July 22, 2019

Colorado Court of Appeals: Art Dealer Not “Public Figure” so Defamatory Statements Not Matter of Public Concern

The Colorado Court of Appeals issued its opinion in Zueger v. Goss on Thursday, May 8, 2014.

Discovery Sanction—Defamatory Per Se—Public Concern—Public Figure—Damages—Speculation—Outrageous Conduct—Extortion.

Plaintiff Zueger is an art dealer, and the other plaintiffs are entities through which he purchases, sells, publishes, promotes, preserves, and exhibits artwork by Earl V. Biss, Jr. and other artists. Goss and Zueger had a dispute stemming from Goss’s contention that plaintiffs were making and selling unauthorized reproductions of Biss’s artwork. Goss made disparaging statements about plaintiffs on the Internet. The trial court’s decision was affirmed in part and reversed in part, and the case was remanded for further proceedings.

On appeal, although she conceded that her trial counsel failed to timely submit her list of trial witnesses, Goss argued that the trial court erred by entering as a discovery sanction an order precluding Biss’s former attorney from testifying. The Court of Appeals determined that the trial court did not abuse its discretion in precluding the former attorney from testifying.

Goss also argued that the trial court erred by concluding that one of Goss’s statements about plaintiffs was defamatory per se. The Court concluded that none of the circumstances surrounding the publication of the statement, “The company is comparable to the ‘Man in Black’ for Mozart,” suggested that it was intended as an assertion of fact rather than an expression of a subjective judgment. Thus, the statement was not defamatory per se. Because this statement was one of fifteen submitted to the jury, and the record does not indicate which of the statements the jury relied on in finding liability, the defamation verdict was reversed and the case remanded for a new trial.

Goss further argued that the court erred by concluding that plaintiffs were not public figures and that the statements by Goss were not matters of “public concern” for the purpose of plaintiffs’ defamation claim. Here, Goss’s statements about plaintiffs’ business activities do not involve a matter of public concern, nor do her allegations make plaintiffs public figures. Therefore, on retrial, plaintiffs should not be deemed public figures, nor should the statements be treated as matters of public concern.

Goss also contended that the evidence of plaintiffs’ damages was too speculative as a matter of law. Here, through their expert witnesses, plaintiffs presented ample testimony to support their contention that sales by plaintiffs of Biss’s work declined as a result of Goss disparaging them online. Therefore, there was a sufficient evidentiary basis for the amount awarded by the jury.

Plaintiffs contended on cross-appeal that the trial court erred by dismissing their claims for outrageous conduct and extortion at the close of evidence. Goss’s conduct was not sufficiently egregious to establish that it was extreme and outrageous. Further, Colorado does not have a civil extortion statute, and there is no evidence in the record that Goss threatened to cause economic injury to plaintiffs, with the intent to induce them, against their will, to do an act. Therefore, the trial court did not err in dismissing these claims.

Summary and full case available here.

SB 14-213: Increasing Statutes of Limitations for Civil and Criminal Proceedings Against a Person Who Leaves Scene of Vehicular Homicide Accident

On April 24, 2014, Sen. Michael Johnston introduced SB 14-213 – Concerning Increasing the Statutes of Limitations for Commencing Proceedings Against a Person Who, After Committing a Vehicular Homicide, Leaves the Scene of the Accident, and, in Connection Therewith, Requiring a Post-enactment Review of the Implementation of this Act. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In current law, the statute of limitations for bringing a criminal proceeding against a person who commits vehicular homicide is five years. For offenders who also leave the scene of the accident, the bill changes this limit to 10 years.

In current law, the statute of limitations for bringing a civil suit for wrongful death is two years. The bill changes this limit to four years for a wrongful-death suit against a defendant who committed vehicular homicide and, as part of the same criminal episode, committed the offense of leaving the scene of an accident that resulted in the death of a person.

Five years after the bill becomes law, the legislative service agencies shall conduct a post-enactment review of the implementation of the bill and report their conclusions to the judiciary committees of the house of representatives and senate, or any successor committees.

On April 30 the Judiciary Committee approved the bill and sent it to the Appropriations Committee. The Appropriations Committee approved the bill on May 11. The bill cleared 2nd Reading in the Senate on Friday, May 2.

