April 25, 2019

Archives for April 14, 2014

IAALS Releases Preliminary Findings on Colorado Civil Access Pilot Project

Corina_Gerety_bw_smallThis post originally appeared on IAALS Onlinethe blog for IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, on April 7, 2014.

By Corina Gerety

IAALS is pleased to announce the completion of its preliminary evaluation report on the Colorado Civil Access Pilot Project (CAPP), which tests a new set of pre-trial procedures for business actions in state district court. The project, which began in January 2012 and runs through December 2014, is in place in five Denver metro-area courts.

Relating to pleadings, disclosures, discovery, and case management, the CAPP rules were designed to bring the disputed issues to light at the earliest possible point, tailor the process proportionally to the needs of the case, provide active case management by a single judge, and move the case quickly toward trial or other appropriate resolution. The preliminary report combines the results of a docket study with attorney and judge surveys.

Our initial analysis reveals that the CAPP process as a whole has succeeded in achieving many of its intended effects, including a reduced time to disposition, increased court interaction, proportional discovery and costs, and a lower level of motions practice. Much of the positive feedback relates to CAPP’s early, active, and ongoing judicial management of cases, with many calling for this to become a permanent feature of the rules.

For those cases that are at least minimally contested, one of the challenges of the project relates to differences between simple and complex cases. The first part of the CAPP process (rolling and staggered deadlines for pleadings and initial disclosures) appears to work better in simple cases, while it can fall apart in complex cases. The second part of the CAPP process (everything from the joint case management report forward) appears to provide a real benefit for complex cases, while it can be too much for simple cases. This is just one nuance in the results, and the full report will provide interesting reading for those engaged in these issues—both inside and outside of Colorado.

This report accompanies other recent reports on rules projects taking place around the country, includingNew HampshireMassachusetts, and Utah. It is preliminary because some cases in the docket study sample have not yet resolved and because differences in the survey data based on case or respondent characteristics will need to be more fully explored. The final report will be released in the fall of 2014.This is, however, a very valuable starting point.

Click here to download the Preliminary Findings on the Colorado Civil Access Pilot Project.

Corina Gerety directs long-term research and evaluation projects for IAALS. Her work involves legal and empirical research, analysis, and writing, as well as research-related collaboration and presentation. She conducts research for all IAALS initiatives on an as-needed basis. Gerety came to IAALS in the Spring of 2009 from the public sector, having worked for a number of years in the Office of the Colorado Attorney General and in clerkships at the Colorado Supreme Court, Colorado’s Second Judicial District Court, and the Office of the Presiding Disciplinary Judge.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

e-Legislative Report: April 14, 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.

Friday, April 11
At the request of the Juvenile Law Section, the LPC voted to oppose HB 14-1362. Concerning great grandparent visitation with great-grandchildren. The bill is sponsored by Rep. Dominick Moreno.

At the Capitol—Week of April 7

A scorecard of the committee and floor work follows.

In the House

Monday, April 7

Passed on 3rd reading.

