Joann L. Vogt

This case involves a dispute among members of several LLCs formed for real estate development, where plaintiff Daniel Young sued Eric Bush and related entities, asserting derivative claims on behalf of the LLCs for alleged mismanagement and other issues, plus a direct claim for breach of a settlement agreement. The trial court granted summary judgment dismissing the derivative claims under Colorado statute section 7-80-716, which allows dismissal if a majority of independent members determine that pursuing the action is not in the LLCs' best interests, finding no genuine issues regarding independence or inquiry adequacy. The appellate court reversed, holding that the plaintiff should be permitted discovery to investigate the members' independence and the adequacy of their inquiry before dismissal, and that the direct claim for breach of settlement should be reinstated, while affirming that certain claims for records and accounting were properly treated as derivative.

business & regulatoryprocedure

This case involved an insurance coverage dispute arising from a 2008 wildfire in Colorado that injured one defendant and damaged others' property. After the insurer paid the $1 million limit under a farm liability policy covering the LLC-owned property where slash burning occurred, the parties sought a judicial determination on whether an additional homeowners policy (with a $500,000 limit) also provided coverage for the insured Larry Gerbaz and his wife. The trial court granted summary judgment to the defendants, finding neither the business pursuits nor owned premises exclusions in the homeowners policy applied. The Court of Appeals affirmed the ruling on the owned premises exclusion, holding that it did not bar coverage because the farm property was titled in the LLC (a separate entity) rather than owned by the individual insureds, but reversed and remanded on the business pursuits exclusion for further proceedings to determine its applicability based on the facts of the leasing activity.

propertytorts & liabilityprocedure

In Yeiser v. Ferrellgas, Inc., the plaintiff sued the defendant for breach of contract after the defendant failed to timely deliver propane gas, causing pipes in the plaintiff's home to freeze and resulting in damage. The jury awarded the plaintiff $314,323.21 in damages, but the trial court offset this amount by $212,071.94 that the plaintiff had received from her homeowners insurance. On appeal, the court held that the collateral source rule did not bar a setoff because the defendant had contributed by settling the insurer's subrogation claim, but the setoff should have been limited to the $172,657.55 actually paid by the defendant to the insurer, and remanded for recalculation of the judgment and prejudgment interest accordingly.

business & regulatoryprocedure

The case involved judicial review of an administrative decision by the Colorado Division of Wildlife suspending plaintiff Leonard Quercioli's hunting and fishing licenses for 25 years total under wildlife statutes. Plaintiff had prior suspensions in 1998-2000 (including a two-year extension for buying licenses during suspension) and 2005, which the agency treated as three strikes triggering an additional 20-year suspension under the "three strikes" provision of section 33-6-106(8). The court reversed that portion of the suspension, holding that the two-year extension under section 33-6-106(6) is not a separate suspension but merely lengthens an existing one, based on the statute's plain language distinguishing extensions from new suspensions authorized under section 33-6-106(1). The matter was remanded for further proceedings consistent with this interpretation.

criminal lawenvironmentprocedure

The case involved a psychologist, Laurence Aylesworth, who appealed a probate court order approving a $15,000 personal injury settlement for a minor child injured in a car accident; the settlement did not include payment for Aylesworth's therapy services treating the child's post-traumatic stress disorder. The probate court had approved the settlement, which placed remaining funds in an annuity for the child after attorney fees, concluding that the child's mother was responsible for medical bills and that a lien agreement with her was not enforceable against the child's settlement funds. The Colorado Court of Appeals vacated the order, holding that the lien was not enforceable against the child's estate but that further proceedings were needed to determine if Aylesworth could recover on a quantum meruit or unjust enrichment theory, provided the services' reasonable value was shown and the parents were unable or unwilling to pay.

family lawtorts & liabilityprocedurehealthcare

The case involved a subcontractor, Redd Iron, that performed steel work on a construction project but was not paid by its direct contractor, Excel; Redd sued the project owner ALSCO and general contractor CBS for unjust enrichment (along with other claims) after Excel defaulted. The trial court granted judgment on the pleadings for Redd on the unjust enrichment claim and awarded damages. The appellate court vacated that judgment, holding that the record did not establish as a matter of law that CBS or ALSCO received a benefit from Redd's work, the value of any benefit, or that retention of the benefit would be unjust under the standards of DCB Construction Co. v. Central City Development Co.; further factual development and findings were required on remand.

business & regulatorypropertyprocedure

The case involved Mark D. Smith appealing the Colorado Motor Vehicle Dealer Board's denial of his application for a motor vehicle salesperson license, which was based on his two felony theft convictions within the prior ten years under section 12-6-118(7)(a)(I). Smith argued that this mandatory disqualification conflicted with section 24-5-101, a general statute providing that a criminal conviction shall not by itself bar a person from obtaining a business or professional license, and that the later general statute should control. The court affirmed the Board's decision after a hearing, holding that the two statutes were not in irreconcilable conflict because the specific motor vehicle licensing provision acts as an exception to the general rule, delaying but not permanently denying licensure based on particular felonies to protect consumers. The court applied principles of statutory construction, including section 2-4-205, to give effect to both provisions, with the more specific statute prevailing.

