August 19, 2018

Tenth Circuit: On Interlocutory Review, Class Certifications Were Not Abuse of Discretion by District Court

The Tenth Circuit Court of Appeals issued its opinion in Menocal, et al. v. The GEO Group, Inc. on February 9, 2018.

The appeal addresses whether or not immigration detainees housed in a private contract detention facility in Aurora, Colorado may bring claims as a class under 18 U.S.C. § 1589, a provision of the Trafficking Victims Protection Act (TVPA) that prohibits forced labor, and Colorado unjust enrichment law.

The GEO Group, Inc. (GEO) owns and operates the Aurora Facility under government contract. While there, the plaintiff detainees (Appellees) rendered mandatory and voluntary services to GEO. Under GEO’s mandatory policies, they cleaned their housing units’ common areas. They also performed various jobs through a voluntary work program, which paid them $1 a day.

The district court certified two separate classes: (1) all detainees housed at the Aurora Facility in the past ten years (TVPA class), and (2) all detainees who participated in the Aurora Facility’s voluntary work program in the past three years (unjust enrichment class). On interlocutory appeal, GEO argues that the district court abused its discretion in certifying each class under Rule 23(b)(3) of the Federal Rules of Civil Procedure. It primarily contended that the Appellees’ TVPA and Colorado unjust enrichment claims both require predominantly individualized determinations, making class treatment inappropriate.

At all times relevant to this appeal, GEO owned and operated the Aurora Facility under contract with the U.S. Immigration and Customs Enforcement (ICE). In operating this facility, GEO implemented two programs that form the basis for this case: (1) the Housing Unit Sanitation Policy, which required all detainees to clean their common living areas; and (2) the Voluntary Work Program, which compensated detainees $1 a day for performing various jobs.

The Aurora Facility’s Sanitation Policy had two components: (1) a mandatory housing unit sanitation program, and (2) a general disciplinary system for detainees who engaged in “prohibited acts,” including refusal to participate in the housing unit sanitation program. Under the mandatory housing unit sanitation program, GEO staff generated daily lists of detainees from each housing unit who were assigned to clean common areas after meal service. Upon arriving at the Aurora Facility, each detainee received a handbook notifying them of their obligation to participate in the program.

Under the disciplinary system, detainees who refused to perform their cleaning assignments faced a range of possible sanctions, including the initiation of criminal proceedings, disciplinary segregation—solitary confinement—for up to 72 hours, loss of commissary, loss of job, restriction to housing unit, reprimand, or warning. The Aurora Facility handbook included an explanation of the disciplinary system and the possible sanctions for refusing to clean. The Appellees alleged that the TVPA class members were all “forced to clean the housing units for no pay and under threat of solitary confinement as punishment for any refusal to work.”

Under the Aurora Facility’s Voluntary Work Program (VWP), participating detainees received $1 a day in compensation for voluntarily performing jobs such as painting, food services, laundry services, barbershop, and sanitation. Detainees who wished to participate in the VWP had to sign the “Detainee Voluntary Work Program Agreement,” which specified that “compensation shall be $1 per day.” Detainees had the additional option of working without pay if no paid positions were available. The complaint alleged that the VWP class members were all “paid one dollar $1 per day for their VWP labor.”

The Appellees filed a class action complaint against GEO in the U.S. District Court for the District of Colorado on behalf of current and former ICE detainees housed at the Aurora Facility. The complaint alleged a TVPA forced labor claim based on the Sanitation Policy, and an unjust enrichment claim under Colorado law based on the VWP. GEO moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Regarding the TVPA claim, GEO argued that the Thirteenth Amendment’s civic duty exception to the prohibition on involuntary servitude should also apply to the TVPA’s ban on forced labor. Regarding the unjust enrichment claim, GEO asserted sovereign immunity as a government contractor because ICE “specifically directed it to establish a voluntary detainee work program and pay the detainees who volunteer for that program $1 per day.” The district court rejected these arguments and denied GEO’s motion to dismiss the TVPA and unjust enrichment claims. GEO moved for reconsideration of the court’s rulings. The court denied the motion, finding that GEO “d[id] not identify any intervening change in controlling law or new evidence previously unavailable” to warrant reconsideration. After prevailing on the motion to dismiss, Appellees moved for certification of a separate class for each claim under Fed. R. Civ. P. 23(a) and (b)(3). GEO petitioned the Tenth Circuit for interlocutory review of the class certifications. Accordingly, only the district court’s order granting class certification—and not its rulings on whether the complaint stated TVPA and unjust enrichment claims—is before us.

The Tenth Circuit reviewed the district court’s decision to certify a class for an abuse of discretion. The Tenth Circuit affirmed the district court’s certification of the TVPA class. GEO contended that the district court abused its discretion in determining that the TVPA class satisfied commonality, typicality, predominance, and superiority. The court did not abuse its discretion as to any of these requirements in certifying the TVPA class.

The Tenth Circuit also affirmed the district court’s certification of unjust enrichment class. GEO argued the district court abused its discretion in determining that the unjust enrichment class satisfies commonality, typicality, predominance, and superiority. The district court reasonably determined that the class members shared the circumstances relevant to the unjustness question and that individual damage assessments would not predominate over the class’s common issues. Its findings on commonality, typicality, and superiority were likewise reasonable and fell within its discretion.

The Tenth Circuit Court of Appeals affirmed the district court’s certification of both classes.

Tenth Circuit: Gas Use that Adversely Affected Prisoners Was Not Excessive Force

The Tenth Circuit Court of Appeals issued its opinion in Redmond v. Crowther on February 9, 2018.

Redmond and the entire plaintiff class (collectively, Redmond) were incarcerated in the Olympus Wing of the Utah State Prison, an inpatient treatment facility that houses prisoners with physical and mental health conditions. It has five divided sections. Section D includes a recreation yard, which is enclosed by four walls and open to the sky. On one of those walls is an intake vent to Olympus’s HVAC unit. The vent takes in air from the recreation yard and circulates it into the cells in sections A, B, C, and D. James Hill is a prisoner housed in Section D. On August 3, 2011, Hill violated prison rules. When an officer tried to discipline him, Hill walked away. The officer ordered Hill to return to his cell, but Hill refused. In response, prison officials ordered all prisoners to return to their cells and locked the doors.

