April 19, 2019

Attorney’s Limited Appearance on Behalf of Pro Se Party Allowed by Rule Change to C.A.R. 5

On Thursday, October 11, 2012, the Colorado Supreme Court issued Rule Change 2012(15), containing an amendment to Rule 5 of the Colorado Appellate Rules. The amendment adds subsections (e) and (f) to the rule, as well as a comment to explain the purpose of the new subsections.

The purpose of C.A.R. 5(e) is to establish a procedure similar to that set forth in Colorado Rule of Civil Procedure 121 Section 1-1(5). This procedure provides assurance that an attorney who makes a limited appearance for a pro se party in a specified appellate case proceeding(s), at the request of and with the consent of the pro se party, can withdraw from the case upon filing a notice of completion of the limited appearance, without leave of court. The purpose of C.A.R. 5(f) is to make clear that when an attorney appears for a party, whom he or she has not previously represented, in an appellate court and the proceedings in that court have concluded, the attorney is not obligated to represent the party in any other proceeding on remand or in any review of the appellate court’s decision by any other court. Nothing in this provision would prevent the attorney from entering a limited or general appearance on behalf of the party in another court (for example, on a writ of certiorari to the supreme court), if agreed to by the attorney and the party.

The amendments were adopted October 11, 2012, effective immediately. Click here to review the red line changes to these appellate rules, outlined as Rule Change 2012(15).

“Rule of Seven” Comment Added to Four Colorado Procedure Rules

On June 27, 2012, the Colorado Supreme Court announced four amendments to various Colorado procedure rules regarding the “rule of seven” for procedural time calculations. Colorado Civil Procedure Rules 6 and 306, Criminal Procedure Rule 45, and Colorado Appellate Rule 26 were all amended with the following Comment:

AFTER THE PARTICULAR EFFECTIVE DATE, TIME COMPUTATION IN MOST SITUATIONS IS INTENDED TO INCORPORATE THE RULE OF SEVEN. UNDER THE RULE OF SEVEN, A DAY IS A DAY, AND BECA– USE CALENDARS ARE DIVIDED INTO 7-DAY WEEK INTERVALS, GROUPINGS OF DAYS ARE IN 7-DAY OR MULTIPLES OF 7-DAY INTERVALS. GROUPINGS OF LESS THAN 7 DAYS HAVE BEEN LEFT AS THEY WERE BECA– USE SUCH SMALL NUMBERS DO NOT INTERFERE WITH THE UNDERLYING CONCEPT. DETAILS OF THE RULE OF SEVEN REFORM ARE SET FORTH IN AN ARTICLE BY RICHARD P. HOLME, 41 COLO. LAWYER, VOL. 1, P 33 (JANUARY 2012).

TIME COMPUTATION IS SOMETIMES “FORWARD,” MEANING STARTING THE COUNT AT A PARTICULAR STATED EVENT [SUCH AS DATE OF FILING] AND COUNTING FORWARD TO THE DEADLINE DATE. COUNTING “BACKWARD” MEANS COUNTING BACKWARD FROM THE EVENT TO REACH THE DEADLINE DATE [SUCH AS A STATED NUMBER OF DAYS BEING ALLOWED BEFORE THE COMMENCEMENT OF TRIAL]. IN DETERMINING THE EFFECTIVE DATE OF THE RULE OF SEVEN TIME COMPUTATION/TIME INTERVAL AMENDMENTS HAVING A STATUTORY BASIS, SAID AMENDMENTS TAKE EFFECT ON JULY 1, 2012 AND REGARDLESS OF WHETHER TIME INTERVALS ARE COUNTED FORWARD OR BACKWARD, BOTH THE TIME COMPUTATION START DATE AND DEADLINE DATE MUST BE AFTER JUNE 30, 2012. FURTHER, THE TIME COMPUTATION/TIME INTERVAL AMENDMENTS DO NOT APPLY TO MODIFY THE SETTINGS OF ANY DATES OR TIME INTERVALS SET BY AN ORDER OF A COURT ENTERED BEFORE JULY 1, 2012.