business & regulatorycriminal lawprocedure

The case involved defendant Jeannie Lynn Manier’s appeal from convictions for first-degree aggravated motor vehicle theft, drug possession, drug paraphernalia, false reporting, and theft by receiving, stemming from police recovering a stolen truck, methamphetamine, and related items after a confidential informant tip and a consensual search that yielded a truck key. The court affirmed the drug and related convictions, finding the seizure of the key valid because its incriminating nature was immediately apparent based on the officers’ knowledge of the stolen Ford truck and defendant’s false identity, and any error in admitting hearsay letters was harmless given other evidence and limiting instructions. It reversed the first-degree theft conviction, however, because the trial court incorrectly instructed the jury that the state need not prove defendant knew the displayed license plates were unauthorized, an error that was not harmless where evidence of her involvement with the plates was minimal, and it remanded for possible retrial or entry of judgment on the lesser second-degree offense.

criminal lawprocedure

The case concerned whether statewide standards for evaluating and treating court-ordered domestic violence offenders, adopted by the Domestic Violence Offender Management Board, apply to presentence evaluations conducted under a pilot program in misdemeanor cases. Plaintiffs, a treatment provider and a district attorney, sought a declaratory judgment that the standards did not govern such evaluations or require a minimum of thirty-six weekly treatment sessions. The district court ruled that the standards applied at all stages, and the Colorado Court of Appeals affirmed. The court reasoned that the plain language of sections 18-6-801(1)(a) and (b) and related statutes requires compliance with the standards whenever treatment is ordered for domestic violence offenders, with no statutory exemption for presentence evaluations or the pilot program, and that the Board has authority to enforce compliance by removing noncompliant providers from its approved list.

criminal lawprocedure

In this case, the People appealed the trial court's dismissal of sexual assault charges against defendant Mark Joseph Gabriesheski, who was accused of assaulting his stepdaughter T.W. The charges were dismissed after the court ruled that a guardian ad litem and social worker from a related dependency and neglect proceeding could not testify about T.W.'s recantation due to confidentiality requirements under statutes, a chief justice directive, and attorney ethics rules, absent waivers from T.W. and her mother. The court affirmed the dismissal, first confirming that the prosecution's appeal was authorized by statute as it presented a question of law from a pre-trial order dismissing all charges. It then upheld the evidentiary rulings, finding that the GAL's role created an attorney-client relationship subject to Colo. RPC 1.6 and that the social worker's testimony was barred by section 19-3-207(2) without consent. The prosecution's inability to proceed without this evidence led directly to the dismissal for failure to prosecute.

criminal lawfamily lawprocedure

The case involved Whitney Brody suing her auto insurer State Farm for refusing to pay personal injury protection benefits for a prescribed mattress after a 2001 car accident, asserting claims including breach of contract, bad faith, and willful failure to pay. A jury awarded Brody $1,829.20 on the contract claim but ruled for State Farm on the bad faith and willful conduct claims, after which the trial court awarded her limited attorney fees based on her contingent fee agreement and awarded costs to State Farm as the prevailing party. Brody appealed, arguing the court should have awarded higher fees under the former Colorado No-Fault Act provision rather than limiting them to her actual obligation. The appellate court affirmed, reasoning that the statute's plain language capped fees at actual reasonable amounts and required proportional awards tied to the degree of success without exceeding the fees the insured actually owed.

business & regulatoryproceduretorts & liability

The case involved minority general partners of Brighton Farms, LLP, who sued Land Services, Inc., its principal, and a related foundation, alleging fraud in procuring a platting agreement for developing partnership property and failure to perform services under that agreement, along with claims like breach of fiduciary duty, unjust enrichment, and others. The trial court granted summary judgment dismissing some claims and later dismissed the rest for lack of standing. The appellate court affirmed, holding that Colorado's Uniform Partnership Law does not allow general partners to bring derivative actions on behalf of the partnership, unlike corporate shareholders or limited partners, and that the plaintiffs lacked individual standing because any injuries were to the partnership as a whole rather than distinct personal harms.

business & regulatorypropertyproceduretorts & liability

In this case, investor David Barrett sued his investment advisors for losses in his IRA accounts, asserting claims under the Colorado Securities Act, breach of fiduciary duty, and breach of contract; the dispute was arbitrated under the parties' agreement, which specified that arbitration would be governed by federal law including the Federal Arbitration Act. The arbitration panel awarded Barrett compensatory damages plus attorney fees, which the district court confirmed. On appeal, the court held that the arbitrators did not exceed their authority in awarding fees because such fees were available under the CSA and the proceedings were controlled by federal law, even though the agreement lacked an explicit fee provision. The court also upheld the award of post-judgment interest at eight percent under Colorado law applicable to money judgments. The judgment confirming the award was affirmed, with remand for additional attorney fees incurred in defending the award.

