August 14, 2018

Rule Changes Adopt Colorado Lawyer Self-Assessment Program, Amend Public Access and Water Court Rules

The Colorado Supreme Court has issued three new rule changes that have recently been released by the Colorado State Judicial Branch.

Rule Change 2018(08) amends Rules 11, 12, and 13 of the Uniform Local Rules for All State Water Court Divisions. Rule 11 was amended by the addition of a comment to specify that January 1, 2018, changes to the rule require expert witness disclosures to be made earlier than were previously required. Rule 12, “Procedure Regarding Decennial Abandonment Lists,” is new and sets forth specifications for publication and protest of decennial abandonment lists. Rule 13 was unchanged except to be renumbered; formerly, it was Rule 12.

Rule Change 2018(09) amends Rule 2 of Chapter 38 of the Colorado Rules of Civil Procedure, “Public Access to Information and Records.” Rule 2, “Public Access to Administrative Records of the Judicial Branch,” had minor amendments in sections 1 and 2. Section 3 of the rule dealing with exceptions and limitations on access to records had several amendments. The changes to Section 4 were relatively minor, and Section 5 was unchanged.

Rule Change 2018(10) adds Rule 256, “The Colorado Lawyer Self-Assessment Program,” to the Colorado Rules of Civil Procedure. Rule 256 establishes the Colorado Lawyer Self-Assessment Program and sets forth guidelines and definitions for compliance with the program. The rule specifies that lawyers who utilize the program will be subject to confidentiality and immunity.

For a complete list of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Supreme Court: Announcement Sheet, 7/2/2018

On Monday, July 2, 2018, the Colorado Supreme Court issued three published opinions.

In the Matter of the Title, Ballot Title and Submission Clause for Proposed Initiatives 2017-2018 #178, #179, #180 and #181 “Regulation of Oil and Gas Development”

People v. Stellabotte

People v. Patton

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Supreme Court: Attorney Violated Colo. RPC 1.8(a)(3) by Not Obtaining Informed Consent for Business Transaction

The Colorado Supreme Court issued its opinion in In the Matter of James C. Wollrab on Monday, June 25, 2018.

Colorado Rules of Professional Conduct—Attorney Discipline—Colo. RPC 1.8—Colo. RPC 4.2.

In this attorney discipline proceeding, the supreme court was confronted with questions as to what Colorado Rules of Professional Conduct 1.8 and 4.2 require of an attorney who enters into a business relationship with his client. The court concluded that the attorney in this case violated Rule 1.8(a)(1) when he signed a lease with his client’s company without complying with any of Rule 1.8(a)’s prophylactic requirements. The attorney also violated Rule 1.8(a)(3) when he entered into an option agreement with his client without obtaining his client’s informed, written consent to his role in the deal. However, because the attorney had the implied consent of his client’s independent counsel for the purposes of the option agreement, he did not violate Rule 1.8(a)(1) or (2) or Rule 4.2 in that transaction. The court remanded the case to the hearing board for determination of the appropriate sanction in light of its conclusions.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Appellant Must Adjudicate New Water Right Rather than Amend Existing Augmentation Plans

The Colorado Supreme Court issued its opinion in Coors Brewing Co. v. City of Golden on Monday, June 25, 2018.

Amendment of Augmentation Plans—Return Flows.

This case concerns appellant’s application to amend its decreed augmentation plans to authorize the reuse and successive use of return flows from water that appellant diverts out of priority pursuant to those plans. On competing motions for determinations of questions of law, the water court ruled that (1) any amount of water not beneficially used by appellant for the uses specified in its decreed augmentation plans must be returned to the stream; (2) appellant’s decreed augmentation plans did not authorize the reuse or successive use of such water; and (3) appellant may not obtain the right to reuse or make successive use of such water by way of amendment to its augmentation plans but could only obtain such rights by adjudicating a new water right.

The supreme court affirmed the water court’s judgment. To obtain the right to reuse and make successive use of the return flows at issue, appellant must adjudicate a new water right and may not circumvent this requirement by amending its decreed augmentation plans. Further, the diversion of native, tributary water under an augmentation plan does not change its character. Accordingly, the general rule, which provides that return flows belong to the stream, applies. The water court also correctly construed appellant’s augmentation plans.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Announcement Sheet, 6/25/2018

On Monday, June 25, 2018, the Colorado Supreme Court issued four published opinions.

In re Rains

Castillo v. People

Coors Brewing Co. v. City of Golden

In the Matter of James C. Wollrab

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Supreme Court: Trial Court Erred in Instructing Jury on Initial Aggressor Exception to Self-Defense With No Supporting Evidence

The Colorado Supreme Court issued its opinion in Castillo v. People on Monday, June 25, 2018.

Self-Defense—Initial Aggressor—Jury Instructions.

Defendant fired a gun at several people in a parking lot. He asserted that he did this in self-defense. Over defendant’s objection, the trial court instructed the jury on two exceptions to the affirmative defense of self-defense: initial aggressor and provocation. The jury convicted defendant of several criminal charges. The supreme court concluded the division of the court of appeals erred when it determined that the trial court correctly instructed the jury on the initial aggressor exception to self-defense. The court further concluded the error was not harmless in light of the prosecution’s repeated references to the initial aggressor exception during closing argument. Accordingly, defendant is entitled to a new trial. The court of appeals’ judgment was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Trial Court Erred in Granting New Trial for Reasons Not Enumerated in C.R.C.P. 59(d)

The Colorado Supreme Court issued its opinion in In re Rains on Monday, June 25, 2018.

