August 21, 2019

Archives for January 24, 2013

Colorado Supreme Court: Guardian ad Litem Holds Child’s Psychotherapist-Patient Privilege in Dependency & Neglect Proceeding if Three-Part Test Met

The Colorado Supreme Court issued its opinion in L.A.N. v. L.M.B. on Tuesday, January 22, 2013.

Dependency and Neglect—Psychotherapist–Patient Privilege—Guardian ad Litem—Waiver.

The Supreme Court affirmed the court of appeals’ finding that the guardian ad litem (GAL) held the minor child’s psychotherapist–patient privilege in this dependency and neglect proceeding. A GAL holds a minor child’s psychotherapist–patient privilege in a dependency and neglect case when: (1) the child is too young or otherwise incompetent to hold the privilege; (2) the child’s interests are adverse to those of his or her parent(s); and (3) CRS §19-3-311 does not abrogate the privilege.

The Court also affirmed the court of appeals’ holding that the GAL partially waived the child’s psychotherapist–patient privilege when she disseminated a letter from the child’s therapist to the juvenile court and to all of the parties. However, the Court disagreed with the procedure the court of appeals described for determining the scope of the waiver. On remand, the juvenile court must determine the scope of the waiver consistent with the Court’s instructions.

Summary and full case available here.

Colorado Supreme Court: Question of Whether Colorado Credit Agreement Statute of Frauds Allows Introduction of Evidence Not Reached Because Credit Agreement’s Terms Unambiguous

The Colorado Court of Appeals issued its opinion in Federal Deposit Insurance Corp. v. Fisher on Tuesday, January 22, 2013.

Contract Interpretation—Ambiguous Contract—CRS §38-10-124(2)—Colorado’s Credit Agreement Statute of Frauds.

The Supreme Court reversed the court of appeals’ holding that a credit agreement between a lender and a bank was ambiguous as to the default interest rate. Because the Court held that the credit agreement was not ambiguous, it did not address whether Colorado’s Credit Agreement Statute of Frauds, CRS § 38-10-124(2), allows for the introduction of extrinsic evidence to resolve a facially ambiguous credit agreement.

Summary and full case available here.

Colorado Supreme Court: Court Abolishes Sudden Emergency Doctrine Going Forward and Reverses to Correct Error in Trial Court’s Use of Instruction

The Colorado Supreme Court issued its opinion in Bedor v. Johnson on Tuesday, January 22, 2013.

Negligence—Sudden Emergency Doctrine.

The Supreme Court held that the court of appeals erred in determining that the trial court correctly instructed the jury on the sudden emergency doctrine when competent evidence did not support the trial court’s decision to tender the instruction. Accordingly, the court of appeals’ judgment was reversed and the case was remanded for a new trial. The Court also abolished the sudden emergency doctrine going forward, because the doctrine’s potential to mislead the jury greatly outweighs its minimal utility.

Summary and full case available here.

Colorado Supreme Court: Substantive Errors in Parties’ Stipulated Decrees Properly Corrected by Water Court

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of: Ginn Battle South, LLC, Ginn Battle North, LLC, Ginn-LA Battle One, LTD., LLLP, Ginn-LA Battle One A, LLC and Ginn Development Company, LLC in Eagle County, Colorado Concerning the Application for Water Rights of: Town of Minturn in Eagle, Grand, and Town of Minturn v. Tucker on Tuesday, January 22, 2013.

CRS § 37-92–304(10)—Correction of Substantive Errors in Water Court Decrees—Interpretation of Stipulations.

The Town of Minturn filed a 2005 application for changes of water rights and a 2007 application for new water rights; approval of a plan for augmentation, including exchange; and conditional appropriative rights of exchange. More than thirty parties filed Statements of Opposition. Following a series of negotiations between Minturn and the Opposers, the water court granted Minturn’s applications and entered stipulated decrees in 2010. Following entry of these decrees, Minturn realized that the consumptive use numbers on which it had relied in calculating its monthly maximum limitations for diversion from the Minturn Ditch Water Right and Minturn Well Nos. 1 and 2 Water Rights did not reflect actual monthly usage data. Instead, the numbers mistakenly reflected Minturn’s use as stated in billing statements, which run a month behind the actual usage month. Minturn also realized that the month of April was not included as a winter month in the “consumptive use factors” section due to a drafting error in a previous settlement agreement later carried over into the original decrees.

