April 22, 2019

Archives for November 2013

JDF Form Affidavits Revised in Several Categories by State Judicial

Updated JDF forms are now available from State Judicial in several categories, including criminal, filing fees, eviction, probate, miscellaneous, money cases, and protection orders. Many of the revised forms are affidavits. The updated forms have revision dates of October and November 2013.

The JDFs are available in Word and PDF. They can be downloaded here in PDF format or from State Judicial’s forms page in Word or PDF.

CRIMINAL

  • JDF 237 – “Instructions to File an Application for an Order of Collateral Relief” (R11/13)
  • JDF 238 – “Application for an Order of Collateral Relief” (R11/13)
  • JDF 239 – “Order of Collateral Relief” (R11/13)
  • JDF 461 – “Petition to Discontinue Sex Offender Registration Colorado Conviction” (R10/13)
  • JDF 463 – “Order to Discontinue Sex Offender Registration Colorado Conviction” (R10/13)
  • JDF 473 – “Petition to Discontinue Sex Offender Registration Non-Colorado Conviction” (R10/13)
  • JDF 475 – “Order to Discontinue Sex Offender Registration Non-Colorado Conviction” (R10/13)

EVICTIONS & FORECLOSURES

  • CRCCP 3 – “Answer Under Simplified Civil Procedure” (R10/13)
  • JDF 109 – “Affidavit to Support a Claim for Breach of Warranty of Habitability” (R10/13)

FILING FEES

  • JDF 205 – “Motion to File Without Payment and Supporting Affidavit” (R11/13)

MISCELLANEOUS

  • JDF 73 – “General Affidavit” (R10/13)
  • JDF 85 – “Motion and Affidavit to Issue Subpoena Per Crim.P. 17(b)” (R10/13)

MONEY CASES

  • JDF 138 – “Judgment Creditor Affidavit in Support of Foreign Judgment” (R10/13)

PROBATE

  • JDF 732 – “Trust Registration Statement” (R11/13)

PROTECTION ORDERS

  • JDF 404 – “Affidavit Regarding Children” (R10/13)

For all of State Judicial’s JDF forms, click here.

District Court Judges Appointed in Eighth and Nineteenth Judicial Districts

On Monday, November 25, 2013, Governor Hickenlooper’s office announced the governor’s appointment of judges to fill vacancies in the Eighth and Nineteenth judicial districts.

Michelle Brinegar was appointed to the Eighth Judicial District bench. She will fill a vacancy created by the retirement of Hon. Dave Williams, effective December 19, 2013. W. Troy Hause was appointed to the bench in the Nineteenth Judicial District. He will fill a vacancy created by the retirement of Hon. Dinsmore Tuttle, effective November 30, 2013.

Ms. Brinegar is currently a Chief Deputy District Attorney in the Eighth Judicial District, where she supervises the juvenile division and the crimes against children/sex assault units. She received her J.D. from the University of Denver Sturm College of Law and her undergraduate degree from Colorado State University.

Mr. Hause currently is a solo practitioner in private practice. He has owned his own practice since graduating from Lewis & Clark Law School, and he specializes in family law, Chapter 7 bankruptcy cases, and mediation. He also has expertise in mental health certifications, juvenile law, and probate.

Colorado Supreme Court: Water Court’s Invalidation of State Engineer Rule Based on Tribal Rule Reversed

The Colorado Supreme Court issued its opinion in Pawnee Well Users, Inc. v. Wolfe on Monday, November 25, 2013.

Ground Water Regulation—Administrative Law and Procedure—Rules, Regulations, and Other Policymaking—Judicial Review of Administrative Proceedings.

The Supreme Court held that the water court erred in invalidating a basin-specific rule of the final Produced Nontributary Ground Water Rules (Final Rules) known as the Fruitland Rule, based on a stipulated agreement between the State Engineer and the Southern Ute Indian Tribe. Another Final Rule—known as the Tribal Rule—states: “These Rules and regulations shall not be construed to establish the jurisdiction of either the State of Colorado or the Southern Ute Indian Tribe over nontributary ground water within the boundaries of the Southern Ute Indian Reservation.”

The Tribal Rule does not and cannot divest the State Engineer of his authority to promulgate the Final Rules governing water extracted during oil and gas production throughout the state, including nontributary groundwater. By passing HB 1303, the General Assembly authorized the State Engineer to adopt rules to assist with the administration of nontributary ground water extracted in the course of coalbed methane production and other oil and gas development in Colorado, thus authorizing the State Engineer to promulgate the Fruitland Rule. Because administrative agencies powers and duties as given by the legislature, the State Engineer cannot establish or disestablish his own jurisdiction.