business & regulatoryprocedure

In Adams v. Corrections Corp. of America, inmates at a private prison operated by CCA sued the company and its employees for injuries sustained during and after a 2004 riot, asserting common-law tort claims including negligence, assault and battery, outrageous conduct, and civil conspiracy. The trial court dismissed the complaint for failure to exhaust administrative remedies under C.R.S. § 18-17.5-102.3(1) and dismissed the punitive-damages request as premature. The appellate court affirmed the punitive-damages dismissal but reversed the exhaustion dismissal, holding that the statute's plain language requires exhaustion only for actions brought "under any statute or constitutional provision" and does not apply to purely common-law claims; it also held that the assault-and-battery allegations were sufficient to survive a motion to dismiss under C.R.C.P. 12(b)(5). The case was remanded for further proceedings on the common-law claims.

criminal lawproceduretorts & liability

The case involved defendant Lawrence Joseph Carey, Jr., appealing his jury convictions for harassment by stalking, violation of a protection order, and violation of a bail bond condition, based on repeated phone calls and threats to victim B.B. from April to August 2008 following prior altercations and a 2002 harassment plea. The defendant argued that the stalking conviction violated double jeopardy, mandatory joinder rules, and due process because it overlapped with a prior guilty plea to violating a restraining order in a related case, and he also challenged jury instructions on emotional distress and unanimity. The court affirmed the convictions, holding that the offenses had distinct statutory elements under the Blockburger same-elements test so double jeopardy did not apply, that the stalking charge involved a single course of conduct not requiring specific act election, and that the instructions were proper and did not constitute plain error.

criminal lawprocedure

The case involved U.S. Fax Law Center, Inc., as assignee of businesses that received unsolicited facsimile advertisements, bringing claims against T2 Technologies, Inc. and its owners for violations of the TCPA (prohibiting unsolicited faxes and requiring certain disclosures) and the CCPA, along with related claims for negligence and injunctive relief. The trial court dismissed the TCPA and CCPA claims for lack of standing, concluding that the claims were penal in nature and thus not assignable under Colorado law. On appeal, the court affirmed the dismissals, holding that the lack of valid assignments meant the plaintiff lacked standing to assert the claims, and it also affirmed the denial of attorney fees to defendants because the entire action had not been dismissed prior to trial under C.R.C.P. 12(b).

procedurebusiness & regulatorytorts & liability

The case involved the conviction of Samuel Albert Rojas for sexual assault on a child, based on the testimony of nine-year-old E.B. and her prior hearsay statements to her mother and a police officer describing the assaults. On appeal, the defendant argued that the trial court erred by admitting the hearsay statements without sufficient indicia of reliability under Colorado's child-victim hearsay statute and that the prosecutor's rebuttal closing argument improperly vouched for the victim's credibility and denigrated the defense. The Colorado Court of Appeals affirmed the conviction, concluding that the record provided an adequate factual basis for the trial court's reliability finding, that Crawford v. Washington did not alter the analysis because the child testified at trial, and that any improper prosecutorial remarks were cured by the trial court's sustaining of objections and striking of the comments.

criminal lawprocedure

The case involved a subcontract dispute between URS Group, Inc. and Tetra Tech FW, Inc. (TTFW) over remediation work at the Rocky Mountain Arsenal, where URS sought additional compensation under the contract's differing site conditions clause after encountering unexpected subsurface concrete during foundation demolition. The trial court denied URS recovery on its CCN 21 claims, finding that the fixed-price contract placed the risk of unknown conditions on URS, awarded URS partial relief on unrelated claims, and granted TTFW costs under a settlement offer statute. On appeal, the court held that the incorporated federal DSC clause entitled URS to an equitable adjustment despite the fixed-price terms and that TTFW's settlement offer was invalid for costs purposes because it required a broad release of future claims. The judgment was affirmed in part and reversed in part on the DSC claims and costs award, with remand for further proceedings applying New Jersey law.

business & regulatoryprocedure

In Munger v. Farmers Ins. Exchange, the plaintiff sought continued wage-loss benefits under her father's auto insurance policy after a 2003 accident left her disabled, claiming that the insurer's failure to properly offer enhanced PIP coverage required the policy to be reformed to include those benefits under Colorado's former No-Fault Act. The trial court granted summary judgment to Farmers, finding that the insurer had satisfied its statutory duty to offer the enhanced coverage. The Colorado Court of Appeals reversed, holding that the Parfrey totality-of-the-circumstances test for evaluating offers of optional coverage applies to enhanced PIP benefits, that the relevant statute did not mandate a written explanation of such coverage, and that factual disputes about the adequacy of the offer precluded summary judgment. The case was remanded for the trial court to reassess whether a valid offer occurred under all the circumstances.

business & regulatorytorts & liability

The case involved a minor, Jane Doe 2, who petitioned the trial court under Colorado statute § 12-87.5-107 for a waiver of the parental notification requirement for obtaining an abortion. The trial court denied the petition after a hearing, finding by clear and convincing evidence that the sixteen-and-a-half-year-old petitioner was not sufficiently mature to decide whether to have an abortion. On appeal, the court affirmed the denial, holding that the record supported the trial court's maturity determination under the applicable clear-and-convincing-evidence standard and that the petitioner had not shown by a preponderance of the evidence that parental notification would not be in her best interests, as her stated concerns amounted only to a fear of disapproval without evidence of harm or other serious consequences.

abortionfamily law