  • HB 14-1013. Concerning the creation of the advanced industries workforce development program, and, in connection therewith, making and reducing appropriations. Vote: 37 yes, 27 no, and 1 excused.
  • HB 14-1061. Concerning sentences imposing monetary payments in criminal actions, and, in connection therewith, eliminating prison sentences for persons who are unable to pay criminal monetary penalties. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1072. Concerning an income tax credit for child care expenses paid by a resident individual with a federal adjusted gross income of $25,000 or less, and, in connection therewith, making and reducing appropriations. Vote: 39 yes, 25 no, and 1 excused.
  • HB 14-1199. Concerning changes to the regulation of consumer goods service contracts, and, in connection therewith, making and reducing appropriations. Vote: 61 yes, 3 no, and 1 excused.
  • HB 14-1203. Concerning funding to maintain the infrastructure for the digital trunked radio system, and, in connection therewith, making an appropriation. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1173. Concerning continuation of the controlled substances abuse act, and, in connection therewith, the treatment of controlled substances abuse and making an appropriation. Vote: 61 yes, 3 no, and 1 excused.
  • HB 14-1283. Concerning modifications to the electronic prescription drug monitoring program, and, in connection therewith, making an appropriation. Vote: 42 yes, 22 no, and 1 excused.
  • HB 14-1009. Concerning changing the wildfire mitigation income tax deduction to the wildfire mitigation income tax credit, and in connection therewith, making and reducing appropriations. Vote: 52 yes, 12 no, and 1 excused.
  • HB 14-1029. Concerning a recodification of the laws governing reserved parking for persons with disabilities, and in connection therewith, making and reducing appropriations. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1278. Concerning continuation of the workers’ compensation accreditation program administered by the division of workers’ compensation, and, in connection therewith, implementing the recommendations of the 2013 sunset report by the department of regulatory agencies. Vote: 51 yes, 13 no, and 12 excused.
  • HB 14-1316. Concerning methods to determine whether disparities involving certain historically underutilized businesses exist within the state procurement process, and, in connection therewith, commissioning a study to make such determination, requiring the department of personnel to track contracts awarded to historically underutilized businesses, and making and reducing appropriations. Vote: 37 yes, 27 no, and 1 excused.
  • SB 14-27. Concerning criminal history background checks for professionals who have the authority to appear in court, and, in connection therewith, making an appropriation. Vote: 52 yes, 12 no, and 1 excused.
  • HB 14-1095. Concerning the Colorado bureau of investigation’s authority to investigate computer crime, and, in connection therewith, making an appropriation. Vote: 61 yes, 3 no, and 1 excused.
  • HB 14-1266. Concerning the penalties for certain value-based offenses, and, in connection therewith, reducing an appropriation. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1011. Concerning the funding of advanced industry economic development programs. Vote: 39 yes, 25 no, and 1 excused.
  • HB 14-1014. Concerning modifications to the job growth incentive tax credit, and, in connection therewith, reducing an appropriation. Vote 51 yes, 13 no, and 1 excused.

Tuesday, April 8

Passed 3rd Reading:

  • HB 14-1273. Concerning human trafficking, and, in connection therewith, making and reducing appropriations. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1321. Concerning the membership of the Colorado task force on drunk and impaired driving. Vote: 64 yes, 0 no, and 1 excused.

Wednesday, April 9

Passed on 3rd reading.

  • HB 14-1330. Concerning an update of telecommunications terminology for intrastate telecommunications services. Vote: 63 yes, 0 no, and 2 excused.
  • HB 14-1327. Concerning measures to expand the deployment of communication networks, and, in connection therewith, enacting the “Broadband Deployment Act.” Vote: 57 yes, 7 no, and 1 excused.
  • HB 14-1328. Concerning the deployment of broadband into unserved areas of Colorado through grant-making from moneys allocated from the Colorado high cost support mechanism, and, in connection therewith, making an appropriation. Vote: 47 yes, 17 no, and 1 excused.
  • HB 14-1127. Concerning disclosure of information for asset recovery, and, in connection therewith, making an appropriation. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1338. Concerning planning for the effective use of Colorado’s regional centers for persons with intellectual disabilities, and, in connection therewith, making an appropriation. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1211. Concerning ensuring access to quality complex rehabilitation technology in the medicaid program, and, in connection therewith, making and reducing appropriations. Vote: 49 yes, 15 no, and 1 excused.

Thursday, April 10

Passed 3rd Reading:

  • HB 14-1354. Concerning the ability of a county clerk and recorder to seek judicial review of final action by the secretary of state relating to elections. Vote: 50 yes and 15 no.
  • HB 14-1159. Concerning a state sales and use tax exemption for components used in biogas production systems. Vote: 54 yes and 11 no.

Friday, April 11

No bills were heard on 3rd Reading.

In the Senate

Monday, April 7

No bills were heard on 3rd Reading.

Tuesday, April 8

Passed on 3rd Reading:

  • HB 14-1057. Concerning the Colorado fraud investigators unit. Vote: 30 yes and 5 no.
  • HB 14-1176. Concerning the state audit cycle of the emissions program for motor vehicles. Vote: 20 yes and 15 no.

Wednesday, April 9

Passed on 3rd Reading:

  • HB 14-1299. Concerning the repeal of the six-year limitation on applying a salvage brand to a motor vehicle whose cost of being repaired exceeds the value of the vehicle without the recent damage. Vote: 22 yes, 12 no, and 1 excused.

Thursday, April 10

No bills were heard on 3rd Reading.

Friday, April 11

No bills were heard on 3rd Reading.

Colorado Court of Appeals: Attorney Who Started Own Practice Not Fulfilling Obligation of Seeking Employment for Unemployment Purposes

The Colorado Court of Appeals issued its opinion in Hoskins v. Industrial Claim Appeals Office on Thursday, April 10, 2014.

