May 23, 2019

Archives for March 22, 2011

Adoption After In re C.L.S.: Is Finality a Mirage?

There’s a saying among law school professors that “bad facts make bad law”. It’s overused and trite, but sometimes it’s the only way to explain a legal ruling that if applied in most circumstances would lead to undesirable results, but in a particular situation is the best justice the bench can administer.

It has long been held that placement of children into permanent, safe homes is a public policy goal of profound importance. (§19-5-216 C.R.S., §16-5-110 C.R.S, People in Interest of C.A.K., 652 P.2d 603 (Colo. 1982). A conflict frequently arises, however, when the child’s interest in a stable and loving home environment conflicts with a parent’s interest in preserving the privacy and integrity of the family unit. Colorado statutes make every effort to balance these interests and ensure the due process rights of biological parents are protected in adoption proceedings. These protections are grounded in the 14th Amendment of the U.S. Constitution which has been recognized as affording parents a “fundamental liberty interest in the care, custody and control of their children.” (Troxel v. Granville, 530 US 57 (2000).

Part of the statutory balancing scheme in Colorado law involves certain time restrictions within which a biological parent must raise any objection to the termination of his or her parental rights. Without bright line limitations, adoptive childrens’ relationships with their adoptive families would be perpetually at risk. Specifically, §19-5-105(4) C.R.S. establishes a deadline of ninety days for vacating a relinquishment or termination order and CRCP Rule 60(b) requires that challenges to a judgment obtained by fraud must be made within a six month period or at least within a “reasonable time” if the judgment is itself is void.

What happens, however, when a biological father is purposely excluded from the termination proceedings as a result of the mother’s deliberate and intentional deceit? This is precisely what happened in the recent Court of Appeals case In re C.L.S., 10 CA 0529 (Colo. App. 2011).

The mother in this case perpetrated a fraud of immense consequence. First, she wrote to the biological father and told him that the child she was carrying died. She then proceeded to deceive the Lutheran Family Services of Colorado and the District Court in Larimer County by claiming she was the victim of a rape and didn’t know who the father was. After the child had been relinquished and adopted, she decided to inform the child’s father by text message that the child was not in fact deceased, but rather had been adopted. At this point, the father began legal proceedings to set aside the adoption.

The Larimer County District Court denied father’s motion to vacate the termination of parental rights, and the subsequent adoption, finding that his motion was time barred by CRCP Rule 60(b) and §19-5-105(4) CRS. The father’s constitutional due process rights were not addressed. The district court also found that even if father’s motion had been timely filed, it would not be in the child’s best interests to vacate the termination order “which would effectively vacate the adoption, would likely cause life-long emotional and psychological harm for the child.” However, this conclusion was reached without holding an evidentiary hearing.

On appeal, the three Judge panel ruled in favor of the father (no dissent), finding that the judgment terminating his parental rights by default was void. §19-5-105(4) C.R.S. provides that other than by appeal, the only permissible basis for challenging a termination order is “fraud upon the court or fraud upon a party” and that such an order cannot be challenged on any basis, including fraud, more than ninety days after the order has been entered (emphasis added). However, the appellate court reaffirmed the preeminency of constitutional protections over statutory restrictions, citing White v. Davis, 163 Colo. 122, (1967) (“the requirements of due process of law under both the United States and Colorado Constitutions take precedence over statutory enactments”).

Going further, the Court held that not even the limitations of C.R.C.P. Rule 60(b)(3) governing relief from a void judgment would be applied. Reasoning that since a void judgment is a “complete nullity”, the court determined that the “reasonable time” deadline does not apply to a motion under C.R.C.P. Rule 60(b)(3). Thus, in theory, the Court’s ruling would permit a parent whose due process rights were violated in a termination proceeding to seek relief from that Order at any point in time thereafter.
And so, this case returns to the District Court, to determine the child’s best interests, taking into consideration the father’s fundamental liberty interest in parenting his child, while also noting that a parent’s due process rights are subject to the power of the state to act in the child’s best interests. People in Interest of A.M.D., 648 P.2d 625, 632-35 (Colo. 1982)

The tragedy of this case is a child, who has lived with her adoptive parents since birth, and is now three years old. She has established a critical emotional bond with her adoptive parents and has no familiarity with the man who is her father. Although the parties have been engaged in extensive litigation, one can only hope that at this point they may consider collaborative solutions that will enable the child to enjoy stable and continuing bonds with her adoptive parents while establishing a new connection with her biological father.

