April 21, 2019

Archives for February 4, 2014

Adoption, Small Claims, Seal My Case JDF Forms Amended

In January 2014, the Colorado State Judicial Branch issued several revised JDF forms in many categories. Click here for a list of previously issued forms. Most recently, JDF forms have been amended in the adoption, miscellaneous, probate, small claims, and seal my case categories. 

Forms are available for download here as PDF documents, and are generally available in Word from the State Judicial Forms page.

ADOPTION

  • JDF 500 – “Instructions for Stepparent Adoption” (R1/14)
  • JDF 502 – “Petition for Stepparent Adoption” (R1/14)

MISCELLANEOUS

  • JDF 78 – “Motion and Order to Set Aside Default Judgment” (R1/14)

PROBATE

  • JDF 959 – “Instructions for Closing an Estate Informally” (R1/14)

SEAL MY CASE

  • JDF 302 – “Petition for Expungement of Records” (R1/14)
  • JDF 417 – “Petition to Seal Arrest and Conviction Records” (R1/14)
  • JDF 612 – “Petition to Seal Criminal Conviction Records” (R1/14)

SMALL CLAIMS

  • JDF 250 – “Notice, Claim, and Summons to Appear for Trial” (R1/14)
  • JDF 253 – “Motion and Order to Set Aside Dismissal/Default Judgment” (R1/14)

Click here for all of State Judicial’s JDF forms.

Colorado Court of Appeals: Contractual Covenants in Deed of Trust Not Extinguished in Foreclosure

The Colorado Court of Appeals issued its opinion in Top Rail Ranch Estates, LLC v. Walker and Walker Development Co. v. Top Rail Ranch Estates, LLC on Thursday, January 30, 2014.

Issue of First Impression—Motions for Directed Verdict—Doctrine of Claim Preclusion—Pursuit of Same Claim in Two Actions—Fraud—Economic Loss Rule—CRCP 59(a)(4)—Attorney Fees.

Top Rail Real Estates, LLC (Top Rail) entered into a contract with Walker Development Company to purchase a subdivision of platted residential lots. Top Rail paid $200,000 of the purchase price in cash, and executed a promissory note payable for the balance of $1 million. After Walker Development’s failed attempt to change the zoning to sell a portion of the property to a mining company, Top Rail was unable to sell lots in the subdivision, and it halted construction activities. Top Rail stopped making payments on its loan from the bank, and the bank foreclosed on its deed of trust. The parties sued each other in separate actions, and this appeal followed.

Walker Development argued in the first action that the court erred in granting the motion for directed verdict and dismissing its counterclaim. Regardless of whether the lien imposed by the deed of trust was extinguished by foreclosure of the bank’s senior lien, the contractual covenants in the deed of trust were not extinguished by the foreclosure. Therefore, the trial court erred in directing a verdict against Walker Development on its counterclaim.

Ronald Walker and Walker Development also argued that the trial court erred in denying their motion for directed verdict on the fraud claims asserted by Top Rail and Christopher Jenkins. The economic loss rule applied to bar the fraud claims asserted by Top Rail and Jenkins because the relief sought was the same as that sought for breach of contract and breach of the covenant of good faith and fair dealing.

The Court of Appeals agreed that the trial court erred in its calculation of prejudgment interest. The award should have been based on the $500,000 damages award in the final judgment entered by the trial court, and not on the $567,000 damages awarded by the jury.

Walker Development also contended that the trial court improperly granted summary judgment for Top Rail and Jenkins in the second action, based on its ruling that claim preclusion barred Walker Development’s claims. The doctrine of claim preclusion does not bar claims that were permissive counterclaims in a prior action, where the adjudication of those claims would not result in inconsistent judgments or a deprivation of rights established by the first judgment. Here, allowing Walker Development’s claims to be adjudicated in the second action did not nullify the judgment in the first action or impair any rights established by it, nor did inconsistent judgments result. Accordingly, the trial court erred in granting summary judgment against Walker Development based on claim preclusion.