C.R.C.P. 59(d)—Proper Grounds for New Trial.

In this case, the supreme court considered whether the trial court abused its discretion when it granted plaintiffs’ motion for a new trial after a jury found that defendants, two pilots, were not negligent during a near collision that resulted in one plane crashing and killing all five passengers on board. The court concluded that the trial court’s stated reasons did not meet the grounds enumerated in C.R.C.P. 59(d) and that a trial court may not grant a new trial for reasons other than those enumerated in C.R.C.P. 59(d). Thus, the trial court abused its discretion in granting a new trial. The court made its rule to show cause absolute and remanded the case for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Respondents’ Complaint Asserted Timely Claim Seeking Declaration that Ordinance Violated City Charter

The Colorado Supreme Court issued its opinion in City of Boulder v. Public Service Co. of Colorado on Monday, June 18, 2018.

Declaratory Judgment Actions—C.R.C.P. 57—C.R.C.P. 106—Municipal Ordinances—Finality.

This case arises out of respondents’ challenge to petitioner city’s attempt to create a light and power utility. Respondents assert that the ordinance establishing the utility violates the city’s charter. Respondents thus seek a declaratory judgment deeming that ordinance null and void. The city asserted that respondents’ complaint was, in reality, an untimely C.R.C.P. 106 challenge to a prior ordinance by which the city had concluded that it could meet certain prerequisites for the formation of the utility as prescribed by the city charter. The district court agreed with the city and dismissed respondents’ complaint for lack of jurisdiction. A division of the court of appeals, however, vacated the district court’s judgment, concluding that neither of the pertinent ordinances was final and therefore respondents’ complaint was premature.

The supreme court reversed the division’s decision and remanded the case for further proceedings on respondents’ declaratory judgment claim. Although the court agreed with the city that the division erred, contrary to petitioners’ position and the premises on which the courts below proceeded, the court agreed with respondents that the complaint asserted a viable and timely claim seeking a declaration that the ordinance establishing the utility violated the city charter. Accordingly, the court concluded that the district court had jurisdiction to hear respondents’ declaratory judgment claim, and the court remanded the case to allow that claim to proceed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Jury’s Refusal to Convict on Pattern of Abuse Charge Does Not Necessitate Retrial on Only Single Act

The Colorado Supreme Court issued its opinion in In re People v. Stackhouse on Monday, June 18, 2018.

Double Jeopardy.

Pursuant to C.A.R. 21, the People challenged a district court order granting Stackhouse’s motion to compel the People to elect a particular allegation of sexual assault on a child as their sole basis for proceeding in Stackhouse’s retrial. The supreme court held that the district court erred when it concluded that the jury in Stackhouse’s first trial had necessarily concluded that he did not commit multiple acts of assault, and therefore that he could not be retried for more than a single assault. The court made the rule to show cause absolute, reversed the district court’s order, and remanded the case to the district court for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Colorado Court Lacks Jurisdiction to Award Attorney Fees for Foreign Action

The Colorado Supreme Court issued its opinion in Roberts v. Bruce on Monday, June 18, 2018.

Attorney Fees—Statutory Interpretation.

In this case, the supreme court considered whether a trial court may award attorney fees under C.R.S. § 13-17-102 for conduct occurring outside Colorado courts. Reviewing the plain language of 13-17-102, the court concluded that an award of attorney fees pursuant to that section is limited to conduct occurring in Colorado courts and therefore affirmed the judgment of the court of appeals.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Foundational Documents Insufficient to Create Homeowners Association for Common Land

The Colorado Supreme Court issued its opinion in McMullin v. Hauer on Monday, June 18, 2018.

Colorado Common Interest Ownership Act—Common Interest Communities—Homeowners’ Associations.

The supreme court reviewed the court of appeals’ opinion affirming the trial court’s order finding that the recorded instruments in this case were sufficient to create both a common interest community by implication and an unincorporated homeowners’ association. The court held that the recorded instruments were insufficient under the Colorado Community Interest Ownership Act to create a common interest community by implication. Accordingly, the court reversed the court of appeals’ judgment and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: District Court Erred in Requiring Party to Settle for Anticipated Loss Because That Would Require Giving Up Contractual Rights

The Colorado Supreme Court issued its opinion in United States Welding, Inc. v. Advanced Circuits, Inc. on Monday, June 18, 2018.

Breach of Contract—Mitigation—Settlement Offer—Accord and Satisfaction.

U.S. Welding, Inc. (Welding) sought review of the court of appeals’ judgment affirming the district court’s order awarding it no damages whatsoever for breach of contract with Advanced Circuits, Inc. (Advanced). Notwithstanding its determination following a bench trial that Advanced breached its contract to purchase from Welding all its nitrogen requirements during a one-year term, the district court reasoned that by declining Advanced’s request for an estimate of lost profits expected to result from Advanced’s breach before the contract term expired, Welding failed to mitigate.

The supreme court reversed the court of appeals’ judgment concerning the failure to mitigate and remanded the case for further proceedings. The court held that the district court erred by requiring Welding to settle for a projection of anticipated lost profits, rather than its actual loss, as measured by the amount of nitrogen Advanced actually purchased from another vendor over the contract term, because an aggrieved party is not obligated to mitigate damages from a breach by giving up its rights under the contract.

Summary provided courtesy of Colorado Lawyer.