ALERT – Co Court of Appeals – Deadline for NOTICE OF APPEAL increased from 45 to 49 days (eff. 7/1/12)
(Posted Date: 6/21/2012)
CAR 4(a) provides for the notice of appeal to be filed with the appealate court and a copy to be served upon the trial court. The time for filing the notice of appeal is increased to 49 days.
Futher, upon a showing of EXCUSABLE NEGLECT (rarely granted) this deadline may be extended for a period not to exceed 35 days (this has been inceased from 30 days).
ALERT – Co Divorce – Statutory changes effecting divorce matters (eff. 7/1/12)
(Posted Date: 6/20/2012)
Senate Bill 175 was recently passed by the Colorado Senate and was signed into law by the Governor on May 24th. The bill makes changes in Colorado statutes that are consistent with the “rule of 7” changes already adopted into the Rules of Civil Procedure. Additoinally, there will be changes to Colorado JDF forms.
C.R.S. § 14-10-106 Dissolution of marriage – legal separation
(1)(a)(I) One of the parties must have been domiciled in Colorado for 91 days prior to commencing a pleading for dissolution of marriage or legal separation. (Was 90 days)
(1)(a)(II) 91 days must elapse after court acquires jurisdiction before it may enter a decree of dissolution or legal separation. (Was 90 days)
C.R.S. § 14-10-107 Commencement – pleadings (etc.)
(4)(a) In cases of service by publication, the Respondent has 35 days to respond after the date of publication. The clerk shall also post for 35 days a copy of the process on the bulletin board. (In both cases it was previously 30 days)
C.R.S. § 14-10-110 Irretrievable breakdown
(2)(b) If one of the parties denies irretrievable breakdown of the marriage, the court shall consider the relevant factors and continue the matter for further hearing not less than 35 days nor more than 63 days to make a finding whether the marriage is irretrievably broken. (Was 30 and 60 days).
C.R.S. § 14-10-120 Decree
(2) No earlier than 182 days after decree of legal separation is entered, on motion of either party the court shall convert decree to a decree of dissolution of marriage. (Was six months.)
C.R.S. § 14-10-122 Modification & termination of provisions for maintenance, support & property disposition
(1)(c) …the obligee or delegate child support enforcement unit is not required to wait 14 days to execute on a support judgment. (Was 15 days)
C.R.S. § 14-10-123 Commencement of proceedings concerning APR
(1)(c) A proceeding concerning APR may be commenced by a person other than a parent who has had the physical care of a child for a period of 182 days or more, if such action is commenced within 182 days after termination of such physical care. (Was six months in both cases)
C.R.S. § 14-10-127 Evaluation and reports
(3) Evaluator shall mail report to the court and counsel at least 21 days prior to hearing. (Was 20 days)
C.R.S. § 14-10-128.3 Appointment of decision maker
(4)(a) A party may file a motion for modification of a decision of the decision maker pursuant to a de novo hearing within 35 days after the decision is issued (was 30 days).
C.R.S. § 14-10-128.5 Appointment of arbitrator
(2) A party may apply to have an arbitrator’s award vacated, modified or corrected no later than 35 days after the date of the award (was 30 days).
C.R.S. § 14-10-129 Modification of parenting time
(3)(a) If a parent has been convicted of any of the crimes…the other parent may object to parenting time and the offending parent shall have 21 days to respond (was 20 days). If such parent responds and objects an hearing shall be held within 35 days of such response (was 30 days).
C.R.S. § 14-10-129.5 Disputes regarding parenting time
(1) Within 35 days after filing of a motion alleging parent is not complying with a parenting time order…the court shall determine from the motion and response, if any, whether there is likely to be substantial or continuing noncompliance (was 30 days)….and either:
(c) Require the parties to seek mediation and report back to the court on the results with 63 days (was 60 days).
C.R.S. § 14-13-102 Definitions
(7)(a) “Home state” means the state in which a child lived with a parent or a person acting as a parent for at least 182 consecutive days immediately before the commencement of a child-custody proceeding…(was six months)
(13)”Person acting as a parent” means a person, other than a parent, who:
(a) Has physical custody of the child or has had physical custody for a period of 182 consecutive days…within one year immediately before the commencement of a child-custody proceeding…(was six months)
C.R.S. § 14-13-201 Initial child-custody jurisdiction
(1) …court has jurisdiction only if:
(a) This state is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within 182 days before the commencement of the proceeding…. (was six months).
