February 27, 2004 Here's the link for the interrogatories from the General Assembly that the supreme court accepted today. The supreme court accepts interrogatories from the General Assembly. The original proceeding is styled In re Interrogatories Submitted by the General Assembly on House Bill 04-1098 (Case No. 04SA64). These interrogatories arise out of the ongoing dispute between the General Assembly and the Governor on the line-item veto. (There is a pending action by the General Assembly against the Governor on the Governor's use of the veto and the scope of his line-item veto power.) In accepting the interrogatories, the court set an accelerated briefing and argument schedule as follows: IT IS ORDERED that the General Assembly, the Governor, the Attorney General, and any other interested persons may file simultaneous opening briefs in the Supreme Court clerk's office no later than 5:00 p.m. on Wednesday, March 10, 2004; and may file simultaneous answer briefs in the Supreme Court clerk's office no later than 5:00 p.m. on Thursday, March 18, 2004. Briefs are to be served on opposing parties by hand delivery. Briefs must be in compliance with the Colorado Appellate Rules, except that fifteen (15) copies must be filed. IT IS FURTHER ORDERED that oral argument in this matter is set for Wednesday, March 31, 2004, at 9:00 a.m. Unfortunately, I don't have an actual copy of the interrogatories. But I'm working on that. When I have them, I will post them. The supreme court will issue two decisions Monday, In Re Arvada Urban Renewal v. Columbine Prof. Plaza, No. 03SA329, and Colo. Dept. of Corrections Parole Div. v. Madison, No. 03SA14. I don't have any information about the former case, but the latter case addresses the following issue: Whether the Denver District Court erred in ruling that a parolee awaiting a parole revocation hearing can never be held in county jail more than 30 days. February 26, 2004 The court of appeals' case announcements for today are here. The court handed down 16 published decisions. Links to those decisions follow, and summaries will be added as soon as I can do them. I will probably post the summaries a few at a time instead of all at once because there are so many decisions. Sexual exploitation of children statute is not unconstitutionally overbroad on its face and was not unconstitutional as applied. The defendant challenged his convictions for sexual exploitation and contributing to the delinquency of a minor. The defendant had taken sexually explicit photographs of his 18-year-old wife and a 15-year-old girl. The defendant argued that the sexual exploitation of children statute was unconstitutional as applied to the facts of the case, because that statute punished him for taking the photographs of his wife and the girl having sex, while his wife's conduct in having an admittedly consensual sexual relationship with the girl was not unlawful. The court rejected that argument, concluding that that statute satisfied the rational basis test. The court further held that the statute was not facially overbroad and therefore did not violate the First Amendment. The court distinguished the U.S. Supreme Court's decision in Ashcroft v. Free Speech Coalition, noting that the Colorado statute was narrower than the statute invalidated in that case. People v. Campbell Mere fact that a judge presided over a previous (and related) criminal case involving the same party is not a sufficient basis to disqualify that judge from a case. In this appeal from the termination of parental rights, a father argued that the trial judge who presided over his criminal trial (which resulted in acquittal on charges that that the father had murdered his wife, mother-in-law and father-in-law) should have recused himself from the termination proceedings. The court of appeals rejected that argument, concluding that the recusal motion failed to state facts from which it could be inferred that the trial judge was biased or prejudiced. People in the Interest of S.G. Where defendant stipulates to a sentence in the aggravated range as part of a plea agreement, the defendant is also stipulating that sufficient facts exist to warrant an aggravated sentence. In those circumstances, the trial court need not make additional findings on the record in order to impose a sentence in the aggravated range. People v. Shepard Exclusion of polygraph evidence offered by defendant was not abuse of discretion. The court of appeals held that the reasoning in People v. Anderson, 637 P.2d 354 (Colo. 1981), which had adopted the Frye standard, was still viable even though the Frye standard was abrogated by People v. Schreck, 22 P.3d 68 (Colo. 2001). Anderson had held that polygraph evidence was unfairly prejudicial. The court of appeals concluded that the trial court was correct in refusing to admit the polygraph evidence under CRE 403 without deciding whether the evidence otherwise may have satisfied CRE 702. People v. Wallace Motion for de novo review of child support determination of arbitrator filed under C.R.S. § 14-10-128.5 was untimely because it was not filed within thirty days of the date the arbitration award was confirmed. In re the Marriage of Schmitt General contractor was not statutory employer of worker employed by subcontractor, and thus was not immune under the Workers' Compensation Act from common law liability for personal injury claim brought by worker. Newsom v. Frank M. Hall & Co. A trial court need not determine a defendant's ability to pay restitution before imposing it. The court concluded that restitution is not the equivalent of a fine for Eighth Amendment analysis. The court also concluded that the trial court did not err in ordering restitution based on the replacement value of the stolen items rather than on their fair market value. People