Instead, Hill walked into Section D’s recreation yard and closed the door behind him, causing it to lock. Hill then took of his glasses and began sharpening them on the wall. He declared he would “stick or cut the first pig that came out there,” paced aggressively, swung his arms in the air, swore, and spit at prison officials. In response, Robert Powell, the lead officer on duty that day, called the special operations unit, which Jason Nicholes led. Nicholes and his team planned how to extract Hill. Nicholes considered various options such as using a shield wall, shooting Hill with a rubber bullet, or deploying pepper spray. In the end, however, Nicholes concluded that these paths presented additional risks to staff, so he decided to deploy CS gas. Before doing so, Nicholes examined the recreation yard and looked for risks. He did not notice any, nor did he notice the HVAC vents. With his team in place, Nicholes instructed Hill to submit to a strip search and be handcuffed. He warned Hill that if he did not comply, force would be used. Hill nevertheless continued to respond aggressively.

Nicholes then ordered his team to deploy the CS gas. The plan went smoothly except for a significant problem – the HVAC unit. Because the recreation yard contained the HVAC unit’s intake vent, the vent drew the gas in and pumped it inside the prison. The gas went into the cells in sections A, B, C, and D. It also went into administrative areas. The gas caused a burning sensation in prisoners’ eyes, ears, and noses, and made it difficult for them to breathe. It took about thirty minutes for Powell and other prison officials to evacuate the prisoners in Sections B and C. During the evacuation, Powell went into the recreation yard and confirmed that medical staff were offering assistance to prisoners. Yet when the evacuated prisoners were lined up in the recreation yard, Powell told them: “if any of you sissies absolutely need medical treatment, that’s fine, but if any of you are just going over there to whine and cry, something to that extent, or say, oh, my eyes hurt or something like that, I’m going to put you on lockdown or see about having you removed from this facility. I’m not going to have you wasting time with those complaints. If you’re about to die, that’s one thing.” Two prisoners claim they would have sought medical treatment had Powell not made this statement.

Powell thought the gas had dissipated in these sections. He thus decided to not evacuate Sections A and D at all. To air these sections out, Powell instead opened the ports of the cells’ doors and placed an industrial fan in the doorway. Medical staff also walked around Sections A and D to ask if prisoners needed medical care.

Redmond contends that Powell and Nicholes violated the Eighth Amendment by exposing the prisoners to CS gas and then failing to respond adequately to their resulting medical needs. He also claims Powell, Nicholes, and Crowther violated the Utah Constitution’s unnecessary-rigor clause by exposing the prisoners to CS gas. Redmond specifically claimed four violations: (1) exposing plaintiffs to CS gas, (2) discouraging plaintiffs from seeking medical attention and not permitting them all to leave their cells or to shower, (3) verbally abusing and intimidating plaintiffs, and (4) failing to train prison staff regarding the use of CS gas. The Tenth Circuit found none of Redmond’s Eighth Amendment claims persuasive.

Redmond argued in support of his claim that Powell and Nicholes violated the Eighth Amendment by exposing prisoners to CS gas that when “assessing the claims of innocent bystanders who are not the intended target of force and whose exposure to force does not further the purpose of maintaining and restoring discipline,” the conditions of confinement framework applies. The Tenth Circuit disagreed, finding no viable conditions of confinement claim.

The Tenth Circuit found that Nicholes and Powell were entitled to qualified immunity on the excessive force claim regarding exposing the prisoners to gas. Redmond failed to meet his burden of showing a constitutional violation. And even assuming the officials did, in fact, violate the Eighth Amendment, Redmond failed to show that the right was clearly established.

An excessive force claim involves two prongs: (1) an objective prong that asks if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation, and (2) a subjective prong under which the plaintiff must show that the officials acted with a sufficiently culpable state of mind. Because the record demonstrates the prison officials inadvertently exposed the prisoners to gas, they could not have done so with malicious or sadistic intent. Redmond argues a jury could infer the officers intended to gas all the prisoners, not just Hill, because the officers knew the HVAC unit existed, knew the harmful effects of CS gas, knew the gas should not be deployed in small spaces near buildings and hospitals because it could easily disperse, and would have seen the HVAC unit because it was large and conspicuous. The Tenth Circuit concluded that no reasonable juror could believe that the officers intended to expose any prisoner besides Hill to gas. The gas getting drawn into the intake vent, moreover, caused significant trouble for the officials. The gas went into administrative areas—thus exposing those prison officials to gas – and required a large-scale evacuation of the prison. Given all this, Nicholes’s and Powell’s generalized knowledge about the HVAC system and CS gas’s intended uses and effects are insufficient to create a jury question about their intent.

To determine whether prison officials applied force maliciously and sadistically or, rather, in good faith, the Circuit considered the need for the force, and whether the officers used a disproportionate amount of force. The Circuit initially concluded the prison officials needed to use force. Hill had, after all, locked himself inside the recreation yard and refused to comply with prison officials’ orders. The record demonstrates the officials inadvertently exposed the other prisoners to gas. So the question, then, is whether it was disproportionate to use CS gas to secure Hill, when officers did not realize other prisoners would be incidentally exposed to the gas as well. The Tenth Circuit concluded it was not disproportionately forceful to use CS gas.

Even assuming a constitutional violation occurred, the Tenth Circuit determined the officers would still be entitled to qualified immunity because no case clearly establishes this right. Nicholes and Powell are entitled to qualified immunity on the claim they violated the Eighth Amendment by exposing the prisoners to CS gas. Redmond cannot establish that the officers violated the Eighth Amendment and, even assuming they did, the right would not be clearly established.