C.R.S. § 14-13-305 Registration of child-custody determination
(3) The notice ….must state that:
(b) A hearing to contest the validity of the registered determination must be requested within 21 days after service of the notice (was 20 days)
C.R.S. § 14-14-111.5 Income assignments for child support or maintenance
(3) Activation of income assignment
(b)(II)Notice of activation.
(I) A statement of the obligor’s right to object to the activation of the income assignment with 14 days after the date the advance notice is sent…(was 10)
(K) A statement that failure to object to the activation within 14 days will result in the activation (was 10 days)
(VII)Objections to income assignment
(A) ..obligor may file written objection to activation of income assignment within 14 days after advance notice of activation is sent (was 10 days)… unless obligor alleges that notice was not received in which case an objection may be filed no later than 14 days after actual notice (was 10 days).
..(C) if an objection is filed a hearing shall be set and held by the court within 42 days (was 45 days)
(4) 14 days after date advance notice is mailed to the obligor … (was 10 days)
(9) If an employer discharges an employee in violation of the provisions of this section the employee may within 91 days bring a civil action for the recovery of wages (was 90 days)
C.R.S. § 14-14-112 Deductions for health insurance
(2)(g) notice shall contain a statement that employer shall notify court, obligee or CSEU in writing within 14 days after obligor terminates employment (was 10 days)
Statutory provisions under Title 19, Article 5 , Relinquishment and Adoption have also been modified but are not summarized here.
There are no changes to under Title 19, Article 6 (Child Support Proceedings.)
ALERT – CO Divorce – Court of Appeals court allows abused siblings to sue social workers
(Posted Date: 1/5/2012)
Three siblings severely abused in the home of their biological mother and later in foster care can pursue their lawsuit against Adams County social workers who allegedly failed to protect them and deceived their adoptive parents about the extent of their problems.
See, Shirk v. Forsmark, 10CA2141 (Colo. App. Jan 2012).
ALERT – 10th Cir Court of Appeals – amendments to Local Rules (eff. Jan 1, 2012)
(Posted Date: 1/2/2012)
Other than cleaning of language, one of the more significant changes was made to Fed. R. App. P. Rule 5 for those instance in which a party seeks to “Appeal by Permission” which means that they can only file an appeal with permission upon filing a petition to do so.
The court added a requirement that any reply in support of the petition must be filed within 5 business days of the service of the response (i.e., reply is due 5 business days + 3 calendar days depending on method of service):
10th Cir. R. 5.1 Reply briefs.
A party seeking to file a reply in support of a petition may file a motion to that effect. Replies may be no longer than six pages in length in a 13 point font. The motion must include the proposed reply. Motions filed under this rule must be submitted within 5 business days of service of the response.
SINCE LAWTOOLBOX DOES NOT CALCULATE DEADLINES FOR A PERMISSIVE APPEAL NO MODIFICATIONS TO OUR CALCULATOR WERE REQUIRED.
ALERT – CO District (CAPP) – SUMMARY OF PILOT PROJECT RULES (eff. Jan 1, 2012)
(Posted Date: 1/1/2012)
New comments added Nov 1, 2011.
Pursuant to Chief Justice Directive 11-02, the Colorado Supreme Court has adopted a pilot project to study whether adopting certain rules regarding the control of the discovery process reduces the expense of civil litigation in certain business actions.
The pilot project is scheduled for two years, and shall apply to cases in enumerated districts filed after January 1, 2012 through December 31, 2013 (or until further order of the court). The effect of the pilot will be studied by the Institute for the Advancement of the American Legal System (IAALS) working at the request of the Court. IAALS will issue a report on the effect of the pilot project upon the conclusion of the two year pilot.
Key points are briefly summarized below and will be timely incorporated into LawToolBox calculators and deadlines:
1) The Pilot project Rules (PPR) govern all business actions within Appendix A and filed after January 1, 2012, in the following courts:
Jefferson, Gilpin (First District)
Denver (Second District)
Adams (Seventeenth District)
Arapahoe (Eighteenth District)
2) The following BUSINESS ACTIONS are INCLUDED in the pilot project:
* breach of contract
* business torts
* UCC
* commercial real property
* owner/investor derivative
* transactions with financial institutions
* internal business affairs
* insurance coverage
* dissolution of corporations, partnerships, LLC & joint ventures
* securities fraud and common law fraud
* antitrust actions
* intellectual property & trademarks
* professional malpractice actions NOT including medical negligence
* products liability
NOTE: In practice, a plaintiff will have to decide whether they believe the case falls within CAPP before serving the summons and complaint, because the summons in a CAPP matter says the response is due 21 days after plaintiff serves initial disclosures, and is different from the summons used in a non-CAPP matter which says a response is due 21 days after the summons and complaint are served. At least one judge administering CAPP plans to issue a notice or court order confirming that the matter is governed by CAPP. If you believe that your matter has been erroneously included within CAPP by the plaintiff or the court you should CALL the court and other parties immediately before the court and parties go too far down the CAPP track to correct the error.