Since this summary, the bill passed the Senate on Third Reading with no amendments. It was introduced in the House, where it was assigned to the Judiciary Committee. The Judiciary Committee referred the bill, unamended, to the Appropriations Committee, which referred it, unamended to the House Committee of the Whole. The bill passed the House on Second and Third Readings with no amendments.

Governor Hickenlooper Signs Marijuana Packaging Bills and More into Law

As the 2014 legislative session continues, Governor Hickenlooper continues to sign bills into law. To date, he has signed 82 bills into law. Some of his most recent legislative decisions are summarized below.

Governor Hickenlooper signed two bills on Monday, March 17, 2014.

  • HB 14-1122 – Concerning Provisions to Keep Legal Marijuana from Underage Persons, by Rep. Daniel Kagan and Sen. Linda Newell. The bill requires that all medical marijuana be sold in child-proof packaging unless the patient has a doctor’s note explaining why he or she cannot open child-proof packages. It also changes the classification of the crime of selling recreational marijuana to someone under age 21 to a Class 1 misdemeanor.
  • HB 14-1229 – Concerning Authorizing Sharing Information Between State and Local Government Agencies Related to Legal Marijuana, by Reps. Daniel Kagan and Jared Wright and Sens. Mike Johnston and Steve King. The bill conforms retail marijuana licensing law to medical marijuana licensing law by allowing local districts to submit persons applying for retail marijuana establishment licenses to a CBI background check.

Governor Hickenlooper signed 13 bills on Thursday, March 20, 2014.

  • SB 14-043 – Concerning the Inclusion of Certain Land Areas Used to Grow Products that Originate Above the Ground Within the Classification of “All Other Agricultural Property” for Property Tax Purposes, by Sen. Kevin Grantham and Rep. Kevin Priola. The bill specifies that greenhouses, nurseries, and other horticultural and agricultural operations are classified as “all other agricultural property” and is assessed according to the market value of other agricultural land within the county.
  • 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, by Sen. Lucia Guzman and Rep. Mark Waller. The bill repeals the mortality table included in Colorado law and requires courts to use the U.S. Census Bureau life expectancy information in civil actions.
  • SB 14-052 – Concerning Actions Taken to Remediate Soil Erosion Creating Property Damage, by Sen. Larry Crowder and Rep. Jerry Sonnenberg. The bill allows counties to consult with specialists regarding soil erosion, and to recover monies from landowners failing to treat soil erosion.
  • SB 14-083 – Concerning Reimbursement to be Paid by a County to the State for Costs Incurred by the State in Connection with the Reappraisal of Property in the County, by Sen. Larry Crowder and Rep. Mark Ferrandino. The bill authorizes the State Board of Equalization to waive the requirement that a county reimburse it for costs involved with reappraisal of property.

Governor Hickenlooper signed 10 bills on Friday, March 21, 2014.

  • SB 14-059 – Concerning Eliminating the Statute of Limitations for Offenses that Accompany Sex Offenses that are Not Subject to a Statute of Limitations, by Sen. Lucia Guzman and Rep. Polly Lawrence. The bill removes the statute of limitations for offenses that accompany sex offenses not subject to a statute of limitations.
  • SB 14-097 – Concerning the Immunity of Public Agencies Against Liability Arising from the Wildfire Mitigation Activities of Insurance Companies, by Sen. Lois Tochtrop and Rep. Millie Hamner. The bill clarifies that public agencies are not responsible for the actions of insurance companies or their representatives, and clarifies that insurance companies are not immune from liability under the Colorado Governmental Immunity Act.
  • HB 14-1052 – Concerning an Increase in the Enforcement Authority of Ground Water Management Districts, by Rep. Randy Fischer and Sen. Matt Jones. The bill allows ground water management districts to enforce permits, issue orders, collect fines, and collect court costs and attorney fees.
  • HB 14-1215 – Concerning the Ability of a Federal Home Loan Bank to Enforce its Rights with Regard to Collateral Subject to a Security Agreement, by Rep. Joann Ginal and Sen. Lois Tochtrop. The bill prohibits a receiver or liquidator of an insolvent insurer from avoiding obligations to a federal home loan bank regarding collateral under a security agreement.

For a list of Governor Hickenlooper’s legislative decisions, click here.