Redmond next contended Powell acted with deliberate indifference to prisoners’ serious medical needs in violation of the Eighth Amendment. To establish an Eighth Amendment claim based on inadequate medical care, the prisoner must prove both an objective component and a subjective component. The objective component requires showing the alleged injury is “sufficiently serious.” A delay in medical care is only sufficiently serious if “the plaintiff can show the delay resulted in substantial harm.” The subjective component requires showing the prison official knew the inmate faced a substantial risk of harm and disregarded that risk by failing to take reasonable measures to abate it. The subjective prong is met if prison officials intentionally deny or delay access to medical care or intentionally interfere with the treatment once prescribed. The Circuit found that Redmond failed to meet his burden.

The Tenth Circuit affirmed the district court’s grant of qualified immunity to the officers.

Colorado Court of Appeals: District Court May Not Consider Documents Outside Bare Allegations of Complaint when Ruling on C.R.C.P. 12(b)(5) Motion

The Colorado Court of Appeals issued its opinion in Prospect Development Co., Inc. v. Holland & Knight, LLP on Thursday, July 26, 2018.

C.R.C.P. 12(b)(5)—Matters Outside the Bare Allegations of the Complaint—C.R.C.P. 12(b)(5)—Statute of Limitations—Affirmative Defense.

Prospect Development Company, Inc. (Prospect) owned and sold undeveloped lots near Crested Butte. It relied on Holland & Knight, LLP (H&K) to prepare federally mandated property reports for prospective buyers. These reports stated that Prospect was responsible for the costs of constructing roads, sewage systems, and other infrastructure. They also stated that individual lot purchasers would not be responsible for these costs. The reports neglected to disclose that the special district in which the lots were located would purchase the infrastructure from Prospect using property tax revenue from the lots, effectively passing the cost of the infrastructure on to the lot owners.

In 2010, several lot owners complained they were not notified before they purchased that they would ultimately pay for the cost of infrastructure through property taxes. H&K assured Prospect that the reports complied with applicable law. Nevertheless, Prospect entered into a tolling agreement with the lot owners in 2010, agreeing to stay the running of any limitations period applicable to claims the lots owners might have against Prospect. In 2011, H&K withdrew from representing Prospect. In 2013, the lot owners sued Prospect based on its failure to make the required disclosures, and Prospect settled with them in 2015. Also in 2015, Prospect entered into a tolling agreement with H&K to toll claims that Prospect might have against H&K. Prospect sued H&K in 2016, alleging professional negligence. H&K did not answer the complaint but moved to dismiss under C.R.C.P. 12(b)(5), arguing that the statute of limitations barred the claims. H&K attached several exhibits from the underlying litigation between the lot owners and Prospect to support its assertion that the claims had accrued in 2011. Prospect opposed the motion and argued the trial court should disregard the exhibits, or, alternatively, if it did consider the exhibits, it should convert the motion to one for summary judgment and allow Prospect to present its own evidence. The district court granted the motion to dismiss, ruling the claims were time barred.

On appeal, Prospect argued that the district court erred by considering matters outside of the complaint in granting the C.R.C.P. 12(b)(5) motion. A defense based on a statute of limitations is an affirmative defense. H&K’s motion was based on a statutes of limitations defense. Thus, in ruling on H&K’s motion, the district court was not allowed to consider matters outside the bare allegations of the complaint. Here, the district court erred in considering two documents from the underlying litigation that were not part of the bare allegations of the complaint. If the district court wished to consider these documents, it was required to convert H&K’s motion to one for summary judgment. This error was not harmless because when viewed in the light most favorable to Prospect, the complaint’s allegations, and those in two documents that the complaint referred to, established that Prospect’s claims were timely.

The order was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Disqualification of Expert Testimony Within Sound Discretion of District Court

The Tenth Circuit Court of Appeals issued its opinion in Hall v. Conoco, Inc. on April 10, 2018.

The appeal questioned the causation and exclusion of expert testimony. The district court excluded testimony from two of Hall’s causation experts and granted summary judgment to ConocoPhillips.

The first testimony that was excluded was that of Dr. Gore. Dr. Gore rendered a differential diagnosis for the cause of Ms. Hall’s leukemia. Dr. Gore considered three potential causes: benzene, smoking, and idiopathic (unknown) causes. Dr. Gore stated the cause was benzene because he ruled out smoking. However, he did not expressly rule out the possibility of idiopathic causes.

The district court concluded that Dr. Gore’s differential diagnosis, while an acceptable method for determining cause, was not reliable because he failed to justify benzene as the cause and he failed to rule out “idiopathic causes” for Ms. Hall’s leukemia. This reasoning was in the discretion of the district court.

The Tenth Circuit began its review by assuming, as the district court did, that benzene emissions could have caused Ms. Hall’s acute myeloid leukemia with inverse 16. Ms. Hall bore the burden of proving that benzene emissions from ConocoPhillips actually caused her disease.

One of Ms. Hall’s experts, Dr. Mitchell, created an air model to estimate benzene concentrations near where Ms. Hall had lived. Dr. Gore used Dr. Mitchell’s estimations and the number of years she lived near the refinery to calculate Ms. Hall’s cumulative exposure to benzene. He used this calculation to opine that benzene was the cause of Ms. Hall’s leukemia. The district court, acted within its discretion and identified two flaws with Dr. Gore’s methodology: Dr. Gore could not reliably use the highest hourly average-emission level to calculate Ms. Hall’s cumulative exposure to benzene, and Dr. Gore’s calculation was based on mistakes involving the extent of Ms. Hall’s exposure to benzene.

For the first flaw, Dr. Gore used the highest hourly average-emission level provided by Dr. Mitchell air model, but he did not provide adequate support for using the highest level. Dr. Gore claimed Dr. Mitchell instructed him to use the highest level, but Dr. Mitchell’s testimony states that he was not qualified to determine which level should be used and that the level would best be determined by an oncologist. Dr. Gore did not have any other support for using the highest level, except for his claim that Dr. Mitchell assured him that the highest level was the metric used in the industry.

