COLORADO REAL ESTATE CASE LAW UPDATE
2007
Frederick B. Skillern
Montgomery, Little, Soran, Murray & Kuhn, P.C.
5445 DTC Parkway, Suite 800
Greenwood Village, Colorado 80111
Geoffrey P. Anderson
Burns, Figa & Will, P.C.
6400 S. Fiddler’s Green Circle, Suite 1000
Greenwood Village, Colorado 80111
Introduction
Where a Pacific citation (West) is available, it is given; otherwise we offer the LEXIS and
WESTLAW cites. In addition, the date of each decision is given in the text, so that the cases can
be conveniently located in the Colorado Lawyer or in the Colorado Bar Association’s excellent
web pages, www.cobar org/coappcts/ctappndx.htm and www.cobar.org/coappcts/scndx.htm.
Unless otherwise noted, “supreme court” means the Colorado Supreme Court, and “court of
appeals” means the Colorado Court of Appeals.
Some effort has been taken to present these cases in a way that real estate experts and nonspecialists alike will get something out of this presentation, and so that this summary may be
useful as a research tool. Any opinions expressed here are strictly our own, and are given only to
make the subject matter and its presentation more interesting.
Fred Skillern
fskillern@montgomerylittle.com
(303) 779-2758
Geoff Anderson
ganderson@bfw-law.com
(303) 796-2626
i
TABLE OF CONTENTS
Page
Introduction ...................................................................................................................................... i
BROKER / FIDUCIARY DUTY ....................................................................................................1
BOUNDARY / ADVERSE POSSESSION .....................................................................................2
CONDEMNATION .........................................................................................................................2
CONSTRUCTION / MECHANIC LIEN / WARRANTY ..............................................................3
CONTRACTS / SPECIFIC PERFORMANCE / FRAUD ..............................................................6
CONVENANTS / COMMON INTERST COMMUNITIES ..........................................................7
EASEMENTS/ ROADS ..................................................................................................................8
ESTATES / PARTITION ..............................................................................................................10
FORECLOSURE, DEBTOR-CREDITOR, RECEIVERS, LENDER LIABILITY .....................11
JUDGMENTS / FRAUDULENT TRANSFER.............................................................................13
LEASES / EVICTION ...................................................................................................................14
MALPRACTICE / PROFESSIONAL LIABILITY & CONDUCT ..............................................15
PREMISES LIABILITY / TRESPASS / NUISANCE ..................................................................17
PROPERTY TAXATION AND ASSESSMENTS .......................................................................19
TAX SALES / TREASURER DEEDS ..........................................................................................21
TITLES / TITLE INSURANCE / QUIET TITLE ACTIONS.......................................................22
ZONING / LAND USE CONTROL..............................................................................................24
CASES ACCEPTED FOR REVIEW BY THE COLORADO SUPREME COURT ...................31
CERTIORARI NOT GRANTED BY COLORADO SUPREME COURT ..................................33
ii
1. BROKERS / FIDUCIARY DUTY
Mapes v. City Council for City of Walsenburg, Colorado
Colorado Court of appeals, July 13, 2006
2006 Colo. App. LEXIS 1092
Broker; open listing; commission.
This court of appeals takes this opportunity to perform an exhaustive review of the case law
regarding the right of a broker to obtain a commission for producing a ready, willing and able
purchaser. Here, Walsenburg wanted to sell a ranch that it owned, and signed an open listing
agreement with broker Mapes on a CREC approved form. Within the period of the listing, and
prior to cancellation by the City, Mapes produced an offer from a buyer slightly in excess of the
listing price, with no contingencies. The City then elected to sell to a third party not procured by
Mapes, presumably for better terms. The trial court dismissed Mapes’ complaint for failure to
state a claim, holding that a broker is not entitled to a commission if the seller decides to sell to a
third party buyer not procured by the broker, but the court of appeals reverses. The case turns on
the interpretation of the open listing agreement; neither party argued that the controlling
provisions of the standard listing agreement are ambiguous. An open listing is not exclusive, and
a broker with such a listing is only entitled to compensation upon “sale” of the property to a
buyer whom the agent has introduced to the selling principal. Under section 13(b)(2) of the
CREC form listing agreement, a commission is earned by a broker by selling the property within
the listing period or producing a buyer who is ready, willing and able to complete the sale as
proposed by the seller (a “Broker Sale”) within the listing period. Language in the contract
stating that the listing contract is void “in the case of any other Sale” does not refer to a proposed
buyer frustrated by the seller’s desire to sell to a third party. In other words, an open listing
agreement is not revocable after a broker produces a qualified buyer on the seller’s terms. There
is no practical concern that a seller will be liable for multiple commissions since, upon
presentation of a suitable buyer by one broker, seller can discharge other brokers prior to their
presentation of similarly qualified buyers. Alternatively, the parties can modify the form contract
to require a closing on a contract before a commission is deemed due and payable.
Lane v. Urgitus
Colorado Supreme Court, 10/23/2006
145 P.3d 672 (Colo. 2006)
Agreement to arbitrate based on condition of membership in Realtors® association;
agreement to arbitrate implied condition in contract for referral fees.
Realtors® entered into an agreement for referral fees. After paying one fee, the selling brokers
failed to pay two more. The broker alleging entitlement to the referral fees filed suit, then asked
the trial court to compel arbitration. When the court granted the motion and dismissed the case
without prejudice, the selling brokers appealed. Affirmed.
The supreme court holds that the brokers had previously consented to arbitration with other
members of their professional organization, that they were all members of the organization when
the disputes arose and the consents to arbitrate they entered into upon joining the organization
constituted an implied term of their referral fee agreement. Although the court states it is not
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deciding whether by-laws of a voluntary association are enforceable among members without a
contractual relationship that could include an implied term to arbitrate, the court details the
membership application and by-law provisions of the brokers’ association that seem to require
members to arbitrate disputes between themselves.
Justice Eid concurs in the result but finds the broker claiming the referral fee to be a third party
beneficiary of the contracts between the selling brokers and their association. Justice Coats
dissents, arguing that the Colorado Arbitration Act does not elevate agreements among members
of private voluntary associations and those associations’ by-laws to the level of contractual
agreements that specifically call for arbitration.
2. BOUNDARY / ADVERSE POSSESSION
Schuler v. Oldervik
Colorado Court of Appeals, 8/24/2006
143 P.3d 1197 (Colo. App. 2006)
FED action used to adjudicate adverse possession; elements of adverse possession;
attorneys fees under FED statute.
See discussion in # 11, below.
3. CONDEMNATION
Cornerstone Group XXII, L.L.C. v. Wheat Ridge Urban Renewal Authority
Colorado Court of Appeals, 8/10/2006
2006 WL 2291146 (Colo. App. August 10, 2006)
Estoppel to compel continuation of condemnation; injunction against urban renewal
authority to prevent transfer of assets to satisfy a potential monetary judgment.
Cornerstone and the Wheat Ridge Urban Renewal Authority entered into agreements whereby
the Authority would buy or, if necessary, condemn five properties at 38th and Sheridan and then
transfer the property to Cornerstone so it could build a Walgreens. Part way through the process,
the Authority changed its mind and backed out. Cornerstone sued for specific performance
under its contracts.
The trial court denied specific performance because it could not find any law that would require
the Authority to continue with a condemnation after it changed its mind. It did, however, enter
an injunction against the Authority preventing it from transferring assets to ensure they would be
available to pay a monetary judgment that Cornerstone may obtain against it. The court of
appeals reverses the first holding and affirms the second.
While the court of appeals holds that Colorado’s Urban Renewal Law, C.R.S. §§ 31-25-101 to
115 does not allow delegation of the government’s condemnation power to private entities, the
court does hold that Cornerstone may enforce its contracts with the Authority under an estoppel
theory. The court cites testimony that Cornerstone’s failure to complete this project could
jeopardize future dealings with its principal client, Walgreens, and that this harm could be
Skillern/Anderson - 2
greater than that suffered by the landowners losing their property in the condemnation action.
The court remands on this issue. The court also finds that the trial court properly enjoined the
Authority from transferring funds because Cornerstone had shown that it would probably be able
to obtain a monetary judgment against the Authority.
The opinion is written by Judge Webb, and Justice Rovira (sitting specially) concurs. Judge
Dailey concurs in part, but dissents from the holding that Cornerstone can compel the Authority
to continue with the condemnation under an estoppel theory after the Authority changed its
mind. In his view, the majority’s decision takes the right to control condemnation out of the
hands of the government and places it in a private party and it favors specific performance of the
agreements over the rights of private property owners who were not parties to the agreement.
4. CONSTRUCTION / MECHANIC LIEN / WARRANTY
Bainbridge, Inc. v. Travelers Casualty Company
Colorado Court of Appeals, November 2, 2006
2006 Colo. App. LEXIS 2017
Construction defects; bad faith; duty to defend; equitable subrogation to prior owners
policy claim.
This is one in a series of cases working through our appellate courts relating to the liability of
insurers for construction defects caused by their insured under a CGL policy for defective
construction by homebuilders. Here, Travelers insured Bainbridge, a custom home builder.
Structural damage appeared in 1997, while Travelers insured Bainbridge. Bainbridge attempted
to repair. Six months after the policy expired, the insured sold the house in question to the Rays.
The Rays experienced further structural problems, and ultimately sued Bainbridge for
negligence. Travelers denies coverage, alleging that the damage surfaced outside the policy
period. Bainbridge, out of money and assets, assigned its bad faith claim against Travelers to the
Rays. The court of appeals, reversing a summary judgment ruling, holds that the Rays stated a
claim for wrongful failure to defend against Travelers, in that they may rely on the doctrine of
equitable subrogation to the policy claims of their predecessor in title, and that Travelers, at a
minimum, was liable to Bainbridge for violation of its duty to defend. Travelers breached its
duty to defend because, under the doctrine of equitable subrogation, the Ray’s complaint states a
possible claim that could arguably fall within the policy coverage. The Rays, in effect, are
subrogated to the claim of their predecessor against Bainbridge, which accrued (though was not
asserted) during the policy period. While real estate lawyers think of equitable subrogation in the
context of the mistake payment by the subrogee of a debt owed to the subrogor, in this context “.
