July 22, 2019

Archives for July 24, 2012

Changes to Colorado Notary Law Effective in August

On August 8, 2012, changes to the notary law become effective. Colorado notaries are responsible for complying with these new standards. Important changes include:

  • JOURNAL REQUIREMENTS – A journal book will be required to contain the type and date of the notarial act, the title or type of document being notarized, the name, address and signature of the person signing, and the name, address, and signature of each witness to the notarization.
  • SEAL STANDARDS– The notary seal standards have changed. Renewing notaries will be required to obtain and use a seal that conforms to new standards.  The new seal standards require:
    • A rectangle rubber ink stamp.
    • The stamp must contain within the outline the notary’s printed legal name, the words ‘Notary Public,’ the words ‘State of Colorado,’ the notary’s 11-digit ID number, and the notary’s commission expiration date.
  • Currently commissioned notaries may continue using seals obtained before August 8, 2012 until renewal of their commission. 

HB 12-1274 outlines the changes to the notary law and can be reviewed in its entirety here.

Contact the Colorado Secretary of State’s office if you have questions or need additional information about the standards.  More information is on their website. Questions can be directed to them at notary@sos.state.co.us or call (303) 894-2200 ext. 9500.

Colorado Court of Appeals: Statute of Limitations Began to Run at Maturity Date of Loans and Therefore Action Was Timely Filed

The Colorado Court of Appeals issued its opinion in Castle Rock Bank v. Team Transit, LLC on July 19, 2012.

Promissory Notes —Statute of Limitations.

Defendant Michael L. Zinna appealed the trial court’s ruling that plaintiff Castle Rock Bank’s (Bank) action was timely filed under the applicable statute of limitations. The judgment was affirmed and the case was remanded with directions.

On December 18, 1996, the Bank loaned Team Transit, LLC, $100,000 (Team Transit loan), pursuant to a promissory note signed by Zinna, president of Team Transit. Team Transit was required to pay the Bank $1,378 per month beginning one month from December 18, 1996, with “the balance of the principal and interest payable 10 years from the date [t]hereof.”

On April 9, 1998, the Bank loaned Kelly A. Spooner $75,000 (Spooner loan), pursuant to a promissory note signed by her. Spooner was to pay the Bank $1,295 per month beginning one month from April 9, 1998, with “the balance of the principal and interest payable 7 years from the date [t]hereof.”

On March 1, 2001, both loans were modified and new promissory notes were executed by Zinna and Spooner, who had married. The new principal on the Team Transit loan was $75,671.39. Zinna and Spooner were added as co-borrowers in their personal capacities and Spooner pledged additional collateral, consisting of a third deed of trust on their family home. The monthly repayment schedule was revised with a final payment on December 18, 2006. The new principal on the Spooner loan was $48,959.15. Zinna was added as a co-borrower in his personal capacity and the payment terms were revised, with a final payment due on April 9, 2005.

Zinna made two installment payments on both loans in May and July of 2001, and then stopped making payments. The Bank received a “pay-down” of $5,000 from the sale of their home, which it applied to the Team Transit loan on August 2, 2002. The Bank received no further payments, Zinna and Spooner divorced, and Spooner filed for bankruptcy.

On June 5, 2009, the Bank filed its complaint in this action, alleging two claims for breach of contract. On the Team Transit loan, the allegation was against Team Transit and Zinna, and on the Spooner loan, the allegation was against Zinna.

A clerk’s default was entered against Team Transit for failing to answer. Zinna answered and asserted the statute of limitations as an affirmative defense.

The Bank filed a motion for summary judgment, arguing it was entitled to judgment as a matter of law against Zinna for the amount due on the two notes. The Bank represented the Team Transit loan went into “default” on September 20, 1997, and the Spooner loan went into default on January 8, 2002, both for failure to make payments.

Zinna responded, alleging there were questions of material fact and attached an affidavit regarding his understanding that the loans had been paid from various sources. The Bank responded that this was correct but that there still were outstanding balances under both loans. The summary judgment motion was denied based on the dispute about material facts, and a one-day bench trial was held. The court orally denied Zinna’s motion for judgment as a matter of law based on the statute of limitations and ultimately held that Zinna owed $69,108.77 plus interest on the Team Transit loan and $45,036.60 plus interest on the Spooner loan and entered judgment.

Zinna appealed. Shortly before briefing was completed, the Supreme Court issued its opinion in Hassler v. Account Brokers of Larimer County, Inc., 274 P.3d 547 (Colo. 2012), which addressed the specific statute of limitations at issue in this case. Supplemental briefing was requested.

