Opinion by JUDGE FREYRE . 1 In this C.A.R. 4.2 interlocutory appeal, we are asked to decide an attorney-client privilege issue not previously addressed by Colorado courts. No one disputes that the attorney-client privilege exists "without regard to the non-corporate or corporate character of the client," A v. Dist. Court, 191 Colo. 10, 20, 550 P.2d 315 , 323 (1976) (citation omitted), or that a corporation may only assert or waive the privilege through "individuals empowered to act"...
Opinion by JUDGE J. JONES . 1 Section 13-21-201(1)(b)(I)(B), C.R.S. 2018, a part of the Wrongful Death Act (WDA), says that a wrongful death suit may be brought in the second year after a decedent's death "[b]y the heir or heirs of the deceased." But is a person adopted as an adult by the decedent considered the decedent's "heir" under this provision of the WDA The district court answered this question "no," and therefore dismissed plaintiff Marty Ferguson's negligence lawsuit against...
Opinion by JUDGE DAVIDSON * . 1 Greater Colorado Anesthesia, P.C. (old GCA), now known as Greater Colorado Anesthesia, Inc. (new GCA), (collectively GCA) appeals the district court's judgment finding that the noncompetition provision of an employment agreement between GCA and Michael A. Crocker, M.D., an anesthesiologist, is unenforceable. Crocker, a former shareholder of old GCA, cross-appeals the court's valuation of his share of old GCA upon exercising his right of dissent against a...
Opinion by JUDGE GRAHAM . 1 We are asked to determine whether online travel companies (OTCs) are required to collect and remit accommodation and sales taxes to the Town of Breckenridge, Colorado, on hotel rooms they book through their respective internet websites. We conclude that they need not collect and remit such taxes. 2 Breckenridge, the plaintiff, seeks to collect accommodation and sales taxes from sixteen OTCs, the defendants: Egencia, LLC; Expedia, Inc.; Hotels.com, L.P.;...
Opinion by Judge ASHBY . OPINION is modified as follows: Page 6, 11 currently reads: To the extent defendant argues on appeal that, regardless of the statute, Mr. Perna breached their contract and so we should apply basic rules of contract construction, we note that this issue was not argued before the district court. Thus, we will not address it. See People v. Salazar, 964 P.2d 502 , 507 (Colo. 1998) ("It is axiomatic that issues not raised in or decided by a lower court will not...
Opinion by JUDGE ASHBY . 1 Surety, Alfred Perna, appeals from the district court's order granting in part the motion of defendant, Thomas Fallis, for return of the bond premium. We vacate because we conclude that section 16-4-110, C.R.S. 2017, does not grant authority to the court to refund a bond premium under the circumstances of this case. I. Background 2 Defendant was charged and arrested for allegedly murdering his wife. The district court set a $500,000 bond. Defendant posted...
Opinion by JUDGE GRAHAM . 1 Defendant, Coleman Backstrom Stewart, appeals the judgment of conviction entered on jury verdicts finding him guilty of felony menacing and misdemeanor obstructing a peace officer. We conclude that there were a number of errors in the trial proceedings — two of them standing alone might serve as the basis for reversal, but collectively they clearly require that we reverse the conviction and remand for a new trial. I. Background 2 When an impetuous youth...
Opinion by JUDGE HARRIS . 1 In this condemnation action, respondent, DPG Farms, LLC (DPG), appeals from a judgment entered on a jury verdict after a valuation trial. The issue on appeal concerns the proper method for determining compensation when the condemned property, and portions of the remainder, are capable of producing income. 2 DPG argues that the district court erred in (1) determining as a matter of law that water storage was not the highest and best use of the property; (2)...
Opinion by JUDGE FOX . 1 Through their legal guardians, Xiuhtezcatl Martinez, Itzcuahtli Roske-Martinez, Sonora Brinkley, Aerielle Deering, Trinity Carter, and Emma Bray (collectively Petitioners), who reside and recreate in Colorado, appeal the district court's order and final judgment affirming a decision of the Colorado Oil and Gas Conservation Commission (the Commission) denying Petitioners' rulemaking petition. The American Petroleum Institute and the Colorado Petroleum Association...
Opinion by JUDGE FREYRE . 1 In this construction defect case involving a senior assisted and independent living facility (senior facility), we must decide whether the parties' contract or relevant Colorado statutes govern the accrual of defect claims. To do so, we must decide a matter of first impression — whether a senior facility constitutes "residential property" that is protected by a provision of the Construction Defect Action Reform Act (CDARA) entitled the "Homeowner Protection...