. . one becomes an equitable subrogee by paying to a claimant (subrogor) the value of the claim,
entitling the subrogee to recover from the liable third party by stepping into the shoes of the
claimant.” The court was persuaded that payment for the claim was made when the property was
purchased for a price that did not seem to reflect a discount for the uncured structural damage.
The court carefully distinguishes the holding in two prior cases to the effect that a warranty deed
does not include an assignment of the grantor’s chose in action, reasoning that, likewise, the deed
does not foreclose the possibility of subrogation.
A similar case, Hoang v. Assurance Company of America, is pending before our Supreme Court.
Skillern/Anderson - 3
The certiorari statement in that case reads:
Whether liability insurance coverage for property damage is voided if the damage occurs while a
claimant's predecessor in interest owns the damaged property, despite the insured being found
legally liable to pay all the claimant's damages, including damages attributable to such property
damage, a view every other state and federal court has rejected? Hoang v. Assur. Co. of
America, 2006 Colo. LEXIS 215 (March 20, 2006).
BFN-Greeley, LLC v. Adair Group, Inc.
Colorado Court of Appeals, April 6, 2006
2006 Colo. App. LEXIS 485, 2006 WL 871577
AIA construction contract; agreement to arbitrate; grounds to overturn arbitrators’
award.
The court of appeals reaffirms that adage - good luck trying to overturn an arbitration award.
Contractor Adair demands arbitration after owner BFN withholds money on a construction job.
Their contract incorporated the American Institute of Architects General Conditions and the
American Arbitration Association Construction Industry Dispute Resolution Procedures.
After the arbitrators enter an award in favor of Adair for $1.3 million, BFN files a motion in the
district court requesting vacation of the award. Adair moves to confirm the award. The district
court confirms the award and BFN appeals contending (1) the arbitrators exceeded their
authority, (2) the award was procured by fraud, (3) an evidentiary hearing was required, and
(4) the district court should have given BFN a chance to present all its evidence.
The court of appeals dispatches the first three grounds, generally holding that Colorado has a
strong policy favoring the finality of arbitration. However, the court of appeals reverses on the
fourth ground. The district court had set an evidentiary hearing and allowed BFN to depose a
subcontractor. Then, two weeks before the scheduled hearing, the district court vacated the
hearing and granted Adair’s motion to confirm the award. BFN claimed that it had evidence
from the deposition that testimony presented by Adair in the arbitration hearing was fraudulent
regarding vinyl siding and waterproofing. BFN did not present the deposition testimony in its
written filings with the court because it thought it would have a chance to present that evidence
in a hearing. When the district court canceled the hearing, BFN was denied the right to present
all its evidence. The court of appeals vacates that part of the judgment and remands to allow the
parties to supplement their evidence on the issue and, if the district court deems appropriate, for a
hearing.
Practice note: If you ever want to have a chance to have even this level of success in obtaining
review of an arbitration proceeding, it pays to have a written record, preferably prepared by a
court reporter.
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Park Rise Homeowners Association, Inc. v. Resource Construction Co.
Colorado Court of Appeals, June 15, 2006
2006 Colo. App. LEXIS 926, 2006 WL 1643177
Construction defects; negligence claims not barred by economic loss rule; HOA presented
evidence adequately distinguishing between design and construction defects; mere puffery
will not support a Consumer Protection Act claim.
Homeowners’ Association sues developer and contractor for construction defects in a
condominium project. The HOA and developer settle just before trial. At trial, the court directs
a verdict for the contractor based on the economic loss rule, insufficient evidence apportioning
damages between design and construction defects, and failure to prove a deceptive trade practice.
The court of appeals first reverses the trial court’s dismissal of the HOA’s negligence and
negligence per se claims on the basis of the economic loss rule. The court of appeals cites A.C.
Excavating v. Yacht Club II Homeowners Ass’n, 114 P.3d 862 (Colo. 2005), for the proposition
that builders have an independent duty of care to construct homes without negligence.
The trial court had found that the HOA had not presented evidence distinguishing between
design defects which the contractor would not be liable for and construction defects which it
would. However, the court of appeals cites several passages of expert testimony pointing the
blame solely at the contractor and not the designer. The court of appeals concludes that the
negligence claims must be retried.
Finally, the court of appeals affirms the trial court’s directed verdict on the Consumer Protection
Act claim. The HOA alleged that the developer had touted the condominium project as “high
quality,” which it was not. The court of appeals finds this type of statement to be “mere puffery”
and not actionable under the CCPA.
Village Homes of Colorado, Inc. v. Travelers Casualty and Surety Co.
Colorado Court of Appeals, June 15, 2006
2006 Colo. App. LEXIS 924, 2006 WL 1643154
Coverage under comprehensive general liability policy for construction defects; claimants
not required to own homes at time of occurrence for coverage.
Defendant insurers issued an occurrence policy to homebuilder. Homeowners later sued builder
who settled, then sued its insurers. In the coverage suit, the parties stipulated that the homes in
question had suffered a specific amount of damages resulting from an “occurrence” under the
policy and that the occurrence arose during the policy period. The insurers defended on the basis
that the homeowners did not own the homes at the time of the occurrence (they had all purchased
them from the original homeowners) and therefore, argued the insurers, there was no coverage
under Browder v. United States Fidelity & Guaranty Co., 893 P. 2d 132 (Colo. 1995).
The case spawns a majority opinion, a concurrence and a dissent. The majority opinion by Judge
Carparelli discusses Browder at length and concludes that the homeowner claimants did not have
to own the properties at the time the damage occurred. The court also concludes that, unlike
Browder, the owned property exclusion is not relevant here because the homeowners’ lawsuits
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alleged that the property damage began after Village Homes sold the houses.
In concurrence, Judge Roy concludes that Browder does not apply to this case and that the
insurers simply stipulated themselves into liability. Judge Russel dissents and finds that Browder
does, in fact, apply and that it leads to a different result than the one reached by the majority. He
concludes that Browder requires the claimants to have an interest in the property at the time of
the occurrence. Because all the claimants in this case bought their homes from the original
homeowners, the claimants did not own the properties when the damages occurred, barring
Village Homes from recovering from the insurers under the policy.
5. CONTRACTS / SPECIFIC PERFORMANCE / FRAUD
Shotkoski v. Denver Investment Group, Inc.
Colorado Court of Appeals, February 23, 2006
134 P.3d 513 (Colo. App. 2006)
Arbitration clause; unlicensed real estate agent; illegality; CCPA does not apply to real
estate purchases.
When Mr. and Mrs. Shotkoski fell behind on their mortgage payments and their house went into
foreclosure, defendant Thomas, on behalf of Denver Investment Group, negotiated a contract to
buy the house for two payments of $12,000 each. The agreement between the Shotkoskis and
DIG required arbitration. After the sale, Mr. and Mrs. Shotkoski divorced. Mrs. Shotkoski
recorded a notice of lis pendens against the house in connection with the divorce. DIG refused to
make the second $12,000 payment because of the cloud on title. Mr. Shotkoski sued and DIG
moved to compel arbitration. Shotkoski asserted the contract was unenforceable because
Thomas did not have a broker’s license and because defendants engaged in deceptive trade
practices under the Consumer Protection Act. The trial court held the contract illegal and
unenforceable and declined to order arbitration. The court of appeals reverses.
The court reasons that the agreement of DIG to pay Thomas a commission (which was illegal
because Thomas lacked a broker’s license) does not affect the contract between Shotkoski and
DIG. The court states that if the Shotkoski position were to prevail, the security and
marketability of real estate titles would be jeopardized. Buyers cannot tell from the real estate
records whether a transaction might be voided because someone involved in a prior transaction
was not properly licensed. The court quotes Strekal v. Espe, 114 P.3d 67 (Colo. App. 2004) and
Lobato v. Taylor, 71 P.3d 938 (Colo. 2002) for the proposition that buyers and secure titles are
best served by bright line rules when it comes to recording.
Finally, the court rejects the Shotkoski argument that the contract was illegal under the
Consumer Protection Act (CCPA). Shotkoski pointed to C.R.S. § 6-1-105(1)(z) which defines a
deceptive trade practice as occurring where the defendant does not “obtain all governmental
licenses or permits required to perform the services or to sell the … property as agreed to or
contracted for with a consumer.” The court holds that the statute does not apply to real estate
purchases—only the performance of services or the sale of property. Therefore, because the
contract between Shotkoski and DIG is not illegal or unenforceable, the arbitration provision is
valid and the parties must arbitrate.
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6. COVENANTS / COMMON INTEREST COMMUNITIES
Snowmass Land Company v. Two Creeks Homeowner’s Association, Inc.
Colorado Court of Appeals, July 13, 2006
2006 Colo. App. LEXIS 1091
Common Interest ownership Act; reservation of development rights; label on plat.
This case concerns the attempt by a developer of a common interest community to reserve
certain land in the platted subdivision for future development. Under C.R.S. § 38-33.3-209(2)(c),
a subdivision map must show “a legally sufficient description of any real estate subject to
development rights, labeled to identify the rights applicable to each parcel.” Here, the plat
showed Parcel A, Lot 3, as the “Pasture Parcel.” In the recorded declaration which accompanied
the plat, this parcel is described as being reserved for future development. However, nothing on
the plat was labeled to identify any future development rights. Although the notes on the first
sheet of the subdivision plat refer a reader to the declaration, the court says, “not good enough” –
a label means a label, and consumers have a right to have the development rights noted on the
portion of the plat that graphically depicts the parcel subject to future development rights.