On cross-appeal from the second action, Top Rail and Jenkins argued that the trial court erred in denying their CRCP 59(a)(4) motion for cancellation of the promissory notes, release of the deed of trust, and release of the notice of lis pendens. The Court disagreed. The trial court did not abuse its discretion in determining that it would be inequitable to require Walker Development to file an additional bond on top of the $1.3 million bond that it had already posted in the first action. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary and full case available here.

Colorado Court of Appeals: Judgment of Trial Court Affirmed in Child Sexual Assault Case

The Colorado Court of Appeals issued its opinion in People v. Conyac on Thursday, January 30, 2014.

Sexual Assault on a Child—Challenge for Cause—Expert Testimony—Motive—CRE 404(b)—Rape Shield Statute—Prosecutorial Misconduct.

KT informed her mother, LC, that defendant, her stepfather, had molested her. A jury found defendant guilty of three counts of incest; three counts of sexual assault on a child—position of trust; and one count of sexual assault on a child—position of trust pattern of abuse.

On appeal, defendant argued that the trial court erred in denying a challenge for cause to a juror who stated that her niece had been sexually assaulted and murdered by her sister’s live-in boyfriend. The Court of Appeals disagreed. Because the juror also stated she could consider the evidence in the case and make a decision and follow the presumption of innocence, the trial court did not abuse its discretion in denying defendant’s challenge for cause.

Defendant claimed the trial court erroneously allowed two unqualified prosecution witnesses to testify as experts. The Court reviewed the trial court’s admission of expert testimony and found no abuse of discretion.

The Court disagreed that the officer’s testimony was an improper commentary on defendant’s credibility. The Court found that the testimony was an explanation of the officer’s interview tactics.

The Court agreed with the trial court ruling that a defendant’s prior attempt or request to have anal sex with his spouse may be relevant concerning motive in a child sexual abuse trial, provided the evidence otherwise satisfies CRE 404(b). Here, the evidence related to a material fact and it had logical relevance.

Defendant asserted that the court erroneously excluded evidence of the pending dependency and neglect case concerning LC. The Court disagreed, ruling that exclusion of this additional evidence did not contribute to the guilty verdict.

Defendant argued that the trial court erred in excluding evidence of KT’s prior sexual knowledge and familiarity with sexual assault investigations, because the evidence was relevant to rebut the “natural assumption” that KT could only know about such facts from defendant and to support his defense that KT’s allegations were aimed at removing him from the home because she disliked his rules and disciplinary efforts. The Court disagreed, finding that KT was old enough to know about sexual matters regardless of her experience with defendant and there was alternative evidence of KT’s outside sexual knowledge. In addition, the prosecution did not argue that KT was sexually naïve and had no other source of sexual knowledge.

Defendant also claimed that prosecutorial misconduct in the rebuttal closing argument required reversal. The Court disagreed. The prosecutor used rhetorical devices and argument to point out the weaknesses of defendant’s theory of the case. Although the prosecutor made an erroneous statement regarding the beyond-a-reasonable-doubt standard, it was not plain error. The Court also rejected defendant’s challenge of the constitutionality of the rape shield statute and the Sex Offender Lifetime Supervision, as well as the determination of his habitual criminal charges without a jury. The judgment was affirmed.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 2/3/14

On Monday, February 3, 2014, the Tenth Circuit Court of Appeals issued no published opinions and six unpublished opinions.

