June 17, 2019

Archives for July 2, 2010

Colorado State Judicial Posts Revised Domestic Relations Forms

State Judicial recently updated two domestic forms, as well as an electronic child support worksheet, of interest to Colorado attorneys practicing family law. The new forms are already in effect, and practitioners should begin using them immediately.

These forms are available in Adobe Acrobat (PDF) and Microsoft Word formats. They are also available as Word templates; download templates from State Judicial’s Domestic Instructions and Forms page.

  • JDF 1221, “Petition to Register Foreign Decree”
  • JDF 1223, “Order to Confirm Foreign Decree”

There is also a new electronic child support worksheet, JDF 1820E, which is available as a Microsoft Excel spreadsheet. The worksheet is effective as of July 1, 2010.

State Judicial is in the process of translating all of its forms into Spanish, but not all forms are available in Spanish yet. Please note that regardless of whether a form is English or Spanish, state statute (§ 13-1-120, C.R.S.) requires all forms to be completed in English.

Colorado Court of Appeals: Week of June 27, 2010 (No Published Opinions)

The Colorado Court of Appeals issued no published opinions and 24 unpublished opinions for the week of June 27, 2010.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. Case announcements are available here.

Tenth Circuit: Opinions, 7/1/10

The Tenth Circuit on Thursday issued no published opinions and one unpublished opinion.

Unpublished

Martinez v. Target Corp.

Colorado Supreme Court: E-mail and Telephone Communications Sufficient to Establish Jurisdiction

The Colorado Supreme Court issued its opinion in Foundation for Knowledge in Development v. Interactive Design Consultants, LLC on June 28, 2010.

Personal Jurisdiction—Minimum Contacts.

In this original proceeding, the Supreme Court affirmed the district court’s finding that plaintiff, a Colorado nonprofit corporation, adequately established personal jurisdiction in Colorado over defendants. Defendants are Interactive Design Consultants, a Rhode Island company, and its sole owner, Rick DiNobile, a Rhode Island resident. Defendants entered into an agreement with plaintiff to collaborate extensively to create an online educational program. The parties exchanged hundreds of e-mail and telephone communications relating to the agreement.

The Court held that, based on the documentary evidence submitted by the parties, defendants’ numerous contacts with the Colorado corporation are sufficient for the trial court to exercise specific jurisdiction, and personal jurisdiction over defendants is reasonable under the due process clause of the Colorado Constitution. Accordingly, the Court affirmed the trial court’s order and remanded the case for further proceedings.

Summary and full case available here.

Colorado Supreme Court: Litigation-Based Waiver is Issue for Trial Court, Not Arbitrator

The Colorado Supreme Court issued its opinion in Radil v. National Union Fire Insurance Company of Pittsburg, PA on June 28, 2010.

Follow-Form Endorsement—Excess Insurance—Uninsured/Underinsured Motorist Coverage—Arbitration Agreement—Litigation-Based Waiver Defense.

In this original proceeding, the Supreme Court affirmed the trial court’s order compelling arbitration of an injured employee’s claim for underinsured motorist benefits from her employer’s excess liability insurer, thereby discharging the rule in part. The Court reversed the trial court’s order directing the arbitration panel to determine the excess liability insurer’s defense of litigation-based waiver, thereby making the rule absolute in part.

Jennifer Radil was seriously injured in a work-related car accident. Her employer was insured under a primary commercial policy and under an umbrella policy issued by National Union Fire Insurance Company of Pittsburgh, PA (National Union). The National Union excess policy includes a follow-form endorsement of the primary policy’s uninsured/underinsured motorist UM/UIM coverage, which in turn includes an arbitration clause applicable to disputes over entitlement to or recoverable amount of UM/UIM damages. National Union argued that the trial court erred in compelling arbitration of Radil’s claim for UIM benefits because its follow-form endorsement does not bind it to the arbitration agreement contained in the underlying policy. National Union further asserted that, even if it is bound, Radil waived her right to compel arbitration and the trial court correctly directed the arbitration panel to determine National Union’s litigation-based waiver defense.