v. Stafford Trial court violated defendant's due process rights by sentencing him based on evidence outside the record. The trial court relied on its own notes and recollection of evidence from a codefendant's trial without notifying the defendant that it would rely on that information. The court of appeals held that to be improper. The court also held that a trial court must still consider a defendant's ability to pay a fine, despite the US Supreme Court's decision in United States v. Bajakajian. People v. Pourat (I was counsel for defendant-appellant in this case.) Podiatry Board's authority to regulate the practice of podiatry necessarily includes the authority to determine whether specific acts fall within the scope of podiatry. Therefore, the Podiatry Board properly could conclude that certain procedures performed by a podiatrist were outside the permissible scope of podiatric practice. The court of appeals affirmed the revocation of the podiatrist's license. Snyder v. Colorado Podiatry Board Husband's income interest in irrevocable trust created by his parents did not constitute a property interest subject to property division in a dissolution action. In re the Marriage of Guinn Radio talk show hosts statements were defamatory per se because they alleged criminal activity or serious sexual misconduct. In addition, determination of the identity of the defamed is separate and distinct from the determination of the defamatory character of the statement, and thus is not part of an analysis of per se defamatory meaning. The court concluded that because extrinsic evidence may be used to determine the identity of the defamed and the plaintiffs' proffered extrinsic evidence established a material issue of fact, summary judgment was not proper on the defamation claims involving some of the allegedly defamatory statements. The court affirmed the grant of summary judgment on other statements, concluding that no material issue of fact existed as to the truth of those statements. The court reversed summary judgment on the negligent supervision and respondeat superior claims brought against the radio station, concluding that material facts existed as to whether the radio station was negligent in it supervision and whether the allegedly defamatory statements were made within the scope of the talk show host's employment. The court affirmed the grant of summary judgment on an outrageous conduct claim. Gordon v. Boyles A guarantor is not an applicant for purposes of bringing an action under § 202.9(a)(1) of the Equal Credit Opportunity Act, and therefore lacks standing. But plaintiff had standing because he submitted a loan application as a coborrower not simply as a guarantor. The court also concluded that § 1691e(d) of the statute mandates an award of attorney fees and costs for maintaining a successful action for actual damages under § 1691e(a) of the Act. Durdin v. Cheyenne Mountain Bank A tree in a public park was not a "public facility" located in the park for purposes of the Governmental Immunity Act. "Public facility" refers to a facility built or constructed by a public entity rather than a natural feature such as a tree. A remand was necessary to determine whether the City had incorporated the tree into a public facility in such a manner that it became an integral part of the facility and was essential to the facility's intended use. Rosales v. City and County of Denver Arbitrator exceeded his powers to modify an arbitration award because the corrected award did not properly remedy an "evident miscalculation of figures." The court of appeals held that nothing in the original award justified the corrected award and the arbitrator improperly redetermined the merits of the case. Sholar Group Architects, P.C. v. Sooper Credit Union Under ambiguous policy language, the initial car insurance premium paid for coverage for a newly-acquired vehicle for thirty days or until other insurance was acquired, whichever occurred first. Therefore, summary judgment was inappropriate. The case was remanded for further proceedings, including proceedings to determine whether to certify the case as a class action. Anglum v. USAA Prop. and Cas. Ins. Co. When an occupational disease is at issue, the limitation period of CRS § 8-43-103(2) begins to run as of the date when the claimant becomes disabled. The onset of disability occurs when the occupational disease impairs the claimant's ability to perform his or her regular employment effectively and properly or when it renders the claimant incapable of returning to work except in a restricted capacity. City of Colorado Springs v. Industrial Claim Appeals Office February 25, 2004 Here is the list of decisions the court of appeals will announce tomorrow. The court is issuing a big batch of published and unpublished decisions (56 total).. Sixteen published decisions will be issued. I will try to get summaries up by the end of the day tomorrow, but given the large number of published decisions coming down, and more importantly, given that I have a court of appeals brief due tomorrow, the summaries may not get up as quickly as I'd like. Please accept my apologies in advance. I swear I'm not just watching the World Golf Championships (I don't have cable in my office). February 24, 2004 The court of appeals' oral argument calendar for April is here. The court will hold arguments at CU on April 7 (2:30 p.m.), and at DU on April 8 (4 p.m.). February 23, 2004 Here are today's supreme court case announcements. The court issued four decisions. The court did not grant cert. in any cases. Here's a summary of the four new decisions: Under the Good Samaritan statute, CRS§ 16-3-203, people who seek to prevent future crimes are entitled to recover attorney fees and court costs in successful defense of lawsuits resulting