Tenth Circuit: Opinions, 3/21/11

The Tenth Circuit on Monday issued one published opinion and ten unpublished opinions.

Published

In Tiscareno v. Anderson, the Court granted Petitioner’s motion to correct certain errors in the Court’s original opinion from March 14, 2011. The original opinion is withdrawn and replaced by an amended opinion. The legal analysis and holding remain the same.

Unpublished

United States v. Locke

United States v. Moore

Mercer-Smith v. New Mexico Children, Youth & Families Dep’t

United States v. Castellanos-Barba

Orient Mineral Co. v. Bank of China

United States v. Hamilton

United States v. Lyons

Rivers v. Jones

McClenahan v. Metropolitan Life Ins. Co.

Ranneva v. Social Security Admin.

Colorado Supreme Court: Constitutional Presumption That Parents Make Custodial Decisions in the Best Interests of Child Not Extinguished by Voluntary Third-Party Placement

The Colorado Supreme Court issued its opinion in In the Matter of D.I.S. and Sidman v. Sidman on March 21, 2011.

CRS § 15-14-204(2)(a)—Guardianship by Parental Consent—Termination of Guardianship—Parental Presumption—Burden of Proof—Troxel v. Granville.

The Supreme Court reversed the court of appeals’ judgment. The Court found that in a guardianship established by parental consent under CRS § 15-14-204(2)(a), fit parents petitioning for termination of the guardianship may invoke the constitutional presumption that they make custodial decisions in the best interests of their child. This presumption, established in Troxel v. Granville, 530 U.S. 57 (2000), is not extinguished by the voluntary placement of their child with a third party. Although parents delegate the day-to-day care, custody, and control of their child to the guardians, on a motion by the parents to terminate a guardianship established under § 15-14-204(2)(a), the guardians bear the burden of proving, by a preponderance of the evidence, that termination of the guardianship is not in the best interests of the child.

Summary and full case available here.

Colorado Supreme Court: Colorado Supreme Court: Trial Court Erred by Requiring Expert to Express Opinion to a Reasonable Medical Probability

The Colorado Supreme Court issued its opinion in The Estate of Ford v. Eicher, MD on March 21, 2011.

Evidence—Admission of Expert Testimony.

The Supreme Court affirmed the court of appeals’ judgment and held that the trial court applied an incorrect legal standard when it determined the admissibility of expert testimony by requiring that an expert express his opinion to a reasonable medical probability. The Court further held that the admissibility of scientific expert testimony is governed by C.R.E. 702 and the factors articulated in People v. Shreck, 22 P.3d 68 (Colo. 2001). The Court concluded that the expert testimony of Dr. Joseph Ouzounian and Dr. Theodore Cooper regarding the intrauterine contraction theory generally and as applied to this case met the criteria of C.R.E. 702 for admissibility.

Summary and full case available here.

Colorado Supreme Court: Indemnity Provision Clearly and Unequivocally Reflected the Intent of the Parties and Did Not Contravene Public Policy

The Colorado Supreme Court issued its opinion in Constable v. Northglenn, LLC on March 21, 2011.

Indemnity—Premises Liability—Non-delegable Duties of Landowners.

Carol Constable sought review of the court of appeals’ judgment reversing the district court’s order of summary judgment in her favor. The district court held that an indemnity provision of the parties’ lease agreement was unenforceable for reasons of public policy. The Supreme Court agreed with the court of appeals that the indemnity provision was not void as against public policy. The provision clearly and unequivocally reflected the intent of the parties for Constable to indemnify Northglenn, LLC for injuries or losses suffered by her customers in the shopping center’s parking lot as a result of Northglenn’s negligence. Moreover, the provision did not contravene public policy by purporting to delegate a duty made non-delegable by statute.

Summary and full case available here.

Colorado Court of Appeals: Sex Offender Subject to Lifetime Registration Even When Statute at Time of Guilty Plea Allowed Opportunity to Petition to Discontinue Registration

The Colorado Court of Appeals issued its opinion in People v. Sowell on March 17, 2011.

Sex Offender Registration—Lifelong Registration Requirement.

The People appealed an order granting defendant’s petition to discontinue registration as a sex offender. The order was reversed.

Defendant pleaded guilty to one charge of sexual assault on a child by one in a position of trust, a class 4 felony. In return, the District Attorney dismissed the two other counts of sexual assault on a child by one in a position of trust and recommended a sentence of probation. The October 13, 1995 plea agreement did not mention registration as a sex offender. At that time, sex offenders were required to register but could petition after a waiting period to discontinue the requirement.

