Tuesday, November 25, 2003
Court of appeals case announcement list for tomorrow is here. Apparently, the court will be issuing decisions the day before rather than the day after Thanksgiving. Thankfully (pun intended), the court is handing down unpublished decisions only, so there will be no published decisions for me to read over my mini-vacation. Happy Thanksgiving to everyone. Monday, November 24, 2003 No case announcements from the supreme court. The redistricting wait continues. I don't know if the court of appeals will be announcing cases on Friday or not, but I won't be updating until next week. I'm taking some time off to enjoy Thanksgiving with my family. I wish you and yours a great holiday. Happy birthday to my dad, my brother, and my niece Brittany. Friday, November 21, 2003 The redistricting wait continues. The supreme court will make no case announcements on Monday, November 24. So much for falling asleep while reading the redistricting decision after a big turkey dinner. (Unless the court surprises us with a midweek opinion.) The vigil goes on. I have updated yesterday's court of appeals' decisions. See the November 20 post for a run-down of the decisions. I apologize for the delay, but I haven't had a spare moment to read the cases. I did, however, get to see my sixth grader's school musical, which included a rousing "hula-girl" dance by him and two of his co-horts--complete with grass skirts, coconut bras and wigs. Not to brag too much, but it stole the show (though the pirates were hard to beat). Thursday, November 20, 2003 Governor appoints Robert Russel to court of appeals. Here is the press release from the Governor's office. The press release notes that soon-to-be-Judge Russel is quite a drummer. "Hitting the skins" is a great release of law-related stress, as I can attest (though my family might prefer a quieter outlet). Congratulations to Judge Russel, and best wishes for many years of great service on the court. Today's court of appeals case announcements are here. The quick list of cases announced today is here. The court issued twelve published decisions today, here are the highlights: Evidence discovered two months before trial court entered summary judgment was not new evidence within the meaning of C.R.C.P. 59. It's an important reminder to supplement early and often, and use C.R.C.P. 56(f) motions. The case also held that where a party does not comply with Article 8 of the UCC and that noncompliance affects the rights of a third party, the principle allowing equitable transfer of stock does not apply. Mortgage Inv. Corp. v. Battle Mountain Corp. Self-inflicted injury by bipolar child excluded from insurance coverage. The court held the policy language was not ambiguous and provided coverage for no self-inflicted injuries. Cary v. United Omaha Life Ins. Co. Dismissal of conversion claim based on economic loss rule upheld. Carder, Inc. v. Cash CCIOA gives homeowners' association standing to pursue claims for construction defects in individual townhome units. The court also held that negligence claims against subcontractors were not barred by the economic loss rule. Yacht Club II Homeowners Association, Inc. v. A.C. Excavating Severance pay was compensation under wage claim act. But the wage act was amended, effective August 6, 2003, and now expressly excludes severance pay. (A reminder to check for statutory amendments.) Fang v. Showa Entetsu Co. Court of appeals lacks jurisdiction to hear appeals of cases appealed from the county court to the district court. The case involved an appeal from a trial de novo in district court following an earlier county court trial. Judge Taubman dissented, concluding the court did have jurisdiction over appeals from trials de novo. An interesting case that is a good candidate for supreme court review. People v. Bovard Vested interest in irrevocable trust could be considered in property division in divorce. In re Marriage of Dale Alleging employer recklessly disregarded health and safety of an employee is not sufficient to allege employer committed intentional tort and therefore workers compensation was exclusive remedy for employee. Schwindt v. Hershey Foods Corp. No statutory basis exists in Colorado to require QTIP trust to pay state estate taxes. The case also discussed a conflict of interest involving the trustees, a not-too-uncommon occurrence in the estate planning arena. In the Matter of the Estate of Klarner Today is the deadline for Governor Owens to appoint one of the three nominees for the court of appeals vacancy. I will have the name of the new judge as soon as it is announced and I can get it posted. See my November 6 post for the list of the nominees. Monday, November 17, 2003 Today's supreme court announcements (no decisions) are here. The court granted cert. in two cases. National Union Fire Ins. Co. v. Price, No. 03SC257, will address the following questions: Whether the Dispute Resolution Act, section 13-22-301 et seq., 5 C.R.S. (2003) (the “Act”), requires that a settlement agreement reached through mediation be in writing and signed by all parties in order to be enforceable.