from the Good Samaritan conduct. The Good Samaritan had heard a disturbance in the middle of the night but did not call the police until the next day. The court of appeals had held that she was not entitled to fees in defending a defamation action because her phone call to the police did not occur during the "exigent circumstance" of the "crime in progress." The supreme court reversed, concluding that § 16-3-203 shifts court costs and attorney fees to the plaintiff when the defendant prevails and the trial court finds that the defendant acted in good faith to prevent what she thought was a current or future crime. The court also held that no actual crime need occur before § 16-3-403 will apply. Schwankl v. Davis Terminated school employee is entitled to judicial review under C.R.C.P. 106(a)(4) of the school district's termination decision, but under a deferential standard of review only. The court concluded that de novo review by the district court of the termination proceeding was inappropriate. Instead, deferential review under Rule 106 is appropriate. The court ordered a remand to the school district for findings and conclusions because the record was insufficient for proper judicial review. The decision was 4-3, with a strong dissent by Justice Rice (joined by Justices Hobbs and Bender). (Justice Kourlis wrote the majority opinion.) The dissent argued that the result reached by the majority rendered virtually meaningless CRS § 22-32-110(4), the Immunity Statute. That statute shields school districts and their employees from liability arising out of actions taken in good faith and in compliance with the school district's state-mandated discipline code. The dissent argued that by applying a deferential standard of review to termination decisions the majority undermined the statutory protection for school district employees. The dissent believed a de novo standard of review should apply. Widder v. Durango School District No. 9-R An award of costs is within the discretion of the trial court in water cases because there is no rule or statute that prohibits such an award. The water court had awarded costs under C.R.C.P. 54(d) and 121 § 1-22. The supreme court affirmed, rejecting the argument that water adjudication proceedings should not be considered litigation under Rule 54(d). The court concluded that by the time a water case gets to a de novo hearing before a water judge, it carries many of the indicia of contested civil litigation. Therefore, since no statute prohibited the award of costs, it was up to the trial court in the exercise of its discretion to determine whether to award costs. The supreme court held no abuse of discretion occurred. Concerning the Application for Water Rights of Groundwater Appropriators of the South Platte River Basin Where a plaintiff properly invokes the Fifth Amendment privilege against self-incrimination, either before or during trial, the trial court must engage in a three-part balancing test before determining what adverse consequences, if any, will flow from that invocation. A trial court must determine: (1) whether the defendant has a substantial need for the information withheld; (2) whether the defendant has an alternative means of obtaining the information; and (3) whether any effective, alternative remedy, short of dismissal, is available. In applying the third prong of this analysis, the trial court must ensure that the detriment to the party asserting the privilege is no more than is necessary to prevent unfair and unnecessary prejudice to the other side. The supreme court noted that the appropriate remedy will depend upon the facts of each case. The court reversed the dismissal of the plaintiff's claims against his disability insurer. The trial court had dismissed the claims as a sanction for plaintiff's refusal to answer certain deposition questions for which the plaintiff asserted his Fifth Amendment privilege. Justice Coats concurred in the judgment, concluding that no court has the discretion to dismiss a person's lawsuit for refusing to incriminate himself. Justice Coats noted that C.R.C.P. 26 does not require the disclosure of privileged material, so the proper exercise of the Fifth Amendment privilege against self-incrimination cannot amount to a discovery violation or give rise to sanctions under C.R.C.P. 37. Steiner v Minnesota Life Ins. Co. February 20, 2004 The supreme court's oral argument schedule for March 2004 is here. The court will hear the following cases: Ainscough v. Owens, No. 03SC164, March 15, 9 a.m.: Whether the court of appeals erred when it concluded the petitioners lacked standing in this matter. Frazier v. People, No. 03SC445, March 15, 10 a.m.: Whether Senate Bill 01-168 (Appendix B) which set the maximum penalty for vehicular homicide involving alcohol, at one year in County Jail, was clear and unambiguous, and therefore not subject to interpretive rules of statutory construction. Rothenberg v. Wallbank, No. 03SC122, March 15, 1:30 p.m.: Whether in light of this court's rulings in State Board of Medical Examiners v. McCroskey, 880 P.2d 1188 (Colo. 1994) and In the Matter of Attorney D., 57 P.3d 395 (Colo. 2002), it is permissible to prove a professional standard of care, or to impeach an expert's testimony regarding the standard of care, by questioning the expert witness about his or her subjective, personal practice. Szaloczi v. John R. Behrmann Revocable Trust, No. 02SC911, March 15, 2:30 p.m.: Whether the court of appeals erred by holding that a shareholder who dissented from a corporate action and sought the fair value of its shares in a statutory appraisal suit also may maintain legal claims for money damages allegedly arising from the dissented-from transaction. Town of Frisco v. Baum, No. 03SC181, March 15, 3 p.m.: Whether a Colorado home rule