3) The following actions are specifically EXCLUDED:
* collection of rent money
* Rule 120 foreclosure proceedings
* appointing a receiver
* financial institutions collecting debts
* employment actions
* construction defects
* actions subject to governmental immunity
* medical negligence actions
* actions alleging negligence for physical injuries
* replevin
* admin agency actions
* actions based on a statute or rule that has distinct time frames
* satisfaction of judgment
4) CRCP still applies except to the extent there is an inconsistency. PPR 1.2
NOTE: Litigators must analyze the interplay between Rule 16, Rule 16.1 and the Pilot Project. These pilot project rules are scheduled to be incorporated into LawToolBox online rule-based court deadline calculators prior to the effective date.
5) A plaintiff that believes CAPP applies to their case should use the CAPP Summons (form JDF 600.5) which provides that a responsive pleading is due 21 days after plaintiff files their initial disclosure statement, instead of the summons for non-CAPP litigation which requires that a defendant file its answer or other response within 21 days after service of the complaint and summons (or 35 days if served out-of-state).
6) Parties must plead and deny matters with a higher degree of specificity, and must include known monetary damages but not punitive damages. PPR 2
NOTE: any claim asking for punitive damages may be subject to a motion to strike or conform to CRS 13-21-102(1.5) (“A claim for exemplary damages in an action governed by this section may not be included in any initial claim for relief. A claim for exemplary damages in an action governed by this section may be allowed by amendment to the pleadings only after the exchange of initial disclosures pursuant to rule 26 of the Colorado rules of civil procedure and the plaintiff establishes prima facie proof of a triable issue.”)
7) Initial disclosures by claimant are due 21 days after service of the complaint, PPR 3.1, and initial disclosures by defendant are due 21 days after an answer (or other responsive pleading) is served, PPR 3.3. Should litigants use the standard CRCP 26(a)(1) disclosure format, or does the pilot project require a new format for this pleading?
NOTE: the deadline scheme to make deadlines a function of 7 days (e.g., 7, 14, 21, etc.) is intended to make deadlines expire on a weekday instead of a weekend. Assuming proposed CRCP changes go into effect simultaneously with the pilot project, court days will be eliminated from deadline calculations and the 3 day mail rule will be eliminated. Therefore deadlines should almost never land on a weekend after January 1, 2012. Further, because defendants answer is not due until plaintiff makes their initial mandatory disclosures it is likely that disclosures will be served with the complaint (and that defendants disclosures will be served with their answer if the are asserting a counterclaim) to accelerate the pace of the litigation.
Unlike CRCP 26(a)(1)(A) disclosures, the CAPP disclosures are filed with the court.
8) The deadline to file an answer is 21 days after the date the plaintiff files their initial disclosures (not the date the complaint is served), and the deadline to respond to a counterclaim is 21 days after the defendant makes their initial disclosure (not the date the counterclaim is served).
9) Failure to make initial disclosures will result in denial of right to use or object to information, dismissal of claims, attorney fees, etc., pursuant to PPR 3.7.
10) Parties may NOT stipulate to the extension of PPR 3 deadlines, and motions for extensions shall usually be denied, pursuant to PPR 3.8.
11) Filing of motion to dismiss shall not eliminate or delay the need to file an answer pursuant to PPR 4.1, and answer is due 21 days after the plaintiff files its PPR 3.1 disclosures pursuant to PPR 3.2.
NOTE: Because a motion to dismiss does not stay the proceedings claimants will be less likely to be lulled into the incorrect belief that a certificate of review will not have to be filed when expert testimony is required to establish a professional standard of care against a licensed professional pursuant to CRS 13-20-602. Some deadlines run off the date the answer is filed (PPR 6.1), while others run off the date the answer was served (PPR 3.3 and CRCP 38). The Colorado Supreme Court should consider conforming these deadlines by changing PPR 6.1 to run off the date the answer was served.
12) Parties shall meet and confer re disclosures and preserving documents and things within 14 days after filing an answer pursuant to PPR 6.1.
13) If any parties makes a motion to preserve evidence, a response must be filed within 7 days pursuant to PPR 6.1. However, PPR 6.1 does not specify whether the trigger date for the response to preserve is the date the motion to preserve was served or filed.