Jiron v. Valdez

United States v. Miles

United States v. Pereira

United States v. Sanchez

United States v. Johnson

DeFazio v. Starwood Hotels & Resorts

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

SB 14-059: Eliminating Statute of Limitations for Non-Sex Offenses That Accompany Sex Offenses

On Friday, January 10, 2014, Sen. Lucia Guzman introduced SB 14-059 – Concerning Eliminating the Statute of Limitations for Offenses that Accompany Sex Offenses that Are not Subject to a Statute of Limitations. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, certain sex offenses are not subject to a statute of limitations, but accompanying non-sex offenses are subject to a statute of limitations. The bill would eliminate the statute of limitations for those accompanying offenses. On Jan. 27 the Judiciary Committee approved the bill and sent it to the floor for consideration on 2nd Reading; on Jan. 30, the Senate passed the bill on 2nd Reading after adopting amendments.

Since this summary, the Senate passed the bill on Third Reading.

SB 14-051: Revising Requirements Regarding Access to Adoption Records

On Friday, January 10, 2014, Sen. Lois Tochtrop introduced SB 14-051 – Concerning Access to Records Relating to the Adoption of Children. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals and reenacts portions of the existing statute on access to adoption records to eliminate different standards of access by members of the adoption triad (consisting of the adoptee, the birth parents, and the adoptive parents) and their descendants based on the law in existence on the date the adoption was finalized. The bill retains the current policy that adoption records are confidential from the general public, unless the requesting party is eligible under the statute to access the records or unless the court finds good cause for release. The bill retains current policy that after a birth parent is deceased or an adult adoptee is deceased, eligible relatives may receive access to the adoption records.

Contact preference forms. The bill allows for the continued use of the contact preference form issued by the state registrar of vital statistics (state registrar), which form may be used by a birth parent to indicate whether he or she prefers to be contacted by an adoptee, the descendant of an adoptee, or a representative of either directly, through a third party, or not at all. Effective July 1, 2014, the state registrar shall not distribute a contact preference form that gives a birth parent the option to authorize or not authorize release of the original birth certificate to the adult adoptee, his or her descendants, or certain adoptive family members. Prior to releasing an original birth certificate to an individual eligible to access it, the state registrar or the custodian of records must conduct a search to determine whether a contact preference form was filed with the state registrar. If a contact preference form was executed prior to July 1, 2014, and the birth parent stated a preference not to authorize release of the original birth certificate, then the state registrar or other custodian of records may not release the original birth certificate to an adult adoptee or other eligible individual unless the birth parent rescinds or changes the contact preference form, upon mutual consent of two or more reunited parties, the birth parent is deceased, or a court orders its release. If one birth parent has authorized the release of the birth certificate and the other birth parent has not authorized the release, the state registrar or other custodian of records may only issue the original birth certificate with the name of the non-consenting parent redacted.

The state registrar shall maintain and make available to the public accurate statistics about the number of contact preference forms on file with the state registrar and how many of the forms state a preference for contact, no contact, or contact through a third party.

Access to adoption records by adult adoptees, their descendants, or adoptive family members. The bill retains current policy regarding parties who are eligible to apply for adoption records. A custodian of adoption records must release adoption records (including birth certificates) to an adult adoptee, an adoptive parent of a minor adoptee, a custodial grandparent of a minor adoptee, or the legal representative of any such individual. In addition, the custodian of records must provide direct access for inspection and copying of adoption records to a spouse of an adult adoptee, adult descendant of an adoptee, adult sibling or half-sibling of an adult adoptee, adoptive parent or grandparent of an adult adoptee, or the legal representative of any such individual, if the individual requesting access has the notarized written consent of the adult adoptee or if the adult adoptee is deceased.

Access to original birth certificates by birth parents. Upon request, the state registrar must provide to a birth parent who relinquished a child for adoption a copy of the unaltered original birth certificate that the birth parent signed or was named in.

Access to death certificates. The state registrar is authorized to conduct a search of death certificates to determine whether a birth parent or an adoptee is deceased and to provide a copy of any death certificate found to the requesting eligible individual. The state registrar may collect fees for conducting a search and for making copies and shall transmit any fees to the state treasurer who must credit the fees to the vital statistics records cash fund.

The legal custodian shall not release records unless the individual requesting access is eligible to access the records and provides proof of personal identification. The legal custodian may charge reasonable fees for copying records.