Absent express language defining the coverage endorsed or a disclaimer of particular terms or conditions, the excess insurer’s follow-form endorsement incorporates the terms and conditions that define the underlying coverage. Here, the follow-form endorsement of the underlying UM/UIM coverage contains no limiting language; therefore, National Union’s UM/UIM coverage is defined by the terms and conditions, including the arbitration clause, of the underlying UM/UIM coverage. Accordingly, National Union is subject to a valid arbitration agreement.

Absent the parties’ clear intent to the contrary, litigation-based waiver is an issue the trial court, not an arbitrator, properly determines. In this case, the issue is outside the limited scope of the arbitration clause because a litigation-based waiver is a procedural defense unrelated to the insured’s entitlement to or amount of UM/UIM damages. Accordingly, the trial court properly determined the issue.

Summary and full case available here.

Colorado Supreme Court: Initiative #91 in Violation of Colorado Constitution

The Colorado Supreme Court issued its opinion in In the Matter of the Title, Ballot Title and Submission Clause for 2009–2010 #91: Howes v. Brown on June 28, 2010.

Multiple Subjects—Beverage Container Tax—Prohibition of General Assembly Authority Over Roundtables and Interbasin Compact Committee.

A registered elector of the State of Colorado filed this original proceeding pursuant to CRS § 1-40-107(2) to challenge the Title Board’s action in setting the title, ballot title and submission clause, and summary for 2009–10 Initiative #91 (Initiative #91). Under the stated broad purpose of protecting and preserving the waters of the state, Initiative #91 proposes a constitutional amendment to Colo. Const. art. XVI, § 5 that would impose a tax on beverage containers and provide that 80 percent of this tax revenue be disbursed to Colorado’s nine basin roundtables and the interbasin compact committee for use as specified in the initiative.

In addition, § (10) of Initiative 91 would impose a prohibition on legislative actions by the General Assembly until the year 2015, banning it from altering the statutes currently governing the basin roundtables and the interbasin compact committee, or from creating or empowering any other agency with authority to supersede or be superior to the basin roundtables or interbasin compact committee.

The Supreme Court held that Initiative #91 contains at least two subjects in violation of Colo. Const. art V, § 1(5.5): (1) creating and administering a beverage container tax; and (2) prohibiting the Colorado General Assembly from exercising its legislative authority over the basin roundtables and interbasin compact committee until the year 2015, while embedding these entities within the water sections of the Colorado Constitution and vesting them with significant new authority. The Court therefore reversed the action of the Title Board and returned the matter to the Board with directions to strike the title and return the initiative to the proponents.

Summary and full case available here.

Colorado Supreme Court: Prosecutor’s Use of Word “Lie” Violates Defendant’s Sixth Amendment Right to Fair Trial

The Colorado Supreme Court issued its opinion in Wend v. People on June 28, 2010.

Sixth Amendment Right to a Fair Trial—Prosecutorial Misconduct—Use of the Word “Lie”—Waiver of Appellate Right.

The Supreme Court reversed the court of appeals’ conclusion that the prosecutor’s use of the word “lie” did not constitute reversible plain error. The Court emphasized that prosecutorial use of the word “lie” or any of its forms is categorically improper according to the Court’s established precedent. When there is no contemporaneous objection to the prosecutor’s conduct at trial, the Court reviews the misconduct for plain error, a standard that asks whether the fundamental fairness of the trial was compromised.

Here, the Court found that the prosecutor’s use of the word “lie,” viewed in light of the entire trial, does violate the defendant’s Sixth Amendment right to a fair trial. The Court also concluded that, although defendant did not raise the issue of prosecutorial misconduct in her first appeal, she did not waive her right to appeal the issue because (1) the appellate court in the first appeal did not address all the issues presented; (2) this second appeal stems from a new conviction; and (3) the law regarding prosecutorial misconduct evolved considerably between the first and second appeals.

Summary and full case available here.

Colorado Supreme Court: Automatic Vesting of Right to an Exempt Property Allowance

The Colorado Supreme Court issued its opinion in Foiles v. Whittman on June 28, 2010.

Exempt Property Allowance—Probate Code—Statutory Construction—Plain Meaning—Surviving Spouse—Vesting of Right—Standing of Estate.