Unemployment Compensation Benefits—Actively Seeking Work.

Claimant was laid off from his job as an associate attorney in November 2012, at which point he decided to start his own practice. A deputy in the division of employment issued a decision finding that claimant was ineligible toreceive unemployment compensation benefitsfor the week ending December 1, 2012 and the entire period from December 15, 2012 through July 13, 2013, because he failed to supply the required listing of job contacts. A hearing officer affirmed the deputy’s decision, finding that claimant had focused his efforts on developing his own business and thus had not made a “reasonable and diligent effort to actively seek suitable work during the periods at issue.” The Industrial Claim Appeals Office (Panel) upheld the hearing officer’s judgment.

On appeal, claimant argued it was error to find that his efforts to establish his own legal practice did not fulfill the requirement that he actively seek work. Under CRS § 8-73-107(1)(c)(I), a claimant is eligible to receive unemployment compensation benefits for a particular week only if he or she is able to work and is available for all work deemed suitable. In addition, a claimant must be “actively seeking work.” The regulations clarify that a claimant must make “a systematic and sustained effort to find work.” A claimant must contact a certain number of employers each week and provide a written record of such contacts.

Those who are self-employed or sole proprietors are excluded from the definition of “employment” under the Colorado Employment Security Act (Act). The hearing officer found, and the Panel agreed, that claimant’s efforts to open his own law firm did not fulfill the statutory requirement to actively seek work. The Court of Appeals agreed that this comported with the plain language of the Act. The order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Juvenile Court Lacks Jurisdiction When Juvenile Turns 18

The Colorado Court of Appeals issued its opinion in In the Interest of M.C.S. on Thursday, April 10, 2014.

Dependency and Neglect—Subject Matter Jurisdiction.

The Jefferson County Division of Children, Youth, and Families (Division) filed a dependency and neglect petition concerning M.C.S. after it received a report that he was discharged from a teen shelter for possessing a pellet gun. M.C.S., who was only four months away from his 18th birthday, did not want to return home and his father did not want him to return home. Father appeared at the advisement hearing, entered a general denial, and requested a jury trial. Father’s attorney was not available during the ninety-day statutory period prescribed for adjudications, so the court set the case for a jury trial after M.C.S. turned 18.

The Division, joined by M.C.S.’s guardian ad litem, moved for summary judgment. Father responded by denying that he had refused to pick up M.C.S. from the shelter, that he was afraid of M.C.S., or that M.C.S. was beyond his control. He also moved to dismiss because M.C.S. would not be adjudicated before he turned 18 and therefore the juvenile court lacked jurisdiction.

The juvenile court found its jurisdiction terminated when M.C.S. turned 18 without having been adjudicated dependent and neglected, and therefore granted father’s motion to dismiss. The Division appealed. The Court of Appeals affirmed.

The Colorado Children’s Code confers exclusive original jurisdiction in the juvenile court over proceedings “[c]oncerning any child who is neglected or dependent” and the term “child” means “a person under eighteen years of age.” A juvenile court’s subject matter jurisdiction is based on the allegations of a child being dependent or neglected.

The Division asserted that once subject matter jurisdiction vested in the juvenile court through the filing of the petition, it could not be divested after M.C.S.’s 18th birthday. The Court agreed that the petition vested the juvenile court with subject matter jurisdiction at the time it was filed, but that jurisdiction was limited. It only authorized the court to enter temporary orders preceding the adjudication. Because the court did not adjudicate M.C.S. before his 18th birthday, it lost jurisdiction to do so. The order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Sovereign Immunity Not Waived by Negligent Supervision

The Colorado Court of Appeals issued its opinion in Robinson v. Ignacio School District, 11JT on Thursday, April 14, 2014.

Colorado Governmental Immunity Act (CGIA)—Operation of a Motor Vehicle Waiver—Injuries—Negligent Supervision.

Plaintiff Christie Robinson, individually and as parent and next of friend of her son, C.R., sued defendant, Ignacio School District, 11JT, for injuries C.R. sustained on a school bus. The district moved to dismiss the case for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (CGIA). The trial court partially denied the motion. Robinson’s individual claim and respondeat superior claim for the bus driver’s alleged willful and wanton negligence were dismissed, but Robinson’s negligence claim was allowed to stand.