The bill retains the existing policy that allows identifying information in records of child placement agencies to remain confidential based on prior written statements of birth parents on file with the child placement agency or the court. Subject to the provisions of this bill, any party may seek direct contact with another party or use the services of a confidential intermediary, a licensed child placement agency that agrees to conduct a search, or the voluntary mutual consent registry operated by the state registrar. The bill makes conforming amendments. On Jan. 29 the Judiciary Committee heard testimony but did not vote on the bill.

SB 14-048: Requiring Courts to Accept the Most Recent U.S. Census Bureau Mortality Table as Evidence in Civil Actions

On Thursday, January 9, 2014, Sen. Lucia Guzman introduced SB 14-048 – Concerning Use of the Most Recent United States Census Bureau Mortality Table as Evidence of the Expectancy of Continued Life of Any Person in a Civil Action in Colorado. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires courts to accept into evidence the most recent United States census bureau expectation of life and expected deaths by race, sex, and age table, as published by the United States census bureau, to establish the continued life expectancy of any person in a civil action in Colorado. The bill repeals Colorado’s preexisting mortality table. The bill passed out of the Senate on Jan. 29 and was assigned to the Judiciary Committee in the House on that same day.

Point/Counterpoint: YouTube Law—When Depositions Go Viral: (Counterpoint) Nyet to the Net

This article originally appeared in the February 2014 issue of The Colorado Lawyer. It is part of a two-part “Point/Counterpoint” series. Click here for the “Point” article.

Burtzos_FredCThree-and-a-half months before Disneyland and I appeared on the planet, the Dumont Television Network cancelled “Captain Video and his Video Rangers.” Captain Video, with the help of his Video Rangers, fought against the conspiracies and criminal elements of the late 1940s and early 1950s. Fifty-nine years later, I must respectfully disagree with my colleague John Pineau, who, in my opinion, is Colorado’s 21st-century incarnation of Captain Video. In particular, I disagree with John’s goal of creating a new generation of Video Rangers. Instead of appearing on live television, John and his apprentice rangers plan to use YouTube and other social media to post video depositions from civil cases on the Internet. This practice, which John claims is needed to bring “sunshine” about the legal world to the public, should be laid to rest alongside the likes of Al Hodge, who played Captain Video from 1950 to 1955 and who passed away in 1979.

I acknowledge the fact that technology—especially inexpensive cameras (I sometimes video record depositions with a camera I purchased on eBay for less than $50) and the ability to upload videos with a few key strokes and mouse clicks—physically allows anyone to post whatever he or she chooses on the Internet. I also am aware that the Internet is filled with videos of numerous legal proceedings, including those of Herman Goering, O. J. Simpson, Enron, and British Petroleum (BP). Still, I cannot believe that Judge Ito really thought it was a good idea to turn the O. J. Simpson case into a cable television reality show, nor can I comprehend anyone wanting to spend a great deal of time watching long dead Nazis pontificating about concentration camps. The only good thing I can say about the deposition of Tony Hayward is that it lead to my high school classmate replacing him as head of BP. The past is the past, and what some judge or tribunal allowed to be filmed and posted online cannot be removed from the archives of the Internet. I am concerned about the future as John says it should be.

I also acknowledge the very real possibility that, in the not too distant future, all court proceedings in Colorado, including every moment of every trial, will be digitally recorded, and anyone willing to pay the fee for a copy of the video record might then be able to post it online. I do not know whether this will pose copyright problems, but at present, anyone can buy a transcript of court proceedings, and I am not aware of any prohibition against posting public records, such as a trial transcript, on the Internet. There are no secret trials in America, and there should not be. The posting of pre-trial depositions, however, is another matter.