Note – the CBA Real Estate Section voted to help overturn this on certiorari review in the
Colorado Supreme Court, but that court denied the cert petition. The Real Estate Section is
drafting legislation to mitigate the impact of the ruling, and developers’ counsel are reviewing
their plats.
Plaza del Lago Townhomes Association v. Highwood Builders
Colorado Court of Appeals, September 7, 2006
2006 Colo. App. LEXIS 1481
HOA assessments; setting aside default judgment; attorney mistake.
This case is mentioned only to warn real estate lawyers about the rules of civil procedure relating
to default judgments. Here, defendants were served with a complaint seeking substantial unpaid
assessments. Defendants hired counsel who contacted plaintiff’s counsel, presented plaintiff’s
counsel with a draft answer and counterclaims, and entered into negotiations. However, the
answer was not filed with the court, the deadline for answering passed, and the parties continued
to talk. In the midst of negotiations, plaintiff moved for a default judgment without notice to
defendants. Although this may seem like “dirty pool,” the court holds that no notice was required
under the rules of civil procedure as defendants’ counsel had not “appeared” in the action.
However, the trial court denied the motion to set aside the default judgment without a hearing,
finding a lack of excusable neglect. The court of appeals remands for a fact hearing as to
whether there had been sufficient “misrepresentation” or mistake, even in the absence of
excusable neglect, to justify vacating the default judgment. Be forewarned – trust your opposing
counsel at your peril.
Skillern/Anderson - 7
7. EASEMENTS / ROADS
Matoush v. Lovingwood
Colorado Court of Appeals, November 2, 2006
2006 Colo. App. LEXIS 1833
Easements; termination or modification by adverse possession.
Plaintiff owns a lot adjoining a city street, and has an express easement across two lots to her
rear for “sewer and water pipes and alley purposes.” The easement is improved with
underground water and sewer pipes. However, the surface is improved with fences, gardens and
the like which have precluded surface access to the alley for more than 30 years. Defendants, the
holders of the servient estate, argue that the portion of the easement that provides for access to
the rear alley has been terminated by adverse possession. The trial court made findings consistent
with a ruling in defendants’ favor, but held that the easement was not terminated because of a
lack of evidence of plaintiff’s intent to abandon the easement. This is reversed on appeal, the
court holding that an easement may be terminated or modified, in whole or in part, by the
servient estate’s adverse possession. Our adverse possession statute, C.R.S. § 38-41-101, applies
to preclude any claim to enforce “any right or interest” in property, which includes easements.
An easement may be partly or wholly extinguished upon proof that the servient owner’s use of
the land is (1) adverse to the use of the easement, (2) is open or notorious, and (3) has continued
without effective interruption for eighteen years. See Lobato v. Taylor, 71 P.3d 938, 954 (Colo.
2002); RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES 2.16, 2.17. The court elaborates
somewhat on the kinds of adverse use that will suffice, and rejects a New York rule requiring
proof of “need, demand, and refusal.” It is sufficient to prove that the servient owners’ use of the
land is clearly incompatible or irreconcilable with the use of the easement. The court notes,
properly, that abandonment is a separate and distinct method of terminating an easement, and is
irrelevant to a claim for termination by prescription. Finally, the court notes that whether the
prescriptive period starts at the time a fence is installed over the easement depends on the facts of
each case, and particularly whether the fence is consistent with use of the easement (owner is
given a key, for example) or whether it frustrates the easement.
Trask v. Nozisko
Colorado Court of Appeals, March 9, 2006
134 P.3d 544 (Colo. App. 2006)
Adverse possession; prescriptive easements; adequacy of interruption of prescriptive
period by record owner.
This is a neighborhood dispute in the Gold Hill area in the foothills west of Boulder involving a
claim of adverse possession of property and prescriptive easements for access and for parking.
The adverse possession issues are rather garden variety with the court citing several maxims.
The prescriptive easement issue, however, contains a novel aspect—the extent to which a record
owner must go to stop someone attempting to gain such an easement.
The adverse claimant lived in a house on a mining claim and got there along a road that crossed
Skillern/Anderson - 8
two other claims. Part way through the 18-year prescriptive use period, the record owner
employed heavy equipment to dig a trench and build a berm across the road restricting access by
car. Very shortly thereafter, the adverse claimant used a hand shovel, and over a period of three
to seven days took down the berm, filled in the trench and made the road passable again. The
court considers whether this activity was sufficient to interrupt the prescriptive period and
concludes that it was.
After noting that this is a question of first impression in Colorado, the court surveys the law of
other states on this issue and finds inconsistency. A number of states require near-heroic efforts
to permanently stop trespassers before the courts will find that the prescriptive period has been
interrupted. The Colorado Court of Appeals, however, follows the other line of cases which
holds that the construction of a barrier with the intent to interrupt use, and in fact interrupting
usage for a period of time, is sufficient even if the adverse claimant removes the barrier and
starts using the road again. The court finds this approach comports with Colorado’s policy of
favoring the record owner and decreases the chances of confrontation. The court rejects the
RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 2.17, which states that physical interruption
must stop usage entirely and if use resumes, the cessation must last long enough to indicate
abandonment.
Allen v. Nickerson
Colorado Court of Appeals 12/28/06
2006 WL 3803403 (Colo. App. December 28, 2006)
Access easement created across grantor’s own land valid when part of common plan;
summary judgment appropriate where intent is clear.
Defendant Nickerson subdivided her land into four small lots and one larger lot. While retaining
title to all the lots, Nickerson recorded covenants on the small lots and conveyed an access
easement across the large parcel from the adjacent county road to the smaller parcels. The
easement stated that it would run with the land. Later, Nickerson sold one of the small lots to a
relative with a deed describing the access easement. Several years after that, Nickerson sold
another small lot to the Allens, but that deed omitted any reference to the access easement or
covenants. The trial court found that the access easement was valid, and the court of appeals
affirms.
The court of appeals begins by noting that one cannot create an easement across her own
property, but then notes an exception where a developer creates a subdivision and records
servitudes running with the land (citing the RESTATEMENT (THIRD) OF PROPERTY). The court
then cites several Colorado cases where covenants were enforced even if a deed did not reference
the covenants but the development had followed a clear plan and the covenants appeared in prior
deeds. The court notes that both covenants and easements are servitudes, so the same rule
applies. The court also holds that resolving this issue on summary judgment was proper because
the language in the documents was clear and unambiguous (citing Lazy Dog Ranch v. Telluray
Ranch Corp., 965 P.2d 1229 (Colo. 1998), and Ford v. Summertree Lane Ltd. Liab. Co., 56 P.3d
1206 (Colo. App. 2002)).
Skillern/Anderson - 9
8. ESTATES / PARTITION
Colorado Korean Association v. Korean Senior Association
Colorado Court of Appeals, November 16, 2006
2006 Colo. App. LEXIS 1916
Partition; defenses; unclean hands; lis pendens.
Two organizations buy a commercial building as tenants in common, with plaintiff owning a
62% interest, and with an agreement that the parties would split all expenses and revenues. After
a variety of disagreements, including defendant’s failure to pay property taxes on its interest,
plaintiff sued for partition. The trial court ordered the property sold, with the proceeds to be split
according to the ownership interests, subject to certain offsets for unequal contributions. The trial
court denied the defendant’s motion for stay of execution and to have the property serve as
supersedeas bond. The court conditioned the stay on the posting of a $200,000 bond, which
defendant could not pay. Defendant recorded a notice of lis pendens, and then appealed. The
court of appeals affirms, holding that (1) the failure to post a supersedeas bond is not a defense to
the appeal; (2) the county assessor is not an indispensable party despite the delinquent taxes, as
the court’s judgment allocated for the tax liability; and (3) “unclean hands,” based on failure to
pay certain pro-rata expenses, is not a defense. With regard to the latter, the accounting which
accompanies the partition effects the equitable adjustment required to account for these
disparities. Martinez v. Martinez, 638 P.2d 834 (Colo. App. 1981).
Finally, and perhaps most problematically, the court remands for determination as to whether the
notice of lis pendens was improperly recorded. Plaintiff argues on appeal that the lis pendens
had prevented sale of the property. The trial court had twice denied a motion to release the notice
under C.R.C.P. 105(f)(2), which was denied because the case was on appeal. The appellate court
remands, stating that the court may award plaintiff damages under C.R.S. § 38-35-110(2) if the
notice of lis pendens was “improvidently recorded.” Query – as a matter of law, did not the
appeal relate to defendant’s title, possession or interest in the property?
Wilson v. Prentiss
Colorado Court of Appeals, May 18, 2006
2006 Colo. App. LEXIS 692, 2006 WL 1348456
Partition; property not divided during divorce; standing to demand partition post-decree;
unjust enrichment.
During their marriage, the plaintiff and defendant entered into leases of 100 years, 98 years and
96 years on adjoining pieces of real estate. They jointly constructed a home, guest house, garage
and sauna on the property. Later, when the couple divorced, they both signed an affidavit stating
that there was no marital property and no marital debt.
Five years later, the former wife sued the former husband for partition of the real estate and for
unjust enrichment because the ex-husband had been living on the property and had not paid any
rent to the plaintiff. The trial court grants husband’s motion for summary judgment holding that
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wife had no standing to sue for partition because of the prior divorce action. The court also
found that her unjust enrichment claim was barred by unclean hands. The court of appeals
reverses.
The partition statute, C.R.S. § 38-28-101, allows any person with an interest in real property to
bring an action for a complete adjudication of rights and division of the property. The divorce
decree and the mutual execution of the affidavit stating there was no marital property did not bar
the action. Although this departs from the doctrine of res judicata, which provides that a party to
a civil action may not split claims, application of claim preclusion here would work an
inequitable forfeiture. Cf. Harrod v. Harrod, 34 Colo. App. 172, 526 P.2d 666 (1974) (partition
action filed during course of dissolution case). Because both parties signed the affidavit of no
marital property, that fact could not be characterized as only one party’s unclean hands barring
the equitable remedy of unjust enrichment.