These amendments were adopted on June 21, 2012, and are effective July 1.

Click here to review the red line changes to these rules, outlined as Rule Change 2012(08).

Colorado Supreme Court: Defendant Not in Custody When Statements Made; No Miranda Warnings Required

The Colorado Supreme Court issued its opinion in People v. Figueroa-Ortega on June 25, 2012.

Miranda Warnings—Custodial Interrogation.

The People brought an interlocutory appeal pursuant to CRS § 16-12-102(2) and CAR 4.1 challenging the district court’s suppression of statements made by defendant to a police detective. The district court found that the statements in question were the product of custodial interrogation, without the benefit of Miranda warnings. The Supreme Court reversed the suppression order of the district court, holding that because defendant was not in custody at the time he made the statements in question, no Miranda warnings were required.

Summary and full case available here.

Colorado Supreme Court: Fees of Appellate Attorneys Associated on a Case to Represent a Client Constitute Expense of Litigation; Payment of Fees Does Not Violate CRPC 1.8

The Colorado Supreme Court issued its opinion in Mercantile Adjustment Bureau, L.L.C. v. Flood on May 29, 2012.

Attorney Fees and Costs—Rules of Professional Conduct—Appeals From the County Court to the District Court.
The Supreme Court affirmed the district court’s judgment in part, holding that the fees of appellate attorneys associated on a case to represent a client constitute an expense of litigation under Rule 1.8(e) of the Colorado Rules of Professional Conduct, and therefore an attorney’s payment of these fees does not violate Rule 1.8. The Court reversed the district court’s order applying Colorado Appellate Rules 28(b) and 39.5 to an appeal from the county court to the district court. The Court remanded the case to the district court to return it to the county court for proceedings to determine whether respondent is entitled to attorney fees and costs as the prevailing party in this appeal and, if so, the amount of those fees and costs.

Summary and full case available here.

Colorado Supreme Court: Initial Failure to File Review of PUC Actions in Proper Venue Did Not Deprive Court of Jurisdiction to Grant Venue Transfer

The Colorado Supreme Court issued its opinion in In re Associated Governments of Northwest Colorado v. Colorado Public Utilities Commission on April 23, 2012.

CRS § 40-6-115(5)—“Commenced and Tried”—Remedy for Improper Venue is Transfer to Proper Venue.

The Associated Governments of Northwest Colorado (AGNC) filed a petition for judicial review in Routt County District Court, seeking judicial review of a decision by the Colorado Public Utilities Commission (PUC). Pursuant to CRS § 40-6-115(5), such petitions must be commenced and tried in district court either in the county where the petitioning corporation has its principal office or place of business, or in Denver District Court. In this case, the Routt County District Court found that AGNC’s principal office or place of business was in Garfield County, not Routt County. The court ordered that AGNC be permitted to transfer the case to Garfield County or Denver District Court. AGNC chose Denver District Court.

PUC petitioned the Supreme Court, under C.A.R. 21, for a rule to show cause why the case should not be dismissed rather than transferred. The Court issued the rule to show cause, and now discharged the rule. The Court held that CRS § 40-6-115(5), which enumerates the counties where a petition for review of PUC actions shall be commenced and tried, sets a venue requirement. The requirement is procedural, not substantive. AGNC’s initial failure to file in a proper venue did not deprive the Routt County District Court of jurisdiction to grant a venue transfer motion. Instead, the statute allows the Routt County District Court to transfer this case to the Denver District Court.

Summary and full case available here.

Colorado Supreme Court: Fraud Claim Against Trustee’s Attorney Not Pleaded with Particularity and Futile; Probate Court Abused Discretion in Permitting Joinder of the Attorney

The Colorado Supreme Court issued its opinion in In re Vinton v. Virzi on February 13, 2012.

Trust Administration—C.R.C.P. 9(b) —Client Suing Opposing Attorney.

