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Colorado Court of Appeals Opinions
November 10, 2011

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

No. 10CA0232. F.M. v. People.
Criminal Records—Claim Preclusion.

F.M. appealed the order dismissing his second action to seal the same arrest and criminal records that had been the subject of an earlier action by F.M. The order was affirmed.

F.M. was charged with four counts of felony menacing after he mailed an envelope to his supervisor containing flour. When it spilled, a coworker called the police, who summoned a hazmat team. F.M. was acquitted. In 2006, F.M. brought the previous action to seal the arrest and criminal records concerning these charges, based on his acquittal. The prosecution objected. Applying the statutory balancing test, the district court held that the public interest outweighed F.M.’s privacy interest, declined to seal the records, and dismissed the action. F.M. did not appeal. In 2009, F.M. commenced this action, again based on his acquittal, which was dismissed by the court based on claim preclusion.

F.M. contended that the district court erred in holding that this action was barred by claim preclusion. Claim preclusion bars a second action seeking to seal the same arrest and criminal records that had been the subject of an earlier action by the same petitioner. Here, the two actions involved the same parties, the same subject matter, and the same claims for relief and a final judgment was entered in the first action. Therefore, F.M.’s claims were properly barred by claim preclusion.

No. 10CA1138. In re the Marriage of Tognoni.
Child Support—Arrearages—Interest—Attorney Fees.

In this post-dissolution of marriage matter, husband appealed the judgment awarding wife child support arrearages, interest, and attorney fees. Wife cross-appealed the attorney fees amount. The arrearages and interest judgment were affirmed, the attorney fees award was vacated, and the case was remanded for further proceedings.

Husband contended that the trial court erred by entering summary judgment on the arrearages and interest amount. The arrearages amounts determined by the parties differed by $14.24, and the trial court used husband’s expert’s calculation when entering judgment. There were no material disputed factual issues concerning the arrearages amount. Accordingly, the trial court did not err by entering summary judgment on this issue.

Husband also contended that the trial court erred in finding that it lacked discretion under CRS §14-14-106 to determine the appropriate interest rate and compounding period to apply to the child support arrearages. The right to interest, absent an agreement to pay it, is determined by statute. A court has no discretion to modify the interest rate or to determine the compounding period, although such interest may be waived by the judgment creditor.

Husband further contended that the trial court abused its discretion by awarding wife one half of her attorney fees without providing him an opportunity to respond to the allegation that his position lacked substantial justification. Because the trial court granted summary judgment without a hearing, husband had no opportunity to respond to wife’s allegation that his position lacked substantial justification or to present evidence concerning the factors outlined in CRS §13-17-103(1). Accordingly, the attorney fees award was vacated.

Wife also sought attorney fees she incurred on appeal under CRS §13-17-102, contending that the appeal was substantially frivolous. Because husband raised a plausible interpretation of the interest statute and the attorney fees award was vacated, husband’s appeal was not frivolous. Therefore, wife’s request for attorney fees was denied.

No. 10CA1719. Ludlow v. Gibbons.
Real Property—Listing Agreement—Professional Negligence—Contract—Proximate Cause—Injury—Breach of Fiduciary Duty—Transaction Broke—Nonparty Fault Designation.

Plaintiffs (collectively, sellers) appealed the district court’s order granting summary judgment in favor of defendants (collectively, brokers), along with the court’s award of attorney fees and costs to the brokers. The brokers conditionally cross-appealed the district court’s order striking their nonparty fault designations. The summary judgment on the sellers’ negligence claims was vacated, the summary judgment on the sellers’ breach of fiduciary duty claim was affirmed, the award of attorney fees and costs was vacated, and the order striking the brokers’ nonparty fault designations was affirmed. 

The sellers entered into an exclusive listing agreement with Gibbons-White, Inc. for the sale of land in Boulder County. The sellers entered into a contract to sell the land to Actis, LLC. The sellers later sued the lawyers and the brokers for professional negligence, claiming that they failed to timely advise the sellers of the contract provision giving Actis a $1,615,909.95 credit against the purchase price at closing for “infrastructure costs.” The district court granted the brokers’ motion for summary judgment as to all claims.

The sellers argued that the district court erred in granting summary judgment to the brokers on their negligence claim. The brokers claimed to be entitled to summary judgment based on the absence of evidence of causation of injury. A plaintiff must prove that but for the professional’s negligence, the plaintiff would have achieved a better result. A plaintiff may prove a more favorable result by proving that he or she would have been better off merely by retaining an asset lost through transactional malpractice. Here, the sellers argued that they would not have sold the property to Actis if the brokers had timely informed them of the infrastructure credit provisions, which was sufficient to establish a genuine issue of material fact as to proximate cause. Therefore, the summary judgment on the sellers’ negligence claims was vacated, along with the award of attorney fees and costs to the brokers.