Defendant was sentenced to six years’ probation, which was terminated by the court on October 21, 1999. Defendant registered as a sex offender.

In 2001, the General Assembly amended the statute to preclude certain sex offenders from petitioning to discontinue registration. In 2002, the General Assembly enacted similar provisions in the Colorado Sex Offender Registration Act (Act), codified at CRS §§ 16-22-101 to -115.

On October 28, 2009, defendant filed a petition in district court to discontinue sex offender registration. The district court granted defendant’s petition, and the People appealed.

The Court reviewed whether defendant is subject to lifetime registration as a sex offender based on his 1995 conviction, even though the statute in effect when he pleaded guilty offered the opportunity to petition to discontinue registration after a waiting period. CRS § 16-22-103 of the Act is unambiguous in its applicability to “[a]ny person who was convicted on or after July 1, 1991, in the state of Colorado, of an unlawful sexual offense.” It is undisputed that defendant fell within this covered category and therefore was subject to lifetime registration as a sex offender.

The trial court found detrimental reliance by defendant in entering his guilty plea based on the notice he received that he would be eligible to petition to discontinue registration, and the statutory scheme then in effect, which would have allowed for such a petition. The Court of Appeals found that the notice the trial court relied on was dated after defendant’s plea and that the name and signature on the form did not appear to be defendant’s. Therefore, any reliance by the district court on this notice to find detrimental reliance was error.

Defendant also made what the Court considered an ex post facto argument; however, the Court disagreed that the lifetime registration requirement was ex post facto punishment. The Court cited several decisions that previously had held that laws imposing lifetime registration requirements on sex offenders do not violate the ex post facto clauses and that modification of the registration requirement from an indefinite to a lifelong duty similarly does not turn the registration into a punishment.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 17, 2011, can be found here.

Colorado Court of Appeals: Enactment of Specific Criminal Statute Does Not Preclude Prosecution Under General Criminal Statute Absent Statutory Intent

The Colorado Court of Appeals issued its opinion in People v. Blue on March 17, 2011.

Reduction of Charge—CRS § 18-1-408(1)(d).

The People appealed the trial court’s order reducing a charge against defendant Tony Blue from one count of attempt to influence a public servant to one count of false reporting to authorities. The order was reversed and the case was remanded with directions.

In December 2009, a police officer was dispatched to a public library regarding a man who matched the description of a wanted individual on the Crime Stoppers website. The officer approached Blue and asked to have a word with him. Blue replied that he was not Mr. Blue; he said his name was Tony Mackie and that he didn’t have identification.

A second police officer then arrived and asked the first officer if he had patted down Blue. The officer responded that he “had not patted Mr. Blue down,” and then turned to Blue and said, “because you are Mr. Blue, right?” Blue smiled and said “Yes.” The officers confirmed an outstanding warrant for Blue’s arrest and arrested him. During a pat-down search, they found a driver’s license and Social Security card in the name of Tony Blue.

The People charged Blue with one count of attempt to influence a public servant. Blue filed a pretrial motion to dismiss the count. The trial court granted the motion and ordered the felony charge to be reduced to one count of false reporting to authorities, a class 3 misdemeanor. The People filed a motion to reconsider, which was denied. The People then filed this interlocutory appeal.

The People contended that there were three reasons the trial court erred in dismissing the charge: (1) Colorado law allows the People to prosecute Blue for both general (attempt to influence) and specific (false reporting) offenses; (2) the offense of false reporting to authorities is not part of a comprehensive regulatory scheme intended to replace more general provisions of the criminal code; and (3) prosecution of Blue under the general statute does not violate his right to equal protection under the U.S. Constitution. The Court of Appeals agreed with all three arguments and reversed the trial court’s order.

The Court noted that in Colorado “a single transaction may give rise to the violation of more than one statute” and “[w]hen any conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense.” A defendant, pursuant to CRS § 18-1-408(1)(d), may not be convicted of more than one offense if “[t]he offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.” The prosecutor has discretion to determine under which statute or statutes to prosecute a defendant whose single transaction gives rise to the violation of more than one statute.

Blue had argued in his motion to dismiss that his actions were more specifically proscribed by the crime of false reporting to authorities. Blue argued that if he were charged with both attempted influence and false reporting, he could be convicted of only one offense because one offense is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of that conduct. The Court held that false reporting is not a specific instance of attempt to influence a public servant. False reporting penalizes those who provide untruthful information to public officials, regardless of an attempt to influence those officials. Attempted influence can occur without any false reporting.