Further, because the Fruitland Rule was issued pursuant to the authority granted in HB 1303—authority that was not divested by the Tribal Rule—it follows that the water court erred in labeling the Fruitland Rule an “advisory” rule and requiring the State Engineer to obtain a judicial determination that he had authority to administer nontributary ground water within the Southern Ute Indian Tribe’s Reservation’s boundaries. The Court therefore reversed the water court’s order and remanded the case for further proceedings.

Summary and full case available here.

Colorado Court of Appeals: No Error in Juvenile Court’s Allocation of Peremptory Challenges Per C.R.J.P. 4.3(b)

The Colorado Court of Appeals issued its opinion in People in Interest of J.J.M. on Thursday, November 21, 2013.

Dependency and Neglect—Peremptory Challenges Under CRJP 4.3(b).

The Denver Department of Human Services (Department) filed a petition in dependency or neglect with regard to J.J.M., an 8-month-old, based on allegations that the child had been brought to the emergency room and diagnosed with retinal hemorrhaging, a subdural hematoma with a brain shift, and chronic and acute brain bleeds. The Department also alleged that the child’s injuries were not consistent with father’s explanation of the injuries. Additionally, the Department alleged father used marijuana. Father denied the allegations and requested a jury trial. After a three-day jury trial and based on the verdict, the juvenile court adjudicated the child dependent and neglected. Father appealed.

Colorado Rule of Juvenile Procedure 4.3(b) provides, “Examination, selection, and challenges for jurors in such cases shall be as provided by C.R.C.P. 47, except that the petitioner, all respondents, and the guardian ad litem shall be entitled to three peremptory challenges. No more than nine peremptory challenges are authorized.” Here, before voir dire, the juvenile court ruled that father and the child’s mother would have three peremptory challenges, the Department would have three peremptory challenges, and the guardian ad litem (GAL) would have three peremptory challenges.

Father argued that the court erred in its allocation of peremptory challenges. The Court of Appeals discerned no error ruling that the challenges were in keeping with the plain language of the statute. The order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Surviving Spouse’s Settlement of Wrongful Death Claim Precludes Son’s Filing of Identical Claim

The Colorado Court of Appeals issued its opinion in Barnhart v. American Furniture Warehouse Co. on Thursday, November 21, 2013.

Wrongful Death Act—Summary Judgment—Claim of Heir if Spouse has Settled.

On January 19, 2011, Mildred Fernandez sustained injuries in an American Furniture Warehouse (AFW) store. She died shortly thereafter. She was survived by her husband and son.

Husband’s counsel informed AFW’s insurer that he had been retained and would be asserting a wrongful death claim under Colorado’s Wrongful Death Act (Act). In December 2011, husband agreed to settle his claim in return for $400,000, and executed a release of all claims against AFW.

Son then brought an action, also asserting a wrongful death claim under the Act. AFW moved for summary judgment on the ground that son’s claim was barred by the Act’s limitation that “only one civil action” may be brought for recovery of damages for the wrongful death of one decedent. The district court granted the motion.

On appeal, son argued that his claim was not barred because husband’s settlement was not an “action” within the meaning of CRS § 13-21-203(1)(a). The Court disagreed.

The Act provides that a decedent’s surviving spouse has the exclusive right to bring an action under the Act within the first year after the date of death. During the second year, a decedent’s spouse and heirs have equal rights to bring an action. However, only one civil action may be brought to recover damages for the wrongful death of any one decedent.

Husband settled his claim without filing suit. Son argued that only a spouse’s lawsuit or settlement of a lawsuit can bar a subsequent claim under the Act. Based on the plain language of the statute, the Court agreed with son that an “action” is commonly regarded as referring to a judicial proceeding. However, this limiting interpretation would lead to an absurd result. Son offered no rational reason why the General Assembly would have intended to treat pre-litigation and litigation settlements differently, and none was apparent to the Court.

The Court concluded that a beneficiary with the primary right of action has the power to settle his claim with or without filing suit and that such settlement is binding on all other beneficiaries. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Prospective Harm in D&N Case is Factual Question That Precludes Summary Judgment

The Colorado Court of Appeals issued its opinion in People in Interest of S.N. on Thursday, November 21, 2013.

Dependency and Neglect—Summary Judgment—Prospective Harm.

The Boulder County Department of Human Services (Department) removed S.N. from her parents at birth because a hearing on termination of parental rights involving their three older children was pending. The Department then petitioned the trial court to adjudicate S.N. dependent and neglected, alleging there was a risk of prospective harm to S.N. if she were placed in the parents’ care. The parents denied the allegations and sought a jury trial, but the Department sought summary judgment. The trial court granted the Department’s motion.