On appeal, the district contended that the trial court erred in applying the “operation of a motor vehicle” waiver of governmental immunity to a claim for injuries resulting from a school bus driver’s alleged failure to supervise students on a school bus. However, “operation of a motor vehicle” does not extend to a bus driver’s failure to supervise passengers on a bus, because supervision does not require a physical manifestation of operation of a motor vehicle. Negligent supervision does not implicate operation of a motor vehicle, so the district did not waive its sovereign immunity under CRS § 24-10-106(1)(a). Thus, the trial court erred in denying the district’s motion to dismiss for lack of subject matter jurisdiction. The judgment was reversed in part and the case was remanded to the district court to dismiss the complaint.

 Summary and full case available here.

Colorado Court of Appeals: Plaintiff Who Requested Audio Recordings of Trial Proceedings Should Not Have Been Charged for Written Transcript

The Colorado Court of Appeals issued its opinion in Marymee v. Executive Director of Colorado Department of Corrections on Monday, April 14, 2014.

Unauthorized Absence From Employment—In Forma Pauperis Motion—Due Process—Right to Call Witnesses—Evidence.

Plaintiff, an inmate in the custody of the Colorado Department of Corrections (CDOC), was employed at Correctional Industries (CI), a for-profit division of the CDOC. On November 30, 2011, at approximately 3:45 p.m., plaintiff ended his work day without authorization from his supervisor.

Because plaintiff’s supervisor had not excused plaintiff from work, prison officials charged plaintiff with “Unauthorized Absence,” which is a Class II violation under the CDOC’s Code of Penal Discipline (COPD). Plaintiff was found guilty.

On appeal, plaintiff contended that the district court abused its discretion in denying his motion to proceed in forma pauperis. However, plaintiff had sufficient funds in his inmate account to pay the filing fee, so the trial court was required to deny his motion.

Plaintiff argued that the district court erred in requiring him to pay for the preparation of a written transcript of the administrative hearing rather than ordering an audio recording, as requested in his motion to certify the record. Neither CRCP 106 nor 106.5 require that, to obtain judicial review, a written transcript must be prepared. Therefore, the district court erred in requiring plaintiff to pay for the preparation of a written transcript of the disciplinary hearing. CDOC was ordered to credit plaintiff’s inmate account for the cost incurred for the preparation of the hearing transcript.

Plaintiff further alleged that he was denied his due process right to call his case manager as a witness and present a defense. The case manager, however, was not present during the incident, his testimony would not have been relevant to the disciplinary charge, and his testimony was based on hearsay. Accordingly, plaintiff’s due process rights were not violated by denying his request to call his case manager as a witness.

Plaintiff also argued that the CDOC lacked jurisdiction to decide the merits and evidence before it because the incident report was untimely filed. Due process requires only that an inmate be provided written notice of the charges against him. Therefore, even if the incident report was untimely filed, it does not rise to the level of a due process violation.

Finally, plaintiff contended that there was insufficient evidence to support the disciplinary conviction. Because the record contains “some evidence” that plaintiff left work without permission on November 30, 2011, the hearing officer’s decision finding plaintiff guilty of the charged disciplinary violation was affirmed.

The Court of appeals affirmed the judgment and order. The case was remanded to the district court with directions to refund the cost of the hearing transcript.

Summary and full case available here.

Tenth Circuit: Joinder of Plaintiffs Not Required or Allowed Under Class Action Fairness Act

The Tenth Circuit Court of Appeals issued its opinion in Teague v. Johnson & Johnson on Friday, April 11, 2014.

In the Class Action Fairness Act of 2005 (CAFA), Congress authorized the removal of certain class actions from state to federal court. CAFA also provides for the removal of “mass actions” that do not qualify as traditional class actions but which otherwise meet the Act’s criteria.

CAFA defines a mass action as “any civil action . . . in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law and fact.” The Act excludes from the term “mass action” any civil action in which either “the claims are joined upon motion of a defendant,” or “the claims have been consolidated or coordinated solely for pretrial proceedings.”

The controversy began when 702 plaintiffs from 26 different states and the Commonwealth of Puerto Rico filed twelve nearly identical product liability actions against the defendants in the District Court of Pottawatomie County, Oklahoma. The defendants are manufacturers of transvaginal mesh medical devices. The plaintiffs are women who were implanted with the devices and their husbands, who assert loss-of-consortium claims.