Enactment of a specific criminal statute does not preclude prosecution under a general criminal statute, unless statutory language indicates that the legislature intended to limit prosecution to the specific statute. The Court applied the Tow test and found that CRS § 18-8-111 cannot be construed as part of a comprehensive regulatory scheme comparable to Colorado’s liquor and limited gaming codes [People v. Tow, 992 P.2d 665 (Colo.App. 1999)]. It is not a thorough regulatory scheme to control the substantive area of false reporting to authorities. Thus, the trial court erred for this reason, as well.

Blue also argued that charging him with both offenses would violate his right to equal protection under the U.S. Constitution because the offenses provide different penalties for identical conduct. The Court of Appeals disagreed, finding that the offenses penalize different conduct and require different mens rea. An attempt to influence a public servant criminalizes any attempt to influence a public servant, which is not a requirement of false reporting to authorities. False reporting requires “knowingly providing false identifying information to law enforcement authorities.” This does not require a showing of an attempt to influence a public official. In addition, attempted influence requires proof of intent, while false reporting requires the lesser mens rea standard of a “knowing” act. Thus, it was additional error to dismiss the attempted influence count on the basis that charging Blue with it violated his right to equal protection.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 17, 2011, can be found here.

Colorado Court of Appeals: Arbitration Agreement Must Contain Consent to Class Arbitration to Compel

The Colorado Court of Appeals issued its opinion in Medina v. Sonic-Denver T, Inc. on March 17, 2011.

Summary Judgment—Arbitration Agreement—Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.

Plaintiffs Kevin Medina, Milton Rosas, and George Sourial appealed the trial court’s summary judgment in favor of Sonic-Denver T, Inc., doing business as Mountain States Toyota, and the American Arbitration Association, Inc. (AAA). The judgment was affirmed.

Mountain States Toyota is a car dealership in Denver selling new and used cars. Plaintiffs are former employees of the dealership; Medina and Rosas were sales representatives and Sourial was a finance director. At hiring, plaintiffs completed “new hire” paperwork that included a one-page arbitration agreement. The agreement contained a waiver of class actions, class arbitrations, and multi-plaintiff actions. It also stated, with limited exceptions, that all disputes between the parties must be resolved by binding arbitration under the Federal Arbitration Act (FAA). In plaintiffs’ depositions, Medina stated he had read all of his new-hire paperwork; Rosas stated he did not read the agreement before signing it; and Sourial stated he had read and asked questions about the agreement.

In December 2008, plaintiffs filed an arbitration demand with AAA, asserting a claim for “unpaid commissions and other compensation on behalf of the named claimants and all others similar[ly] situated.” AAA declined to accept the matter as a class claim. In March 2009, plaintiffs filed a complaint for declaratory and injunctive relief against Mountain States Toyota and AAA in district court. In late 2009, the parties filed cross-motions for summary judgment. On December 30, 2009, the trial court granted Mountain States Toyota’s motion for summary judgment and denied plaintiffs’ motion. After the trial court’s entry of summary judgment but while the appeal was pending, the U.S. Supreme Court, in Stolt-NielsenS.A. v. AnimalFeeds Int’l Corp., ___ U.S. ___, 130 S.Ct. 1758 (2010), held that imposing class arbitration on parties who have not agreed to class arbitration is inconsistent with the FAA.

On appeal, plaintiffs argued that it was error for the trial court to find that the waiver of their rights to multi-plaintiff action or multi-claimant arbitration was valid and enforceable. The Court of Appeals found Stolt-Nielsen dispositive and therefore affirmed the trial court’s judgment. Under Stolt-Nielsen, a party may not be compelled to submit to class arbitration, because “parties may specify with whom they choose to arbitrate their disputes.” Here, even if the class arbitration waiver were deemed unenforceable, the arbitration agreement still does not contain Mountain States Toyota’s consent to class arbitration; therefore, the court would lack authority to order class-based arbitration.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 17, 2011, can be found here.

Colorado Court of Appeals: Parent Should Be Credited with One-Half of Overnight Stay for Each Visit with One Child

The Colorado Court of Appeals issued its opinion in In re the Marriage of Wells on March 17, 2011.

Dissolution of Marriage—Child Support—Modification—Extraordinary Expenses—Attorney Fees.