9. FORECLOSURE, DEBTOR-CREDITOR, RECEIVERS, LENDER LIABILITY
Premier Farm Credit, PCA v. W-Cattle, LLC
Colorado Court of Appeals, 10/5/06
2006 WL 2828845 (Colo. App. October 5, 2005)
Lender liability; oral loan agreements barred; antecedent debt sufficient consideration for
deed of trust.
In a lengthy and wide-ranging opinion, only a small portion of which addresses real estate issues,
the Court of Appeals affirms the trial court’s enforcement of various loan obligations. The
defendant debtors, operators of a feed lot, ran up a $14 million line of credit before the lender
began foreclosure. The trial court found that the debtors had overstated the value and extent of
their collateral for years. The loan was initially secured by the debtors’ cattle, feed grain, farm
machinery, equipment and crops. As the lender’s concern over the loan mounted, the debtors
agreed to execute deeds of trust on their property to provide further security. The deeds of trust
were signed on November 7 and 14, 2003. Lender started foreclosure on November 17, 2003.
The debtors alleged that a representative of the lender made statements at the time they signed
the deeds of trust that led the debtors to believe the lender would forebear from foreclosing.
These statements provided the basis for a number of counterclaims and defenses asserted by the
debtors, all of which the court of appeals dispatches. The court of appeals affirms the trial
court’s decision to exclude the oral statements about the lender’s intent on the basis of C.R.S. §
38-10-124, Colorado’s credit agreement statute of frauds, which requires any credit agreement
involving a principal amount of over $25,000 to be in writing or signed by the party against
whom enforcement is sought. This ruling, of course, undercuts much of the debtors’ case. A
concurring opinion asserts that claims of fraudulent inducement should be allowed by the statute,
but the concurrence comes to the same ultimate conclusion as the majority based on its
evaluation of the statements as falling short of that required for a fraudulent inducement claim.
The court also finds that the deeds of trust signed by the debtors only days before the lender
began foreclosure were not void for lack of consideration because an antecedent debt can be
adequate consideration.
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Thomas v. Lynx United Group, LLC
Colorado Court of Appeals 12/28/06
2006 WL 3803301 (Colo. App. December 28, 2006)
Appeal not moot because subject property was foreclosured; lis pendens describing
property but not naming property owner not effective to put lender on notice.
Real property was owned by a corporation which, in turn, was owned by various family
members. Two of the shareholders, a husband and wife, divorced and during the divorce
proceedings, the wife recorded a lis pendens describing the property but naming only her and her
husband, neither of whom was the record owner. Later, the corporation executed a deed of trust
encumbering the property to secure a $350,000 promissory note. Default followed almost
immediately, which was followed by foreclosure.
At the request of the wife, the trial court entered a TRO, then a preliminary injunction delaying
the foreclosure. However, the trial court then entered summary judgment in favor of the holder
of the deed of trust. The wife appealed but did not move to stay the trial court’s judgment, nor
did she post a supersedeas bond. By the time the court of appeals heard the case, the foreclosure
had been completed and the property sold to a third party.
On appeal, the creditor argues mootness. The court of appeals disagrees, questioning a prior
decision of a division of the court in Mount Carbon Metropolitan Dist. v. Lake George Co., 847
P.2d 254 (Colo. App. 1993), which held otherwise. This court instead follows FCC
Construction, Inc. v. Casino Creek Holdings, Ltd., 916 P.2d 1196 (Colo. App. 1996), which held
that such a case would not be moot if the appellant was merely complying with or acquiescing to
a court order such as, in this case, the foreclosure.
Finally, the court holds that the lis pendens did not put the creditor on notice of the wife’s claim
in the property because the lis pendens did not name the record owner. The court notes that the
recording act establishes a grantor-grantee index, and when a document does not list the record
owner, the document is outside the chain of title and, therefore, imparts no notice to subsequent
purchasers or encumbrancers.
Turman v. Castle Law Firm, LLC
Colorado Court of Appeals, January 12, 2006
129 P.3d 1103 (Colo. App. 2006)
Foreclosure; sale notwithstanding cure; remedy.
See summary in # 12, below.
Cope v. Woznicki
Colorado Court of Appeals, April 20, 2006
2006 Colo. App. LEXIS 533, 2006 WL 1028884
Attorney’s lien; lien attaches upon commencement of services; completing case and
negotiating settlement not necessary.
Skillern/Anderson - 12
In this interpleader action, the court of appeals affirms the trial court’s grant of summary
judgment enforcing an attorneys’ lien against settlement proceeds and against the interests of a
competing garnishor. The case arises from a complicated real estate dispute in which the
attorneys negotiated settlement agreements with some of the parties. Before the case was
concluded, one of the attorneys was named as a witness and the law firm withdrew, filing and
serving notices of attorneys’ liens pursuant to C.R.S. §§ 12-5-119 and 12-5-120. After the
attorneys withdrew, the litigation continued, ultimately concluding in a settlement, the proceeds
of which both the garnishor and the attorneys asserted claims against.
On appeal, the garnishor argues that the attorneys’ lien only attaches to judgments and
settlements. Because the attorneys withdrew before the settlement (that generated the funds in
dispute for the benefit of the former clients) was concluded, garnishor argues that the attorneys
have no lien. The court of appeals says no, and affirms, citing C.R.S. § 12-5-119 and
Donaldson, Hoffman & Goldstein v. Gaudio, 260 F. 2d 333 (10th Cir. 1958), which state that
attorneys have a lien on any and all claims and demands in suit for any balance of fees, due or to
become due from any client. The court also cites In re Marriage of Berkland, 762 P.2d 779
(Colo. App. 1988), for the proposition that the charging lien accrues from the moment an
attorney commences service. The court concludes that the attorneys in this case had a lien on the
settlement proceeds from work they did early in the case even though they did not negotiate the
settlement themselves.
10. JUDGMENTS / FRAUDULENT TRANSFER
Leverage Leasing Co. v. Smith
Colorado Court of Appeals, 8/10/2006
143 P.3d 1164 (Colo. App. 2006)
Colorado Uniform Fraudulent Transfer Act; zero dollars could not constitute reasonably
equivalent value; no constructive trust where party failed to read loan documents.
Husband and wife jointly owned a house. Over the course of 20 years, they had quitclaimed it
back and forth between the wife and the husband and wife jointly for no consideration. The
husband quitclaimed the house from joint ownership back to the wife at a time when plaintiff
was pursuing the husband on a personal guarantee which triggered the fraudulent transfer claim.
The trial court acknowledged that the transaction should be set aside unless it was supported by
reasonably equivalent value. Based on the history of quitclaim deeds without consideration, the
trial court found reasonably equivalent value.
The court of appeals reverses. The court finds the transaction to have depleted the husband’s
estate to the prejudice of creditors and that he received no direct or indirect benefit from the
conveyance. Therefore, the transaction was a fraudulent conveyance. The court also rejects the
wife’s argument that the prior conveyance in which the wife had granted the husband a joint
tenancy interest resulted in a constructive trust in the wife’s favor. The argument is based on the
wife’s assertion that she didn’t know she was making such a conveyance. The court holds that
the only reason she didn’t realize this is because she did not read the loan documents. The court
characterizes that as negligence and refuses to accept that argument.
Skillern/Anderson - 13
11. LEASES / EVICTION
Proactive Technologies, Inc. v. Denver Place Associates L.P.
Colorado Court of Appeals 6/29/06
141 P.3d 959, 60 UCC Rep.Serv.2d 546 (Colo. App. 2006)
Consequential damages not allowed for commercially unreasonable sale of collateral under
former C.R.S. § 4-9-507(1).
Landlord locked out defaulting tenant under a commercial lease and sold some of tenant’s
property. The tenant asserted a portion of the sale was commercially unreasonable and that it
could recover consequential damages as a result. The trial court held that consequential damages
are not recoverable for a commercially unreasonable sale and the court of appeals affirms.
The court construes former C.R.S. § 4-9-507(1) (since amended and reenacted at C.R.S. § 4-9625). That statute stated that a party aggrieved by a commercially unreasonable sale could
recover “any” damages. However, because the court found that the statute did not specifically
provide for consequential damages, and because other portions of the UCC do make such a
provision and, further, because yet other provisions of the UCC indicate that consequential
damages should generally be limited, the court holds that such damages may not be recovered
under these circumstances.
Schuler v. Oldervik
Colorado Court of Appeals, 8/24/2006
143 P.3d 1197 (Colo. App. 2006)
FED action used to adjudicate adverse possession; elements of adverse possession;
attorneys fees under FED statute.
Plaintiffs brought a forcible entry and detainer action in county court against their neighbors
when the neighbors erected a fence across a driveway leading to the plaintiffs’ house. The case
was transferred to district court where the FED action was heard with the defendants claiming to
be the record owners of the driveway and the plaintiffs asserting their ownership of the driveway
through adverse possession.
On appeal, defendants argue that the case should have been brought under Rule 105 as a quiet
title action. The court of appeals holds that the trial court’s actions were proper and rebuffs the
defendants’ claims that they were denied due process because they were not given the right to do
discovery and have a full trial under the expedited FED procedures. The court states that the
defendants should have filed a counterclaim under Rule 105 and/or requested a delay of trial to
conduct discovery under C.R.S. § 13-40-114.
Defendants argue that the elements of an FED action were not satisfied because there was no
evidence of the threat of force or violence. The court points to evidence in the record that
defendants shot at one of their neighbors and that they were “quick to use guns.” That and other
actions by defendants were sufficient to satisfy the threat of force or violence requirement.
Skillern/Anderson - 14
The court next discusses adverse possession and evidences some confusion over the required
elements. The court states that an adverse possession claimant must prove possession for 18
years and that the possession was, “hostile, adverse, actual, under a claim of right, exclusive and
uninterrupted,” omitting the element of open and notorious possession. Later in the opinion,
however, the court states that the possessor “may use any actual visible means that puts the true
owner and the public on notice of his dominion over the parcel.” Ultimately, the court concludes
the record contains sufficient evidence to support the trial court’s conclusion that plaintiffs
adversely possessed the driveway.