Opinion by JUDGE HARRIS . 1 The City of Lakewood (City) has an insurance policy that covers losses arising from the workers' compensation or employers' liability laws of any state on account of bodily injury to an employee. 2 After a City police officer was killed by friendly fire, his widow filed a lawsuit under 42 U.S.C. 1983 (2012), alleging that the City and various fellow officers had violated the deceased officer's rights under the Federal Constitution. The City sought...
Opinion by JUDGE FOX 1 In this C.A.R. 4.2 interlocutory appeal, defendant, the Air Quality Control Commission (the Commission), seeks review of the district court's order declining to dismiss the complaint of plaintiffs, Sterling Ethanol, LLC and Yuma Ethanol, LLC (collectively, Companies). 1 The complaint sought review of a May 19, 2016, Commission order affirming two adverse compliance orders that the Colorado Air and Pollution Control Division (the Division) had issued. Neither the...
OPINION is modified as follows: Page 4 line 19 currently reads: penalties if the tax credit is disallowed. See Kowalchik I, 2. Opinion now reads: penalties if the tax credit is disallowed. See Kowalchik II, 2012 COA 49 52. Pages 5-6 currently read: The Medveds contend that they are not bound by the same statute of limitations as Whites Corp., and that under Markus the first claim filed triggers the four-year statute of limitations under 39-21-107(2), C.R.S. 2006. They...
Opinion by JUDGE FOX . 1 Plaintiff, Grant Brothers Ranch, LLC (Grant Brothers), sued defendants, Antero Resources Piceance Corporation (Antero) and Ursa Operating Company, LLC (Ursa) (collectively, Operators), to recover its share of proceeds derived from the production and sale of oil and gas. Concluding that Grant Brothers was required and failed to exhaust its administrative remedies available under the Oil and Gas Conservation Act, 34-60-101 to -130, C.R.S. 2016 (the Act), the...
Opinion by JUDGE BERGER . 1 A jury convicted defendant, Tio Everette Carr, of possession of a schedule II controlled substance with the intent to distribute and obstructing government operations. His sole contention on appeal is that the non-consensual search of his mouth, during which the police discovered unlawful drugs, violated the Fourth Amendment and the trial court thus erred in failing to suppress the evidence obtained during that search. Because the search did not violate Carr'...
Opinion by JUDGE FREYRE . 1 In this conservation easement (CE) tax credit case involving both a donor and a transferee, we are asked to decide whose tax claim triggers the four-year statute of limitations under 39-21-107(2) and 39-22-522(7)(i), C.R.S. 2006 1 , a question left unresolved by another division of this court in Markus v. Brohl, 2014 COA 146, ___ P.3d ___, 2014 WL 5369981. Plaintiffs, John and Debra Medved (Medveds), appeal the district court's denial of their motion...
Opinion by JUDGE J. JONES . 1 Plaintiff, Layton Construction Co., Inc. (Layton), appeals the district court's summary judgment for defendant, Shaw Contract Flooring Services, Inc. (Shaw), based on the doctrine of claim preclusion. Because we conclude that all of Layton's contentions challenging the district court's application of that doctrine are without merit, we affirm. I. Background 2 Layton was the general contractor responsible for construction of a hotel in Vail, Colorado. It...
Opinion by CHIEF JUDGE LOEB . 1 In this personal injury action, plaintiff, Emma Andrade, appeals the summary judgment in favor of defendant, Margaret Johnson, on Andrade's claim pursuant to the premises liability statute, section 13-21-115, C.R.S. 2016 (the Act), and on her common law negligence claim. We affirm the district court's entry of summary judgment for Johnson as to the premises liability claim, although we do so for reasons different from those articulated by the district...
Opinion by JUDGE NAVARRO . 1 This appeal requires us to examine the interplay between two sections of article 3 of title 19 (the Children's Code). Section 19-3-206, C.R.S. 2016, vests county attorneys with exclusive authority to represent the "petitioner" in all "proceedings" brought under article 3, which is entitled "Dependency and Neglect." Section 19-3-304, C.R.S. 2016, requires certain people (e.g., doctors and school officials) to report suspected child abuse or neglect; these...
Opinion by JUDGE FOX . 1 Sand Hills Metropolitan District (the district), United Water and Sanitation District, 1 and the Town of Lochbuie (Lochbuie), Colorado (collectively Sand Hills) appeal the trial court's partial grant of motions for summary judgment filed by Bill Barrett Corporation and Bonanza Creek Energy, Inc. (collectively Taxpayers). 2 Taxpayers cross-appeal the trial court's partial grant of Sand Hills' motion for summary judgment. We affirm in part, reverse in part, and...