The district court concluded that neither Dr. Gore nor Dr. Mitchell were qualified to choose the concentration level and that neither could defend the use of the highest hourly average-emission level. Without support for using the highest level of exposure, Dr. Gore’s calculation was questioned, and in turn his ability to rule that benzene was the potential cause was reasonably questioned by the district court. The Tenth Circuit concluded that the district court acted within its discretion relation to the reliability of Dr. Gore’s decisions to use the highest average-emission level.

In the district court’s opinion, Dr. Gore’s omission for ruling out any possible idiopathic causes was a fatal error in the differential diagnosis.

Ms. Hall made the following arguments, which the Tenth Circuit rejected. Ms. Hall argued that the district court misunderstood the concept of “idiopathic” causes. Ms. Hall defined “idiopathic” as a diagnosis by exclusion, meaning only if all known factors are ruled out, leaving no known plausible factors, can the leukemia be considered idiopathic. Using this view, the Tenth Circuit stated that it would be illogical for Dr. Gore to “rule out” idiopathic causes.

Ms. Hall also argued that the Tenth Circuit did not require differential diagnoses to rule out idiopathic causes. The Tenth Circuit Court of Appeals found that the district court could have regarded Dr. Gore’s differential diagnosis as unreliable, and that the district court did not abuse its discretion in excluding Dr. Gore’s opinion based on his differential diagnosis.

In addition to the exclusion of two experts, Ms. Hall also challenged the district court’s granting of summary judgment to ConocoPhillips by arguing that the circumstantial evidence was sufficient to avoid summary judgment. The circumstantial evidence presented by Ms. Hall failed to create a genuine issue of material fact on causation because of the need for expert testimony on the link between her disease and benzene exposure, and quantification of Ms. Hall’s exposure to benzene.

The Tenth Circuit determined that circumstantial evidence was not a sole justification for avoiding a summary judgment. The Circuit determined that Ms. Hall’s theory would require both expert testimony and quantification of her exposure to benzene. Because the expert testimonies of Dr. Gore and Dr. Calvey were excluded, Ms. Hall lacked both of these requirements, and the district court did not err in granting summary judgment to ConocoPhillips on causation.

The Tenth Circuit Court of Appeals upheld the district courts’ exclusion the testimony of Dr. Gore and Dr. Calvey and the summary judgment on causation issued to ConocoPhillips.

Tenth Circuit: Attorneys Who Withheld Information About Appraiser Properly Sanctioned

The Tenth Circuit Court of Appeals issued its opinions in Auto-Owners Ins. Co. v. Summit Park Townhome Association on March 30, 2018. The Tenth Circuit Court of Appeals VACATED its original opinions and issued the following revised opinions: Auto-Owners Ins. Co. v. Summit Park Townhome Ass’n, No. 16-1638, and Auto-Owners Ins. Co. v. Summit Park Townhome Ass’n, No. 16-1352.

Two attorneys, Mr. William Harris and Mr. David Pettinato, represented Summit Park Townhome Association against its insurer. The two attorneys were sanctioned for failing to disclose information to the district court. The attorneys appealed the sanction on these five arguments:

  1. The district court lacked authority to require the disclosure requirements.
  2. The attorneys did not violate the court’s disclosure requirements.
  3. The district court awarded attorneys’ fees beyond the scope of an earlier sanctions order.
  4. The district court’s award of attorneys’ fees resulted in a deprivation of due process.
  5. The amount of attorneys’ fees awarded was unreasonable.

The Tenth Circuit Court of Appeals AFFIRMED the district court’s actions in issuing sanctions, determining the scope of the sanctions, and calculating the amount of the sanctions.

The initial lawsuit was related to an insurance dispute following a claim filed by Summit Park with Auto-Owners Insurance for hail damage. The parties disagreed on the dollar amount of the damages, and Auto-Owners sued for a declaratory judgement to decide the value.

Summit Park attorneys Harris and Pettinato moved to compel an appraisal following the insurance policy requirements. Auto-Owners asked the district court to resolve the dispute over the dollar amount by ordering an “appraisal agreement.” The district court ordered the appraisal agreement and warned both parties that if the parties and/or counsel did not comply, the court would impose sanctions.

George Keys was the appraiser for Summit Park, and Auto-Owners questioned his impartiality. Mr. Keys and the court-appointed umpire both agreed on an appraisal award of over $10 million. Auto-Owners then objected to Mr. Keys based on impartiality and that Summit Park had failed to disclose evidence bearing on his impartiality. The court disqualified Mr. Keys and vacated the appraisal award. Auto-Owners then moved for sanctions against Mr. Harris and Mr. Pettinato, including attorney fees and expenses. The district court assessed sanctions against the two attorneys for $354,350.65 in fees and expenses.

Attorneys Harris and Pettinato questioned the district court’s authority to enter the disclosure order, and they refused to comply with the order. They could have sought reconsideration or a writ, but they could not violate the order. See Maness v. Meyers, 419 U.S. 449, 458 (1975) (“If a person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal.”). Orders issued by a court must be obeyed by the parties until “reversed by orderly and proper proceedings.” United States v. United Mine Workers, 330 U.S. 258, 293 (1947); See United States v. Beery, 678 F.2d 856, 866 (10th Cir. 1982); and see also GTE Sylvania, Inc. v. Consumers Union of U.S., Inc, 445 U.S. 375, 386 (1980). Failure to comply with the court order could trigger sanctions. See United Mine Workers, 330 U.S. at 294 (quoting Howat v. Kansas, 258 U.S. 181, 190 (1922)), so Mr. Harris and Mr. Pettinato were obligated to comply in the absence of an appellate challenge, and could be sanctioned for noncompliance.

Attorneys Harris and Pettinato challenged the district court’s conclusion that they had violated the disclosure order by arguing that the district court misinterpreted the term “impartial” and that Harris and Pettinato disclosed sufficient information about Mr. Keys.