Amanda Vinton petitioned for relief pursuant to C.A.R. 21 from orders of the probate court permitting Sharon Virzi to amend her challenge to a trust administration by adding a claim of fraud against Vinton, the attorney for the trustee. Over Vinton’s objection, the probate court summarily granted Virzi’s motion to amend, forcing Vinton to withdraw as counsel for the trustee. The probate court summarily denied two motions by Vinton to dismiss the claim against her and ordered her to pay Virzi’s attorney fees for having to defend against a substantially frivolous and groundless motion. The Supreme Court issued a rule to show cause.

The Court held that because Virzi’s fraud claim was not pleaded with sufficient particularity to withstand a motion to dismiss, it was futile, and the probate court abused its discretion in permitting the joinder of her opponent’s attorney. The Court also held that regardless of whether Vinton’s motion to dismiss for lack of subject matter jurisdiction over the separate fraud claim was meritorious, the record was inadequate to support an award of attorney fees. The rule was made absolute and the matter was remanded to the probate court with directions to dismiss Virzi’s claim of fraud against Vinton and to vacate its award of attorney fees.

Summary and full case available here.

Colorado Court of Appeals: Petition for Interlocutory Review Allowable Under C.A.R. 4.2; Merits Will Be Decided Later

The Colorado Court of Appeals issued its opinion in Kowalchik v. Brohl on February 2, 2012.

Taxation—Conservation Easement Tax Credits—Interlocutory Review

In this taxation dispute involving conservation easement tax credits, defendant Barbara Brohl, the Executive Director of the Colorado Department of Revenue (DOR), petitioned for interlocutory review of the trial court’s finding that certain individuals do not fall within the statutory definition of “taxpayer.” The petition was granted.

In Colorado, a state income tax credit is allowed for a qualifying conservation easement created on real property that a taxpayer owns and donates to a governmental entity or charitable organization. Generally, a donor taxpayer may assign to transferees all or any portion of the tax credit generated by any donation. The donor taxpayer may generate only one such tax credit per year. A transferee taxpayer may purchase credits from an unlimited number of donors and claim an unlimited number of credits against a tax liability.

Plaintiffs are numerous conservation easement donors. In tax years 2005 and 2006, plaintiffs donated fourteen conservation easements purportedly generating several million dollars worth of state tax credits. Plaintiffs then transferred credits to fifteen transferees who claimed the credits on their respective state income tax returns or retained them for use against future tax liability.

If the DOR disallows some or all of a conservation easement tax credit, a notice of disallowance, deficiency, or rejection of refund is sent to the donor of the easement who generated the credit (“tax matters representative” or TMR) and to any transferee who has used any portion of the tax credit. DOR disallowed the credits at issue in this case, sent plaintiffs notices disallowing the credits, and provided a notice informing them of the procedures created by CRS § 39-22-522.5 for resolution of tax credit disputes. Transferees are bound by the final resolution of disputes between DOR and the TMR.

Pursuant to CRS § 39-22-522.5(2), plaintiffs filed an amended complaint in the district court appealing DOR’s disallowance of the tax credits. Plaintiffs did not join the transferees. DOR moved to dismiss pursuant to C.R.C.P. 12(b)(6) or alternatively to compel plaintiffs to join the transferees pursuant to C.R.C.P. 19(a).

The trial court denied DOR’s motion. DOR moved the court to certify its order and several additional legal matters for interlocutory appeal under C.A.R. 4.2. The trial court granted the certification order with four questions for interlocutory appeal, and DOR sought interlocutory review under CRS § 13-4-102.1 and C.A.R. 4.2.

The Court or Appeals has discretion to grant an interlocutory appeal when (1) immediate review may promote a more orderly disposition or establish a final disposition of the litigation; (2) the order from which an appeal is sought involves a controlling question of law; and (3) that question of law is unresolved. The Court found these factors present in this case and granted DOR’s petition for interlocutory review, stating that a later opinion will address the merits.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on January 19, 2012, can be found here.

Colorado Supreme Court: Juvenile Magistrate’s Suppression Order Must Be Reviewed or Adopted by District Court Before Appeal May Be Filed

The Colorado Supreme Court issued its opinion in People v. S.X.G. on February 6, 2012.