See, NOTE in paragraph 7 above
14) Pursuant to PPR 7.1, the latest date for the court to hold the initial case management conference shall be 49 days after the answer is filed (this is also the first time parties may object to the adequacy of initial disclosures pursuant to PPR 3.4).
15) At least 7 days before the initial CMC conference the parties shall submit a joint report in the form contained in Appendix B.
See, NOTE in paragraph 7 above
16) At the initial CMC, when determining whether to permit discovery and/or MIL, the court chall consider the proportionality factors set forth in PPR 1.3
17) The extent of discovery must be proportional to the needs of the cases given the amount incontroversy and the complexity of the case. PPR 1.3
18) The limits and parameters of the expert discovery set forth at this conference by order shall be rigidly adhered to pursuant to PPR 7.3, PPR 10 and Appendix B (no extension of trial for failure to meet expert deadlines).
19) Each side may only endorse one expert pursuant to PPR 10.2, and “[t]here shall be no depositions or other discovery of experts.” PPR 10.1(d).
20) The court must engage in ongoing case management pursuant to PPR 8.
21) Cases will be assigned to one judge for duration of proceedings
22) There are enhanced penalties for failing to disclose both helpful and harmful info. See, PPR 11.
23) This pilot project is loosely based on a similar procedure adopted in Oregon and which empirically demonstrated that these types of rules could move cases through the system faster while giving parties the sense that they had a fair opportunity to present their case. Consequently, this may be a good jurisdiction to research case law to help interpret any ambiguities or issues that arise. more info.
For more updates on the Colorado Pilot Project from the LawToolBox community Follow Us on Twitter.
If you would like to share any thoughts on this pilot project please send an email to support@lawtoolbox.com
ALERT – Co Water – Justice Hobbs confirms water rule changes apply to all cases pending on or filed after Jan 1 2012
(Posted Date: 12/21/2011)
We just got off the phone with Justice Hobbs form the Colorado Supreme Court, and he confirmed that the water rule changes apply to all cases pending on or filed after January 1, 2012, and that while the distinction for water matters filed before July 2009 and after July 2009 still applies, the rule changes effect all of those water matters.
Justice Hobbs said he had received a few calls on this issue. In response to these questions the court posted the following clarifying language on the court’s website: “All deadlines that occur after January 1, 2012, even if the deadlines are in existing cases, should be calculated under the amended Water Court Rules and/or amended Rules of Civil Procedure, unless there is a Water Court order to the contrary.”
Deadlines that were docketed in 2011 with expiration dates in 2012 and beyond will need to be re-calculated and re-docketed.
If you are interested in attending free webinars we are holding on the upcoming rule changes (typically 9am on Tuesdays and Thursdays) send an email to support@lawtoolbox.com.
For more updates on the rule changes from the LawToolBox community Follow Us on Twitter.
If you would like to share any thoughts on this rule change please send an email to support@lawtoolbox.com
ALERT – Co District Civil – TIME CALCULATION CHANGES TO COLORADO RULES (eff 1/1/2012)
(Posted Date: 12/14/2011)
Effective January 1, 2012, significant changes are coming for Colorado Rules, including CRCP and CAR. These rules were amended and adopted by the Court, En Banc, December 14, 2011. Further, the amendments to these rules are effective for all cases pending on or filed on or after the effective date of January 1, 2012.
Key points are briefly summarized below and will be timely incorporated into LawToolBox calculators and deadlines.
1) Scope. These sweeping changes impact:
* all district court cases (civil, divorce, APR, post decree, water, estate)
* all court of appeal cases
* all supreme court cases
* all workers compensation matters
2) Roll Positive Deadlines Forward & Roll Negative Deadlines Backwards. The rule changes to CRCP clarify the meaning of “the next day” when counting forwards and backwards. Compare, CRCP 6(a) (“The ‘next day’ is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.”); with, CAR 26 (which omits any clarification of “next day” perhaps because there are no deadlines in CAR that count backwards).
3) No More Court Days. The amendments eliminate court days!
4) All Deadlines Divisible by 7 so Never Fall on Weekend. The amendments conform deadlines throughout the Colorado Rules to the federal scheme of having deadlines divisible by 7. Statutory deadlines are not subject to modification unless they are subsequently amended by the legislature. Because so many trials start on a Monday, and all the deadlines that run off them are increments of 7, get ready for Monday madness!