municipality, pursuant to an express constitutional authorization to regulate and define the jurisdiction of its municipal court in local matters, may provide that its municipal court has exclusive original jurisdiction over a matter that arises under the charter, ordinances or other enactments of the municipality. Whether the court of appeals erred in failing to construe the Colorado Constitution as a whole and harmonize the provisions of article XX, section 6, concerning the authority of a home rule municipality to define the jurisdiction of its municipal court, with the provisions of article VI, concerning the vestment of judicial authority of the state in the state courts. Trans Shuttle, Inc. v. PUC, No. 03SA156, March 16, 9 a.m.: Whether the District Court erred in finding that the Public Utilities Commission of the State of Colorado has jurisdiction to issue a penalty against the Appellants who hold federal licenses to transport passengers and their baggage in intra-and interstate commerce; and whether the District Court erred in finding that the PUC "regularly pursued its authority" in determining that the operations of Appellants were not in compliance with their federal licenses. Whether the District Court erred in finding that the PUC, by imposing a standard for establishing compliance with Appellants' federal licenses, was not engaged in rule-making. Whether the District Court erred in its standard of review of a PUC decision when the issue is a challenge to jurisdiction of the PUC. Whether the District court erred in finding that the PUC Decisions did not deprive the Appellants of their property, i.e., their right to provide passenger service under their federal Certificates, without due process of law guaranteed to Appellants under the United States and Colorado Constitutions, including but not limited to the following: a. by finding that Appellants provided passenger service not in compliance with Appellants' federal Certificates and in finding that Appellants were required to obtain a certificate from the PUC before providing said passenger service; b. by finding that Appellants were not engaged in interstate commerce by picking up passengers and their baggage from DIA and taking them to Denver, Colorado; c. by finding that the PUC had authority to interfere with Appellants' business in compliance with their federal Certificates; d. by imposing on Appellants the burden of proof to show that they were in compliance with their federal Certificates rather than requiring the PUC to prove that the Appellants were not in compliance therewith; and e. by imposing on Appellants the burden to prove that their interstate business was substantial without advising Appellants of the standard of proof to which they would be held. Archer v. Farmer Bros. Co. , No. 02SC583, March 16, 10 a.m.: Whether the court of appeals erred in affirming the trial court's rulings refusing to tax costs in favor of the plaintiff as the prevailing party, and to tax costs in favor of the individual defendants. Taylor v. Canterbury, No. 03SC294, March 16, 10:30 a.m.: Is it permissible for a joint owner of real estate to sever the joint
tenancy by unilaterally conveying his interest in the property back
to himself to create a tenancy in common with the other joint tenant? The supreme court will issue the following four decisions on Monday: 02SC810 Schwankl v. Davis, addressing the following issues: Whether the benefits of the attorneys' fee provision in C.R.S. Section 16-3-203 are limited only to a successful defendant in a civil action who can show that her actions to prevent a crime were taken during the "exigent circumstance" of a "crime in progress." Whether the benefits of the attorneys' fee provision in CRS Section 16-3-203 are limited only to a successful defendant in a civil action who proves that each element of a crime has been committed. 03SA56 Concerning the application for Water Rights of Groundwater Appropriators of the South Platte River Basin Inc., answering these questions: Whether an applicant for water rights who obtains a decree granting conditional water rights should be considered a "prevailing party" pursuant to C.R.C.P. 54 (d) for the purpose of granting costs against an opposer in an application. Whether the Water Court's decision to award costs to GASP against Fort
Morgan pursuant to C.R.C.P. 54(d) in this case was unreasonable, unfair,
and arbitrary, and constituted an abuse of discretion. 02SC497 Widder v. Durango School District, addressing this two-part question: Whether a school district employee who was dismissed for cause is entitled to judicial review of the school board's determination that his conduct was not protected under section 22-32-110(4)(c)(1999); and if so what is the correct standard of review. 03SC84 Steiner v. Minnesota Life, addressing this question: Whether the court of appeals erred in applying the wrong constitutional standard in affirming the dismissal of Petitioner's claims by the trial court after his invocation of the privilege against self-incrimination. February 19, 2004 Here are the court of appeals case announcements for today. The court issued unpublished decisions only. February 18, 2004 I'm back! I apologize for the lack of updates, but unfortunately we had serious computer problems that have prevented me from updating, and which appear to have deleted my February 16 post from my computer (but not from cyberspace--don't ask me for an explanation, it's all way over my head). Tomorrow the court of appeals will release unpublished decisions only. The list of cases the court will issue is here. Yesterday, the supreme court issued no new decisions, but did grant cert. in two cases. The case announcements are here. Here are the questions presented in the two cases taken for review: State Farm Mut.