Because Mr. Harris and Mr. Pettinato urged a legal error consisting of misinterpretation of the term “impartial,” the Tenth Circuit Court of Appeals engaged in de novo review. Hamilton v. Boise Cascade Express, 519 F.3d 1197, 1202 (10th Cir. 2008), and it otherwise confined the review sanctions under the abuse-of-discretion standard. Russell v. Weicker Moving & Storage Co., 746 F.2d 1419, 1420 (10th Cir. 1984) (per curiam).

The district court requested disclosure of (1) the appraiser’s “financial or personal interest in the outcome of the appraisal,” (2) any “current or previous relationship” between the appraiser and Summit Park’s counsel, and (3) any other facts subsequently learned that “a reasonable person would consider likely to affect” the appraiser’s impartiality.

Harris and Pettinato made two disclosures:

  1. “Mr. Keys does not have any significant prior business relationship with [Merlin], Summit Park, or C3 Group. Mr. Keys has acted as a public adjuster and/or appraiser on behalf of policyholders that [Merlin] has represented in the past, however, this obviously does not affect his ability to act [as] an appraiser in the matter.” Appellant’s App’x, vol. 2 at 292.
  2. “Mr. Keys has acted as a public adjuster and/or appraiser on behalf of policyholders that [Merlin] has represented in the past. Mr. Keys has no financial interest in the claim, and has no previous relationship with the policyholder in this matter.” Id. at 298.

Mr. Keys made the following disclosure: “I do not have a material interest in the outcome of the Award and have never acted either for or against Summit Park Townhome Association. My fee agreement is based upon hourly rates plus expenses. . . . I do not have any substantial business relationship or financial interest in [Merlin]. There have been cases where both [Merlin] and Keys Claims Consultants acted for the same insured but under separate contracts.” Id. at 307-08.

Regardless of the district court’s definition of “impartial,” attorneys Harris and Pettinato failed to disclose that (1) other attorneys in their firm (Merlin Law Group) had worked with Mr. Keys on appraisals for at least 33 clients, (2) Merlin attorneys had represented Mr. Keys on various matters for over a decade, (3) Merlin’s founder and Mr. Keys had co-founded a Florida lobbying operation, and (4) Merlin attorneys had served as the incorporator and registered agent for one of Mr. Key’s companies.

Attorneys Harris and Pettinato claim they disclosed sufficient information about Mr. Keys’ impartiality and that they lacked personal knowledge about the undisclosed facts. Both of these arguments failed. The district court could reasonably find that the undisclosed information was meaningful, and Harris and Pettinato knew about some of Mr. Keys and Merlins contacts, and they had an obligation to inquire about contacts with other Merlin attorneys. Therefore, the district court acted within its discretion on Mr. Harris’ and Mr. Pettinato’s failure to disclose information.

As far as Mr. Harris’ and Mr. Pettinato’s argument over the district court’s definition of “impartial,” the disclosure order issued by the district court defined “impartial” by stating: “An individual who has a known, direct, and material interest in the outcome of the appraisal proceeding or a known, existing, and substantial relationship with a party may not serve as an appraiser.” Id. at 245.

Using the definition of “impartial” provided in the district court’s order, the district court required disclosure of any facts that a reasonable person would view as likely to affect the appraiser’s impartiality. Mr. Harris and Mr. Pettinato argued that evidence of an appraiser’s advocacy was unlikely to affect the appraiser’s impartiality. See Owners Ins. Co. v. Dakota Station II Condominium Ass’n, 2017 WL 3184568, at *4 (Colo. App. July 27, 2017), cert. granted, 2018 WL 948601 (Colo. Feb. 20, 2018). Even if Mr. Harris and Mr. Pettinato were correct, the district court could have reasonably viewed Mr. Keys’ undisclosed prior statements as likely to affect his impartiality based on a known, direct, and material interest in the outcome. Additionally, in an advertisement on Mr. Keys’ website, Mr. Pettinato endorsed Mr. Keys, saying: “Both Mr. Keys and his staff have assisted me as well as my firm in resolving an untold number of large multi-million dollar losses to an amicable resolution and settlement to the policyholders’ benefit and satisfaction.” Id. at 704. And a profile on Merlin’s website reported that Mr. Keys “ha[d] dedicated his professional life to being a voice for policyholders in property insurance claims.” Id. at 723. In this profile, Mr. Keys stated: “I was taught to always handle a claim as if my momma was the insured.” Id.

Therefore, the district court did not abuse its discretion by finding that Mr. Harris and Mr. Pettinato had violated the disclosure order.

Mr. Harris and Mr. Pettinato argued that Auto-Owners waived the right to object by failing to object despite their knowledge of past relationships between Merlin and Mr. Keys. The Tenth Circuit disagreed, because without the undisclosed information, Auto-Owners would not have had full knowledge of the relationship.

For the sanction against the two attorneys, the district court invoked 28 U.S.C. § 1927. Under § 1927, an attorney “who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927. The two attorneys argued that these three items fell outside of the initial sanctions order: (1) Auto-Owners’ preparation of the motion for sanctions ($51,309.50), (2) Auto-Owners’ preparation of the application for attorneys’ fees and expenses ($16,960.50), and (3) Auto-Owners’ other related work ($61,662.50).

The Tenth Circuit disagreed with those arguments, because the district court explained the attorney fees in the sanctions order. Therefore, the Tenth Circuit deferred to the district court’s interpretation of its own order. See, e.g., Chi., Rock Island & Pac. R.R. v. Diamond Shamrock Ref. & Mktg. Co., 865 F.2d 807, 811 (7th Cir. 1988) (“We shall not reverse a district court’s interpretation of its own order ‘unless the record clearly shows an abuse of discretion.’” (quoting Arenson v. Chicago Mercantile Exch., 520 F.2d 722, 725 (7th Cir. 1975))). The Tenth Circuit found it reasonable for the district court to consider these litigation expenses.