5) The 3 Day Mail Rule Eliminated. To eliminate the problem with deadlines divisible by 7 being moved out an additional 3 days and therefore possibly being moved to a weekend, the 3 DAY MAIL RULE has been eliminated!
6) Deadline to file Daubert Motion Disputing Expert Qualifications Added. Changes to CRCP 16(b)(9) add a requirement that parties file a motion objecting to expert qualifications 10 weeks before trial.
7) Deadlines Related to Motions Adjusted. Under the rule change, the deadline to respond to a motion shall be 21 days after the motion is filed (the rule FINALLY clarifies that the trigger date for the response is the date of filing); except if a motion is filed less than 42 days before trial then the responding party shall only be afforded 14 days to file a response. A reply is due 7 days after the response is filed; except if filing a reply in support of a motion for summary judgment parties shall have 14 days to file a reply. The deadline to file written motion and notice of hearing not later than 5 days before hearing pursuant to CRCP 6(d) has been eliminated. And the deadline for the prevailing party to file and serve a proposed order has been changed from 10 court days after being order to do so by the court to 14 calendar days after such time pursuant to CRCP 121 lr 1-15(5).
ALERT – CO USDC – Rule changes to D.C.COLO.LCivR
(Posted Date: 12/1/2011)
Modifications primarily relate to AP proceedings, sealing records, and public access to court information.
One of the more interesting modifications was the elimination of magistrate court settlement conferences which had become standard in every civil case. While this rule change will practice in federal court, it did not impact any rule-based deadlines. See, G. Whitehair, Settlement Conferences No Longer Routine, CBA CLE Legal Connection (1/10/2012).
Please note the following amendments to local rules and procedure.
1) A notification was added to the deadline for a party to respond to the complaint that “Disputes as to the AP docket designation shall be addressed by motion filed before an answer or other response is due.” D.C.COLO.LCivR 3.1A.
2) deadline to file any supplemental materials before hearing weas changed fro 5 days before hearing to 7 daysbefore hearing (but since LawToolBox doesn’t track hearing re motions no deadlines were modified). D.C.COLO.LCivR 7.1E.
3) deadline related to motions to seal were repealed and replaced (but since LawToolBox doesn’t track deadlines related to sealing a filing no deadlines were modified). D.C.COLO.LCivR 7.2.
4) Rules related to ADR were modified (but since LawToolBox doesn’t track deadlines related to ADR no deadlines were modified). D.C.COLO.LCivR 16.6.
5) Rules related to AP cases were modified (see note 1 above). D.C.COLO.LCivR 40.1.
6) Rules related to depositing money into court registry were modified (but since LawToolBox doesn’t track deadlines related to this rule no deadlines were modified). D.C.COLO.LCivR 67.2.
7) Rules related to bring cameras and electronic devices were modified (but since LawToolBox doesn’t track deadlines related to this rule no deadlines were modified). D.C.COLO.LCivR 83.1.
8) Deadline in the instructions for preparation of the Scheduling Order, and the standard Scheduling Order itself, were modified. See, Append F and F.1.
ALERT – Amendment to Water Law Rules (eff 1/1/2012)
(Posted Date: 11/3/2011)
Amendments to Water Rules 2,3,6,and 11 were adopted by the Colorado Supreme Court on November 3, 2011, effective January 1, 2012.
The purpose of these amendments is to make deadlines under the rules divisible by 7 so that – once the more comprehensive rules to CRCP eliminating court days and the getting rid of adding 3 days under “the mail rule” are also adopted — deadline will never expire on a weekend.
ALERT – Updated Filing Fees, Surcharges & Costs in Colorado State Court
(Posted Date: 8/29/2011)
This information is designed to provide members of the public, members of the bar, and court personnel with the most current filing fees, surcharges, and cost information for the Colorado State Courts. Only the most frequently used fees, surcharges, and costs are indicated. All fees, surcharges, and costs include the appropriate statutory reference and applicable taxes and special fees. All fees, surcharges and costs are current as of January 1, 2011.
If you have questions, please direct them first to the appropriate Clerk of Court in your county. You may also call Court Business Services of the State Court Administrator’s Office at 303 861-1111 for assistance:
Colorado Judicial Branch
Office of the State Court Administrator
101 W. Colfax, Suite 500
Denver, CO 80202
Filing Fees, Surcharges, Costs
ALERT – Water Division 1 implements new Standard Order eff April 20, 2011
(Posted Date: 4/20/2011)
This administrative order compliments the deadlines set forth in Rule 11. Here is a brief summary of some of the more important deadlines:
1) It adds a requirement that proof of publication of the resume notice be filed within 180 days of the date of publication.
