April 20, 2019

Archives for November 27, 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.