Finally, the court awards attorneys’ fees in favor of the plaintiffs under C.R.S. § 13-40-123
because they were the prevailing parties in the FED action.
Musick v. Woznicki
Colorado Supreme Court, May 30, 2006
2005 Colo. LEXIS 481 , 2006 WL 1460438
Eviction; bifurcation of issues for trial; Rule 54(b) certification required for appeal.
We note this ruling only because we discussed the case last year. This is an eviction action
arising out of a sale and leaseback, with claims by the tenant that the transaction involves an
equitable mortgage that should be foreclosed judicially, precluding relief under the unlawful
detainer statute. The tenant filed a notice of appeal on one of the issues tried in a bifurcated trial,
without a certification under C.R.C.P. 54(b) that the separate claim was appropriate for review
prior to the completion of litigation on all claims. The supreme court accepted certiorari review
on this procedural issue, holding that a trial court is not divested of jurisdiction when a party files
a premature notice of appeal of a non-final judgment. Once the jurisdictional defect has been
cured, the appeal is ripe to proceed as of the date of the trial court’s certification of its judgment.
12. MALPRACTICE / PROFESSIONAL LIABILITY & CONDUCT
Crowe v. Tull
Colorado Supreme Court, January 9, 2006
126 P.3d 196 (Colo. 2006)
Colorado Consumer Protection Act; application to attorneys.
Crowe brings CCPA and fraud claims against his lawyer, Franklin D. Azar & Associates,
alleging that the firm uses television advertisements that tout its abilities and promise to obtain
full value for its clients’ personal injury claims to perpetrate a fraud on the public. Crowe alleges
that he retained Azar to handle his personal injury case based on the representations made in its
advertisements, that the firm did not perform as advertised, and that he was pressured into
settling for far less than the full value of his claim.
The supreme court holds that attorneys may be held liable for violations of the CCPA. A private
CCPA claim against an attorney must allege that the attorney or law firm knowingly engaged in
a deceptive trade practice, which occurred in the course of the attorney or firm’s business,
vocation, or occupation, significantly impacting the public as actual or potential consumers of
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legal services, and causing injury in fact to a legally protected interest of the plaintiff. Take note
– this claim allows for recovery of treble damages.
Turman v. Castle Law Firm, LLC
Colorado Court of Appeals, January 12, 2006
129 P.3d 1103 (Colo. App. 2006)
Attorney liability; no duty of care to non-clients.
Law firm handles a foreclosure for lender. Before the sale, the owner transfers funds to the law
firm to cure the default. The law firm didn’t realize that the homeowner had cured, and proceeds
to sale. A third party (TP for short) purchases the house at the foreclosure sale. The law firm
realizes that a cure had been made, and offers to refund the price buyers paid at the foreclosure
sale. TP refuses to accept it. When TP subsequently defaults on his purchase money loan, that
purchase money lender sues TP and the law firm. The TP cross-claims against the law firm for
negligence in allowing the sale to go through after the owner had cured. TP seeks lost profits
and other consequential damages. The lender settles after the law firm pays off the loan with the
proceeds it had received at the foreclosure sale from TP. In resolving the cross-claims, the trial
court found the law firm had breached a duty of care to the buyers and awarded them $366.
The court of appeals reverses, beginning with the general rule: attorneys owe no duty of care to
third parties. Exceptions to this general rule exist but do not apply here. TP did not allege that
any misrepresentations of counsel, fraudulent, negligent, or otherwise, induced TP to purchase
the house. Judgment enters for the law firm.
Ehrlich Feedlot, Inc. v. Oldenburg
Colorado Court of Appeals, April 20, 2006
2006 Colo. App. LEXIS 537, 2006 WL 1028899
Breach of fiduciary duty; certificate of review; civil theft.
This case arises out of a foreclosure of a deed of trust given by the Feedlot to secure a loan to
finance farming operations in Weld County. The original lender was Wells Fargo Bank. The
bank started a foreclosure in the 1980s. The Oldenburg Law Firm represented the Feedlot in a
successful workout. In 1998, the loan was again in default. The Robert Magness Estate bought
the note and commenced foreclosure. The estate’s counsel in Denver hired the Oldenburg Law
Firm as its local counsel. The Feedlot objected to this representation; Oldenburg withdrew; and
the Feedlot settled with Magness. The Feedlot and its principals then sued Oldenburg’s firm and
its lawyers and the Denver lawyers for breach of fiduciary duty and civil theft, “among other
things.” Eight summary judgment motions were filed by the defendants over time. When the
dust settled, we glean the following: (1) venue was properly transferred to Weld County because
the civil theft statute, C.R.S. § 18-4-405, imposes a statutory penalty (triple damages plus
attorney fees) (Rule 98(b)(1) requires that venue be where the claim for a penalty arose); (2) the
trial court properly dismissed the action for failure to file a certificate of review, which is
required for breach of fiduciary claims against professionals if expert testimony is required to
establish a scope of duty. C.R.S. § 13-20-601. Defendants did not waive the requirement by
waiting two years to raise the objection, and the filing of expert witness disclosures does not cure
the requirement; and (3) The trial court was wrong in dismissing the civil theft claim, which
Skillern/Anderson - 16
apparently arose out of an alleged failure to return client funds (when and how is not specified).
This claim does not require expert testimony, so it is not covered by the certificate of review
statute. The case is remanded for trial on this claim.
Gold v. Duncan, Ostrander & Dingess, P.C.
Colorado Court of Appeals, 8/24/2006
143 P.3d 1192 (Colo. App. 2006)
Attorneys’ lien; time for bringing enforcement action.
Law firm represented Gold in defense of a condemnation action. The trial court entered final
judgment on a stipulated amount of damages. Three months later, law firm filed a notice of
attorneys’ lien and a motion to withdraw as counsel. Four months after that, law firm filed a
motion to reduce its lien to judgment pursuant to C.R.S. §§ 12-5-119 and 120. The trial court
granted the motion over Gold’s contention that the motion was time barred by Rule 121, § 1-22.
The Court of Appeals affirms holding that Rule 121, § 1-22 does not apply. The only time limits
for enforcing an attorneys’ lien are those applicable to enforcing the underlying debt. The court
discusses how C.R.S. § 12-5-119 is vague in its procedural requirements, but that the law firm’s
actions were adequate in this case.
13. PREMISES LIABILITY / TRESPASS / NUISANCE
Robbins v. Wilkie
United States Court of Appeals, Tenth Circuit, 1/10/06
433 F.3d 755 (10th Cir. 2006), cert. granted 12/06
No qualified immunity for BLM officials who attempted to extort an easement from
plaintiff.
Plaintiff Robbins bought a ranch in Wyoming without actual or constructive notice of an
unrecorded easement Robbins’ predecessor had granted to the Bureau of Land Management
which, under Wyoming law, resulted in the termination of the easement. When Robbins refused
BLM’s request to formally grant an easement, BLM officials retaliated by refusing to maintain
Robbins’ access road; threatened to cancel and then cancelled his right-of-way across federal
lands; stated they would “bury Frank Robbins;” cancelled his special recreation use permit and
grazing privileges; brought unfounded charges against him; trespassed on his property; and
interfered with guest cattle drives he operated.
Robbins sued the individual BLM employees allegedly involved in these activities under the
Racketeer Influenced and Corrupt Organizations Act (“RICO”) and Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 91 S.Ct. 1999 (1971). The defendants moved to
dismiss based on qualified immunity. The district court denied the motion and the 10th Circuit
affirms.
The 10th Circuit holds that Robbins had a clear right to exclude others, including government
officials, from his property. Defendants argued that BLM has the right to condemn, so they were
not doing anything that was unauthorized. The 10th Circuit holds, however, that the BLM was
Skillern/Anderson - 17
not proceeding under condemnation and therefore the defendants’ actions were wrongful. The
court also holds that defendants’ actions constituted extortion under the Hobbs Act and the
Wyoming blackmail statute which in turn were sufficient to form predicate acts for the purposes
of RICO.
In December 2006, the U.S. Supreme Court granted cert. The decision should be issued by the
end of the current term in June 2007.
Board of County Commissioners of San Miguel County v. Roberts
Colorado Court of Appeals 12/28/06
2006 WL 3803461 (Colo. App. December 28, 2006)
C.R.S. § 18-4-515 authorizes surveyor to enter property prior to filing of condemnation
proceeding.
In this case, the court of appeals tells us that C.R.S. § 18-4-515 means what it says. That statute
states that a licensed professional land surveyor may lawfully enter public or private land to
investigate and utilize boundary evidence to perform boundary surveys. San Miguel County was
planning to build a public road across defendants’ property. The county surveyor contacted the
defendants about coming on their land to perform a survey of the road but defendants refused
access. In response, the county filed a declaratory judgment action to establish its right to
conduct the survey.
The trial court ruled that the surveyor could access the defendants’ properties and in a 10 page
opinion, the court of appeals affirms. The court analyzes a number of creative, but ultimately
unsuccessful arguments raised by the defendants. The court holds that an existing condemnation
action is not necessary for the surveyor to enter property under the statute. If the surveyor causes
any damages the property owners can make a damages claim. An owner of a minority interest in
one of the properties was not an indispensable party. Finally, the court rules that it was error for
the trial court to retain continuing jurisdiction over potential damages caused by the surveyor.
The property owners had not made any counterclaims in the declaratory judgment action and
because the survey had not yet occurred, any damages were purely speculative.
Chapman v. Willey
Colorado Court of Appeals, March 23, 2006
134 P.3d 568 (Colo. App. 2006)
Premises liability; liability for injury to trespasser; fight.