Not Lawyer’s Job to Retaliate

In a Denver Post article about you, John, and your Captain Video proclivities,[1] there is a discussion about how you were so outraged by the way some defendants tried to use the power of a government connection to intimidate your client, that after you won a judgment for your client against these defendants, you posted on YouTube the deposition video of a witness saying it was okay to lie to the government. As a result of this posting, the witness and his company apparently got into a quagmire of potential legal trouble, and even endured student protests.

In my opinion, John, once you won the case and collected the judgment, your part in the matter should have been over. It is acceptable for us attorneys to feel outrage when arguing a cause to the trier of fact, but personal outrage, no matter how justified, should not allow attorneys to try to “stick it” to someone after a case, even if he, she, or it richly deserves it. The case is about the client, not us. We took an oath not to act out of malice or outrage.[2] Going out of the way to try to embarrass a party or a witness, or to get him or her in trouble after a trial, is not okay. It is no problem for me if a client is irked and chooses to act on their outrage, as long as the client stays within the bounds of the law, but an attorney should refrain from pushing the matter once the cause is over.

Why Depositions Are Different

Even if there is no intent to try to expose a wrong or a perceived wrong, posting deposition videos online raises a host of thorny issues and problems. In depositions, the evidentiary rules are relaxed.[3] Deponents often are asked questions that could be objected to at trial but, because the answer to the deposition question might lead to the discovery of admissible evidence, it is allowed during the deposition.

Defendants in motor vehicle accident cases, for example, routinely are asked about their driving histories, the discussions they might have had with their liability insurance carriers about the accident, any traffic citations they received as a result of the accident in question in the case, and possibly their criminal history. The fact that a defendant (1) had his driving privileges suspended for six months a decade before the accident; (2) was convicted of misdemeanor theft; and (3) spoke about the careless driving citation he received following the accident with his liability insurance carrier likely would not be discussed at trial due to a variety of evidentiary rules.[4] In your universe, John, if your client did not get a good result in this case—or even if he did—it would be okay for you or the other Video Rangers to expose these non-admissible matters to the world, possibly causing grief to the 32-year-old defendant because his family, friends, and employer did not know he was convicted of petty thievery at the age of 20, or that he had his driver’s license suspended for drag racing when he was 22 years old.

Plaintiffs in injury cases routinely discuss their medical histories and, if a loss of consortium claim is involved, their sex lives. John, if you and your wife were rear-ended by a motorist on your way to the soon-to-be-opened Trader Joe’s in Boulder, and you filed a bodily injury suit as a result, would you and your wife want to see yourselves online testifying about (by way of a very fictional example): the sexually transmitted disease you contracted in law school, the three times during college you injured your back trying to ski moguls while intoxicated, and the thirty-seven sessions of marriage counseling the two of you had undergone before the motor vehicle accident? This is the universe you would be living in if depositions could be posted online.

An Ethical Slippery Slope

Still another issue in this developing quagmire of a debate is selective editing, which would be a major problem if deposition videos were posted online. In most depositions, I wager the attorney taking the deposition will find a few “golden nuggets” taken completely out of context to use at trial when questioning the deponent. If only those nuggets are posted online, doesn’t that paint a distorted picture of what the deponent actually had to say? Of course, if the goal is to make the deponent look bad anyway, then of course the new Video Rangers’ response is: “What’s the harm?” Well, the harm is very real. “Justice TV” could be an oxymoron in many cases.

John, I know you are not advocating taking the image of a deponent and, for example, putting it into an advertisement for bourbon, but if you post a video on your website of you making a deponent look foolish, aren’t you just appropriating the image of that person to further your law practice? By that reasoning, should the person be entitled to royalties for appearing in one of your home movies?

It seems that most of the courtroom clips we see on television involve high-profile criminal cases. It intuitively makes sense to anticipate that the parties to a criminal case might expect heightened public scrutiny of their situation as opposed to the parties in a routine civil case. After all, in a criminal case, the claim is that an individual violated the public law and order. In a civil case, the claim is often that one citizen tortuously or contractually caused damages to another citizen. I will guess that the average resident of Colorado Springs has no interest in a promissory note dispute between me and my neighbor, but that same person could very well be interested in a case where my child’s daycare provider has been charged with molesting my child and five other children.

