Justia Civil Procedure Opinion Summaries

William Persichette, through Franklin D. Azar & Associates, P.C., brought an underinsured-motorist (“UIM”) action against Owners Insurance Company (“Owners”) for allegedly handling his insurance claim unreasonably and in bad faith. About three months later, Persichette retained Mark Levy of Levy Law, P.C. (collectively “Levy Law”) as co-counsel. Owners promptly moved to disqualify Levy Law pursuant to Colo. RPC Rule 1.9(a) on the ground that Levy Law was Owners’ longtime former counsel and had a conflict of interest. The district court denied the motion, finding that Levy Law’s representation of Persichette was not “substantially related” to Levy Law’s decade-plus representation of Owners. Owners then filed a C.A.R. 21 petition invoking the Colorado Supreme Court's original jurisdiction. The Supreme Court concluded the district court erred in denying Owners’ motion to disqualify, and reversed. View "Persichette v. Owners Ins. Co." on Justia Law

This case and its companion, Yakutat Land Corp. v. Langer, 2020 CO 30, __ P.3d __, arose out of a contentious zoning dispute involving the propriety of constructing a gravity-based mountain roller coaster in a part of the Estes Valley, Colorado in which “significant view sheds, woodlands, rock outcroppings, ridgelines, other sensitive environmental areas and low-density residential development comprise the predominant land use pattern.” The issue presented for the Colorado Supreme Court's review centered on whether the Larimer County Board of County Commissioners (the “BOCC”) misconstrued applicable law and abused its discretion in finding that defendant Yakutat Land Corporation’s mountain coaster project was properly classified as a Park and Recreation Facility, rather than as an Outdoor Commercial Recreation or Entertainment Establishment. The Supreme Court concluded the BOCC correctly construed the applicable code provisions, and, applying the deferential standard of review mandated here, it further concluded that the BOCC did not abuse its discretion in classifying the mountain coaster project as a Park and Recreation Facility. Accordingly, the Supreme Court affirmed. View "Langer v. Board of County Commissioners" on Justia Law

This case and its companion, Langer v. Board of Larimer County Commissioners, 2020 CO 31, __ P.3d __, arose out of a contentious zoning dispute involving the propriety of constructing a gravity-based mountain roller coaster in a part of the Estes Valley, Colorado in which “significant view sheds, woodlands, rock outcroppings, ridgelines, other sensitive environmental areas and low-density residential development comprise the predominant land use pattern.” The issue presented for the Colorado Supreme Court's review centered on whether the local authorities tasked with making and reviewing zoning determinations abused their discretion in interpreting and applying the Estes Valley Development Code (the “Code”) when they determined that the proposed mountain coaster could be constructed. Applying a deferential standard of review for an action brought pursuant to C.R.C.P. 106(a)(4), the Court concluded that they did not. Furthermore, the Court determined the constitutionality of the Code could not be appropriately raised or considered in a suit brought exclusively as a Rule 106 claim: "Rule 106 proceedings are reserved for challenges to the judicial and quasi-judicial actions of government actors. In other words, these claims challenge the application of a law in a particular instance, not the law itself." View "Yakutat Land Corp. v. Langer" on Justia Law

The Tenth Circuit Court of Appeals certified a question of law to the Colorado Supreme Court. The certified question arose from a dispute in which plaintiff Amica Life Insurance Company sought a declaratory judgment that it was not required to pay defendant Michael Wertz benefits under a life insurance policy naming Wertz as the beneficiary. The policy, which was issued in compliance with a standard enacted by the Interstate Insurance Product Regulation Commission (the “Commission”), contained a two-year suicide exclusion, and the insured committed suicide more than one year but less than two years after Amica had issued the life insurance policy to him. Wertz contended that the policy’s two-year suicide exclusion was unenforceable because it conflicted with Colorado statute, section 10-7-109, C.R.S. (2019). Wertz asserted that the Colorado General Assembly could not properly delegate to the Commission the authority to enact a standard that would effectively override this statute. After review, the Colorado Supreme Court agreed with Wertz, and accordingly, answered the certified question narrowly: the General Assembly did not have the authority to delegate to the Commission the power to issue a standard authorizing the sale of life insurance policies in Colorado containing a two-year suicide exclusion when a Colorado statute prohibited insurers doing business in Colorado from asserting suicide as a defense against payment on a life insurance policy after the first year of that policy. View "Amica Life Insurance Company v. Wertz" on Justia Law