This is a case interpreting the exempt property allowance statute, CRS § 15-11-403. The Supreme Court held that the statutory language plainly establishes that the right to an exempt property allowance automatically vests when the claimant survives the decedent by more than 120 hours. The Court concluded that, even if a claimant dies before making a claim for an exempt property allowance, the claimant’s estate may make the claim on his or her behalf.

Summary and full case available here.

Colorado Supreme Court: Broomfield Meets Burden for Change in Use of Certain Water Rights

The Colorado Supreme Court issued its opinion in City and County of Broomfield v. Farmers Reservoir and Irrigation Company on June 28, 2010.

Appropriation of Water Rights—Change in Use of Water—Appellate Review.

The Supreme Court affirmed the water court’s determination that the application by the City and County of Broomfield (Broomfield) for a change in the use of certain water rights would not injuriously affect the water rights of others. The Farmers Reservoir and Irrigation Company (FRICO) alleged that the water court erred by disregarding tables and calculations FRICO submitted after trial. The water court held that these submissions constituted new evidence because they were neither presented at trial nor subjected to cross-examination.

The Court deferred to the water court’s finding that these submissions constituted new evidence. Reviewing the evidence offered at trial, the Court held that the record supports the trial court’s finding that Broomfield met its burden of proving that no injury would result from its application. The Court declined to review the water court’s holding regarding accretions to a net-losing ditch, because FRICO did not present adequate grounds for review.

Summary and full case available here.

Colorado Supreme Court: Actual Knowledge of Preexisting Liens Generally Precludes Application of Equitable Subrogation

The Colorado Supreme Court issued its opinion in Joondeph v. Hicks on June 28, 2010.

Derivative Equitable Subrogation—Effect of Actual Knowledge—Equities Among the Parties Before the Court—Conveyance of Subrogation Rights—Exception to Race-Notice Recording System—Lien Priority.

This case involves a dispute over the priorities of liens encumbering property located in Englewood. Respondent Donald Hicks attempted to foreclose a lien on the property and to obtain a declaratory judgment regarding his lien’s priority. Petitioners, purchasers Shirley and Brian Joondeph and their mortgage company, CitiMortgage, Inc., sought to be equitably subrogated to the senior priority position that the property’s prior owners and mortgage company had themselves obtained through equitable subrogation.

The court of appeals held that petitioners would not be permitted to obtain the senior priority of the prior owners and mortgage company through equitable subrogation. Applying Colorado Supreme Court case law, the court of appeals noted that because petitioners had actual knowledge of Hicks’s preexisting lien, they were not entitled to equitable subrogation. Equitable subrogation by its nature addresses the equities of the parties before the court. The court of appeals also found no precedent for recognizing “derivative” equitable subrogation, which would have allowed the conveyance of the prior owners’ subrogation rights to the petitioners via warranty deed.

The Supreme Court affirmed the judgment of the court of appeals. The Court reiterated that actual knowledge of preexisting liens generally precludes the application of equitable subrogation. Here, petitioners had actual knowledge of Hicks’s prior lien and were not operating under a mistaken assumption that their lien would have senior priority status. Thus, they were not entitled to equitable subrogation. The Court declined to recognize a doctrine of derivative equitable subrogation: in Colorado, equitable subrogation addresses only the equities of the parties before the court, and it remains a narrow exception to the normal order of priority established by Colorado’s race-notice recording system.

Summary and full case available here.

Colorado Supreme Court: Aurora Water Contract Does Not Constitute Unfair Rate-Making or Illegal Exaction

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of the City of Aurora in Adams, Arapahoe, Douglas, and Weld Counties: City of Aurora v. Northern Colorado Conservancy District on June 28, 2010.

Water Law—Right of Exchange—Absence of Contract.

The Supreme Court held that, in the absence of a contract between the Northern Colorado Water Conservancy District (Northern Water) and the City of Aurora (City), Northern Water cannot compel the City to discount any possible Colorado–Big Thompson water in the exchange reach. Further, East Cherry Creek Valley Water and Sanitation District’s (ECCV) contract with the City unambiguously gives the City the right to use all effluent derived from sewage flows that ECCV sends to the City for treatment. The contract does not constitute any unfair rate-making or illegal exaction. Accordingly, the water court’s judgment was affirmed.

Summary and full case available here.