In this post-dissolution of marriage matter, husband appealed from the order modifying his child support obligation for the parties’ two children, and ordering him to pay extraordinary expenses under CRS § 14-10-115(11)(a)(I) and attorney fees. The order was affirmed in part and reversed in part.

Husband contended that the trial court abused its discretion by calculating child support separately for each of the parties’ two children. By beginning the calculation using two worksheets, the court inappropriately treated the children, for child support purposes, as if each was an only child. Child support should be calculated for a parent, like husband here, who has overnight visits with only one of two children by crediting the parent for one-half of an overnight for each visit with the one child. The case was remanded for further findings on this issue.

Husband also argued that the trial court abused its discretion by awarding a portion of the purchase price and repairs for the parties’ teenaged son’s car as a reasonable and necessary cost of attending school. The Court of Appeals disagreed. Because the child was attending a school where no transportation was available, it was appropriate to allocate to husband a proportionate share of the costs that wife sought relating to the child’s car.

Husband contended that the trial court erred by awarding wife attorney fees as a sanction for his failure to comply with disclosure requirements. Because husband failed to object to this award of fees in the trial court and the trial court had no opportunity to rule on husband’s contentions, this issue was not addressed on appeal.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 17, 2011, can be found here.

Colorado Court of Appeals: Statute Not Unconstitutionally Retrospective in Allowing Deed Restriction Limiting Rent

The Colorado Court of Appeals issued its opinion in Meyerstein v. City of Aspen on March 17, 2011.

Deed Restrictions—Planned Unit Development—Colorado’s Anti-Rent Control Statute—Retroactive—Section 1983 Claim—Takings Claim—Statute of Limitations.

Plaintiff Arnold Meyerstein, as trustee of the Meyerstein Trust, appealed the district court’s summary judgment for defendants City of Aspen (City), Aspen/Pitkin County Housing Authority (Authority), and Music Associates of Aspen (MAA) on his claims for declaratory relief and for review pursuant to C.R.C.P. 106(a)(4). Meyerstein also appealed the district court’s dismissal on statute of limitations grounds of his takings and 42 U.S.C. § 1983 claims. The judgment was affirmed in part and reversed in part, and the case was remanded for further proceedings.

In 1997, Meyerstein’s predecessor in interest applied to Pitkin County for approval of a planned unit development (PUD) called Aspen Highlands Village (the property). As part of the PUD approval process, deed restrictions were placed on the property requiring, among other things, that certain units be reserved for affordable housing. Meyerstein purchased the property on September 15, 2005. Thereafter, the Authority issued a notice of violation (NOV) to him, alleging that he failed to comply with the deed restrictions.

Meyerstein contended that the district court erred in granting summary judgment for defendants on his claim that the deed restriction limiting the amount of rent he was permitted to charge violated the existing version of Colorado’s anti-rent control statute. CRS § 38-12-301, as amended, applies to this matter, and the General Assembly made clear its desire to have the amended statute apply retroactively. Further, the amended statute sought to clarify, not change, existing law and thus is remedial in nature. Therefore, this provision is not unconstitutionally retrospective in its operation. Section 38-12-301(2) expressly allows for the imposition of deed restrictions that limit rents on property pursuant to a voluntary agreement between a governmental entity and a property owner. However, because the parties have not yet had the opportunity to present evidence on this voluntariness question, this issue could not be determined as a matter of law. Accordingly, the case was remanded to allow the district court to consider it in the first instance.

Meyerstein next asserted that the Authority and the district court each erred in their interpretations of the MAA provision. Contrary to their interpretation, he contended that the provision gives him the option, and not the requirement, to rent to MAA. The board properly heard Meyerstein’s appeal of the NOV, Meyerstein was not denied due process, and there was no evidence that the Board was biased against him. Also, the language “may be occupied,” as used in the MAA provision, was intended to give MAA the right to occupy the rooms at its option. Therefore, Meyerstein’s argument failed.

Finally, Meyerstein contended that the district court erred in dismissing his § 1983 and takings claims on statute of limitations grounds. A two-year limitations period applies to both claims. Meyerstein’s § 1983 and takings claims as applied to Meyerstein’s property accrued no later than the date he purchased the property with notice of the restriction and its effect. Therefore, his taking claims were time barred in this respect. Meyerstein also alleged, however, that Authority employees interfered with his contract negotiations with the St. Regis Hotel after the Authority had issued its decision on his appeal of the NOV, which first occurred on or about March 19, 2008. There was insufficient evidence to determine whether Meyerstein’s § 1983 claim as applied to his negotiations with the St. Regis Hotel was time barred. Therefore, the district court erred in dismissing this claim based on the statute of limitations.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 17, 2011, can be found here.