Minturn conferred with all Opposers regarding its intention to correct the decrees to conform the monthly maximum limitations and consumptive use factors to its actual historical monthly usage in accord with the parties’ expectations. Each Opposer agreed to the proposed corrections except J. Tucker, Trustee (Tucker), who opposed the corrections on the ground that the parties’ earlier stipulations precluded the water court from making the requested changes. Following the submission of briefs and affidavits from both parties, the water court granted Minturn’s request to correct the substantive errors in the decrees pursuant to its authority under CRS §37-92-304(10). Tucker appealed.

The Supreme Court upheld the corrected findings of fact, conclusions of law, judgment, and decrees of the water court. CRS §37-92-304(10) grants the water court discretion within a three-year period to correct substantive errors in a water decree. The parties’ stipulations anticipated that actual monthly historical consumptive use numbers would be used in the decrees’ monthly limitations. The original decrees mistakenly did not contain these numbers, contrary to the intent of the parties. The water court did not abuse its discretion in entering the corrected decrees. Accordingly, the Court affirmed the water court’s judgment.

Summary and full case available here.

Tenth Circuit: Upward Departure From Sentencing Guidelines Not Abuse of Discretion When Evidence Relied On Met Minimum Indicia of Reliability

The opinion in United States v. Caiba-Antele was originally filed as unpublished December 7, 2012. On January 23, 2013, the Tenth Circuit sua sponte directed that it be published and reissued nunc pro tunc to the original filing date.

Jose Caiba-Antele pled guilty to reentry of a removed alien, in violation of 8 U.S.C. § 1326. He appealed the district court’s imposition of a variant sentence of 51 months. He originally had pled guilty pursuant to a plea agreement but the district court judge rejected the agreement because it did not reflect charges brought against the defendant by the State of New Mexico in 2007 for five counts of criminal sexual penetration of a child under thirteen and one count of criminal sexual penetration of an adult by force or coercion. Caiba-Antele was not convicted of these charges; the case was dropped because one of the victims refused to testify and the psychological damage to another from testifying would have been too great. The district court held a hearing where detectives who had interviewed the victims testified that they found the victims credible based on their observations and experience.

If the defendant had been convicted of the state charges, his guidelines sentencing range on the reentry charge would have been 46 to 57 months, versus the 8 to 14 months without those convictions. The district court found it more likely than not the defendant had committed the sexual assaults and considered that, along with other factors, in making the upward departure from the sentencing guidelines.

The defendant made a Due Process Clause challenge, claiming that the sentence was procedurally unreasonable because it was based on evidence that lacked sufficient indicia of reliability. In sentencing, a district court may rely on hearsay evidence as long as the evidence is sufficiently reliable. The Tenth Circuit found the evidence the court relied on did meet the standard of minimum indicia of reliability. The detectives observed the victims first-hand, the testimony of the victims corroborated each other and none of the victims changed their version of events or recanted after the initial interviews were conducted. The court affirmed the sentence.

Tenth Circuit: Unpublished Opinions, 1/23/13

HB 13-1013: Prohibiting Landowners from Conditioning Rights-of-Way on Relinquishment of Water Rights

On Wednesday, January 9, 2013, Rep. Jerry Sonnenberg and Sen. Robert Baumgartner introduced HB 13-1013 – Concerning Limitations on a Landowner’s Ability to Impose Conditions on a Water Right Owner as a Condition of Permission to Use Land. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Water Resources Review Committee.

The bill specifies, in the contexts of rights-of-way for water rights and the basic tenets of Colorado water law, that:

  • A landowner cannot demand as a condition of granting a right-of-way or special use permit, and a court cannot order as a condition of an eminent domain proceeding, that a water right or conditional water right owner assign to the landowner partial or joint ownership of the water right or limit the alienability of the water right; and
  • Any such condition is void and unenforceable as against public policy.

Assigned to the Agriculture, Livestock, & Natural Resources Committee.

HB 13-1011: Elimination of the Fee to Add Veteran Identifier to Driver’s License or State ID Card

On Wednesday, January 9, 2013, Rep. Dave Young and Sen. Evie Hudak introduced HB 13-1011 – Concerning the Repeal of the Fee for the Branch-of-Service Identifier on Cards Issued by the Department of Revenue. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Transportation Legislation Review Committee.

The bill repeals the fee currently charged to a member of the armed services for the branch-of-service identifier on a Colorado driver’s license or state identification card. Assigned to the Transportation and Energy Committee.

HB 13-1009: Clarification of Statute of Limitations for All Refunds of Overpaid Sales and Use Taxes

On Wednesday, January 9, Rep. Brian DelGrosso and Sen. Cheri Jahn introduced HB 13-1009 – Concerning the Deadline for an Application for a Refund for Overpaid State Sales and Use TaxThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires a person who overpays the state sales and use tax to apply for the refund within three years after the date of purchase. Assigned to the Finance Committee.