The sellers also contended that the district court erred by granting summary judgment in the brokers’ favor on the breach of fiduciary duty claim, because the record demonstrated a genuine issue of material fact as to whether the brokers acted as the sellers’ agents in connection with this real estate transaction. A transaction broker is not in a fiduciary relationship with any party to a real estate transaction. Here, there was no written agreement between the brokers and the sellers creating an agency relationship between the parties. Therefore, because the relevant statute precludes the imputation of fiduciary duties to the brokers without a valid written agreement, the brokers had no fiduciary responsibilities to the sellers as a matter of law, and the district court correctly granted summary judgment in the brokers’ favor on the sellers’ breach of fiduciary duty claim.

The brokers argued on cross-appeal that the district court erred in striking their nonparty fault designations. The brokers filed a designation of nonparty fault, pursuant to CRS §13-21-111.5, naming Richard Groves (the president and chief executive officer of Actis), based on the theory of the designation that he had a duty to disclose to the sellers that he had inserted the infrastructure credit provisions in the contracts. However, Groves did not have a fiduciary relationship with the sellers, and the brokers failed to allege any facts that would show he had somehow concealed the provisions from the sellers or in any way had misled the sellers. Therefore, the district court did not err in striking the brokers’ nonparty designations.

No. 10CA2327. Colorado Republican Party v. Benefield, State Representative.
Colorado Open Records Act—Confidential Constituent Communications—Prevailing Applicant—Attorney Fees.

In this Colorado Open Records Act (CORA) matter, petitioner Colorado Republican Party (CRP) appealed the trial court’s order denying its Motion for Reasonable Costs and Attorney Fees against respondents Colorado State Representatives Debbie Benefield, Bernie Buescher, Morgan Carroll, Gwyn Green, Mary Hodge, Liane “Buffie” McFadyen, Wes McKinley, Michael Merrifield, James Riesberg, and Judy Solano (collectively, Representatives) under CRS §24-72-204(5). The order was reversed and the case was remanded.

Representatives denied access to surveys requested by CRP based on the confidential communication exception of CORA. The court, following an in camera review, ordered the Representatives to produce the completed surveys to CRP, concluding that they were public records subject to disclosure under CORA. A division of the Court of Appeals held that some of the surveys were excepted from disclosure as confidential constituent communications. After remand, the trial court found that the Representatives disclosed all non-confidential constituent communications and denied CRP’s request for attorney fees.

CRP argued that the trial court erred in denying its request for attorney fees and costs pursuant to CORA. First, the law of the case doctrine does not apply to the court’s 2007 order awarding attorney fees and costs to CRP. The trial court later reversed the 2007 award after the case was remanded to the trial court from the first appeal. Additionally, unless a statutory exception applies, an award of attorney fees pursuant to CORA is mandatory if: (1) the custodian’s denial of the right of inspection was not “proper”; and (2) the party seeking disclosure is the “prevailing applicant.” If a document whose production is required under CORA was withheld, the denial of the right of inspection of such document was not proper.

Here, the Representatives appear to have acknowledged as much when, after the trial court’s initial order to produce documents but before filing of the Representatives’ opening brief in the first appeal, they produced 742 surveys to CRP. As to those records, as well as the 183 surveys they disclosed after remand, the right of inspection was improperly denied.

Further, a prevailing applicant is any party who brings a CRS §24-72-204(5) action against a public records custodian and obtains any improperly withheld public record as a result of such action. Here, CRP prevailed by obtaining production of 742 of the surveys pursuant to court order.

Finally, CORA’s costs and attorney fees provision does not afford the trial court discretion. Because the Representatives were required by the Court of Appeals’ ruling to produce at least one document, CRP prevailed. Further, because the Representatives never asserted that they were “unable, in good faith, after exercising reasonable diligence, and after reasonable inquiry, to determine if disclosure of the [records] was prohibited,” they were not shielded by the safe harbor against attorney fees award under CRS §24-72-204(6)(a). The order was reversed and the case was remanded for the trial court to determine the reasonableness of attorney fees to be awarded to CRP.

No. 10CA2462. Kidder III v. Chaffee County Board of Equalization.
Real Property—Assessment—Value—Time Adjustment Analysis.

The Chaffee County Board of Equalization (BOE) appealed an order of the Board of Assessment Appeals (BAA) reducing the 2009 tax year value of a vacant land parcel in Buena Vista(property). The order was reversed and the case was remanded.

Fred D. Kidder III and Diann K. Kidder (collectively, taxpayers) owned the property in question. The Chaffee County Assessor originally assigned a 2009 tax year value of $146,484 to the property. The taxpayers filed a petition with the BOE challenging the valuation. Following the BOE’s denial of the petition, the taxpayers appealed to the BAA.

The BOE contended that the BAA’s order failed to comply with the time adjustment requirements of CRS §39-1-104(10.2)(a) and (d). When assessors use comparative sales data to appraise taxable real property, the data must be adjusted for time. Here, the BAA removed the BOE’s time adjustment for the comparative data before reaching a conclusion on the value of the property. Because the statutory language clearly imposes a duty to value property using a time adjustment analysis, the order was reversed and the case was remanded so that a time adjustment could be included.

Colorado Court of Appeals Opinions

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