CRCP 59(d),Proper Grounds for New Trial.

In this case, the Supreme Court considered whether the trial court abused its discretion when it granted plaintiffs’ motion for a new trial after a jury found that defendants, two pilots, were not negligent during a near collision that resulted in one plane crashing and killing all five passengers on board. The Court concluded that the trial court’s stated reasons did not meet the grounds enumerated in CRCP 59(d) and that a trial court may not grant a new trial for reasons other than those enumerated in CRCP 59(d). Thus, the trial court abused its discretion in granting a new trial. The Court made its rule to show cause absolute and remanded the case for further proceedings.

Self-Defense,Initial Aggressor,Jury Instructions.

Defendant fired a gun at several people in a parking lot. He asserted that he did this in self-defense. Over defendant’s objection, the trial court instructed the jury on two exceptions to the affirmative defense of self-defense: initial aggressor and provocation. The jury convicted defendant of several criminal charges. The Supreme Court concluded the division of the Court of Appeals erred when it determined that the trial court correctly instructed the jury on the initial aggressor exception to self-defense. The Court further concluded the error was not harmless in light of the prosecution’s repeated references to the initial aggressor exception during closing argument. Accordingly, defendant is entitled to a new trial. The Court of Appeals’ judgment was reversed and the case was remanded.

Amendment of Augmentation Plans,Return Flows.

This case concerns appellant’s application to amend its decreed augmentation plans to authorize the reuse and successive use of return flows from water that appellant diverts out of priority pursuant to those plans. On competing motions for determinations of questions of law, the water court ruled that (1) any amount of water not beneficially used by appellant for the uses specified in its decreed augmentation plans must be returned to the stream; (2) appellant’s decreed augmentation plans did not authorize the reuse or successive use of such water; and (3) appellant may not obtain the right to reuse or make successive use of such water by way of amendment to its augmentation plans but could only obtain such rights by adjudicating a new water right.

The Supreme Court affirmed the water court’s judgment. To obtain the right to reuse and make successive use of the return flows at issue, appellant must adjudicate a new water right and may not circumvent this requirement by amending its decreed augmentation plans. Further, the diversion of native, tributary water under an augmentation plan does not change its character. Accordingly, the general rule, which provides that return flows belong to the stream, applies. The water court also correctly construed appellant’s augmentation plans.

Colorado Rules of Professional Conduct,Attorney Discipline,Colo. RPC 1.8,Colo. RPC 4.2.

In this attorney discipline proceeding, the Supreme Court was confronted with questions as to what Colorado Rules of Professional Conduct 1.8 and 4.2 require of an attorney who enters into a business relationship with his client. The Court concluded that the attorney in this case violated Rule 1.8(a)(1) when he signed a lease with his client’s company without complying with any of Rule 1.8(a)’s prophylactic requirements. The attorney also violated Rule 1.8(a)(3) when he entered into an option agreement with his client without obtaining his client’s informed, written consent to his role in the deal. However, because the attorney had the implied consent of his client’s independent counsel for the purposes of the option agreement, he did not violate Rule 1.8(a)(1) or (2) or Rule 4.2 in that transaction. The Court remanded the case to the hearing board for determination of the appropriate sanction in light of its conclusions.