2) The responsible attorney must file a NOTICE TO SET within 15 days of the date of re-referral.
3) The initial status conference must take place within 60 days of the date of re-referral.
4) The responsible attorney shall provide possible date for trial, and the date of the conference itself, and phone numbers for the conference, at least 15 days before the intial status conference.
5) A pretrial readiness conference shall be held at least 30 days before trial if trial is to last for 3 or more days.
6) Any party not filing a trial brief may not appear at trial.
7) Trial exhibits (notebook in electronic format) must be tendered on or before trial.
PROPOSED RULE – CO State District Court Civil – Proposed Pilot Project Rules – Public Hearing 1/19/2011
(Posted Date: 1/19/2011)
As the culmination of the Access to justice project spearheaded by Justice Kourlis, the Colorado Supreme Court is likely to adopt Pilot Proect Rules in the first half of 2011. These rules will apply to a certain class of “business cases” and medical malpractice cases subject to the HCAA. Key points include:
* parties must plead and deny matters with a higher degree of specificity
* initial disclosures due at approx same time as the answer/response to complaint
* the court will require Case Management Conferences
* proportionate discovery on specific topics to be set at the conference
* court must engage in ongoing case management
* cases will be assigned to one judge for duration of proceedings
* enhanced penalties for failing to disclose both helpful and harmful info
* detailed expert disclosure required (use a court form)
* only one expert per topic
This pilot project is based on a similar procedure adopted in Oregon and which empirically demonstrated that these types of rules could move cases through the system faster while giving parties the sense that they had a fair opportunity to present their case.
Proponents were hoping that this rule would go into effect in the first quarter of 2011, but more likely some version of this rule will go into effect in the second quarter of 2011 .
A Public Hearing on these proposed rules will be held at the Supreme Court on 1/19/2011 at 1:30 pm:
Colorado Supreme Court
101 W. Colfax, Suite 800
Denver, CO 80202
303-837-3790
Here is the list of speakers.
For people who want more info on this pilot project, Troy Rackam, Esq., of McConnel Fleischner Houghtaling & Craigmile LLC did a great 1 hour CLE on civil procedure including this rule change on December 21, 2010. See, Civil Procedure: 2010 Annual Survey of Colorado Law
ALERT – CO Court of Appeals – Rule Change to CAR 4.2 re Interlocutory Appeals
(Posted Date: 1/13/2011)
While the entire rule should be read in its entirety, pay close attention to:
Deadline to Move Trial Court for Certification (order to be appealed + 14 days). CAR 4.2(c) now provides: “The party seeking to appeal shall move for certification or submit a stipulation signed by all parties within fourteen days after the date of the order to be appealed ….”
If Certified – Deadline to File Pet in Court of Appeals (cert order + 14 days). Further, CAR 4.3(d) provides “If the trial court certifies an order for an interlocutory appeal, the party seeking an appeal shall file a petition to appeal with the clerk of the court of appeals with an advisory copy served on the clerk of the trial court within fourteen days of the date of the trial court’s certification.”
Interlocutory Appeal Does not Auto Stay trial Court. CAR 4.3(e)(1) provides: “The filing of a petition under this rule does not stay any proceeding below or the running of any applicable time limit. If the appellant seeks temporary stay pending the court’s determination of whether to grant the petition to appeal, a stay ordinarily shall be sought in the first instance from the trial court. “.
NOTICE – CO State District Court Civil – Brief Overview of Developments in Colorado Law in 2010
(Posted Date: 1/10/2011)
The following is brief, but not comprehensive, overview of some of the developments in Colorado Law in 2010:
* CRCP 47(a)(5) was amended to instruct jurors to avoid discussing the outcome of the case until the close of evidence, and only when all jurors are present. No LawToolBox action was required.
* CRCP 47(u) was amended limit juror voir vire, unless the court makes a specific finding of good cause to permit more juror questions. A related provision in CRCP 16(f)(3)(VII) was modified to instruct the parties confer and state their positions re the amount of time needed for juror examination. LawToolBox action: modified our Trial Management Order to include a note reminding parties of their duty to inform the court of their positions re time needed for juror examination, and the need for good cause to enlarge the permitted time.
* CRCP 121 lr 1-1 was amended to require that upon withdrawal from a case by an attorney, if the client is a corporation or business, that the attorney notify the client that in subsequent appearances and filings that it is required “to be represented by counsel in any court proceeding unless it is a closely held entity and first complies with CRS 13-1-127.” LawToolBox action: modified the language of our Motion to Withdraw to comport with the new language of CRCP 121 lr 1-1.