I am not in favor of attorneys being a party to the posting of videos such as those that you mention, John—bank fraud, pollution, insurance bad faith, and so on. Attorneys have a different role in the legal system, and that role is not to be Alfred Hitchcock.

Trying to expand litigated cases into a worldwide arena beyond the courtroom makes no sense. It takes a private dispute that exists in a system in which those ultimately deciding the dispute are not allowed to use the Internet to decide the dispute,[5] and it turns it into a public alley fight that could remain online in perpetuity. Please note, John, that not everybody has the ability or resources to skip the court system to arbitrate a dispute.

The posting of deposition videos online could well encourage attorneys to modify their behavior at a deposition. Hardball tactics, either to look tough or to try to prevent embarrassing information from being disclosed, might become the new norm. This is not at all in keeping with CRCP 30, which tries to limit attorneys to objecting only to questions calling for the disclosure of privileged information, and it certainly is not in keeping with many routine trial court orders that specifically tell attorneys not to engage in obstructionist tactics or boorish behavior during discovery.

Conclusion

I know, John, that you have been quoted as saying that social media is the way to “take the truth and make it a little more public,”[6] but your idea about what “truth” should be posted online and why it should be posted online is not the same as mine. When a case is over, it should be put into storage and then forgotten. It ought not stay alive on YouTube, Facebook, your website, or anywhere else in cyberspace. Even if some horses have left the barn, a number of them can stay put. Unless you are ready to tell the world all of your darkest secrets, please take the idea of posting deposition videos online and lay it respectfully next to Al Hodge.

Rest in Peace.

Fred Burtzos is a Senior Claim Litigation Counsel at Paul S. Edwards & Associates in Colorado Springs—(719) 228-3835, fred.burtzos.gdz0@statefarm.com.

This article originally appeared in the February 2014 issue of The Colorado Lawyer. Articles are available online to CBA members.

 


[1] Lofholm, “Colorado Attorney Brings down the Hammer of Social Media Justice Via YouTube,” The Denver Post (May 22, 2013), www.denverpost.com/news/ci_23295396.

[2] The following is the Colorado Attorney Oath of Admission:

I do solemnly swear by the ever living God (or affirm) that: I will support the Constitution of the United States and the Constitution of the State of Colorado; I will maintain the respect due to Courts and Judicial Officers; I will employ only such means as are consistent with truth and honor; I will treat all persons whom I encounter through my practice of law with fairness, courtesy, respect and honesty; I will use my knowledge of the law for the betterment of society and the improvement of the legal system; I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed; I will at all times faithfully and diligently adhere to the Colorado Rule of Professional Conduct.

[3] CRCP 30 and 26(b).

[4] See, e.g., CRE 411; CRS § 42-4-1713.

[5] CJI 1:10.

[6] Lofholm, supra note 1.

e-Legislative Report: February 3, 2014

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

At the meeting on Friday, Jan. 31, the CBA LPC voted on several bills:

  • The Committee voted to support HB 14-1069. Concerning district commissions on judicial performance.
  • The Committee voted to oppose HB 14-1110. Concerning procedures governing discussions by boards of education of school districts while meeting in executive session.
  • The Committee voted to take no position on two bills: HB 14-1041. Concealed Handgun Carry without a Permit, and HB 14-38. Governor cannot restrict firearms during emergency.

At the Capitol—Week of Jan. 27

In the House

Monday, Jan. 27

Passed on 3rd Reading:

  • HB 14-1020. Concerning the consolidation of two reports on taxable property that county assessors submit to their boards of equalization. The vote: 65 yes, 0 no.
  • HB 14-1020. Concerning the consolidation of two reports on taxable property that county assessors submit to their boards of equalization. The vote: 65 yes, 0 no.
  • HB 14-1059. Concerning clarifying that the ritual discharge of blank ammunition cartridges at a military funeral does not constitute the criminal offense of disorderly conduct. The vote: 65 yes, 0 no.