HB 14-1153: Requiring Defendants in All Civil Actions to Pay Attorney Fees if Action Dismissed Prior to Trial

On January 17, 2014, Rep. Kevin Priola and Sen. Lois Tochtrop introduced HB 14-1153 – Concerning Attorney Fees when Action is Dismissed Prior to Trial. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In any tort action filed as a result of death or injury to person or property, current law requires a court to award a defendant attorney fees if the case is dismissed on a motion to dismiss under Rule 12 (b) of the Colorado rules of civil procedure. The bill extends the requirement to pay attorney fees to all civil actions. The CBA LPC voted to oppose the bill. The bill is assigned to the Judiciary Committee; the bill is scheduled for committee review on Tuesday, Feb. 18 “Upon Adjournment.”

JDF Instruction Forms Revised in Several Categories by State Judicial

The Colorado State Judicial Branch revised several JDF instructions in July across several categories. Additionally, the Affidavit of Service form (JDF 98) was revised, which affects many categories.

NOTE: Forms in the Domestic Relations and Probate categories will be addressed separately.

Click the links below to download the forms, or visit the Colorado State Judicial Branch website.


  • JDF 495 – Instructions for Second Parent Adoption (revised 7/13)
  • JDF 496 – Instructions for Adult Adoption (revised 7/13)
  • JDF 497 – Instructions for Validation of Foreign Adoption (revised 7/13)
  • JDF 498 – Instructions for Kinship Adoption (revised 7/13)
  • JDF 499 – Instructions for Custodial Adoption (revised 7/13)
  • JDF 500 – Instructions for Stepparent Adoption (revised 7/13)


  • JDF 126 – Instructions for Filing a County Court Civil or Small Claims Appeal (revised 7/13)
  • JDF 221 – Instructions for Filing a County Court Criminal Appeal (revised 7/13)


  • JDF 460I – Instructions to Discontinue Sex Offender Registration (revised 7/13)
  • JDF 476 – Instructions to Discontinue Sex Offender Registration Juvenile (revised 7/13)


  • JDF 100 – Instructions for Forcible Entry & Detainer (FED)/Evictions (revised 7/13)
  • JDF 140 – Instructions for Mobile Home FED (revised 7/13)
  • JDF 620 – Instructions for Filing a Response to a Rule 120 Notice (revised 7/13)


  • JDF 137 – Instructions to File a Foreign Judgment (revised 7/13)
  • JDF 82 – Instructions on How to Collect a Judgment and File Writ of Garnishment (revised 7/13)
  • JDF 112 – Instructions for Reviving a Judgment (revised 7/13)


  • JDF 122 – Instructions for Issuance of Contempt Citation (revised 7/13)
  • JDF 86 – Instructions for Issuing an Out-of-State Subpoena (revised 7/13)
  • JDF 79 – Instructions for Issuing a Subpoena (revised 7/13)


  • JDF 110 – Instructions for County Court Civil Cases (Money Demand) (revised 7/13)
  • JDF 96 – Instructions for Filing an Answer and/or Counterclaim (revised  7/13)
  • JDF 248 – Small Claims Instructions (revised 7/13)
  • JDF 251 – Notice, Claim, and Summons to Appear for Trial (revised 7/13)
  • JDF 122 – Instructions for Issuance of Contempt Citation (revised 7/13)
  • JDF 137 – Instructions for Filing a Foreign Judgment (revised 7/13)
  • JDF 79  – Instructions for Issuing a Subpoena (revised 7/13)
  • JDF 131 – Instructions for an Agistor’s Lien (revised 7/13)
  • JDF 115  – Instructions for Replevin (revised 7/13)
  • JDF 112 – Instructions for Reviving a Judgment (revised 7/13)


  • JDF 432 – Instructions for Filing a Change of Name – Adult (revised 7/13)
  • JDF 420 – Instructions for Filing a Change of Name – Minor (revised 7/13)
  • JDF 385 – Instructions for Filing a Change of Name to Obtain Identity Related Documents (revised 7/13)


  • JDF 400 – Instructions for Obtaining a Protection Order (revised 7/13)


  • JDF 323 – Instructions to File a Petition to Seal Underage Alcohol Conviction (revised 7/13)
  • JDF 416 – Instructions to File a Petition to Seal Arrest and Criminal Records (revised 7/13)
  • JDF 611 – Instruction to Seal Criminal Conviction Records (revised 7/13)


  • JDF 248 – Small Claims Instructions (revised 7/13)
  • JDF 251 – Notice, Claim, and Summons to Appear for Trial (revised 7/13)