None of the individual actions contained 100 or more plaintiffs. Each of the actions included at least one New Jersey resident plaintiff. Each complaint specifically disclaimed federal question and federal diversity jurisdiction, and included provisions that admitted the claims had been joined for the purpose of pretrial discovery and proceedings but disclaimed joinder for trial purposes. All twelve actions were assigned to the same state court judge.

The defendants, corporate residents of New Jersey, removed the actions to the United States District Court for the Western District of Oklahoma, relying on both diversity jurisdiction and CAFA removal jurisdiction. They argued that complete diversity existed between the parties because in each action, the New Jersey citizen plaintiff had been fraudulently joined and should therefore be disregarded for diversity purposes. They further contended that jurisdiction was available under CAFA’s “mass action” provision because, by filing all of the suits in the same court before the same judge, plaintiffs had proposed a joint trial of claims involving more than 100 plaintiffs.

Plaintiffs moved to remand eleven of the actions, involving 650 plaintiffs, to state court. The district court granted their motion. It declined to adopt the procedural misjoinder doctrine advocated by the defendants, and concluded that plaintiffs had not in fact proposed a joint trial of their claims, as required for CAFA removal jurisdiction. The Tenth Circuit affirmed the judgment of the district court.

Tenth Circuit: Unpublished Opinions, 4/14/2014

On Monday, April 14, 2014, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

United States v. Hernandez-Delgado

Crosby v. Oliver

United States v. Rogers

Lu v. Kendall

United States v. Smith

United States v. Rayford

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

Bills Limiting Water Use, Prohibiting Nicotine Distribution to Minors, and More Signed by Governor

On Friday, April 11, 2014, Governor Hickenlooper signed nine bills into law. To date, the governor has signed 138 bills and vetoed two bills. The bills signed on Friday are summarized here.

  • SB 14-017 – Concerning a Limitation on the Approval of Real Estate Developments that use Water Rights Decreed for Agricultural Purposes to Irrigate Lawn Grass, by Sens. Ellen Roberts & Mary Hodge and Reps. Edward Vigil & Don Coram. The bill prohibits local governments from approving land use development permits unless the local government has adopted ordinance limiting amount of irrigated grass in the development.
  • SB 14-018 – Concerning the Prohibition Against Furnishing Nicotine Products to Persons Under Eighteen Years of Age, by Sens. Jeanne Nicholson & Matt Jones and Reps. Millie Hamner & Dave Young. The bill expands the prohibition on providing cigarettes to minors to include all nicotine products.
  • SB 14-028 – Concerning an Expansion of Eligibility for the Receipt of Disbursements from the Electric Vehicle Grant Fund for the Installation of Electric Vehicle Charging Stations, by Sen. Matt Jones and Reps. Crisanta Duran & Max Tyler. The bill expands the list of eligible entities for electric vehicle charging station grants to include private non-profit and for profit corporations.
  • SB 14-054 – Concerning the Ability of an Alcohol Beverage Licensee to Petition the Licensing Authority to Pay a Fine in Lieu of a License Suspension Ordered by the Licensing Authority, by Sen. David Balmer and Rep. Dan Pabon. The bill allows a holder of a liquor license to petition to pay a fine in lieu of a suspension of any number of days, provided the license has not been revoked any time within the past two years.
  • HB 14-1047 – Concerning Restrictions on the Publishing of Basic Identification Information on Commercial Websites, by Rep. KC Becker and Sen. Lucia Guzman. The bill requires a person who publishes booking photos on the internet to remove such photos upon request of a person who is not charged, whose charges are dismissed, or who is acquitted of the charges.
  • HB 14-1142 – Concerning a Prohibition Against the Off-Site Electronic Sale of Lottery Tickets by the Colorado Lottery Commission, by Rep. Brian DelGrosso and Sens. Kevin Grantham and Jeanne Nicholson. The bill prohibits the Colorado Lottery Commission from selling lottery tickets by any means other than in person at a licensed lottery retailer, and specifically prohibits sales over the internet or through electronic devices.
  • HB 14-1195 – Concerning the Diversion of Revenue Collected by the Division of Insurance to Cash Funds, by Rep. Cheri Gerou and Sen. Kent Lambert. The bill clarifies that the General Assembly controls the division of funds collected by the Division of Insurance.
  • HB 14-1206 – Concerning Modifications to the “Colorado Charitable Solicitations Act,” and, in Connection Therewith, Prohibiting Certain Charitable Solicitation Practices, Modifying the Secretary of State’s Fining Authority, Adjusting Registration Statement Requirements, and Specifying Requirements for Appointing Registered Agents, by Rep. Kathleen Conti and Sen. Jessie Ulibarri. The bill makes various changes to the Colorado Charitable Solicitations Act.
  • HB 14-1210 – Concerning a Requirement that a State Agency Enter Into an Intergovernmental Agreement with a County to Address Wildland Fires Affecting Certain State Lands Located Within the County, by Rep. Cheri Gerou and Sen. Ellen Roberts. The bill requires government agencies that own forest land, rangeland, or wild land to enter into agreements with the counties in which the land is located regarding management of wildfires.