The fifth area that Mr. Harris and Mr. Pettinato questioned was a deprivation of due process based on an inability to respond to the district court’s inclusion of litigation activities outside of the initial sanctions order. The Tenth Circuit disagreed because they could have objected to any of the attorney fees included on the Auto-Owners application that was filed. This opportunity supplied due process. See Resolution Tr. Corp. v. Dabney, 73 F.3d 262, 268 (10th Cir. 1995); see also Auto-Owners Ins. Co. v. Summit Park Townhome Ass’n, No. 16-1352, slip op. at 17-19 (10th Cir. Mar. 30, 2018) (to be published) (discussing a similar argument made by Summit Park Townhome Association).

The last argument was that the court awarded an unreasonable about of attorney fees. The Tenth Circuit reviewed a determination of attorney fees for an abuse of discretion. See AeroTech, Inc. v. Estes, 110 F.3d 1523, 1528 (10th Cir. 1997). In applying the abuse-of-discretion standard, the Circuit considered whether the district court’s determination appeared reasonable in light of the complexity of the case, the number of strategies pursued, and the responses necessitated by the other party’s maneuvering. See Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998). The district court was not required to identify and justify every hour allowed or disallowed. See Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996).

Based on the Tenth Circuit’s review, the district court considered three areas when determining reasonableness of fees. First, the district court concluded that it was reasonable for Auto-Owners’ counsel to spend long hours because “Auto-Owners had over $30 million at stake” and the issues were complex. Appellants’ App’x, vol. 3 at 673-74. Second, the court considered the local market, the qualifications of the attorneys, and the contentiousness of the litigation. These considerations led the district court to find that the billing rates had been reasonable. Third, the court considered the use of billing judgment by Auto-Owners’ counsel through concessions such as staffing with lower-billing attorneys, declining to charge for all hours worked, and discounting hours worked by paralegals and secretaries. The district court acted reasonably in considering these concessions. The Tenth Circuit concluded that the district court did not abuse its discretion in calculating the amount of the sanction ($354,350.65).

The Tenth Circuit Court of Appeals concluded that the district court did not err in sanctioning Mr. Harris and Mr. Pettinato, that Mr. Harris and Mr. Pettinato violated the district courts order by failing disclose information bearing on Mr. Key’s impartiality, and that the amount set by the district court was reasonable.

Colorado Court of Appeals: Governmental Immunity May Be Waived for Operation or Maintenance of Public Facility Performed by Independent Contractor

The Colorado Court of Appeals issued its opinion in Lopez v. City of Grand Junction on Thursday, July 12, 2018.

Negligence—Colorado Governmental Immunity Act—Waiver—Independent Contractor—Maintenance Work.

The underground maintenance of a public traffic light in Grand Junction breached a natural gas line. Gas from the ruptured line leaked into the surrounding ground and a sewer main and migrated to a house, resulting in an explosion. Lopez, Pierson, and Gimmeson (plaintiffs) brought negligence claims against the City of Grand Junction (City) for their resultant personal injuries and property damage. Plaintiffs’ complaint alleges, among other things, that the City breached its duty of care to safely maintain its utility, electric, and sewer lines. As pertinent here, the complaint alleged that the City contracted with Apeiron Utility Construction (Apeiron) to upgrade utility lines that powered a traffic light; during this maintenance project Apeiron ruptured a gas line; and the leaking gas resulted in the house explosion. The complaint further alleged that Apeiron’s conduct should be imputed to the City. The City moved to dismiss these negligence claims for lack of jurisdiction under C.R.C.P. 12(b)(1), asserting governmental immunity under the Colorado Governmental Immunity Act (CGIA). The court granted the motion.

On appeal, plaintiffs contended that the district court erroneously concluded that Apeiron’s conduct in maintaining the traffic light was not attributable to the City for purposes of waiving the City’s immunity under C.R.S. § 24-10-106(1)(f). For purposes of the immunity waiver in C.R.S. § 24-10-106(1)(f), a public entity maintains a public facility even if it hires an independent contractor to perform the maintenance. Here, plaintiffs met their burden to establish a waiver of immunity as to their negligence claims against the City.

Plaintiffs next asserted that the district court erred when it dismissed their negligence claim against the City as to its operation and maintenance of its sewer main. Plaintiffs asserted that the City’s failure to keep the main free of invasive roots was a failure to maintain that waived liability under the CGIA. Based on the record, plaintiffs failed to meet their burden to prove a waiver.

The dismissal of plaintiffs’ negligence claim against the City as to its operation and maintenance of its sewer main was affirmed. The dismissal of the negligence claims against the City for Apeiron’s maintenance work on the traffic light was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

The Grammar Dilemma: Which Rules Are Worth Knowing

“None of you are guilty” or “None of you is guilty”? Can I use “since” as a synonym for “because” or can I only use it to reference time? One space or two between sentences? Is it email or e-mail? Some people have strong feelings about these kinds of questions. But many exasperate “who cares?!”

We are lawyers. We are busy. We have limited time. When is it worth perusing a six-inch thick book to find a grammar rule? Almost never.

Nonetheless, to write clearly you need to understand the ambiguity of English grammar.

The Next Person That Recommends Strunk & White . . .

Since freshman orientation people have always told me to worship Strunk and White’s Elements of Style. I’m pretty sure 98% of those people have never read the book. I’m equally sure 99% of the U.S. population has not. These statistics are not backed by data, just my gut. But in fairness, most of our grammar sense comes from our gut—if this phrase “sounds” right it must be right. Turns out, the Gut Theory of Grammar works pretty well. It works pretty well because there are no grammar rules. Let’s circle back to the Elements of Style.

Most people recommend the Elements of Style because other people recommended it to them. This daisy chain advice is so long no one remembers where it started. But surely the book gained credence for a reason.