On appeal, the parents argued that prospective harm is a factual question that precludes summary judgment. The Court of Appeals first reviewed the analysis of a summary judgment motion on appeal. It then analyzed “prospective harm” in a dependency and neglect proceeding, finding that the fact-finder must determine whether it is “likely” or “expected” that the child will be dependent or neglected in a parent’s care in the future. In other words, the fact-finder must predict whether, based on the parent’s past conduct and current circumstances, it is reasonably likely or expected that the parent will mistreat or fail to provide proper care for the child in the future. A parent’s past conduct and care of other children, while probative, is not necessarily dispositive on this issue. Therefore, the Court concluded, the question of prospective harm is inappropriate for summary judgment. The Department’s motion for summary judgment did not establish the absence of a genuine issue of material fact. The trial court’s summary judgment was reversed and the case was remanded for an adjudicatory jury trial.

Summary and full case available here.

Benjamin E. Currier Named Colorado Bar Outstanding Young Lawyer of the Year

BenCurrierRecognizing his leadership and service in the legal community and the community at large, Benjamin E. Currier has been named the Colorado Bar Association Young Lawyers Division’s Gary L. McPherson Outstanding Young Lawyer of the Year.

Currier, 35, has been a leader in both the Colorado and Arapahoe Bar Associations. His focus within the organizations has been on access to justice and the ongoing endeavor to meet the needs of those who cannot afford traditional legal services. In 2011, Currier helped establish the Colorado Lawyers for Colorado Veterans program, a statewide pro bono legal services initiative that assists Colorado Veterans, some active duty service members, and their families. The Clinics provide free legal advice by allowing veterans to meet with attorneys who explain legal processes and forms, and distribute resources covering veteran benefits, taxes, housing and family law.

“In my practice and community involvement, I try to keep in mind the need for honesty, integrity, hard-work, and the responsibility to give back to the community on a consistent basis,” Currier said. “As an attorney, I continue to make efforts to be a good steward of and role model for our profession. I am  honored to be recognized by my peers.”

Currier is a shareholder and partner with Miller & Steiert, P.C. in Littleton. He litigates criminal, family law, and general civil disputes.

He is President-elect of the Arapahoe County Bar Association, a graduate and executive committee member of the Colorado Bar Association Leadership Training program, an executive council member and past chair of the CBA Young Lawyers Division, and an Associate Judge for the City of Littleton.  In 2007, the ACBA awarded him with its Young Lawyer of the Year award.

The Gary L. McPherson Outstanding Lawyer of the Year award is given annually to a young lawyer with an outstanding record of professional success, community service achievements, a strong commitment to civic participation and inspiring others. McPherson was honored with the award in 1993; he went on to serve three terms in the state legislature. The award was renamed in his honor following his death in 2000.

“Ben is a humble leader who works hard to promote fairness and justice and to improve the legal profession. He is beyond dedicated to his clients, the bar association, and the community,” said Emma Garrison, chair of the CBA Young Lawyers Division.

Currier will be honored at the CBA YLD holiday party on Dec. 11 and at the Colorado Bar Foundation Annual Bar Fellows Dinner on Jan. 10 at the Hyatt Regency Convention Center.

Colorado Court of Appeals: Summary Judgment Appropriate Where No Disputed Issue of Material Fact Exists

The Colorado Court of Appeals issued its opinion in Rieger v. Wat Buddhawararam of Denver, Inc. on Thursday, November 21, 2013.

Premises Liability—Summary Judgment—Licensee Versus Invitee—Vicarious Liability.

On July 26, 2010, Martin Rieger and his friend Chris Margotta volunteered their time to trim a large tree on property owned by Wat Buddhawararam of Denver, Inc. (Temple). While Rieger was holding a ladder for Margotta so he could cut branches, one of the branches fell off and struck Rieger, causing him serious injuries.

Rieger sued the Temple, which designated Margotta as a nonparty at fault. Rieger then amended the complaint to name Margotta as a defendant but subsequently voluntarily dismissed him, acknowledging that Margotta was immune from liability under the Volunteer Service Act and the Federal Volunteer Protection Act. Rieger still maintained that the Temple was vicariously liable for Margotta’s negligence.

The Temple filed for summary judgment pursuant to the Colorado Premises Liability Act (CPLA). The district court granted the Temple’s motion, and Rieger appealed.

Rieger argued that the district court erred by finding he was a licensee rather than an invitee for purposes of the CPLA. The district court concluded that Rieger was a volunteer, and Rieger offered no evidence that would contradict that conclusion. Volunteers generally are classified as licensees under the CPLA. Therefore, the court did not err.