* Case Law – Collateral Source Rule. See, Volunteers of America Colorado Branch v. Gardenswartz (Nov 15, 2010) (Supreme Court considered whether a successful tort plaintiff may recover damages for the full amount of medical expenses incurred, or may recover only the discounted amount paid by the plaintiff’s third-party insurance company. The Court held that under the collateral source rule, as codified by the contract exception of CRS §13-21-111.6, plaintiff may recover in full from defendant, because plaintiff was indemnified for the entire amount of medical services billed to him as a result of the health insurance contract he had purchased. The benefits from this policy, including the health-care provider discounts, are from a collateral source, and the tortfeasor may not use these independently procured benefits to reduce its liability for the reasonable value of the medical services rendered to plaintiff. Accordingly, the Court of Appeals’ judgment was affirmed.). See also, Crossgrove v. Walmart Stores, Inc., No. 09CA0689, 2010 WL 2521744 (Colo. App. 2009) (selected for publication) (plaintiffs were allowed to recover the full damages awarded against defendants even though the plaintiffs also received compensation from collateral sources, and “evidence of the amount paid by third-party payors, and conversely, the amount discounted (or written off) from the billed amount due under a contract between the third-party payor and the provider, is inadmissible under the common law collateral source rule even to show the reasonable value of services rendered, because these payments and discounts constitute collateral sources.”). LawToolBox action: modified our email reminder for the deadline to “Notify Healthcare Providers of Personal Injury Suit” to include information regarding this case.
* Case Law – Award of Costs on Rule 12 Dismissal. In Crandall v. City and County of Denver, 238 P.3d 659 (Colo. 2010) the court once again affirmed that when a tort claim is dismissed on a Rule 12 motion, that an award of costs under CRS 13-16-122 is mandatory, and the amount of costs awarded may not be reduce just because the costs would have also been incurred in a related matter pending in federal court. LawToolBox action: modified email reminders and Rule 12 Motion to Dismiss, and the Motion for Attorney Fees after Rule 12 Dismissal to note this case law.
* Case Law – Rule 56(f) Motion to Extend Time to Respond to SJ Must be Supported. The supporting affidavit explaining why more time is needed to gather facts and conduct discovery must be very detailed, particularly in light of recent case law where the court of appeals held that it was not arbitrary or capricious for the trial court to simultaneously: (i) deny a Rule 56(f) motion for extension of time (because the affidavit did not contain the level of degree and specificity to support the need for additional time to conduct discovery and gather facts), and (ii) to grant the underlying motion for summary judgment as being unopposed. See, Bailey v. Airgas-Intermountain, Inc., ___ P.3d ___, 2010 WL 1913798 (Colo. App. 2010). LawToolBox action: added this note to the Rule 56(f) Motion for Extension of Time to Respond to Summary Judgment Motion.
* Case Law – Trial Clocks May be Permissible. In Maloney v. brassfield, ___ P.3d ___, 2010 WL3584392 (Colo. App. 2010), the court of appeal approved the trial courts use of a trial clock, provided that the parties have been given advance notice of the procedure and certain fairness safeguards are met. LawToolBox action: added this note to the trial email reminder.
* Case Law – Contingent Fee Agreements & Unjust Enrichment. See, Berra v. Springer and Steinberg PC, __ P.3d __, 2010 WL 3259883 (Colo. App. 2010) (even though attorney fee agreement complied with requirements of CRCP 23.3, trial court and court of appeals held that contingent fee recovery was excessive and unreasonable, and that law firm was only entitled to a reduced fee based on quantum meruit). LawToolBox action: notation added to detailed and simple contingent fee agreement.
* Case Law – While full disclosure of expert testimony is the rule, it is not without limitation. In Garrigan v. Bowen, __ P.3d __, 2010 WL 4869981, 10SA20 (Colo. 2010), the Colorado Supreme Court limited the ability of trial courts to preclude expert testimony as a discovery sanction. In Garrigan, the trial court had precluded expert testimony for failure to allow discovery of raw data underlying an article written by the expert. The Supreme Court reversed, stating that unless the raw data was actually considered and used by the expert to form his opinion in the actual case, it was not subject to discovery and it was inappropriate to exclude all testimony from the expert. See also, Trattler v. Citron, 182 P.3d 674 (Colo. 2008) (holding that “preclusion of expert witnesses for failure to provide testimonial history is a disproportionate sanction.”).
