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Colorado Supreme Court Opinions
January 22, 2013

2013 CO 3. No. 11SA169. Concerning the Application for Water Rights of Ginn Battle South, LLC, Ginn Battle North, LLC, Ginn-LA Battle One, LTD., LLLP, Ginn-LA Battle One A, LLC, and Ginn Development Company, LLC in Eagle County, Colorado; Concerning the Application for Water Rights of Town of Minturn in Eagle, Grand, and Pitkin Counties, Colorado: Town of Minturn v. Tucker; and Concerning the Application for Water Rights of the Town of Minturn in Eagle County, Colorado:Town of Minturn v. Tucker.
CRS § 37-92–304(10)—Correction of Substantive Errors in Water Court Decrees—Interpretation of Stipulations.

The Town of Minturn filed a 2005 application for changes of water rights and a 2007 application for new water rights; approval of a plan for augmentation, including exchange; and conditional appropriative rights of exchange. More than thirty parties filed Statements of Opposition. Following a series of negotiations between Minturn and the Opposers, the water court granted Minturn’s applications and entered stipulated decrees in 2010. Following entry of these decrees, Minturn realized that the consumptive use numbers on which it had relied in calculating its monthly maximum limitations for diversion from the Minturn Ditch Water Right and Minturn Well Nos. 1 and 2 Water Rights did not reflect actual monthly usage data. Instead, the numbers mistakenly reflected Minturn’s use as stated in billing statements, which run a month behind the actual usage month. Minturn also realized that the month of April was not included as a winter month in the “consumptive use factors” section due to a drafting error in a previous settlement agreement later carried over into the original decrees.

Minturn conferred with all Opposers regarding its intention to correct the decrees to conform the monthly maximum limitations and consumptive use factors to its actual historical monthly usage in accord with the parties’ expectations. Each Opposer agreed to the proposed corrections except J. Tucker, Trustee, who opposed the corrections on the ground that the parties’ earlier stipulations precluded the water court from making the requested changes. Following the submission of briefs and affidavits from both parties, the water court granted Minturn’s request to correct the substantive errors in the decrees pursuant to its authority under CRS §37-92-304(10). Tucker appealed.

The Supreme Court upheld the corrected findings of fact, conclusions of law, judgment, and decrees of the water court. CRS §37-92-304(10) grants the water court discretion within a three-year period to correct substantive errors in a water decree. The parties’ stipulations anticipated that actual monthly historical consumptive use numbers would be used in the decrees’ monthly limitations. The original decrees mistakenly did not contain these numbers, contrary to the intent of the parties. The water court did not abuse its discretion in entering the corrected decrees. Accordingly, the Court affirmed the water court’s judgment.

2013 CO 4. No. 10SC65. Bedor v. Johnson.
Negligence—Sudden Emergency Doctrine.

The Supreme Court held that the court of appeals erred in determining that the trial court correctly instructed the jury on the sudden emergency doctrine when competent evidence did not support the trial court’s decision to tender the instruction. Accordingly, the court of appeals’ judgment was reversed and the case was remanded for a new trial. The Court also abolished the sudden emergency doctrine going forward, because the doctrine’s potential to mislead the jury greatly outweighed its minimal utility.

2013 CO 5. No. 10SC762. Federal Deposit Insurance Corporationv. Fisher.
Contract Interpretation—Ambiguous Contract—CRS §38-10-124(2)—Colorado’s Credit Agreement Statute of Frauds.

The Supreme Court reversed the court of appeals’ holding that a credit agreement between a lender and a bank was ambiguous as to the default interest rate. Because the Court held that the credit agreement was not ambiguous, it did not address whether Colorado’s Credit Agreement Statute of Frauds, CRS § 38-10-124(2), allows for the introduction of extrinsic evidence to resolve a facially ambiguous credit agreement.

2013 CO 6. No. 11SC529. L.A.N. v. L.M.B.
Dependency and Neglect—Psychotherapist–Patient Privilege—Guardian ad Litem—Waiver.

The Supreme Court affirmed the court of appeals’ finding that the guardian ad litem (GAL) held the minor child’s psychotherapist–patient privilege in this dependency and neglect proceeding. A GAL holds a minor child’s psychotherapist–patient privilege in a dependency and neglect case when: (1) the child is too young or otherwise incompetent to hold the privilege; (2) the child’s interests are adverse to those of his or her parent(s); and (3) CRS §19-3-311 does not abrogate the privilege.

The Court also affirmed the court of appeals’ holding that the GAL partially waived the child’s psychotherapist–patient privilege when she disseminated a letter from the child’s therapist to the juvenile court and to all of the parties. However, the Court disagreed with the procedure the court of appeals described for determining the scope of the waiver. On remand, the juvenile court must determine the scope of the waiver consistent with the Court’s instructions.

Colorado Supreme Court Opinions