Santa Maria Reservoir Company (“SMRC” or the “Company”) was a mutual reservoir company responsible for storing and releasing water to its shareholders, who owned the right to use that water. SMRC’s water was stored in its two reservoirs: the Santa Maria Reservoir and the Continental Reservoir. SMRC was contacted about leasing water from SMRC’s shareholders to replace depletions to the Rio Grande. In May 2013, the Division Engineer submitted a written report in which he recommended “that th[e] requested change of water right be granted” with one condition: “that such change . . . not expand the consumption of the water right beyond that which has been the historical practice for agricultural purposes.” SMRC met with various opposers to explore what terms and conditions might assuage their concerns. Based on their input, it drafted a proposed decree in which it agreed to replicate accretions (including return flows) to the Rio Grande to prevent injury to other water rights diverting from the Rio Grande. By April 2016, all opposers except appellant Jim Warner had stipulated to the entry of SMRC’s proposed decree. Warner’s opposition was premised on his concern that SMRC’s application, if granted, would interfere with his downstream surface and groundwater rights. Warner, a rancher, owned two parcels of land on which he grew hay for his livestock using flood irrigation. His properties were located in the Closed Basin, generally east and north of land that received the water SMRC delivered through the Rio Grande Canal. Because he flood irrigated, Warner needed the groundwater beneath his lands to stay at a level close enough to the surface to reduce ditch losses and allow water to carry further across his crop land. After review of the water rights at issue and proposed uses, the Colorado Supreme Court concluded Warner was not injured by the water court’s approval of the change-of-use application submitted by SMRC with respect to the water it diverted from the Rio Grande into the Closed Basin. "Because that water is imported water, SMRC is entitled to fully consume all of it. The water would not be in the Closed Basin, much less available for use by Warner and other water users in the Closed Basin, without its importation by SMRC. Thus, rather than cause an injury to Warner, the approval of SMRC’s application simply revealed to him that his past use of return flows from SMRC’s imported water in the Closed Basin was a benefit to which he had no enforceable right; Warner just didn’t know what he had ‘til it was gone." View "Santa Maria Reservoir Co. v. Warner" on Justia Law

The Tenth Circuit Court of Appeals certified a question of Colorado law to the state Supreme Court. Plaintiff Franklin Gale was terminated from his job as a deputy sheriff with the Denver Sheriff’s Department. At the time of his termination, he was serving as chief of the Downtown Detention Center, and the Denver Department of Safety had concluded that he had violated several internal regulations and certain Career Service Rules. Gale sought review of his termination before the Denver Career Service Board. After a hearing officer and then the full Board affirmed Gale’s termination, he filed a C.R.C.P. 106(a)(4) claim for judicial review in the Denver District Court, naming the City and County of Denver (the “City”), among others, as defendants. In addition, Gale filed a separate action pursuant to 42 U.S.C. section 1983 against the City, among others, in the United States District Court for the District of Colorado (the “federal action”). In the federal action, Gale sought money damages for the City’s alleged violations of his First Amendment rights to free speech and free association. The Denver District Court ultimately affirmed the Career Service Board’s order upholding Gale’s termination, and the City thereafter sought and obtained leave to amend its answer in the federal action to assert a defense of claim preclusion. The City then moved for summary judgment in the federal action based on this defense. As asked by the federal appeals court, the issue presented questioned whether Colorado crafted an exception to the doctrine of res judicata such that a prior action under Colorado Rule of Civil Procedure 106(a)(4) could not preclude 42 U.S.C. 1983 claims brought in federal court, even through such claims could have been brought in the prior state action. The Supreme Court answered the question "no." View "Gale v. City & County of Denver" on Justia Law

Husband Steven Durie brought a dissolution of marriage action in April 2014. He and his then-wife, Wife Kelly subsequently exchanged sworn financial statements, mandatory disclosures, and supplemental disclosures. In line with C.R.C.P. 16.2(g), the parties jointly selected and retained an expert to value their businesses: Coin Toss, LLC, a holding company, and the two companies owned by Coin Toss: Rock Paper Scissors, Inc., d/b/a Secure Search, and Sandbox Sharing, LLC, d/b/a Safeguard from Abuse. The parties integrated this value into the property division of the marital estate set forth in their separation agreement, which was in turn, integrated into the decree of dissolution. Thirteen months after the court issued the decree of dissolution, Husband sold a portion of Secure Search’s assets to a Tennessee company, for an amount more than 685% higher than the value assigned to Coin Toss in the separation agreement. When Wife learned of the sale, and “[b]elieving she smelled a rat,” she filed a motion pursuant to Rule 16.2(e)(10) to set aside or reopen the property division in order to reallocate the proceeds from the post-decree sale. Husband moved to dismiss. Although Husband did not cite the rule in his motion, Wife urged the court to treat it as a Rule 12(b)(5) motion and to apply "Warne’s" plausibility standard in evaluating her 16.2(e)(10) motion. The court granted Husband’s motion to dismiss. Wife appealed, and the Colorado Supreme Court held that hold that Rule 12(b)(5) and the plausibility standard in Warne did not apply to Rule 16.2(e)(10) motions. Instead, the Court held that, consistent with C.R.C.P. 7(b), a Rule 16.2(e)(10) motion must “state with particularity” the grounds on which it is premised, but this did not preclude allegations that were based on information and belief when the moving party lacked direct knowledge about those allegations. “So long as the motion satisfies the particularity requirement in Rule 7(b)(1), it may include such allegations.” The matter was remanded back to the district court for further proceedings. View "In re Marriage of Durie" on Justia Law