The court of appeals affirms the trial court’s directed verdict in favor of the defendant motel
owners. The trial court found that the plaintiff went to the motel to start a fight with one of the
guests. The court of appeals agrees with the trial court’s conclusion that the plaintiff was a
trespasser under the premises liability statute, C.R.S. § 13-21-115(5)(c). The plaintiff previously
had a standing invitation from a motel resident to enter for social visits, but his presence for the
purpose of fighting exceeded the scope of permission. Because plaintiff was a trespasser, the
motel owners were liable only if they willfully or deliberately caused plaintiff’s injuries. C.R.S.
§ 13-21-115(3)(a). Because plaintiff presented no such evidence, a directed verdict was
appropriate.
Skillern/Anderson - 18
Nordin v. Madden
Colorado Court of Appeals, April 6, 2006
2006 Colo. App. LEXIS 479, 2006 WL 871165
Premises liability; person in possession; person legally responsible for condition or activity.
Mr. Hall was killed and Mrs. Hall injured by carbon monoxide when the furnace or water heater
malfunctioned in their rental home. Mrs. Hall sued the landlord for her injuries and her
husband’s wrongful death. The trial court granted the landlord’s motion for summary judgment,
holding that he was not a “landowner” under the liability statute, C.R.S. § 13-21-115. During the
appeal, Mrs. Hall died and Nordin was substituted as appellant. The court of appeals reverses.
Section 13-21-115(1) defines a “landowner” as “an authorized agent or a person in possession of
real property and a person legally responsible for the condition of real property or for the
activities conducted or circumstances existing on real property.” The court first reviews the
lease to determine whether the landlord was “in possession” under the statute. The lease (1)
allowed the landlord to enter the property in an emergency or upon notice to inspect the property
for damage and make repairs; (2) prohibited the Halls from making changes or repairs without
written permission; (3) required Halls to notify landlord of necessary maintenance or repairs; and
(4) made landlord responsible for repairs within a reasonable time after notification. The court
of appeals concludes that if the case was decided on the basis of the lease alone, the landlord
would qualify as a “landowner” because of the degree of possession and control that he reserved.
However, the trial court found that over the nine years the Halls lived in the house, the Halls
maintained the house without notice to landlord and landlord had not been to the house for
several years. The trial court did not base its ruling on that evidence because some of it appeared
to be disputed. The court of appeals thus reverses and remands on this issue.
The court of appeals next considers whether the landlord was “legally responsible” under the
statute. The court rejects plaintiff’s argument that landlord is legally responsible because a local
ordinance requires landlords to properly maintain all mechanical equipment. The court rejects
this argument because the ordinance does not make landlords civilly liable for violating it.
Further, because the landlord was not conducting any activity related to or creating the condition
of the malfunctioning water heater or furnace, he is not “legally responsible” for their condition.
14. PROPERTY TAXATION AND ASSESSMENTS
Town of Avon v. Westar Bank
Colorado Court of Appeals, November 16, 2006
2006 Colo. App. LEXIS 1914
Sales tax lien; Article 9 security interest; priority.
This case does not involve real property, but arises out of the familiar situation of competing
liens against the personal property of a failed restaurant business. The court of appeals, in
reversing the trial court’s holding that a bank’s security interest in personal property was senior
Skillern/Anderson - 19
to Avon’s lien for sales taxes, follows the holding in Young v. Golden State Bank, 632 P.2d 1052
(Colo. App. 1981), and rules that a home rule city may adopt an ordinance providing for sales tax
liens that are senior in priority to Article 9 security interests created under C.R.S. § 4-9109(a)(2). The power of a home rule city in this regard derives from Article XX of the Colorado
Constitution. See C.R.S. § 39-26-117. The case is remanded for a determination of the relative
priority of the Avon lien with respect to other governmental liens asserted by Eagle county and
the state.
Jefferson County Bd. Of County Comm’rs v. S.T. Spano Greenhouses, Inc.
Colorado Court of Appeals, June 1, 2006
2006 Colo. App. LEXIS 786, 2006 WL 1494027
Tax valuation appeal; proper comparables for greenhouse property; proper interpretation
of Assessor’s Reference Library provisions.
Taxpayer protested assessment of property used for greenhouses. After Jefferson County denied
taxpayer’s petition to abate the property tax, taxpayer appealed to the Board of Assessment
Appeals. The property in question was just less than 4 acres in size located in Arvada. The
taxpayer presented evidence of comparable sales of properties ranging in size from 35 acres to
over 300 acres. The BAA relied on these sales in reducing the taxes.
The court of appeals reverses, holding that the BAA used inappropriate comparable sales and
failed to correctly apply the Assessor’s Reference Library provisions. The property tax statutes
draw a distinction between “agricultural land” and “other agricultural properties.” The BAA
compared the property in question with properties that fell under the “agricultural land” category
and properties that were much larger than the subject. The property in question should have
been classified as “other agricultural property.” The court remands for a new hearing.
Denver jetCenter, Inc. v. Arapahoe County Bd. Of Equalization
Colorado Court of Appeals, April 20, 2006
2006 Colo. App. LEXIS 539
Valuation of possessory interest in government property; exclusive use.
This case deals with the valuation of the possessory interest of a tenant leasing government
property at a public airport. As such, it follows Bd. of County Comm’rs v. Vail Assocs., Inc., 19
P.3d 1263 (Colo. 2001). Here the fixed base operator leased a building, and also portions of the
runway and access lanes and tie-down areas adjacent to the main building. It is the latter
portions of the leasehold at issue here. The trial court held that all areas other than the building
footprint were not subject to the jetCenter’s exclusive use and possession and therefore were
excepted from taxation under C.R.S. § 39-1-103(17)(a)(II)(B). The court of appeals affirms,
rejecting the BOE’s argument that the jetCenter had the right to exclude others from using the
walkways and runways and that absolute exclusivity is not required. The court relied on dicta
from the Vail case. “[T]he valuation criteria in § 39-1-103(17)(a)(II)(B):
appear to reflect the three factors we have identified from Colorado precedent as
exhibiting the significant incidents of private ownership that are the predicate for
taxation of possessory interests in government-owned lands: an interest that provides a
Skillern/Anderson - 20
revenue-generating capability to the private owner independent of the government
owner; ability to exclude others making the same beneficial use; and sufficient duration
of the interest for realizing a private benefit therefrom.”
Bd. of County Comm’rs v. Vail Assocs., Inc., supra, 19 P.3d at 1279 n.22. (Emphasis added.)
The court affirmed the trial court’s findings that the jetCenter had no right to exclude the general
public from using any of the paved areas outside the building footprint. Therefore they were not
subject to the jetCenter’s exclusive use, and they are excluded from valuation for tax purposes.
Jet Black, LLC v. Routt County Board of County Commissioners
Colorado Court of Appeals, 10/5/06
2006 WL 2828871 (Colo. App. October 5, 2006)
Valuation of common elements; proportionate share taxed to each lot; value of residential
improvements taxed as such despite agricultural status.
Owners of 35 to 70 acre lots near Steamboat ski area appealed assessment of common areas
which increased their valuations from the range of $600 to $1,200 to over $1,200,000. The
appellants are owners of 14 residential lots in Storm Mountain Ranch which consists of 1,063
acres; 793 of which are encumbered by a conservation easement. The lots sell for $2.5 to 3.0
million as vacant land and are taxed as agricultural land. The common areas have $4.8 million in
improvements and require $500,000 in annual maintenance. These improvements include a
lodge and four surrounding cabins available for use by the owners. The county assessor
concluded that the common elements contributed a total of $17.5 million to the value of the lots.
The Court of Appeals first holds that taxing the value of the common elements to each lot
according to its pro rata share of common expenses is appropriate rather than taxing the HOA
which holds title to the common elements. The court also holds that the residential
improvements on the common elements must be assessed at the residential rate even though the
underlying ground is taxed at the agricultural rate and that the market value approach should be
used to determine value. The court approves the assessor’s five step extraction analysis in
determining the contribution value of the common elements to the value of the lots.
15. TAX SALES / TREASURER DEEDS
Jones v. Flowers
United States Supreme Court, April 26, 2006
126 S. Ct. 1708 (2006)
Tax sales; notices; uncollected certified mail; due process.
In a case arising out of Arkansas, Chief Justice Roberts for the Court holds that the officer
conducting a property tax sale may not continue to rely solely on certified mail to effect notice to
a property owner of a forthcoming property tax sale and subsequent issuance of a treasurer’s
deed, where the officer is aware that the certified mail is not being picked up at the post office by
the addressee. Here, the owner leased the property to a nephew; notices of the certified mail
were deposited in the mail box at the residence. Apparently, the nephew figured that the mail
was none of his business, or maybe it was simply a case of “no good news arrives by certified
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mail.” In any event, if the officer learns that this method of giving notice is ineffective,
something else must be tried – even if only an attempt by first class mail. Several justices
dissent – an interesting political mix.
16. TITLES / TITLE INSURANCE / QUIET TITLE ACTIONS
GMAC Mortgage Corporation v. PWI Group
Colorado Court of Appeals, November 16, 2006
2006 Colo. App. LEXIS 1917
Deed of trust; spurious document statute.
The Gorings owned property in foreclosure. After the foreclosure proceeding was commenced,
PWI Group filed a notice of intent to redeem, based on a recorded deed of trust purportedly
encumbering the Goring property. The deed of trust was granted and executed by a third party,
Mandalay Holdings, LLC, which apparently had never had an ownership interest in the property.
The deed of trust recited that the Gorings were “consenting owners.” The foreclosing lender
challenged the right to redeem, and filed a spurious lien and document action to declare the deed
of trust void, under C.R.S. § 38-35-201(3) and C.R.C.P. 105.1. The trial court ruled for PWI
Group, apparently finding some factual basis for the owner’s “consent,” and perhaps reasoning
that an equitable lien may have been created. The court of appeals reverses, without
equivocation, citing Colorado Real Estate Title Standards 3.3.1 and holding that a deed of trust
must be signed by one with a record interest in the property on the date of execution. The court
also reasons that the trust deed was a “wild deed,” though it is not clear from the decision
whether Mandalay Holdings ever had an ownership interest in the property. The case is
remanded for a hearing on attorney fees.
