assault examination consent forms.
  • HB 14-1183Concerning the Reinstatement of the Authority for Active Military Personnel to Practice Professionally, by Rep. Rhonda Fields and Sen. Matt Jones. The bill exempts active military personnel from automatic expiration of professional licenses.
  • HB 14-1223Concerning the Reclassification of Dolores County for the Purpose of Statutory Provisions Fixing the Salaries of County Officers, by Rep. Don Coram and Sen. Ellen Roberts. The bill reclassifies Dolores County as a Category V county.

To date, the governor has signed 113 bills into law. Click here for a list of the governor’s 2014 legislative decisions.

HB 14-1254: Requiring Unit Associations To Disclose Fees Charged by Association Manager

On February 3, 2014, Rep. Jeanne Labuda and Sen. David Balmer introduced HB 14-1254 - Concerning a Requirement to Disclose Fees Charged to a Unit Owners’ Association by a Community Association ManagerThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires a licensed community association manager who performs services for a homeowners’ association (HOA) through employees or subcontractors to fully disclose to the HOA, during contract negotiations and annually thereafter, all fees and charges that the manager will bill to the HOA for services performed by those employees or subcontractors.

The bill passed out of the House on February 26. On March 21, the Senate adopted the bill on 2nd Reading with amendments.

Since this summary, the bill passed 3rd Reading in the Senate.

e-Legislative Report: March 24, 2014

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

The LPC met on Friday, March 21, but did not take any new positions on legislation.

At the Capitol—Week of March 17

A scorecard of the committee and floor work follows.

In the House

Monday, March 17

Passed 3rd Reading:

  • HB 14-1285. Concerning a requirement that a professional tax preparer provide certain disclosures to a client when preparing tax documents for the client. The CBA LPC took a neutral position on the bill but authorized the Taxation Section to seek an exemption for attorneys; the Taxation Section was successful in amending the bill. Vote: 36 yes and 29 no.
  • SB 14-102. Concerning the addition of employment positions held at financial institutions to the circumstances under which an employer may use consumer credit information for employment purposes. Vote: 60 yes and 5 no.
  • SB 14-137. Concerning certification of workers’ compensation insurance forms. Vote: 65 yes and 0 no.
  • SB 14-89. Concerning a prohibition for the state to enter into an agreement for a payment in lieu of taxes. Vote: 36 yes and 29 no.
  • HB 14-1299. Concerning the repeal of the six-year limitation on applying a salvage brand to a motor vehicle whose cost of being repaired exceeds the value of the vehicle without the recent damage. Vote: 43 yes and 22 no.

Tuesday, March 18

  • HB 14-1260. Concerning the creation of three mandatory minimum presumptive ranges for defendants convicted of a felony sex offense involving intrusion against a child who is under 12 years of age when the adult defendant is at least 10 years older that has one of the ranges starting at 10 years as the minimum in the range, and, in connection therewith, creating an indeterminate lifetime sentence with a mandatory minimum presumptive range of 10 to 16 years for a class 4 felony; a mandatory minimum presumptive range of 18 to 32 years for a class 3 felony; and a mandatory minimum presumptive range of 24 to 48 years for a class 2 felony. Vote: 65 yes and 0 no.

Wednesday, March 19

Passed on 3rd Reading:

  • SB 14-62. Concerning reinstatement of the parent-child legal relationship. Vote: 64 yes, 0 no, and 1 excused.
  • SB 14-106. Concerning the appropriation of federal mineral lease moneys from the local government permanent fund to the department of local affairs, and, in connection therewith, making an appropriation. Vote: Vote: 52 yes and 13 no.
  • SB 14-109. Concerning the use of the prevention, early detection, and treatment fund, and, in connection therewith, eliminating the annual transfer of two million dollars from the fund to the department of health care policy and financing for medicaid disease management and treatment programs that address cancer, heart disease, and lung disease or risk factors associated with those diseases and increasing the amount annually appropriated from the fund to the prevention services division of the department of public health and environment for the cancer, cardiovascular disease, and chronic pulmonary disease prevention, early detection, and treatment program by two million dollars. Vote: 65 yes and 0 no.
  • SB 14-132. Concerning the repeal of the requirement that a soldier be killed while deployed to a combat zone to issue a fallen soldier license plate. Vote: 65 yes and 0 no.