Colorado Court of Appeals: Colorado Sex Offender Registration Act Requires a Physical Presence or Occupancy to Register

The Colorado Court of Appeals issued its opinion in People v. Griffin on March 17, 2011.

Sex Offender Registration Act—Establishing Residence.

Defendant Carey Griffin appealed his conviction for failing to register as a sex offender, in violation of CRS § 18-3-412.5(1)(g) and (2). The judgment of conviction was vacated.

Griffin is a convicted sex offender. In 2006, he canceled his registration in Denver, where he had been living. He said he would be moving to a specific address in Adams County.  He was told he would have to register with authorities in that county, but he never registered there.

Griffin contended that he was not required to register in Adams County because his housing arrangements fell through and he did not move there. The phrase “establish a residence” in the Colorado Sex Offender Registration Act requires a physical presence or occupancy. The evidence adduced at trial does not support a finding, beyond a reasonable doubt, that Griffin ever lived at a specific address in Adams County. Because the prosecution did not prove that Griffin resided in Adams County, it failed to establish that Griffin was required to register there. Accordingly, the judgment was vacated.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 17, 2011, can be found here.

Colorado Court of Appeals: Only “Person Who Files a Lien” is Liable for Costs and Attorney Fees Under Excessive Lien Statute

The Colorado Court of Appeals issued its opinion in JW Construction Company, Inc. v. Elliott on March 17, 2011.

Construction—Excessive Lien Statute—Corporation—Knowledge Standard—Evidence—Misrepresentation—Concealment—Damages—Breach of Contract—Attorney Fees.

This is a homeowner–builder dispute between defendants and third-party plaintiffs Ryan and Christana Elliott, landowners who were building a custom home; plaintiff JW Construction Co., Inc. (JW), their general contractor; and third-party defendant Joseph Wodiuk, the president of JW. Wodiuk and JW appealed the judgment that found them liable for misrepresentation and concealment and imposed costs and attorney fees on them for filing excessive mechanics’ liens. The judgment was affirmed in part and reversed in part, and the case was remanded.

Wodiuk contended that because he did not file the lien in this case and the excessive lien statute allows for recovery of costs and attorney fees only against the person who files the lien, the trial court erred by holding that he was personally liable for these amounts. JW, a corporation, was the entity that signed the construction contract and filed the liens at issue here. According to the plain language of the statute, only the “person who files a lien” is liable for costs and attorney fees. Because a corporation has an independent legal identity, Wodiuk was not personally liable for costs and attorney fees incurred by the Elliotts to defend against the excessive lien.

JW contended that the trial court improperly applied a negligence standard instead of the statutory knowledge standard when determining that JW was liable for filing an excessive lien. The record supports the trial court’s finding, however, that JW had knowledge that it was claiming amounts greater than the amounts actually due. Therefore, the trial court properly applied the excessive lien statute.

JW and Wodiuk argued that there was insufficient evidence to support the trial court’s determination of damages on the Elliotts’ misrepresentation and concealment claims. The “Pueblo Truss” invoice, which was one of the three invoices the trial court found to be altered or fabricated, was included as backup documentation for the amounts requested in draw four, which the Elliotts paid. Sufficient evidence thus supports the trial court’s determination that because no trusses were ever delivered, the amount of the invoice constituted the difference between the benefit actually received and the value represented.

JW and Wodiuk also argued that the Elliotts have suffered no damages on any of the altered or fabricated invoices because, even if the Elliotts paid them, they never paid more than the fixed price of the portions of construction to which those invoices related. Payment for the fixed fee was to occur after completion of the entire project. Because JW breached the contract, it was entitled to payment only for the actual costs it incurred. There was sufficient evidence in the record to support the trial court’s calculation of damages based on the value of the services that JW had provided.

JW further contended that the trial court erred by failing to rule on its claim for breach of contract against the Elliotts. The trial court’s rulings in favor of the Elliotts, however, necessarily resolved JW’s claim for breach of contract.

The Elliotts requested an award of attorney fees against JW and Wodiuk for defending the appeal of the excessive lien award. This issue was remanded to the trial court with directions to determine the amount of fees that should be allocated to the defense of the excessive lien claim as against JW.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 17, 2011, can be found here.