Rieger also argued that the district court erred in holding that the Temple was not vicariously liable for Margotta’s negligence. The Court found that CRS § 13-21-115(2) clearly manifests the General Assembly’s intent to abrogate the common law of landowner duties and that it is the sole remedy for plaintiffs bringing claims against landowners for injuries occurring on their property. Rieger only argued he was an invitee, which the Court concluded he was not. He made no argument that the Temple had a duty to him as a licensee. Even if he had, the undisputed evidence was that the Temple did not create any danger nor did Rieger allege any failure to warn on the part of the Temple. The summary judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: “Proximate Cause” As to Vehicular Assault Correctly Defined in Jury Instruction

The Colorado Court of Appeals issued its opinion in People v. Smoots on Thursday, November 21, 2013.

Vehicular Assault—Driving Under the Influence (DUI)—Jury Instructions—Proximate Cause—Lesser Included Offense.

Defendant appealed the judgment of conviction entered on three jury verdicts finding him guilty of vehicular assault–DUI, DUI, and DUI per se. The convictions for vehicular assault and DUI per se were affirmed, and the DUI conviction was vacated.

According to the People’s evidence, defendant was driving a vehicle east on a two-lane highway while the victim was driving westbound. Defendant swerved into the victim’s lane, striking the victim’s vehicle. The victim suffered serious injuries.

Defendant argued that the jury instructions inaccurately defined proximate cause and thus lowered the prosecution’s burden of proof. The prosecution’s burden in proving vehicular assault–DUI is to establish that the defendant operated or drove a motor vehicle while under the influence of alcohol, and this conduct was the proximate cause of a serious bodily injury to another. Because vehicular assault is a strict liability crime, the prosecution’s burden is to prove only that the defendant voluntarily drove while intoxicated and that his or her driving resulted in the victim’s serious bodily injury. Here, defendant conceded at trial that he was intoxicated at the time of the accident, that he was driving one of the vehicles involved in the collision, and that the victim was injured in the accident. Therefore, taking these admissions into account, the trial court did not err in instructing the jury that “[f]or the purposes of the strict liability crime of Vehicular Assault, ‘proximate cause’ is established by the voluntary act of driving under the influence of alcohol.”

The trial court also did not err in ruling that defendant was not entitled to an intervening cause instruction based on the fact that the victim may have swerved into defendant’s lane first. Even if true, this conduct would not be considered gross negligence, which is needed for an intervening cause instruction.

The judgment was vacated as to defendant’s conviction for DUI. Defendant’s DUI conviction constituted a lesser included offense of his vehicular assault–DUI conviction.

Summary and full case available here.

Colorado Court of Appeals: Subsequent Legislation Made Moot Trade Association’s Claims of Harm

The Colorado Court of Appeals issued its opinion in Colorado Mining Association v. Urbina on Thursday, November 21, 2013.

Environmental Air Quality Regulations—Challenge to Validity of Procedural Rules and Legislation.

Plaintiff Colorado Mining Association (CMA), a trade association representing coal producers, appealed the trial court’s judgment dismissing as moot its claims against defendants Colorado Department of Public Health and Environment (CDPHE), CDPHE Executive Director Christopher E. Urbina, the Colorado Air Quality Control Commission (AQCC), and the Air Pollution Control Division (collectively, agencies). The judgment was affirmed.

CMA alleged that the rulemaking process employed by the agencies in promulgating environmental air quality regulations violated procedural rules, resulting in harm to CMA members. Pursuant to CRS § 25-7-133, a hearing was requested, a bill was introduced, and the bill was enacted into law. Significantly, there has been no challenge to the validity of the statute or the procedures employed to enact it. Therefore, subsequent legislation adopting the regulations—CRS § 25-7-133.5—mooted any procedural challenge to the agencies’ rulemaking. Because an order declaring the AQCC’s procedures invalid would not affect § 25-7-133.5, and the CMA has not challenged the validity of that statute, the relief sought in this appeal—invalidation of the regulations—would have no practical effect. Accordingly, the trial court did not err in dismissing CMA’s claims as moot.

Summary and full case available here.

Colorado Supreme Court: Announcement Sheet, 11/25/2013

On Monday, November 25, 2013, the Colorado Supreme Court issued one published opinion.

Wolfe v. Pawnee Well Users, Inc.

The summary for this case is forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 11/25/13

On Monday, November 25, 2013, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Little v. Portfolio Recovery Associates

United States v. Gasca

United States v. Eccleston

Case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.