Whether the Act treats a party’s oral assent to a settlement agreement, at the close of the mediation, as a “mediation communication” which cannot be used to prove that a settlement was reached in mediation. The court of appeals'
decision in that case is here. Stell v. Boulder County Dep't of Social Services, No. 03SC511, will address the following issue: Whether the court of appeals erred in holding that a disability trust within the meaning of section 15-14-412.8, 5 C.R.S. (2003), is not valid for the purpose of establishing or maintaining the beneficiary’s resource eligibility for medical assistance, where it permits the payment of taxes due from the trust upon the death of the beneficiary, prior to reimbursement of medical assistance to the state. To read the court of appeals' decision in Stell, click here. Friday, November 14, 2003 No new decisions will be announced on Monday, November 17. So the redistricting wait continues. Next week's supreme court arguments The supreme court will hear argument in 12 cases next Monday and Tuesday, including the following issues: Criminal cases: Does a motion to reconsider toll the time for filing a non-interlocutory notice of appeal? People v. Stovall, No. 02SC654, November 18, 2:30 p.m. Can the probationary term for a misdemeanor conviction exceed the maximum term of imprisonment authorized by statute? People v. Kennaugh, No. 03SA13, November 18, 1:30 p.m. Who has the burden of proof in a hearing to determine whether a defendant found not guilty by reason of insanity is eligible for temporary release from the state hospital for treatment and rehabilitation? People v. Riggs, No. 02SC543, November 17, 9:00 a.m. May a trial court try a defendant for an offense which it cannot enter a conviction and there is no case or controversy? People v. Trujillo, No. 02SC630, November 17, 10:00 a.m. Is the holding in James v. People, 727 P.2d 850 (Colo. 1986), that due process requires evidence sufficient to support a verdict by proof beyond a reasonable doubt of each alternative method of committing an offense, is still valid in light of Griffin v. United States, 502 U.S. 46 (1991)? People v. Dunaway, No. 02SC675, November 17, 10:30 a.m. Can a parolee awaiting a parole revocation hearing be held in county jail more than 30 days? Colorado Dep't of Corrections v. Madison, No. 03SA14, November 18, 10:00 a.m. Civil Cases: Is a school district employee dismissed for cause entitled to judicial review of the school board's determination his conduct was not protected under C.R.S. § 22-32-110(4)(c)? Widder v. Durango Sch. Dist. No. 9-R, No. 02SC497, November 18, 10:30 a.m. Does the plain and ordinary meaning of "malicious prosecution" as used, undefined, in an insurance policy is sufficiently ambiguous to require an insurer to defend its insured against factual allegations supporting claims for abuse of process or intentional interference with contract? Thompson v. Maryland Casualty Co., No. 02SC525, November 18, 9:00 a.m. Was summary judgment in favor of an insurer based on interpretation of a pollution exclusion to preclude coverage for seepage from unlined tailings ponds improper where the insured knew the ponds would leak but did not believe that the leakage would contaminate the environment off-site? Cotter Corp. v. American Empire Surplus Lines Ins. Co., No. 02SC707, November 17, 1:30 p.m. Does C.R.S. § 8-4-301(2)(a) require a worker's comp. claimant to present expert testimony on the second clause of the "mental impairment" definition (whether the injury "consists of a psychologically traumatic event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances")? Davison v. Industrial Claims Appeal Office, No. 03SC83, November 17, 2:30 p.m.; Mobley v. Industrial Claims Appeal Office, No. 03SC179, November 17, 3:00 p.m. The court will also hear argument in a water court appeal, City of Golden v. Simpson, No. 02SC364, November 18, 3:00 p.m. The supreme court's oral argument schedule can be found here. Thursday, November 13, 2003 Court of appeals case announcements for today are here. Only unpublished decisions came out today. Monday, November 10, 2003 Supreme court hears arguments in DA term limits case. This morning the court heard argument in Davidson v. Sandstrom, addressing the following questions: Are district attorneys subject to the term limit provisions of Colo. Const. Art. XVIII, § 11? If district attorneys are subject to term limits, do the county board of commissioners have the legal authority to refer a measure to the voters of a judicial district seeking to eliminate term limits for district attorneys? Is the Secretary of State required to recognize the outcome of an election to remove term limits for district attorneys when the respective Board of County Commissioners refer the question to the voters of the county or counties that make up a judicial district? The court also heard argument in People v. Vasquez, to consider the following question: Whether the district court abused its discretion and exceeded its jurisdiction
when it held that a provision in C.R.S. § 18-1.3-1102(2) which
allocated the burden of proof on the defendant charged with a class