Auto. Ins. Co. v. Shaffer, No. 03SC719, (Court of Appeals Case
No. 02CA1918 (9/11/03) (unpublished)): Paul v. People, No. 03SC668, (Court of Appeals Case No. 02CA0199 (8/14/03)): Whether, in a case
of first impression in Colorado, the court of appeals applied the wrong
standard for a defendant's consent to a sua sponte declaration of a
mistrial by relying on an inapposite case of the court of appeals from
the 5th Circuit and failing to apply the national rule. a. by finding there
was manifest necessity to terminate a trial to protect the prosecution's
interest in cross-examining the defense's expert after the prosecution
had rejected two opportunities for a continuance for that purpose, and
b. by paying lip service
only to the de novo standard of review, required by this court in People
v. Berreth, supra. February 16, 2004 The courts are closed today in observance of Presidents' Day. (Homer Simpson's efforts to have Washington and Lincoln's Birthdays restored to separate holidays continue to fail. But keep trying Homer, we're all rooting for you.) The supreme court will issue no new decisions tomorrow, only determinations on cert. petitions. I'll post that link tomorrow, and will give information on any cert. petitions that are granted. February 13, 2004 I apologize for not getting the court of appeals' summaries for yesterday done. They are up now. Thanks for your patience. Court of appeals case announcements for February 12, 2004 are here. The court issued eight published decisions, listed below. Summaries follow. Admission of defendant's autobiography, in which defendant described his typical method of luring and molesting children, was harmless beyond a reasonable doubt, even if admitting it was error. The court also upheld the admission of prior acts evidence introduced under CRE 404(b). People v. Larson EPA is properly characterized as an investigatory and rulemaking body, not a law enforcement agency for purposes of C.R.S. § 16-10-103(1)(k) or Crim P. 24(b)(1)(XII). Therefore, the trial court did not err in denying defendant's challenge for cause of a juror employed by the EPA as a librarian. The court affirmed the defendant's convictions for sexual assault on a child by one in a position of trust as part of a pattern of abuse (among other convictions), but the court of appeals vacated the sentences, concluding that consecutive sentences were not required, as the trial court had concluded. People v. Simon Crim P. 35(a) does not give trial court's authority to challenge an act of the Department of Corrections. Rather, that claim lies in an action against the DOC or the State Board of Parole. Therefore, the court of appeals dismissed for lack of jurisdiction a pro se defendant's appeal from the denial of his Crim. P. 35(a) motion, which had argued that the DOC applied the wrong parole statute in calculating his release date upon his reincarceration. People v. Huerta C.R.S. § 8-43-402 does not require the individual accused of making a false statement or representation to file or cause to be filed a workers' compensation claim. Therefore, the defendant could be convicted under that statute even though he didn't cause a claim to be filed. The court also held that C.R.S. § 18-4-401 does not require proof that the defendant personally acquired anything of value. People v. Witek Colorado Farm Equipment Fair Dealership Act, C.R.S. § 35-38-101, et seq., does not preclude a dealer and supplier from contracting for an award of attorney fees to a prevailing party in an action relating to their agreement. The court concluded that public policy did not prohibit the parties from agreeing to an attorney fees provision in their contract. The court remanded the case for further proceedings on the attorney fees issue, because the court was unable to ascertain from the record whether the trial court intended to deny fees incurred after the filing of the original attorney fees motion. Denner Enterprises, Inc. v. Barone, Inc. A statutory time period set forth in years ends on and includes the anniversary date of the concluding year, i.e., the same month and day of the concluding year as the month and day from which the computation began. Therefore, the court held that the trial court did not lack jurisdiction to revoke probation on the anniversary date of the defendant's conviction. The defendant pled guilty on June 1, 1992 and received eight years' probation. The prosecution filed a complaint on June 1, 2000 to revoke probation for alleged nonpayments by the defendant. The court of appeals concluded that complaint was timely. People v. Brunner Attempted reservation of development rights that did not specify a time limitation for exercising those rights was void under CCIOA. In addition, the court had two rulings of interest for