The trial court had found that the Bank had never called the notes in default but had pursued Zinna due to their delinquency. The Court considered what appeared to be an issue of first impression in Colorado: when does the statute of limitations begin to run on a promissory note that is to be repaid in installments; was not accelerated by the creditor; and provides that a “final payment of the unpaid principal balance plus accrued interest is due and payable” on the note’s maturity date?

The Court held that under the circumstances of the case, the statute of limitations didn’t begin to run until then notes’ maturity dates, which were December 18, 2006 for the Team Transit loan and April 9, 2005 for the Spooner loan. Therefore, the Bank timely filed suit. The Court reached this conclusion based on slightly different reasoning than the trial court.

Hasslerset forth the legal framework for evaluating how the statute of limitations applies to an installment payment security agreement that was validly accelerated by the creditor. Based on Hassler, the Court held, as a matter of law, that the Bank did not accelerate the notes when it applied funds to pay them down because it did not express a “clear, unequivocal intent” to do so. Finally, it found the plain meaning of the terms of the notes was that the statute of limitations began running when Zinna was obligated to make a “final payment of the unpaid balance plus accrued interest” on the notes’ respective maturity dates. The Court awarded the Bank its attorney fees in bringing the appeal as permitted under the terms of the notes.

Summary and full case available here.

Colorado Court of Appeals: Claimant Seeking Workers’ Compensation Benefits for Solely Psychological Claim Has Heightened Burden of Proof

The Colorado Court of Appeals issued its opinion in Kieckhafer v. Industrial Claim Appeals Office on July 19, 2012.

Workers’ Compensation—Burden of Compensability Under CRS § 8-41-301(2)(a).

Claimant appealed the final order of the Industrial Claim Appeals Office (Panel) affirming the administrative law judge’s (ALJ) dismissal of her claim for benefits. The order was affirmed.

Claimant worked as a nurse in the women’s forensics unit of employer, the Colorado Mental Health Institute–Pueblo. Claimant began experiencing work-related emotional distress and sought psychological help. Eventually, she filed a claim for workers’ compensation benefits for her “mental/emotional distress.”

The ALJ determined claimant had failed to introduce necessary evidence from a mental health professional establishing that she “suffered a recognized disability arising from a psychologically traumatic event.” Consequently, the ALJ held that claimant had not met her burden of demonstrating entitlement to benefits for her “mental–mental” claim. The ALJ denied and dismissed the claim. The Panel affirmed and claimant appealed.

Claimant argued that CRS § 8-41-301(2)(a) imposes an insurmountable obstacle to claimants seeking medical benefits for their emotional injuries. The Court of Appeals disagreed. To receive benefits, an injured worker has the threshold burden of establishing, by a preponderance of the evidence, that he or she has sustained a compensable injury proximately caused by her employment. Here, claimant was claiming “mental–mental” injuries, in which “mental impairment follows solely an emotional stimulus.” This requires a “heightened standard of proof” to “help prevent frivolous or improper claims.” The statute requires “the testimony of a licensed physician or psychologist” to establish the claim. Because claimant failed to introduce any such evidence, the order denying and dismissing her claim was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Series of Exchanged E-Mails Did Not Constitute “Meeting” for Purposes of Colorado’s Open Meetings Law

The Colorado Court of Appeals issued its opinion in Intermountain Rural Electric Association v. Colorado Public Utilities Commission on July 19, 2012.

Colorado Open Meetings Law—E-mail Exchanges—Summary Judgment.

This case raises the issue of whether e-mail exchanges among members of the Public Utilities Commission (PUC) regarding proposed legislation constituted “meetings” for purposes of the Colorado Open Meetings Law (OML). The Court of Appeals held that the exchanges did not constitute meetings and affirmed the trial court’s summary judgment in favor of defendants.

On March 15, 2010, a bill for the Clean Air–Clean Jobs Act (CACJA)was introduced in the House of Representatives. The next day, the director of the PUC provided testimony that the PUC did not oppose the legislation. Both Houses passed the bill and it was signed into law.

In early 2010, Kelly Nordini, a member of the Governor’s staff, e-mailed PUC Chairman Ron Binz seeking input on proposed language for inclusion in an earlier version of the bill. The language was suggested by Public Service Company of Colorado (PSCo). An e-mail conversation ensued among the Commissioners about the proposed legislation, and Nordini was copied on fifteen of eighteen e-mails. The content generally comprises edits to the draft legislative language and detailed discussion about the bill.