1 felony at a pretrial hearing to show by clear and convincing evidence
that he is mentally retarded and exempt from the death penalty was unconstitutional
and when it changed the burden of proof to a preponderance and shifted
that burden to the prosecution. Supreme court case announcements for today are here. The court issued two decisions today, Tidwell v. City and County of Denver, and Lazar v. Riggs. I'd give more information about them, but I'm preparing for an argument in the court of appeals this week. I apologize for making you read the decisions on your own. But Tidwell involves a police chase and interesting issues of governmental immunity, so it's a case you'll probably want to read anyway. Lazar is a CAR 21 proceeding on a discovery issue, so you'll probably have to read it anyway. I don't have another argument scheduled until January, so I won't leave you hanging again anytime soon. The court did not grant cert. in any cases. The redistricting wait continues. Thursday, November 6, 2003 Court of appeals case announcements for today. Click here. Failure to request variance was failure to exhaust administrative remedies. A trailer park that was not in compliance with new city regulations brought suit seeking an exemption from compliance, instead of seeking a variance from the city's Board of Adjustment. The failure to seek a variance was a failure to exhaust administrative remedies that necessitated dismissal of one of its claims. Trailer Haven MHP, LLC v. City of Aurora. Liability for willful withholding of wages does not require malice or other motive, but only a lack of good cause. The court of appeals rejected the proposition that a claim for breach of fiduciary duty is a good faith legal justification for not timely paying final wages under the Colorado Wage Act. Hartman v. Community Responsibility Center. Choice of evils defense cannot rest solely upon economic necessity. People v. Fontes. "Lawfully confined" for purposes of of C.R.S. § 18-3-203(1) includes individuals lawfully held in custody, not just persons serving sentences. The court of appeals disapproved of the dismissal of a charge of second degree assault on a peace officer. The court concluded that the trial court's interpretation of "lawfully confined"--which led to the dismissal of the assault charge--was too narrow in light of the legislative history. People v. Miller. Lis pendens improper where complaint seeks only money damages and not relief affecting title. Brossia v. Rick Constr. Individual creditor lacked standing to assert claim of fraudulent conveyance after bankruptcy petition had been filed. The court of appeals upheld the dismissal of a fraudulent conveyance claim brought by an individual creditor, concluding that only the bankruptcy trustee had standing to assert the claim. Summers v. Perkins. Governor given three nominees for court of appeals vacancy. Judge Christopher J. Munch (a district judge in Jefferson County), Henry Richard Reeve (a senior Deputy DA in Denver), and Robert Mark Russel (a Section Chief at the Department of Justice) were selected by the Supreme Court Nominating Commission as the three nominees to fill the court of appeals vacancy created by Judge Ney's retirement. Governor Owens has 15 days to appoint one of the three to the court. I'll let you know who he chooses. The press release announcing the nominees is here. Judge Dubofsky retires from Boulder District Court. Judge Frank Dubofsky, who was a judge on the court of appeals 1989-92, is retiring after five years on the district court bench in Boulder. He has been a great judge and lawyer. Monday, November 3, 2003 Student's personal injury claim against University of Colorado not barred by Governmental Immunity Act. A student, who was seriously injured when a dry-erase board fell on her, gave proper notice of her claim against the University by providing that notice to the Board of Regents rather than the Attorney General. The Colorado Supreme Court held that the Governmental Immunity Act allows for notice to either the Board of Regents, as the University's governing body, or the Attorney General, as the Board's statutory attorney. The decision is here. Supreme court reverses dismissal of charge of using marijuana in a detention facility. An inmate charged with unlawful use of marijuana in a detention facility will face prosecution on that charge after all. The trial court dismissed the charge, concluding that the charge violated equal protection because it imposed a greater punishment on marijuana users than other laws imposed on users of more serious drugs, because marijuana users were given no treatment option. The supreme court reversed, holding that that legislature explicitly intended that marijuana users in detention facilities not be given a treatment option. The legislature's statutory distinction between marijuana use and other drug use had a rational basis, the court said, and therefore there was no equal protection violation. The decision is here. The court granted no cert. petitions. Click here for today's case announcements list.
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