Friday, March 21

Passed on 3rd Reading:

  • HB 14-1282. Concerning the specification of what materials may be provided in a language other than English by an insurer to a customer. Vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1057. Concerning the Colorado fraud investigators unit. Vote: 42 yes, 20 no, and 3 excused.
  • HB 14-1291. Concerning authorizing a charter school to employ a school security officer by contract to carry a concealed handgun if the person has a valid concealed carry permit. Vote: 59 yes, 3 no, and 3 excused.
  • SB 14-17.Concerning a limitation on the approval of real estate developments that use water rights decreed for agricultural purposes to irrigate lawn grass. Vote: 36 yes, 26 no, and 3 excused.
  • SB 14-18. Concerning the prohibition against furnishing nicotine products to persons under eighteen years of age. Vote: 43 yes, 19 no, and 3 excused.

In the Senate

Monday, March 17

  • Consent Calendar: Vote 33 yes and 0 no.
    1. HB 14-1107. Concerning the authority of the department of revenue to offer taxpayers the option to receive electronic notices.
    2. HB 14-1129. Concerning the submission by a state agency to a local government of information related to an application to the local government to approve a major utility facility.
    3. HB 14-1125. Concerning the circumstances under which a unit owners’ association may disclose contact information for members and residents under the “Colorado Common Interest Ownership Act.”
  • Passed on 3rd Reading
    1. HB 14-1163. Concerning a clarification of the cap imposed on the enterprise zone investment tax credit. Vote: 19 yes and 16 no.
    2. HB 14-1060. Concerning the authority of a municipality to compensate members of a municipal planning commission. Vote: 20 yes and 15 no.

Tuesday, March 18

  • Consent Calendar: Vote 31 yes, 0 no and 4 excused.
    1. HB 14-1082. Concerning a requirement for written notice of cancellation of individual life insurance policies, and in connection therewith, requiring written notice prior to the lapse of individual life insurance policies.
    2. HB 14-1265. Concerning the regulation of games of chance.
    3. HB 14-1171. Concerning rules on forensic medical evidence in sexual assault cases.
  • Passed on 3rd Reading
    1. HB 14-1108. Concerning limits on copayments made by a covered person for physical rehabilitation services. Vote: 19 yes, 12 no, and 4 excused.
    2. HB 14-1191. Concerning the creation of an emergency alert program to notify the public after a serious hit-and-run accident. Vote: 30 yes, 1 no, and 4 excused.

Wednesday, March 19

  • Consent Calendar:
    1. HB 14-1177. Concerning requirements governing meetings of the boards of county commissioners of the larger counties. Vote: 33 yes, 0 no, and 2 excused.
    2. SB 14-143. Concerning payment of amounts awarded through nursing facility provider reimbursement appeals from the medicaid nursing facility cash fund. Vote: 31 yes, 2 no, and 2 absent.
    3. SB 14-92. Concerning the creation of the crime of insurance fraud, and, in connection therewith, making an appropriation. Vote: 33 yes, 0 no, and 2 excused.
  • Passed on 3rd Reading
    1. HB 14-1030. Concerning the establishment of incentives for the development of hydroelectric energy systems. Vote: 19 yes, 0 no.
    2. HB 14-1222. Concerning modification of the terms under which a county may issue tax-exempt private activity bonds on behalf of an eligible applicant for the purpose of financing a geothermal energy project on the applicant’s property. Vote: 21 yes, 12 no, and 2 absent.
    3. HB 14-1117. Concerning the creation of the Colorado premature birth commission. Vote: 24 yes, 9 no, and 2 interim.

Thursday, March 20

Passed on 3rd Reading:

  • HB 14-1092. Concerning the voluntary contribution designation benefitting the Colorado Youth Conservation Corps fund that appears on the state individual income tax return forms. Vote: 20 yes, 9 no, 5 excused, and 1 absent.
  • SB 14-123. Concerning the authority of the peace officers standards and training board, and, in connection therewith, providing additional rule-making authority; raising the maximum fee for certification and skills exams; allowing awarding grants to nonprofit organizations; denying certification for municipal violations; and making an appropriation. Vote: 18 yes, 11 no, 5 excused, and 1 absent.

Friday, March 21

  • Consent Calendar: Vote: 33 yes, 0 no, and 2 excused.
    1. HB 14-1148. Concerning guidelines for ensuring the rights of victims of crime to participate in the criminal justice system.
    2. HB 14-1206. Concerning modifications to the “Colorado Charitable Solicitations Act,” and, in connection therewith, prohibiting certain charitable solicitation practices, modifying the secretary of state’s fining authority, adjusting registration statement requirements, and specifying requirements for appointing registered agents.

Stay tuned for Ten Bills of Interest.