Interlocutory Appeals in Criminal Cases—Petitions for Review of Magistrate’s Order in Delinquency Cases—Interlocutory Appeals in Delinquency Cases.

In this juvenile delinquency case, the prosecution filed an interlocutory appeal under CRS §§19-2-903(2) and 16-12-102(2), and C.A.R. 4.1, seeking the Supreme Court’s review of a juvenile magistrate’s order suppressing certain statements made by a juvenile during a police interrogation. Because the juvenile magistrate’s suppression order never was reviewed or adopted (with or without modification) by the district court, as is required by CRS §19-1-108(5.5) and C.R.M. 7(a)(10)–(11) before an appeal may be filed, the Court lacked appellate jurisdiction under CRS §§19-2-903(2) and 16-12-102(2) to review the merits of the suppression ruling. Accordingly, the appeal was dismissed.

Summary and full case available here.

Colorado Court of Appeals: Trial Court Had No Authority to Extend Deadline for Filing Motion for Certification; Petitioners Failed to Establish Good Cause for Failure to Meet Deadline

The Colorado Court of Appeals issued its opinion in Farm Deals, LLLP v. Colorado Dep’t of Revenue on January 5, 2012.

Timeliness Under C.A.R. 4.2.

Petitioners filed a petition to appeal an interlocutory order of the trial court pursuant to CRS § 13-4-102.1 and C.A.R. 4.2, as well as a motion for leave to file the petition late. The motion was denied and the petition was dismissed.

Petitioners filed an appeal in the trial court challenging determinations by the Colorado Department of Revenue (Department) denying income tax credits for conservation easements during the 2003 tax year. They did not name the transferees of the tax credits as parties, and the Department and its Executive Director moved for an order requiring them to be joined as parties pursuant to C.R.C.P. 19. The court granted the motion over petitioners’ objection. Respondents then filed a motion requesting the court to order petitioners to personally serve each of the transferees (there were approximately eighty of them) with a summons and the complaint. Petitioners argued service by mail was permitted under CRS § 39-21-105.5.

On September 29, 2011, the trial court ruled that CRS § 39-21-105.5 was inapplicable, and that CRS § 39-22-522.5 required petitioners to serve the transferees in accordance with C.R.C.P. 4. On October 19, 2011, petitioners filed a motion requesting certification of the order for an interlocutory appeal under CRS § 13-4-102.1. Respondents opposed on numerous grounds, including that it was not filed with fourteen days of September 29 as required by C.A.R. 4.2(c). The trial court granted the motion for certification by order dated November 15, 2011.

On December 7, 2011, petitioners filed their petition to appeal the service of process issues decided by the September 29 order and certified by order of November 15. They also filed a motion to permit the late filing of the petition.

C.A.R. 4.2 was promulgated by the Colorado Supreme Court to establish procedures for applying CRS § 13-4-102.1. Here, petitioners failed to meet the deadline for certifying the appeal fourteen days after the order and failed to meet the deadline for filing with the court of appeals fourteen days after the date of the certification.

The Court of Appeals found that the trial court had no authority to extend the fourteen-day deadline for filing a motion for certification. The Court also concluded that petitioners failed to establish good cause for their failure to meet the jurisdictional deadline of C.A.R. 4.2(d). The Court noted that, pursuant to C.A.R. 26(b), it is authorized to extend the deadline for good cause due to excusable neglect. Here, petitioners’ counsel stated only that he entrusted the filing of the petition to his secretary, who erroneously filed it in the trial court, and that he “is unfamiliar with Lexis Nexis filing.” The Court held these assertions demonstrated carelessness, not excusable neglect. The petition was dismissed as untimely.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on January 5, 2012, can be found here.

Colorado Supreme Court: Police Lacked Probable Cause to Search Defendant’s Vehicle

The Colorado Supreme Court issued its opinion in People v. Coates on December 12, 2011.