Intermountain Rural Electric Association (IREA) brought suit against the PUC, its Director, and the Commissioners in their official capacities, seeking a declaration that (1) the e-mails were “meetings” subject to the OML; (2) defendants violated the OML when they failed to provide notice of the meetings, make the meetings public, or enter an executive session; and (3) any formal action arising out of the e-mails was invalid.

Defendants moved for summary judgment, arguing the e-mails were not “meetings” under CRS § 24-6-402(1)(b). The trial court agreed and granted summary judgment in favor of defendants. On appeal, IREA argued it was error to determine the e-mails were not “convened to discuss public business.” The Court disagreed and affirmed.

The OML provides: “All meetings of two or more members of any state public body at which any public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times.” A “meeting” is “any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication.” The parties agree that the exchange of e-mails was a “gathering” but dispute whether the e-mails discussed “public business.”

The Colorado Supreme Court has held that discussing public business (not defined in the statute) refers to a public body’s policy-making function. IREA claimed that the e-mails were part of the PUC’s policy-making process. The Court disagreed. It held that to prevail on an OML claim, a party must point to a pending action by the public body holding the meeting with regard to a rule, regulation, ordinance, or formal action by that public body that has a meaningful connection to the gathering in question. Here, the Court could not find that the hypothetical effect of providing input to the Governor’s staff with regard to draft language for a bill pending before the legislature, or advising a legislative committee that the PUC did not oppose the bill, constituted part of the PUC’s policy-making function.

The IREA argued that the e-mails were a “formal action” of the PUC because it is “authorized” to engage in discussions on pending legislative proposals. The Court stated that this argument failed to distinguish between “formal actions” of the PUC, which create public policy within the purview of the PUC’s policy-making powers, and other duties and actions of the PUC, which do not. Here, where the PUC was opining about potential legislation, it was not itself making public policy.

Summary and full case available here.

Colorado Court of Appeals: Homeowners’ Liability to Injured Contractor Limited by Statutory Damages Cap

The Colorado Court of Appeals issued its opinion in Cavaleri v. Anderson on July 19, 2012.

Premises Liability—CRS § 8-41-401(3).

In this premises liability case, Chris Cavaleri (contractor) and Magdalena Cavaleri (wife) appealed the trial court’s judgment dismissing their personal injury claims against Aaron and Heidi Anderson (homeowners) with prejudice. The judgment was affirmed.

Contractor was the sole proprietor of a business and did not carry workers’ compensation insurance on himself. He was hired by homeowners to do some tiling work on their home. As he walked down their front steps after completing the work, he leaned on a wooden railing and it gave way, causing him to fall and sustain injuries. Contractor and his wife brought this premises liability action, seeking economic and noneconomic damages.

Before trial, the court asked the parties about the impact of CRS § 8-41-401(3) on contractor’s claims. The court ruled that the $15,000 limitation on damages applied to contractor’s claims. Homeowners immediately tendered the statutory limit. The trial court dismissed the action with prejudice and contractor appealed.

Contractor argued that CRS § 8-41-401(3) did not apply because homeowners were not required to obtain workers’ compensation insurance covering contractor and, because no coverage was required, homeowners were not among the individuals protected by the statutory damages cap. The Court of Appeals disagreed. The Court noted that the purpose of the section is to encourage participation in the workers’ compensation system and limit exposure of contractors who obtain coverage from lawsuits or claims brought by uncovered independent contractors injured on the job.” [Snook v. Joyce Homes, Inc., 215 P.3d 1210, 1215 (Colo.App. 2009).]

Here, homeowners are not general contractors and are excluded from the Workers’ Compensation Act. However, contractor provided no support for his argument that this somehow kept him from obtaining workers’ compensation insurance for himself. Contractor’s argument failed to address the express inclusion of “sole proprietor[s] who [are] not covered under a policy of workers’ compensation insurance” among the individuals who may bring an action against a negligent third party, but whose damages will be limited to $15,000 if they elect to forego workers’ compensation insurance. The dismissal with prejudice was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Governor Had Right to Opt-Out of Physician Supervision Requirement for Certified Registered Nurse Anesthetists

The Colorado Court of Appeals issued its opinion in Colorado Medical Society v. Hickenlooper, Governor of Colorado on July 19, 2012.

Dismissal for Failure to State a Claim—Social Security Act.

The Colorado Medical Society and Colorado Society of Anesthesiologists (collectively, Doctors) appealed the district court’s order dismissing their complaint for failure to state a claim against the Colorado Governor John Hickenlooper. The Colorado Association of Nurse Anesthetists, Colorado Nurses Association, and Colorado Hospital Association (collectively, Nurses) joined the Governor’s motion to dismiss. The order was affirmed.