Query – what if Mandalay Holdings acquired an interest in the property after the trust deed is
recorded? Although outside the chain of title, would it serve to create an interest in the property
sufficient to allow redemption?
Archuleta v. Gomez
Colorado Court of Appeals, May 4, 2006
2006 WL 1171962
Water court vs. District court jurisdiction.
The water courts have exclusive jurisdiction over water matters. What constitutes a water matter
“turns on the distinction between the legal right to use of water acquired by appropriation and the
ownership of a water right.” The water court also has jurisdiction over ancillary issues that
directly impact water rights. However, a water court does not have jurisdiction “over real
property issues only tangentially related to a water matter.” Chrystal Lakes Water & Sewer
Assoc. v. Backlund, 908 P.2d 534, 540 (Colo. 1996). Here, Archuleta sued Gomez in the district
court for interfering with the Archuleta decreed water rights, caused flooding on Archuleta’s
property and other claims related to use of water from the ditches. Gomez counterclaimed to
quiet title in portions of the Gomez water rights by adverse possession, and the trial court entered
judgment for Gomez.
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The court of appeals reverses, holding that the district court lacked jurisdiction over the
counterclaim. Although Archuleta’s suit sought to enforce his previously decreed water rights,
Gomez’s adverse possession defense asked the court to terminate Archuleta’s rights and grant
Gomez the right to use the water. The court concludes that this issue is within the exclusive
jurisdiction of the water court. In addition, although Gomez’s defense of adverse possession of
the ditches was within the jurisdiction of the district court, it was ancillary to the dispute
regarding the use of the water and, thus, was an issue that could properly be resolved by the
water court. “Consequently, we conclude that the district court was without jurisdiction to
terminate Archuleta’s decreed water rights and to grant Archuleta’s rights to Gomez, and that the
court erred when it exercised its jurisdiction regarding the ditches in conjunction with the water
rights dispute.” The court recognized that the district courts may properly determine the
ownership of previously decreed water rights, in a variety of contexts. Nevertheless, the court
holds:
We conclude that the termination and award of water rights is within the exclusive
jurisdiction of the water courts. Therefore, when the owner of a water right endeavors to
enforce that right in the district court, and the defendant asserts that the owner has
abandoned the water right, or should be estopped from enforcing it, or that the water right
should be granted to the defendant based on the defendant’s adverse possession, the case
involves both the enforcement of a water right and an assertion that the right to use the
water should be terminated and awarded to another based on beneficial use of the water.
As a result, the case is within the exclusive jurisdiction of the water court. See V-Heart
Ranch, [690 P.2d 1271 (Colo. 1984)]; Lomas v. Webster, 109 Colo. 107, 122 P.2d 248
(1942) (applying water law statutes to an adverse possession claim). Even though
property law statutes govern the adverse possession of water rights, the water court may
properly apply those statutes when the dispute centers on the legal right to use water. See
Humphrey v. Sw. Dev. Co., [734 P.2d 637 (Colo. 1987)].
The court noted, for example, that if it found Archuleta had abandoned his water rights, the water
would have returned to the stream and become subject to appropriation by others. The court of
appeals concludes by upholding the district court’s ruling on the trespass claim, but vacating the
judgment in all other respects.
Martinez v. Archuleta-Padia
Colorado Court of Appeals, June 1, 2006
2006 Colo. App. LEXIS 790, 2006 WL 1493796
Quiet title action; no statute of limitations for party in possession.
Plaintiff agreed to purchase a mobile home and the land under it on a contract for sale with
payments over an eight year period. When the plaintiff completed the payment schedule, the
deceased seller’s wife asserted ownership of the land. The plaintiff had received title to the
mobile home but not the land although he was in possession. The plaintiff filed an action for
declaratory, injunctive and monetary relief. The trial court found that plaintiff’s claims were
barred because he had not filed a claim within one year of the defendant’s husband’s death and
because his contract claim was barred by three year and six year statutes of limitations, C.R.S. §§
13-80-101(1)(a) and 103.5(1)(a).
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The court of appeals begins by holding that plaintiff was not required to file a claim with
decedent’s estate. The court of appeals next rejects plaintiff’s arguments that a ten year statute
of limitations period under C.R.S. § 38-41-116 or an 18 year statute of limitations period under
C.R.S. § 38-41-101 applies.
Facing the prospect of applying the three year or six year statutes of limitations like the trial
court and ruling for the defendant, the court of appeals realizes that this is actually a quiet title
suit under C.R.C.P. 105. Having properly characterized the action, the court of appeals then
surveys the statutes of limitations applicable to real estate actions and finds none that apply to
this type of claim. The court cites Barnes v. Spangler, 56 P.2d 31, 33 (Colo. 1936), for the
proposition that the statute of limitations does not apply to an action to quiet title. The court of
appeals then surveys the laws of other states, finds many cases holding the same thing, and holds
that the plaintiff’s claim in this action is not time barred.
17. ZONING / LAND USE CONTROL
Walker v. Laningham
Colorado Court of Appeals, September 8, 2006
2006 Colo. App. LEXIS 1478
Barking dog complaints; civil conspiracy; abuse of process.
The Laninghams and various neighbors reported the Walkers to the local animal control agency,
complaining about chronic dog barking. The Walkers ran a kennel and raised sled dogs. Walker
was convicted in county court on a number of dog barking violations as well as cruelty to
animals. Nevertheless, the Walkers sued Laningham and others for abuse of process and civil
conspiracy to run the Walkers out of business. The trial court dismissed the claims under
C.R.C.P. 12(b)(5), taking judicial notice of the misdemeanor convictions. The appeals court
affirms, in a lengthy decision that ultimately concludes the obvious. That is, the local ordinances
require neighbors to make complaints as a condition of getting relief, and that defendants
properly used the process outlined in the ordinance. Similarly, the civil conspiracy claim requires
proof of an agreement by two or more to accomplish an object by means of “one or more
unlawful acts.” The court goes to great lengths to explain that even an unfounded complaint is
not necessarily an unlawful act – and that the defendants’ complaints to animal control
authorities had merit as a matter of law. The case is remanded for an award of attorney fees
under C. R.S. § 13-17-201 (attorney fees if tort claim dismissed under Rule 12).
JAM Restaurant, Inc. v. City of Longmont
Colorado Court of Appeals, February 23, 2006
2006 Colo. App. LEXIS 211, 2006 WL 408315
Zoning; constitutionality of C.R.S. § 38-1-101(3) regarding preservation of property rights;
statewide concern; retroactivity of legislation.
JAM operated a “sexually oriented business” which Longmont tried to eliminate on the basis that
it was not located within the proper zone under an ordinance passed after the JAM business had
opened. While the case was pending, the legislature passed C.R.S. § 38-1-101(3) which
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prohibits local governments from terminating businesses that were lawful at their inception.
Longmont contends that its local zoning ordinance prevails over the state statute. In concluding
that it does not, the court of appeals analyzes the question under City of Northglenn v. Ibarra, 62
P.3d 151 (Colo. 2003), which holds that regulated matters fall into one of three broad categories:
“(1) matters of local concern; (2) matters of statewide concern; and (3) matters of mixed state
and local concern”. In determining which category a particular matter falls into, courts consider
factors such as the need for uniformity, the impact on those outside the municipality, whether the
matter has historically been considered local or statewide and whether the Colorado Constitution
specifically categorizes a matter as local or statewide.
The court of appeals holds that the legislature enacted the statute to restrict local governments
from depriving property owners of their constitutional rights. Although the court finds little
impact outside Longmont, protecting property rights has traditionally been a matter of statewide
concern and that zoning is not exclusively a local matter. Therefore, the court concludes that
C.R.S. § 38-1-101(3) is constitutional and that it prevails over Longmont’s ordinance.
The court also holds that C.R.S. § 38-1-101(3) applies only prospectively, but it applies to this
case even though the case was filed before the effective date of the statute because Longmont did
not try to enforce it until after the statute became effective.
Canyon Area Residents for the Environment v. Jefferson County Commissioners
Colorado Court of Appeals, May 4, 2006
2006 Colo. App. LEXIS 631, 2006 WL 1171863
Rule 106 action; substantial changes to PUD after close of testimony; abuse of discretion;
failure to consider best site; failure to consider conformity with master plan.
Two developers applied for a zoning change to build a broadcast tower on Mount Morrison
above Red Rocks Amphitheater. After several public hearings before the Jefferson County
Planning Commission and the County Commissioners, the developers made a number of
significant changes to the plan, which the County Commissioners then approved. CARE filed a
Rule 106(a)(4) action. The district court affirmed the county’s action.
On appeal, CARE argues that the board abused its discretion when it allowed multiple changes to
the plan after the board closed public comment. The court of appeals agrees. The court cites the
county’s own regulation that requires significant changes to be made 21 days before any hearing.
Because the changes were made after the hearings, the court of appeals reverses the district court
and remands to the county commissioners.
The court of appeals also faults the county commissioners for failing to make a factual finding
that the approved site is the best available. Again the court cites the county’s own regulation that
requires such a finding. Finally, the court holds that the county commissioners failed to make a
finding that the approved plan conforms to any master land use plan or comprehensive plan. The
case is remanded on these issues as well.
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North Avenue Center, LLC v. City of Grand Junction
Colorado Court of Appeals, May 18, 2006
2006 WL 1348473
Review of variance ruling; C.R.C.P. 106; jurisdiction of municipal court.
More litigation arises in the aftermath of Town of Frisco v. Baum, 90 P.3d 845 (Colo. 2004).