Who were Strunk and White? They were co-chairs of the National Commission of American English created by President Nixon to develop consistency in how American students learned the language. Just kidding. There is no commission. Unlike France, the United States has no official body that determines language rules.[1] Strunk and White are two people who sat down to write a book about grammar. Strunk was a college professor who authored the original edition around 1919.[2] White, who authored Charlotte’s Web, revised the book in 1959.[3] Neither had unique authority to assert anything was or was not a rule.

But surely the wide acceptance of the Elements of Style gave it credence after-the-fact? Nope. It’s one thing to wear a t-shirt with a nerdy grammar pun like “Poor Grammar Makes Me [sic].” It’s a different level to publish an article in the Chronicle of Higher Education titled “50 Years of Stupid Grammar Advice” tearing into Strunk & White. But that’s what Professor Pullum did.[4] He describes Strunk & White as “grammatical incompetents” and their advice as ranging “from limp platitudes to inconsistent nonsense” that has “significantly degraded” students understanding of English.[5] Ouch. And he’s not alone. Others have called the book unsystematic, chaotic, and unhelpful.[6] But, to be clear, the book still has supporters.[7] And not everyone agrees with Professor Pullum.[8]

It’s Much Worse Than You Think

Even if the Elements of Style is not perfect (and presumably no other book is), the legal community might silently agree on certain rules. Putting aside obscure stylistic choices, surely we agree on essentials like what a word means? Buckle up.

Since time immemorial teachers and bosses pounced on subordinates for confusing “literally” and “figuratively.” Something is literally true when it can and did happen. It is figuratively true when it cannot or did not happen. So “When I heard the news my heart stopped” is figuratively true, unless after hearing the news my blood stopped circulating in which case it is then literally true. Only not. Consult a dictionary to discover literally and figuratively are sometimes synonyms. Merriam Webster has a persuasive article and video defending the definitions and explaining how authors can use “literally” hyperbolically to mean “figuratively.”[9] There’s an indie romantic comedy here where former antonyms become synonyms.

Here’s another skull-buster. Most of us bleed from the ears when we hear the word “irregardless.” A Pavlovian reflex shocks our system with feelings of valley-girl bastardized English. But oh yes, you guessed it. It is a word. In fact, one of Merriam Webster’s lexicographers (the people that write dictionaries) made a video defending it.[10] “Irregardless” means “empathically regardless.”[11] Oddly, the lexicographer recommends not using the word because so many people think it is not a real word.[12]

English grammar is a mess.

What to Do

We want our readers to find us credible and to understand what we write. But grammar rules are unclear. And we are not going to attach an appendix showing we correctly used a comma on page six.

Begin by accepting the inevitable. You usually have no idea what grammar rules your audience subscribes to. A judge might know a rule, not know a rule, or know a rule that is not a rule.

Next, adapt to your audience. To write clearly you need to know what grammar rules exist—real rules, discredited rules, misunderstood rules, all rules. Even with maximum effort, you cannot avoid breaking some rule believed by someone somewhere. But, with this understanding you can ensure your writing is clear.

When a Grammar Rule is Unclear, Strive For Clarity

When your writing implicates an unclear grammar rule, prioritize clarity. Consider the that/which rule:

The Safety Instructor asked the student to get the gas tank, which has red tape on it.

The Safety Instructor asked the student to get the gas tank that has red tape on it.[13]

In the first sentence there is one tank and it has red tape. [14] “Which” introduces additional information. [15] So, if the student were just told “Go get the gas tank” the student would return with the same tank because only one exists. [16] By contrast, in the second sentence “that” introduces essential information; there are multiple tanks and the instructor wants the one with red tape.[17]

But you cannot count on your reader taking away this distinction. Your reader may not know the rule or may have the rule reversed. So if it is important to understand there were multiple tanks and the instructor asked only for the one with red tape, you need to do more.

You have a few options. You can avoid the that/which rule by rewriting the sentence more explicitly: there were eight tanks and the instructor asked for the one with red tape. Or you can add a clarifying sentence: When the student went into the storage room he saw a pile of tanks and grabbed the one with red tape.

Ultimately, awareness of ambiguous grammar cannot prevent a reader from enforcing a random grammar belief. But that awareness can help us ensure the reader gets our message.

If Most Judges Believe a Rule, Follow It

Recall the figuratively/literally and irregardless examples. There we learned some grammar beliefs are incorrect. But you being correct according to an external source is irrelevant to your case. Write for your audience. If the court has certain grammar preferences, follow them.

Think of a basic rule indoctrinated into you with no reasoning behind it. A rule like capitalize the first letter of each sentence. if you stopped capitalizing those letters, would it confuse anyone? would readers misinterpret your words? nope. but everyone would notice and everyone would think you are wrong. the historical reason for this rule doesn’t matter. even if you found a source saying it is unnecessary, the result will only hurt you.

Although few courts publish elaborate style guides, you can discern grammar preferences from court opinions, former law clerks, and CLEs with the judges. Use that information to preserve credibility and avoid disruption.

Conclusion

When it comes to grammar, write for clarity not accuracy.


[1] George D. Gopen, The Sense of Structure: Writing From the Reader’s Perspective 196 (2004).

[2] William Strunk Jr.; E.B. White, The Elements of Style xiii-xviii; 87 (4th ed. 2000); Geoffrey K. Pullum, “50 Years of Stupid Grammar Advice,” The Chronicle of Higher Education, p. 1 (April 17, 2009), available at http://www.lel.ed.ac.uk/~gpullum/50years.pdf.

[3] Strunk &White, supra n. 2 at 1; Pullum, supra n. 2 at 1.

[4] Pullum, supra n. 2 at 1

[5] Id. Pullum didn’t let it go after only one article: Geoffrey K. Pullum, “The Land of the Free and The Elements of Style,” 26 English Today 2, 102 (June 2, 2010), available at http://www.lel.ed.ac.uk/~gpullum/LandOfTheFree.pdf.

[6] Tom Goldstein and Jethro K. Lieberman, The Lawyers Guide to Writing Well 9-10 (3d ed. 2016).

