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...
Opinion by JUDGE MILLER . 1 Plaintiff-appellant and cross-appellee, DA Mountain Rentals, LLC (DA), appeals the district court's summary judgment in favor of defendant-appellee and cross-appellant, The Lodge at Lionshead Phase III Condominium Association Inc., a/k/a the Lodge at Lionshead III Condominium Association (Association), and the court's order denying DA's C.R.C.P. 37 motion for attorney fees. The Association cross-appeals the district court's entry of three discovery orders....
Opinion by JUDGE WEBB . 1 In deciding the enforceability of an agreement to arbitrate under the Health Care Availability Act (HCAA), should the test be strict compliance or substantial compliance with the textual and typographical requirements of section 13-64-403, C.R.S. 2015 And if the test is strict compliance, does the absence of bold-faced type, required under section 13-64-403(4), doom the agreement Neither of these questions has been answered in Colorado. 2 Plaintiffs,...
Opinion by JUDGE BERGER . 1 Defendant, Donald Ray Shores, appeals the judgment of conviction entered on a jury verdict finding him guilty of first degree sexual assault. He argues that the trial court erred in (1) determining that the statute of limitations had not expired before the prosecution filed charges and (2) admitting CRE 404(b) evidence of a sexual assault allegedly committed by Shores against another victim. We address and reject these arguments and affirm. I. Facts and...
Opinion by JUDGE GRAHAM 1 In this case interpreting provisions of the Colorado Common Interest Ownership Act (CCIOA), sections 38-33.3-101 to -402, C.R.S. 2015, we are asked to determine, among other related issues, whether a mixed-use community consisting of a hotel, retail shops, restaurants, and sixty-six condominiums is a "small planned community" under section 38-33.3-116, C.R.S. 2015, of CCIOA. We conclude it is not and, therefore, affirm the judgment of the trial court. I....
Opinion by JUDGE BERGER . 1 This case presents the novel question whether the Colorado Fair Debt Collection Practices Act (CFDCPA), sections 12-14-101 to -137, C.R.S. 2015, applies to a subrogation claim for damages arising from a tortious act. The answer turns on whether a subrogation claim constitutes a "debt" as defined in the CFDCPA. We conclude that a subrogation claim is not a "debt" under the CFDCPA and therefore affirm the district court's judgment dismissing the complaint of...
Opinion by JUDGE DAILEY . 1 In this insurance coverage dispute, plaintiff, MarkWest Energy Partners, L.P. (MarkWest), appeals the district court's entry of summary judgment in favor of defendant, Zurich American Insurance Company (Zurich). 2 The district court concluded that, because MarkWest failed to comply with a condition precedent in a liability policy requiring it to timely report an "incident" to Zurich, it was barred from recovering anything from Zurich. Contrary to the...
Opinion by JUDGE TAUBMAN . 1 In this case involving dual tracking, a process where banks pursue foreclosure on a home while negotiating a loan modification, plaintiffs, Judith Z. and Thomas C. Miller (the Millers), filed claims against five financial institutions (collectively the Banks). 1 The Millers contend that the Banks improperly subjected them to dual tracking in violation of the consent judgment that resulted from the National Mortgage Settlement generally prohibiting dual...
Opinion by JUDGE TERRY . 1 When a defendant pleads guilty and receives a deferred judgment as part of the plea, does the court of appeals have jurisdiction to hear an appeal challenging the denial of a Crim. P. 32(d) motion for withdrawal of the plea before the judgment is entered and the defendant is sentenced Despite the unfortunate consequences that a defendant will incur even before sentence is imposed, we conclude that the answer to this question is "no." 2 Defendant,...
Opinion by JUDGE LICHTENSTEIN . 1 This case involves the intersection between the common law rights held by tenants in common to possess, use, and enjoy their property, and contract provisions that purport to forego some of those property rights. 2 In this declaratory judgment action, defendants appeal the district court's judgment that an amendment to an ownership agreement was valid and binding on all tenants in common who hold ownership interests in a ranch. The amendment was...
Opinion by JUDGE MILLER . 1 Defendants, United Food and Commercial Workers International Union (UFCW) and a related entity, Organization United for Respect at Walmart (collectively, unions), appeal the orders from the district court denying their motion to dismiss and entering summary judgment in favor of plaintiff Wal-Mart Stores, Inc. (Walmart). 1 We affirm. In so doing, we hold that the National Labor Relations Act (NLRA), 29 U.S.C. 151-169 (2012), does not arguably prohibit, and...
Opinion by JUDGE FOX . 1 In this interlocutory appeal, defendant Align Corporation Limited (Align) appeals the trial court's order denying its C.R.C.P. 12(b)(2) motion to dismiss for lack of personal jurisdiction. We accepted Align's C.A.R. 4.2 petition to address the effect of the United States Supreme Court's plurality opinion in J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 , 131 S.Ct. 2780 , 180 L.Ed.2d 765 (2011), on Colorado's personal jurisdiction framework under...
Opinion by JUDGE WEBB . 1 When an insurer becomes insolvent and liquidation of its assets does not produce sufficient funds to pay claims, should the loss be borne by first party insureds or third party claimants The General Assembly has created a guaranty association to pay the covered claims of an insolvent insurer. But then, after payment to a third party claimant, does the loss stop at the association or return to the first party insured This opinion concludes that under the...