Suppression of Evidence

The People brought an interlocutory appeal pursuant to section 16-12-102(2), C.R.S. (2011), and C.A.R. 4.1, challenging the district court’s suppression of evidence seized from the trunk of the defendant’s vehicle. Upon discovering a bindle and single prescription pill in the driver’s pants pocket, the police arrested him, placed him in their patrol car, and searched the vehicle. The district court found that the police lacked any reasonable and articulable basis to search the defendant’s trunk incident to the arrest of the driver in accordance with Arizona v. Gant, 556 U.S. 332 (2009), and that they therefore also lacked probable cause for a warrantless search of the vehicle’s trunk pursuant to the automobile exception.

The supreme court affirmed. It held, however, that because the evidence for which suppression was sought was not seized from the passenger compartment of the defendant’s vehicle, the search-incident-to-arrest exception could not justify its seizure under any circumstances. Instead, the supreme court affirmed on the grounds that it was able to determine from the district court’s findings of fact that the police lacked probable cause to search the defendant’s vehicle, whether or not they would have been justified in searching the passenger compartment on less than probable cause.

Summary and full case available here.

Majority of Colorado Procedure Rules Amended to Adopt “Rule of 7” Time Calculations

The Colorado Supreme Court has made significant changes across the board for procedural time calculations. The amendments were made to the:

  • Colorado Rules of Civil Procedure
  • Colorado Appellate Rules
  • Colorado Rules of Probate Procedure
  • Colorado Rules of Criminal Procedure
  • Colorado Rules of Juvenile Procedure
  • Colorado Municipal Court Rules of Procedure
  • Colorado Rules for Magistrates

The changes conform these rules to the “rule of 7″ for procedural time periods. This change, adopting multiples of a week, will help eliminate problems that arise when a deadline falls on a weekend; deadlines can no longer fall on a weekend.

Additionally, the changes:

  • Eliminate the 3-day mail rule.
  • Add the requirement that motions challenging expert testimony pursuant to C.R.E. 702 must be filed no later than 70 days (10 weeks) before the trial.
  • Clarify that the “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.
  • Repeal provisions that conflict with the “rule of 7” standard.

The amendments are compiled in two massive rule changes, which provide red line edits:

Colorado Court of Appeals: Economic Loss Rule Does Not Apply to These Claims Regarding Duties a Residential Broker Owes a Landlord

The Colorado Court of Appeals issued its opinion in Wahrman v. Golden West Realty, Inc. on December 8, 2011.

Interlocutory Review—C.A.R. 4.2.

Barbara Wahrman petitioned for interlocutory review of the district court’s order that the economic loss rule barred her breach of fiduciary duty and negligence claims against defendants Golden West Realty, Inc. and Kathleen Smith. The petition was denied.

Defendants acted as Wahrman’s broker in leasing and managing her residential rental property. According to Wahrman, the tenants significantly damaged the property during and in connection with the termination of the tenancy. She alleged defendants were liable because they obtained an adverse credit report on the tenants but failed to inform Wahrman, inspected the property but failed to note the damage, consented to violations of the lease, and advocated on the tenants’ behalf.

On defendants’ Motion for Determination of Question of Law, the trial court requested briefing on the economic loss rule and then held that it barred the breach of fiduciary duty and negligence claims. It then granted Wahrman’s Motion for Interlocutory Appeal without making any findings.

C.A.R. 4.2 allows an interlocutory appeal when (1) immediate review may promote a more orderly disposition or establish a final disposition of the litigation; (2) the order from which an appeal is sought involves a controlling question of law; and (3) the order from which an appeal is sought involves an unresolved question of law. The Court of Appeals found that whether the economic loss rule applies to claims regarding the duties a residential broker owes to a landlord appeared to be a question of first impression in Colorado and, therefore, assumed it was an unresolved question of law.

However, the Court found nothing to suggest why the economic loss question is a controlling question of law in this case. The petition could have been denied for this reason alone. The Court also found that the assertion that immediate review may support more orderly disposition based on the specter of retrial and attendant additional cost was not a reason that would support interlocutory review. The petition was denied and the appeal was dismissed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on December 8, 2011, can be found here.