For a list of the governor’s 2014 legislative decisions, click here.

CJD 07-01 Amended Regarding State Judicial Electronic Usage Policy; CJD 98-08 Repealed

Chief Justice Directive 07-01, “Directive Concerning the Colorado Judicial Department Electronic Communications Usage Policy: Technical, Security, And System Management Concerns,” was amended last week, effective April 8, 2014. CJD 07-01 was amended and updated to reflect changes to technology and the need to maintain secure systems.  The changes to this CJD now include instructions regarding the use of software on state computers, which was previously addressed in CJD 98-08. These changes apply to all Judicial Department employees, who will be required to sign an acknowledgement form confirming receipt of the policy change by May 1, 2014.

CJD 98-08, “Directive Concerning Use of Software Products on State-Owned Computers,” was repealed when CJD 07-01 was amended, because the information previously contained in CJD 98-08 is now addressed in CJD 07-01.

For all of the Chief Justice Directives, click here.

Probate JDF Forms Revised in Protective Proceedings Category

In April 2014, the Colorado State Judicial Branch issued several revised forms in the Probate category. The revised forms deal with protective proceedings. The forms are available here in PDF format, and may be downloaded in Word format from State Judicial’s website.

PROBATE

  • JDF 847 – “Instructions for Filing a Petition for Appointment of Co-Guardian/Conservator or Successor Guardian/Conservator” (Revised 4/14)
  • JDF 800 – “Acknowledgment of Responsibilities Conservator and/or Guardian” (Revised 4/14)
  • JDF 821 – “Affidavit of Acceptance of Appointment by Written Instrument as Guardian for Minor” (Revised 4/14)
  • JDF 878 – “Order Appointing Conservator for Adult” (Revised 4/14)
  • JDF 882 – “Conservator’s Financial Plan with Inventory and Motion for Approval” (Revised 3/14)
  • JDF 960 – “Petition for Final Settlement” (Revised 4/14)
  • JDF 964 – “Order for Final Settlement” (Revised 4/14)

Click here to access all of State Judicial’s JDF forms.

Colorado Court of Appeals: No Fiduciary Duty Owed by Party to Real Estate Transaction so Attorney Fee Award Inappropriate

The Colorado Court of Appeals issued its opinion in In the Interest of Delluomo v. Cedarblade on Thursday, April 10, 2014.

Revocable Living Trust—Trustee—Beneficiary—Breach of Fiduciary Duty—Undue Influence—Attorney Fees—Breach of Trust Exception.

Respondent Phillip Delluomo created a revocable living trust. He named himself trustee and Wells Fargo Bank as co-trustee. The beneficiaries of the trust were his niece, appellant Brenda Cedarblade, and his nephew, Timothy Corcoran. A few months after the creation of the trust, Delluomo transferred five parcels of real property from the trust to Cedarblade.

The court thereafter appointed Janice Eder as Delluomo’s conservator. Eder initiated an action on Delluomo’s behalf to quiet title, seeking to set aside the real property transactions involving Cedarblade on the basis of undue influence and breach of fiduciary duty. A jury found that Cedarblade had exerted undue influence on Delluomo with regard to the conveyances of property into joint tenancy. Thus, the court set aside the property transfers to Cedarblade and awarded attorney fees to plaintiffs.

Cedarblade argued on appeal that the court erred in awarding attorney fees to plaintiffs. Cedarblade was not a trustee or custodian of funds (or other trust assets). Although she breached her duty as an individual, she did not breach any duty owed based on a relationship to manage property.

Because the circumstances of this case did not fit within the breach of trust exception to the general rule that parties in a lawsuit must pay their own legal expenses, the Court of Appeals ruled that the district court erred when it denied Cedarblade’s motion for directed verdict and allowed the jury to award attorney fees to plaintiffs. The portion of the judgment awarding attorney fees was vacated.

Summary and full case available here.