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Colorado Supreme Court Opinions
June 24, 2013

2013 CO 36. No. 12SA307. In Re DCP Midstream, LP v. Anadarko Petroleum Corp.
CRCP 26(b)—Attorney–Client Privilege.

The Supreme Court held that CRCP 26(b) requires trial courts to take an active role managing discovery when a scope objection is raised. The trial court must determine the appropriate scope of discovery in light of the reasonable needs of the case and tailor discovery to those needs. To resolve a dispute regarding the proper scope of discovery, the trial court should, at a minimum, consider the cost–benefit and proportionality factors set forth in CRCP 26(b)(2)(F). The Court also held that title opinions, like any document sought in discovery, may contain privileged attorney–client communications if the parameters of that doctrine are met.

2013 CO 37. No. 11SC516. Shaw v. 17 West Mill St., LLC.
Real Property—Release of Deed of Trust—Fraudulent Request for Release of Deed of Trust—Recording Act—Bona Fide Purchaser.

Arguing that actual fraud is required under CRS § 38-39-102(8), Dennis Shaw and First Horizon Home Loan Corporation challenged the court of appeals’ ruling that “constructive fraud” is sufficient to void a request for a release of a deed of trust. The Supreme Court reversed, concluding that the statute creates a narrow exception that voids the public trustee’s release of a deed of trust only when proof of actual fraud is demonstrated by a preponderance of the evidence.

2013 CO 38. No. 12SA213. Larrieu v. Best Buy Stores, L.P.
CAR 21.1 Certified Question—Colorado Premises Liability Statute—Landowner Liability for Activities Conducted or Circumstances Existing on Real Property.

The Supreme Court considered a reformulated certified question from the U.S. Court of Appeals for the Tenth Circuit: whether Colorado’s premises liability statute, CRS § 13-21-115, applies as a matter of law only to those activities and circumstances that are directly or inherently related to the land. The Supreme Court held that the statute is not, as a matter of law, restricted solely to activities and circumstances that are directly or inherently related to the land. That restriction does not appear in the statutory language, and the Court declined to adopt it now. Instead, the Court held that the premises liability statute applies to conditions, activities, and circumstances on the property that the landowner is liable for in its legal capacity as a landowner. This inquiry necessitates a fact-specific, case-by-case inquiry into whether (1) the plaintiff’s alleged injury occurred while on the landowner’s real property, and (2) the alleged injury occurred by reason of the property’s condition or as a result of activities conducted or circumstances existing on the property.

2013 CO 39. No. 11SC669. Qwest Corp. v. Colorado Division of Property Taxation, Dep’t of Local Affairs.
CRS §39-4-102—Equal Protection—Uniform Taxation—Motion to Dismiss.

The Supreme Court affirmed the court of appeals’ ruling in favor of the Colorado Department of Local Affairs’ interpretation of CRS § 39-4-102. The Court held that Qwest Corporation, a public utility, is valued centrally and therefore is not entitled to the intangible property exemption or the cost cap valuation method found elsewhere in Colorado’s tax statutes. The Court also held that this valuation method does not violate Qwest’s constitutional guarantee under the Equal Protection Clause nor does it violate Qwest’s rights under the Uniform Taxation Clause of the Colorado Constitution.

2013 CO 40. No. 12SA89. In the Matter of Bass.
Attorney Discipline—CRCP 251.7.

Betty Bass appealed from the Presiding Disciplinary Judge’s (PDJ) denial of her motion filed pursuant to CRCP 60(b)(3) for relief from his earlier order revoking her probation and suspending her license to practice law. Over approximately four months, the PDJ attempted to notify by Bass by mail and e-mail of his show cause order. The PDJ found Bass in default of the Attorney Regulation Counsel’s allegations of violation. After another six months, Bass filed her motion, requesting relief on the grounds that the order revoking her probation was void, both for failure to provide her adequate notice and for failure of Regulation Counsel to assert a violation until after the period of her probation had expired. Bass then asked for a ruling on the PDJ’s authority to proceed in the absence of a motion to revoke filed by Regulation Counsel before the expiration of the period of probation originally imposed on her. 

The Supreme Court affirmed the order denying Bass’s motion. Regulation Counsel’s motion alleging probation violations and seeking a show cause order was filed with the PDJ before the issuance of an order of successful completion of probation, as required by CRCP 251.7 for termination. Therefore, the PDJ was empowered by the rule to lift the stay and activate Bass’s suspension.

2013 CO 41.Nos. 11SA86 & 11SA124. Concerning the Application for Water Rights of Applicants in Moffat County: Vermillion Ranch Limited Partnership v. Raftopoulos Brothers; Raftopoulos Brothers v. Vermillion Ranch Limited Partnership.
Conditional Water Rights—Beneficial Use—Anti-Speculation Doctrine—“Can and Will” Standard—CRS § 37-92-305(9)(b)—Reasonable Diligence.
The Supreme Court considered two water rights cases involving Raftopoulos Brothers (Raftopoulos) and Vermillion Ranch Limited Partnership (Vermillion). In Case No. 11SA86, the Court vacated the portions of the water court’s order interpreting the phrase “all other beneficial uses” in 1974 change decrees regarding Raftopoulos’s absolute water rights and determining whether Raftopoulos had abandoned any right to use the decreed water for commercial or industrial purposes. The Court reversed the portion of the water court’s order decreeing Raftopoulos’s requested new conditional water storage rights to the extent the decree permits the water to be used for industrial and commercial purposes. In Case No. 11SA124, the Court reversed the water court’s order granting Vermillion’s application for a finding of reasonable diligence for previously decreed conditional water storage rights and granting Vermillion’s application for a new conditional water storage right.

Colorado Supreme Court Opinions