Plaintiff Carol Rademacher challenged a district court’s ruling that she impliedly waived her attorney-client privilege by filing a legal malpractice complaint close to the expiration of the two-year statute of limitations and by then contesting defendant Ira Greschler’s statute of limitations defense. Greschler served as Rademacher’s attorney on various matters for more than two decades. One of the matters in which Greschler represented Rademacher involved the settlement of potential civil claims that Rademacher had brought against a man named John Becker and his wife. Pertinent here, for approximately ten years, Rademacher and Becker were involved in an extramarital relationship. Becker’s wife ultimately confronted and assaulted Rademacher, after which Rademacher contacted the police. The Beckers and Rademacher entered into a settlement agreement, under which Rademacher agreed not to pursue any claims against the Beckers and to ask the Boulder District Attorney’s office to offer Ms. Becker a deferred sentence. In exchange for these promises, Becker executed a $300,000 promissory note payable to Rademacher. Becker stopped making payments, and Rademacher, still represented by Greschler, sued to enforce the agreement. A jury ultimately found for Rademacher, and Becker appealed. After Greschler had orally argued the case in the court of appeals but before an opinion was issued, Rademacher’s divorce attorney, Shawn Ettingoff, sent Greschler a letter “to convey [Rademacher’s] dissatisfaction with [Greschler’s] inadequate representation” in the dispute with Becker. The letter also noted that Greschler’s conduct in representing Rademacher “helped create and perpetuate a situation that may very well lead to the reversal of the judgment in [Rademacher’s] favor.” The court of appeals eventually ruled the agreement between Rademacher and Becker was void as against public policy. Rademacher thereafter sued Greschler, asserting, among other things, a claim for professional negligence (legal malpractice). Several months later, Greschler moved for summary judgment on this claim, arguing that it was barred by the applicable statute of limitations. The Colorado Supreme Court concluded that on the facts presented, Rademacher did not assert a claim or defense that either focused or depended on advice given by her counsel or that placed any privileged communications at issue. Accordingly, the Court further concluded Rademacher did not impliedly waive her attorney-client privilege in this case. View "In re Rademacher v. Greschler" on Justia Law

The Colorado Title Board set a title for Proposed Ballot Initiative 2019–2020 #3 (“Proposed Initiative”) that reads, in pertinent part, “An amendment to the Colorado constitution concerning the repeal of the Taxpayer’s Bill of Rights (TABOR), Article X, Section 20 of the Colorado constitution.” The Board also ultimately adopted an abstract that states, regarding the economic impact of the Proposed Initiative. A challenge to the Proposed Initiative was presented for the Colorado Supreme Court's review, and after such, the Court concluded the title and abstract were clear and not misleading, and that the phrase “Taxpayer’s Bill of Rights,” as used in the title, was not an impermissible catch phrase. Accordingly, the Court affirmed the decision of the Title Board. View "In re Proposed Ballot Initiative 2019" on Justia Law

The issue this case presented for the Colorado Supreme Court’s review centered on whether an investigative subpoena issued by the Colorado Medical Board (the “Board”) can have a lawfully authorized purpose if the investigation was prompted by a complaint made by the Colorado Department of Public Health and Environment (the “CDPHE”) pursuant to a policy that violated the Open Meetings Law (the “OML”) or the State Administrative Procedure Act (the “APA”). Scott McLaughlin, M.D. was a physician licensed to practice medicine in Colorado. As part of his practice, he evaluated patients to see if they had a qualifying condition that would benefit from the use of medical marijuana. Information related to medical marijuana in Colorado is maintained by the CDPHE in a confidential registry that includes the names of all patients who have applied for and are entitled to receive a marijuana registry identification card, as well as the names and contact information for the patients’ physicians and, if applicable, their primary caregivers. In May 2014, the CDPHE referred McLaughlin to the Board for investigation based on a high caseload of patients for whom marijuana was recommended. McLaughlin refused to comply with the subpoena, and he and several other physicians whom the CDPHE had referred to the Board and who had received subpoenas from the Board filed suit in the Denver District Court, seeking, among other things, to enjoin the Board from enforcing its subpoenas. The Supreme Court concluded that because neither the CDPHE’s adoption of the Referral Policy nor its referral of Boland to the Board violated the OML or the APA, Boland’s contention that the subpoena to him was void because the Policy and referral were void was based on a flawed premise and was therefore unpersuasive. Even if the adoption of the Referral Policy and the referral itself violated the OML or the APA, however, we still conclude that the Board’s subpoena to Boland had a lawfully authorized purpose because it was issued pursuant to the Board’s statutory authority to investigate allegations of unprofessional conduct and was properly tailored to that purpose. View "Colorado Medical Board v. McLaughlin" on Justia Law