Under the Social Security Act (Act), ambulatory surgical centers, hospitals, and critical access hospitals must fulfill certain conditions of participation to receive Medicare reimbursement. One condition is that certified registered nurse anesthetists (CRNAs) administering anesthesia must be supervised by a physician. However, states may opt out of the physician supervision requirement if “the State in which the [facility] is located submits a letter to [the Centers for Medicare and Medicaid Services] signed by the Governor, following consultation with the State’s Boards of Medicine and Nursing, requesting exemption from physician supervision of CRNAs.” The letter must attest that the Governor consulted the Boards and concluded the opt-out “is in the best interests of the State’s citizens” and “consistent with State law.”

Fifteen other states have opted out of physician supervision of nurses administering anesthesia. On July 19, 2010, former Governor Bill Ritter, Jr. requested advice from the Colorado Medical Board and the Colorado Board of Nursing about whether the opt-out was consistent with the law and in the best interests of Colorado’s citizens. In August, both recommended the opt-out. On September 27, 2010, Governor Ritter notified the Centers for Medicare and Medicaid Services about his consultation with the Boards and exercised the opt-out as to all critical access hospitals and thirteen rural general hospitals (later adding a fourteenth).

On September 28, 2010, the Doctors filed this action for declaratory relief, arguing the opt-out was inconsistent with Colorado law. The Nurses intervened and joined Governor Hickenlooper in a motion to dismiss. The district court granted the motion to dismiss, and the Doctors appealed.

The Court of Appeals first rejected an argument raised only by the Colorado Hospital Association: that the decision to opt out is “a decision committed to political branches and is not subject to judicial review.” The Court found no “textually demonstrable constitutional commitment” that expressly or impliedly vests the Governor with the sole discretion to determine whether CRNAs may administer anesthesia without physician supervision.

The Court rejected the Governor’s argument that the Doctors lacked standing to challenge the opt-out decision. The Court found the Doctors’ alleged injuries to their medical licenses and reputations sufficient to establish both tangible and intangible injuries concerning a legally protected interest (their medical licenses).

The Doctors argued it was error to dismiss their complaint, contending the Act requires physician supervision of CRNAs because (1) anesthesia is a medication; (2) medication is part of a medical plan; and (3) the administration of anesthesia is a “delegated medical function” subject to physician supervision. The Court disagreed, noting that the Act defines professional nursing as, in part, the performance of “delegated medical functions.” Such a function is defined, in part, as “an aspect of care that implements and is consistent with the medical plan as prescribed by a licensed or otherwise legally authorized physician.” Physician supervision is required when a nurse performs a delegated medical function. A CRNA, however, is an “advanced practice nurse,” which means a professional nurse “who obtains specialized education or training.”

The Court agreed with the district court that the Doctors’ argument cuts too broadly, because a CRNA never would administer any treatment unless implementing a medical plan. In addition, the Act’s definition of “practice of professional nursing” clearly recognizes many independent functions that are different from delegated medical functions. The Court concluded that CRNAs who administer anesthesia are conducting independent nursing functions within the scope, role, and population focus that the Nursing Board has approved for them. They are not conducting delegated medical functions and therefore do not require physician supervision. The order of dismissal was affirmed.

Summary and full case available here.

Good Luck to Everyone Taking the Colorado Bar Exam This Tuesday and Wednesday!

Many of us are thinking to ourselves, “where has the summer gone?” I imagine this is especially true for the hundreds of bar applicants who have spent the last couple months intently studying instead of enjoying one of the warmest Colorado summers on record.

However, that wonderful time is finally here again: the Colorado Bar Exam will be held this week on Tuesday, July 24 and Wednesday, July 25. To all those who have spent countless hours in preparation, we at CBA-CLE would like to wish you the best of luck. All your hard work in law school and pouring over bar materials is about to pay off. The end is in sight!

Don’t forget your admission badges and a government I.D. No mechanical pencils or hiliters. Earplugs and a pillow might also be a good idea – from personal experience, those chairs aren’t the most comfortable – but no pillowcases.

Above all, now is the time to put down the flash cards and let your mind relax for a little while. Be confident, get some good rest, and show those bar examiners who’s boss!

Once everything is over and you’ve had a chance to decompress, don’t forget that between Thursday and when you’re sworn in you must stop by the CBA-CLE offices to take the Practicing with Professionalism class. There are several in the coming months – sign up now so you don’t forget: August 29, September 18, October 15, and October 17.