ALERT – 10th Cir Court of Appeals – amendments to Local Rules (eff. Jan 1, 2011)
(Posted Date: 1/2/2011)
Some minor amendments were made to the Federal Rules of Civil Procedure (FRAP) effective December 1, 2010:
* FRAP 1(b) was amended to refine the definition of “state”
* FRAP (4)(a)(7) was amended to change a refernce to a re-numbered FRCP citation.
* FRAP 29(c) was amended to add various disclosure requirements for an amicus brief to help identify whether an exchange of mony or an interested party may have effected the positions taken in the brief.
Local Rules for the Tenth Circuit were amended effective January 1, 2011. Throughout the local rules proposed changes have been made to delete references to General Orders, to delete superfluous language, and further:
* 10th Cir. R. 22.2 was amended to incorporate various long-standing procedures related to death penalty cases from the court’s longstanding General order on “procedures for the management of death penalty matters.”
* 10th Cir. R. 25.3, 25.4 and proposed 25.5 were amended to replace a specific refernce to the court’s General Order on electronix filing with a more general reference to a “link” on the courts website re the court’s electronic user manual.
* 10th Cir. R. 34.1 was amended to change the court’s procedure for how parties can access oral argument recordings.
* 10th Cir. R. 46.3 was amended to clarify the court’s policies with respect to counsels responsibilities in criminal and post-conviction cases.
These rule changes impacted forms more so than deadlines.
ALERT – CO Court of Appeals – Proposed rule changes to CAR interlocutory appeals coming soon!
(Posted Date: 12/3/2010)
Proposed rule changes to CAR interlocutory appeals coming soon!
ALERT – CO USDC – USDC Local Rule Amendments (eff. 12/1/10)
(Posted Date: 12/1/2010)
USDC D Colo. – Standard Scheduling Order: This form has been modified to include references to new FRCP 26(a)(2) disclosure amendments.
USDC D Colo. – Standard Final Pretrial Order: This form has been amended to conform FRCP 26(a)(3) pretrial disclosures and objections to the time frames set forth in federal rules. In other words, Rule 26(a)(3) disclosures are to be made 30 days before trial, and any objections thereto are to be made within 14 days after the Rule 26(a)(3) disclosures have been made or provided.
Other time frames modified in the local rules are too peripheral to the primary deadlines to be incorporated into the deadline calculators. However, it is worth noting that a requirement has been added that the removing party must file a current docket sheet (and separately file each pending motion, petition or related response) within 14 days of filing the notice of removal. D.C.COLO.LCivR 81.1(B).
D.C.Colo.LCivR (eff 12/1/2010)
ALERT – Colorado Work Comp – Request for DIME deadlines modified
(Posted Date: 9/1/2010)
A procedure has been amended to allow requesting party to request a SUMMARY DISCLOSURE FORM WC30, and to run a possible deadline to strike one physician name from the 3 physician name list provided by the division.
ALERT – CO Court of Appeals – Notice Requirements Upon Motion to Withdraw Amended
(Posted Date: 4/5/2010)
The requirements for the representations that must be included in a motion to withdraw filed by a law firm were modified to include a requirement that “[i]f the client is not a natural person, that it must be represented by counsel in any appellate proceeding unless it is a closely held entity and first complies with section 13-1-127, C.R.S.”
LawToolBox action: modified the wording of our “Motion to Withdraw” pleading to conform with the new requirements.
ALERT – CO USDC – Amendments to Local Rules (eff. 12/1/09)
(Posted Date: 12/1/2009)
The 12/01/2009 rule changes apply to all civil matters pending in USDC for the Disricvt of Colorado, regardless of when the matter was filed. See, D.C.COLO.LCivR 1.1(b-d).
Effective Date. These rules became effective on April 15, 2002 and are updated effective Dec. 1, 2009. D.C.COLO.LCivR 1.1(b).
Scope. These rules apply in all civil actions filed in the United States District Court for the District of Colorado. D.C.COLO.LCivR 1.1(c)
Relationship to Prior Rules. [T]hese rules supersede all previous local rules. D.C.COLO.LCivR 1.1(d)
ALERT – CO Court of Appeals – CAR 52 Amendments – Review on Cert – Time for Petitioning (eff 05/28/09)
(Posted Date: 5/28/2009)
Important for appeals in workers comp and unemployment insurance cases – the time period for filing a petition for writ of certiorari differs according to whether a petition for rehearing is filed in the court of appeals.
See RULE CHANGE 2009(11), *.pdf from the Colorado Supreme Court.