[7] See, e.g., “The 100 Best Nonfiction Books: No. 23 The Elements of Style by William Strunk and EB White (1959),” The Guardian, available at https://www.theguardian.com/books/2016/jul/04/100-best-nonfiction-books-all-time-elements-style-william-strunk-eb-white.

[8] To see how some of Pullum’s critiques may be overstated, see Ross Guberman, “Did Strunk & White Give “Stupid Advice?,” available at https://www.legalwritingpro.com/articles/strunk-white-give-stupid-advice/ (last visited May 20, 2018).

[9] Merriam-Webster Dictionary, “Did We Change the Definition of ‘Literally’?,” https://www.merriam-webster.com/words-at-play/misuse-of-literally (last visited May 20, 2018); Merriam-Webster Dictionary, “Literally- Merriam Webster- Ask The Editor,” https://www.youtube.com/watch?v=Ai_VHZq_7eU (last visited May 20, 2018).

[10] Business Insider, “‘Irregardless’ is a real word – you’re just using it wrong,” https://www.youtube.com/watch?v=bEJ2HF3xuFk (last visited May 20, 2018).

[11] Id.

[12] Id.

[13] This is a variation of the rake example provided in Gopen, supra n. 1 at 5.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

Colorado Court of Appeals: Contract Between Private Cable Provider and Government Void Because It Does Not Provide for Annual Appropriations

The Colorado Court of Appeals issued its opinion in Falcon Broadband, Inc. v. Banning Lewis Ranch Metropolitan District No. 1 on Thursday, June 28, 2018.

Contract—Colorado Governmental Immunity Act—Tort—Civil Conspiracy—Unjust Enrichment—Promissory Estoppel—Annual Appropriation—Attorney Fees.

Falcon Broadband, Inc. (Falcon) signed a contract, the “Bulk Services Agreement” (BSA), with Banning Lewis Ranch Metropolitan District No. 1 (the District) to provide Internet and cable services to Banning Lewis Ranch area residents. Under the BSA, the District granted Falcon the exclusive right to provide Internet and cable services to residents for a monthly per-resident fee. The BSA states that it remains in effect until 2,700 homes in the development are occupied, which hasn’t yet occurred. The District later disavowed the BSA, stopped paying Falcon, and stopped collecting fees from residents. Falcon sued the District, its directors, and Oakwood Homes, LLC (the developer) and related Oakwood entities (collectively, Oakwood).  The district court dismissed Falcon’s complaint in part as barred by the Colorado Governmental Immunity Act (CGIA) and granted summary judgment in defendants’ favor on the remaining claims not subject to dismissal under the CGIA.

On appeal, Falcon contended that the district court erred in its application of the CGIA and in granting summary judgment. It is undisputed that the District is a public entity within the meaning and protection of the CGIA. Thus, the district court properly dismissed the civil conspiracy claim against the District because that claim is undeniably a tort claim. However, the court improperly dismissed the unjust enrichment and promissory estoppel claims as sounding in tort because they were grounded in contracts; the district court should have granted summary judgment to the District on these claims. The district court properly granted the District summary judgment on the breach of contract, breach of implied covenant of good faith and fair dealing, and declaratory judgment claims. The District directors are also protected by the CGIA, and the district court should have dismissed the claims against them. All of the Oakwood entities are private associations; thus, the district court erred in dismissing some claims against Oakwood under the CGIA.

Falcon also contended that the district court erred by determining that the BSA is void and by entering summary judgment on its tortious interference and civil conspiracy claims regardless of the BSA’s validity. The BSA is void under C.R.S. § 29-1-110 because it is a multi-year contract that does not provide that the obligation to pay is subject to annual appropriations. Because all of Falcon’s claims are premised on the BSA’s validity, only its unjust enrichment claim against Oakwood survives.

The District and the directors cross-appealed, arguing that the court erred by failing to award them attorney fees under C.R.S. § 13-17-201. Because the gist of Falcon’s action against the District was the District’s failure to perform the BSA, not its commission of any tort, and those claims were dismissed on summary judgment, the District is not entitled to fees. On the other hand, the only claims Falcon brought against the directors were tort claims. Because Falcon’s entire action against the directors should have been dismissed under C.R.C.P. 12(b)(1) as tort claims barred by the CGIA, the directors are entitled to an award of their reasonable attorney fees under C.R.S. § 13-17-201. The directors are also entitled to an award of their reasonable attorney fees incurred in their successful appeal under C.R.S. § 13-17-201.

The judgment was affirmed on all claims except Falcon’s unjust enrichment claim against Oakwood, which was reversed. The district court’s denial of the District’s request for attorney fees was affirmed. The district court’s denial of the directors’ request for attorney fees was reversed and the case was remanded to determine those fees.

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: 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: 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.

Colorado Supreme Court: Arbitration Agreement Need Only Substantially Comply with Statutory Notice Requirements

The Colorado Supreme Court issued its opinion in Colorow Health Care, LLC v. Fischer on Monday, June 11, 2018.

Health Care Availability Act—Statutory Construction—Alternative Dispute Resolution.

C.R.S. § 13-64-403 of the Health Care Availability Act governs arbitration agreements between patients and healthcare providers. Under C.R.S. § 13-64-403(4), such agreements must contain a certain notice to patients to help ensure that they enter the agreements voluntarily, and the notice must be emphasized by at least 10-point font and bold-faced type. The agreement here contained the notice in 12-point font, but it was not bold-faced. The court of appeals determined the statute requires strict compliance and that the agreement therefore failed for lack of bold-faced type.

The supreme court held that C.R.S. § 13-64-403 requires only substantial compliance. The court further concluded the agreement here substantially complied with the formatting requirements of C.R.S. § 13-64-403, notwithstanding its lack of bold-faced type. Accordingly, the court reversed the court of appeals’ judgment and remanded the case for further proceedings consistent with the opinion.

Summary provided courtesy of Colorado Lawyer.