Wednesday, Jan. 29

Passed on 3rd Reading:

  • HB 14-1050. Concerning an increase in the number of judges for the Eighteenth Judicial District, and, in connection therewith, making an appropriation. The vote: 58 yes, 4 no, and 3 excused.
  • HB 14-1035. Concerning collection of restitution ordered pursuant to a deferred judgment. The vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1086. Concerning a requirement that a legal notice published in a newspaper is also published on a statewide web site maintained by a majority of Colorado newspapers. The vote: 55 yes, 7 no, and 3 excused.

Thursday, Jan. 30

Passed on 3rd Reading:

  • HB 14-1005. Concerning clarification of the requirements applicable to a change of point of water diversion. The vote: 61 yes, 2 no and 1 excused.
  • HB 14-1164. Concerning nonpartisan elections not coordinated by a county clerk and recorder, and, in connection therewith, creating the “Colorado Local Government Election Code” for the conduct of such elections by special districts, harmonizing residency requirements for voter registration, modifying the “Colorado Municipal Election Code of 1965,” and clarifying when elections are coordinated by county clerk and recorders. The vote 37 yes, 25 no, and 2 excused.

In the Senate

Tuesday, Jan. 28

Passed on 3rd Reading:

  • SB 14-007. Concerning authority for a board of county commissioners to transfer county general fund moneys to its county road and bridge fund after a declared disaster emergency in the county. The vote: 35 yes, 0 no.

Wednesday, Jan. 29

Passed on 3rd Reading:

  • SB 14-048. Concerning use of the most recent United States census bureau mortality table as evidence of the expectancy of continued life of any person in a civil action in Colorado. The vote: 34 yes, 0 no, and 1 excused.
  • SB 14-076. Concerning the creation of a hard rock mining permit issued by the division of reclamation, mining, and safety for mining operations disturbing no more than five acres of surface area. The vote: 34 yes, 0 no, and 1 excused.
  • SB 14-067. Concerning aligning certain state medical assistance programs’ eligibility laws with the federal “Patient Protection and Affordable Care Act”. The vote: 20 yes, 14 no, and 1 excused.
  • SB 14-052. Concerning actions taken to remediate soil erosion creating property damage. The vote: 30 yes, 4 no, and 1 excused.

First Rule Changes of 2014 Amend Colorado Rules of Criminal Procedure and Rules Governing Admission to the Bar

The Colorado State Judicial Branch released the first rule changes of 2014, amending Crim. P. 37, “Appeals from County Court,” and Rule 227, “Registration Fee,” of Chapter 18 of the Colorado Rules of Civil Procedure, “Rules Governing Admission to the Bar.”

Rule Change 2014(02) amends the Rules Governing Admission to the Bar. The change to Rule 227 specifies that $25 of attorney registration fees are to go to the Attorneys’ Fund for Client Protection and the remainder will go to defray the costs of the Office of Attorney Regulation Counsel. Previously, $40 was allocated to the Attorneys’ Fund for Client Protection. This rule was adopted and effective January 16, 2014.

Rule Change 2014(01) makes several changes to subsection (c) of Rule 37 of the Colorado Rules of Criminal Procedure:

(c) Contents of Record on Appeal. Upon the filing of a notice of appeal and upon the posting of such ANY advance costs by the appellant, as may be ARE required for the preparation of a record, unless the appellant is granted leave to proceed as an indigent, the clerk of the county court shall prepare and issue as soon as may be possible a record of the proceedings in the county court, including the summons and complaint or warrant, the separate complaint if any has been issued, and the judgment. The record shall also include a transcription or a joint stipulation of such part of the actual evidence and other proceedings as the parties may designate. If the proceedings have been electronically recorded ELECTRONICALLY, the transcription of designated evidence and proceedings shall be prepared in the office of the clerk of the court, either by him OR HER or under his OR HER supervision, within 42 days after judgment THE FILING OF THE NQTICE OF APPEAL or within such additional time as may be granted by the county court. The clerk shall notify in writing the opposing parties of the completion of the record, and such parties shall have 14 days within which to file objections. If none are received, the record shall be certified forthwith by the judge clerk. If objections are made, the parties shall be called for hearing and the objections settled by the county judge and the record then certified.