appellate practitioners. The court refused to address one of the appellant's arguments because it was raised for the first time in the reply brief, and the court refused to consider the appellee's argument that the district court erred in not awarding fees because the appellee did not file a notice of cross-appeal. The lesson: preserve your issues! Silverview at Overlook, LLC v. Overlook at Mt. Crested Butte, LLC CRS § 8-42-105(2)(c) provides for the automatic reinstatement of disability benefits once the employee appears at a rescheduled appointment. The employer was not entitled to withhold temporary disability benefits once the claimant attended a subsequent rescheduled appointment. Rocky Mountain Cardiology v. Industrial Claim Appeals Office February 11, 2004 Court of appeals' case announcement list for tomorrow is here. The court will release eight published decisions and numerous unpublished decisions. February 9, 2004 Today's supreme court announcements are here. The court issued three decisions. The court did not grant any cert. petitions. Here's a summary of the three decisions: Under CRS§ 8-41-301(2)(a), a medical or psychological expert witness must testify as to those matters within his or her expertise. But if the expert is not qualified to testify as to whether an injury arose in the course and scope of employment, was generally outside a worker's usual experience, or would evoke significant distress in a similarly situated worker, a claimant may introduce other competent evidence to prove those elements. The court therefore reversed two court of appeals' decisions that had required the experts to testify to both clauses of "mental impairment" as defined by the statute. The supreme court, 5-2, disagreed holding that "section 8-1-301(2)(a) does not categorically require a claimant to provide expert medical or psychological testimony to prove all elements of the second clause of the 'mental impairment' definition, which asks 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.'" The court held that expert testimony must prove that the the claimant suffered a recognized, permanent disability as the result of a psychologically traumatic event, but that other competent evidence is admissible to prove that the injury was outside the worker's usual experience, and that similarly situated workers would have reacted similarly. Justice Kourlis, joined by Justice Coats, dissented, concluding that the statute requires a claimant to present expert medical or psychological testimony to support all elements of "mental impairment." This is yet another 5-2 decision with Justices Kourlis and Coats in dissent. Davison v. Industrial Claim Appeals Office; Mobley v. Industrial Claim Appeals Office C.R.S. § 18-1.3-1102, which sets forth the procedures when a defendant raises issues of mental retardation in a death penalty case, is constitutional. The district court had held the statute unconstitutional because it requires the defendant to prove retardation by clear and convincing evidence at a pre-trial proceeding. In an original proceeding under C.A.R. 21, the supreme court held unanimously that placing that burden on the defendant did not violate any constitutional principles. People v. Vasquez Claims covered in an insurance policy must be construed as legal claims rather than as lay terms. Therefore, an insurer had no duty to defend its insured against a claim of malicious prosecution, where the complaint against the insured did not allege all necessary elements for a malicious prosecution claim. Because the complaint did not allege all necessary elements, the duty to defend was not triggered. Thompson v. Maryland Casualty Co. February 5, 2004 Court of appeals case announcements for today are here. Only unpublished decisions came down today. February 2, 2004 Happy Groundhog Day! If you see a woodchuck today, tip your cap ( I wouldn't recommend trying to shake a paw. Marmota monax has serious claws). The Tenth Circuit has posted information on this summer's judicial conference (July 21-23 in Park City, Utah). Today's supreme court case announcements are here. The court issued one decision today, and it was a one-pager: No evidence in the record to rebut the presumption of abandonment of a water right, so water court's finding of abandonment upheld. Hammel v. Simpson The court granted cert. in one case, Compass Bank v. The Brickman Group, LLC, No. 03SC632, Court of Appeals Case No. 02CA1645 (7/31/03) (the court of appeals' opinion is here). The issue the court will hear is
Whether a mechanic’s lien can be selectively enforced against less than all of the property within a condominium development when the work was performed on common areas and, thus, cannot be apportioned.
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