For a list of the supreme court’s rule changes, click here.

Colorado Supreme Court: Announcement Sheet, 2/3/14

On Monday, February 3, 2014, the Colorado Supreme Court issued five published opinions.

People v. Walker

City of Brighton v. Rodriguez

Moore v. People

People v. Steen

People v. Smith

Summaries for these cases are 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.

Colorado Court of Appeals: Attorney Must Pay Opposing Party’s Appellate Fees and Costs for His Frivolous Appeal

The Colorado Court of Appeals issued its opinion in Rose L. Watson Revocable Trust v. BP America Production Co. on Thursday, January 30, 2014.

Frivolous and Groundless Claim Sanctions.

Attorney William Bontrager brought claims against BP America Production Company (BP) on behalf of the Rose L. Watson Revocable Trust (Trust). The Trust alleged that BP had failed to explore and develop natural gas formations pursuant to its lease of the Trust’s property. Sixteen months after suit was filed, BP moved for summary judgment. As of that date, the Trust had not conducted any discovery and had not set the case for trial. The Trust did not respond to BP’s motion. Bontrager stated that the Trust was choosing not to respond and, instead, sought leave to conduct extensive discovery. He did not submit an affidavit pursuant to CRCP 56(f) requesting additional time to respond to BP’s motion after completing discovery.

The district court granted BP’s motion. In its order, the court expressed doubt as to whether Bontrager had conducted an adequate investigation before filing suit and found that the Trust’s complaint was frivolous and groundless, entitling BP to an award of attorney fees and costs under CRS §§ 13-17-101 to -106.

The Trust appealed, and a division of the Court of Appeals affirmed the summary judgment and remanded for a determination of BP’s reasonable attorney fees incurred on appeal. Following a hearing, the district court issued an order detailing why BP was entitled to an award of fees and costs. The court awarded $162,697 in fees to BP and ordered Bontrager to pay 75% of that sum. Bontrager appealed.

Bontrager filed the notice of appeal on April 10, 2013 and his opening brief on June 22, 2013. BP filed an answer brief on July 29, 2013. Bontrager filed a reply brief on August 19, 2013. On December 1, 2013, Bontrager filed a one-sentence motion to voluntarily dismiss his appeal. BP opposed, arguing that CAR 42(b) requires that if the appeal is voluntarily dismissed, it must be conditioned on Bontrager paying BP’s appellate attorney fees. The Court ordered Bontrager to reply to BP’s opposition. Bontrager’s reply stated he was moving to dismiss because (1) substantial attorney fees had been awarded against him in other similar cases; and (2) owing to decisions of the Court and denials of certiorari review in other similar cases, he had “lost all hope” that his arguments would be resolved on the merits.

The Court of Appeals denied Bontrager’s motion, holding that it would not be in the interests of justice or fairness to allow him to voluntarily dismiss the appeal at this point and not pay BP its appellate attorney fees. The Court next declared the appeal frivolous. The Court noted that other similar cases filed by Bontrager had been dismissed by various district courts and divisions of the Court as frivolous. It rejected Bontrager’s continued assertion that the summary judgment order was incorrectly granted and rejected his repeated arguments already held to be frivolous by other divisions of the Court. The Court granted BP’s request for an award of its attorney fees incurred on appeal and remanded the case for a determination of those fees.

Summary and full case available here.