When appealing the ruling of a municipality on a land use matter, does one go to the district
court under Rule 106, or to the municipal court? An exception to the general jurisdiction of the
district court lies in the power of a home rule city to create a municipal court and to vest it with
exclusive jurisdiction over matters of local and municipal concern. Grand Junction is a home
rule city, and the fence variance sought here was stipulated to be of local concern. However, the
court here concludes that Grand Junction’s charter did not vest the municipal court with
jurisdiction for matters relating to variances. Unlike the charter for Frisco, the Grand Junction
charter does not grant the municipal court with the authority to hear “all matters” arising under
the charter. Rather, it grants jurisdiction over charter “violations.” Therefore, the trial court
improperly dismissed the Rule 106 action for lack of subject matter jurisdiction, and the case is
remanded to the district court for its certiorari review proceeding.
City of Golden v. Parker
Colorado Supreme Court, 6/26/06
138 P.3d 285 (Colo. 2006)
Developers’ vested property rights in contracts with city; duty of good faith and fair
dealing in city contracts.
Several real estate developers entered into economic incentive contracts with the City of Golden.
In 1992 Golden established an economic incentive program. That same year Colorado voters
passed a constitutional amendment requiring voter approval for the creation of any multiplefiscal year direct or indirect debt or other financial obligation. In 1998 and 1999, without
seeking voter approval, Golden entered into the five economic incentive agreements that are the
subject of the appeal. In 2001 Golden voters amended the city charter requiring the city to obtain
voter approval for all development subsidies over $25,000. In 2002, the city passed an ordinance
providing that economic incentive agreements in effect at the time of the 2001 vote shall remain
in effect. Parker, a Golden resident, challenged the city’s continuing obligations under the
agreements without voter approval.
The city and the developers filed a motion for summary judgment which the trial court granted.
The court of appeals reversed and now the supreme court reverses the court of appeals finding
the developers had vested rights in the agreements. The supreme court finds that the agreements
contain the common law covenant of good faith and fair dealing and the developers had a
reasonable expectation that the city would exercise its budgetary discretion in determining
whether to appropriate funds annually.
The court analyzes the case under In re Estate of DeWitt, 54 P.3d 849 (Colo. 2002), and finds
Skillern/Anderson - 26
that the agreements are in the public interest, the developers had a reasonable expectation the city
would exercise its budgetary discretion and retroactive application of the 2001 charter
amendment would surprise the parties. The court also finds the agreements do not create a
multiple-fiscal year direct or indirect debt or other financial obligation. Finally, the court holds
that language in the city code prohibiting vested property rights applies to property rights vesting
in land whereas the vested property rights in this case are in the agreements.
Town of Foxfield v. The Archdiocese of Denver
Colorado Court of Appeals 8/10/2006
2006 WL 2291160 (Colo. App. August 10, 2006)
Federal Religious Land Use and Institutionalized Persons Act; State Freedom to Gather
and Worship Act; constitutionality of local parking ordinance.
The Town of Foxfield enacted a parking ordinance directed at a temporary rectory and home of a
Catholic Church monsignor on property owned by the Archdiocese of Denver. The ordinance
prohibited parking of more than five vehicles for more than 15 minutes within 1000 feet of
residential property more than twice per month. The ordinance was to be enforced only if three
written complaints were filed by property owners within 1500 feet of the alleged violation.
When Foxfield moved to enforce the ordinance, the Church argued it violated the Religious Land
Use and Institutionalized Persons Act, 42 USC § 2000cc and the Freedom to Gather and Worship
Act, C.R.S. § 29-1-120 and that it was unconstitutional.
The trial court found that there was no jurisdictional basis to apply the RLUIPA or the FGWA.
Applying intermediate scrutiny, the trial court upheld the constitutionality of the ordinance. The
Court of Appeals reverses and finds that the jurisdictional prerequisites of the RLUIPA are met
and even if they weren’t the RLUIPA would still apply because the ordinance is enforceable only
upon the complaint of three citizens making the enforcement at least partially subjective. The
FGWA applies because the ordinance is not merely a general parking restriction, it also affects a
landowner’s right to use its property and therefore does not fall within an exception to the
FGWA as the trial court found.
Finally the Court of Appeals holds that the trial court erred in applying intermediate scrutiny to
the ordinance and that strict scrutiny is appropriate because the enforcement is placed in the
hands of citizens and because it was targeted at the rectory. The case is remanded for further
consideration of each of these issues.
Practice note: Do many municipalities want to spend the money to hire another municipal
judge to hear these matters? Note that an appeal from the municipal court decision goes to the
district court in any event. The main challenge for counsel is to be familiar with the local code
and to pick the right forum, while meeting the applicable filing deadline.
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Certiorari Granted:
No. 05SC749
Court of Appeals Case No. 03CA2523 (9/8/05)
Petitioner:
TOWN OF CARBONDALE, a Colorado home rule municipal corporation,
v.
Respondent:
GSS PROPERTIES, L.L.C., a North Carolina limited liability company.
Petition for Writ of Certiorari GRANTED. EN BANC.
Summary of Issues:
Whether the trial court erred in refusing to permit the defendant to raise preemption for the first
time by motion for summary judgment, under the circumstances of this case.
Whether the court of appeals erred in remanding for the defendant to have an opportunity to
establish that Carbondale’s watershed protection ordinance, as applied in this case, was
preempted by an operational conflict with one or more state statutes.
No. 05SC823
Court of Appeals Case No. 04CA0637 (10/6/05)
Petitioners:
PETER C. DROSTE, individually and as Trustee of a trust for the benefit of Peter C.
Droste, Jr. and Elise Droste; and BRUCE F. DROSTE, individually and as Trustee of a
trust for the benefit of Edward Droste and William Droste.
v.
Respondent:
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF PITKIN,
COLORADO.
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Petition for Writ of Certiorari GRANTED. EN BANC.
Summary of Issue:
Whether the court of appeals erred by concluding that the Local Government Land Use Control
Enabling Act, § 29-20-101, et seq., C.R.S., supersedes § 30-28-121, C.R.S., of the County
Planning and Building Codes, thereby allowing the imposition of a temporary moratorium
without a stated termination date that precludes all development activities while a Board of
County Commissioners adopts resolutions for the master planning and rezoning of property that
has already been zoned.
No. 06SC82
Court of Appeals Case No. 04CA0931 (12/15/05)
Petitioners:
AMALGAM ENTERPRISES, INC.
v.
Respondents:
GRANITE STATE INSURANCE COMPANY, MOUNTAIN RANCH CORPORATION,
INDIAN RIVER BEND CONSTRUCTION COMPANY, LESTER G. COLODNY, and
RUSSELL COLODNY.
Petition for Writ of Certiorari DENIED. EN BANC.
CHIEF JUSTICE MULLARKEY and JUSTICE MARTINEZ would grant as to the following
issue:
Whether the court of appeals erred in holding that a mechanic’s lien foreclosure action must be
set forth in a complaint, cross-claim or counterclaim.
Skillern/Anderson - 29
06SC499 – 11-6-06
Court of Appeals Case No. 03CA1710 (3/3/06)
Petitioner:
MARY BRODEUR, individually and as Personal Representative of the ESTATE of
DENNIS BRODEUR, deceased,
v.
Respondents:
AMERICAN HOME ASSURANCE COMPANY and AIG CLAIM SERVICE, INC.
Petition for Writ of Certiorari GRANTED. EN BANC.
Summary of issues:
Whether the trial court erred in its finding of when a bad faith tort claim began to accrue for
statute of limitations purposes while an administrative proceeding involving sanctions was ongoing.
Whether it was an error for the court of appeals and the trial court to dismiss Petitioner’s fraud
claims by incorrectly characterizing a letter by Respondent’s attorney as a legal opinion rather
than a factual misrepresentation, or in the alternative, was it an error to fail to recognize that the
letter qualifies for the exception to the legal opinion rule for fraud claims.
Whether the dismissal of a breach of fiduciary duty claim against Respondent was improper
because the conduct involved insurance mandated by the Workers’ Compensation Act.
Whether the court of appeals should have recognized that the public nature of workers’
compensation insurance program was sufficient to satisfy the "public impact" component of
claims under the Colorado Consumer Protection Act.
DENIED AS TO ALL OTHER ISSUES
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CASES ACCEPTED FOR REVIEW BY THE COLORADO SUPREME COURT
Alexander, et al. v. Anstine, A U.S. Bankruptcy Trustee For Builders Home Warranty, Inc.
Petition for Writ of Certiorari GRANTED, February 21, 2006


Whether Colorado law recognizes a fiduciary duty owed by an insolvent debtor’s officer
to the debtor’s creditors and, if so, whether 11 U.S.C. § 544(a) and Colorado law permit a
bankruptcy trustee, acting as a hypothetical judgment lien creditor, to sue the debtor’s
lawyer for aiding and abetting the debtor’s officer breach this fiduciary duty.
Whether a lawyer can be liable for aiding and abetting a breach of fiduciary duty of his
client’s officer to a non-client.
Department Of Transportation Of The State Of Colorado and Regional Transportation
District v. Marilyn Hickey Ministries, dba Happy Church
Petition for Writ of Certiorari GRANTED, March 20, 2006

Whether the court of appeals erred in ruling that the landowner in this case, whose
property is being taken by eminent domain for a State transportation project, has a
cognizable right to damages for the impairment of passing motorists’ view of the
landowner’s property.
Clyncke v. Waneka.
Petition for Writ of Certiorari GRANTED, May 30, 2006.

Whether the court of appeals erred in substituting the word “or” in place of the word
“and” in the Colorado Equine Activities Statute, thereby greatly expanding the potential
liability of those involved in the equine industry despite the stated legislative purpose of
the Colorado Equine Activities Statute to provide immunity and limit liability in that
industry.
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CERTIORARI NOT GRANTED BY COLORADO SUPREME COURT . . .
. . . but with interesting comments
Mucklow v. Jamestown Homeowner’s Association
Petition for Writ of Certiorari DENIED.
JUSTICE KOURLIS would grant as to the following issue:

Whether the court of appeals’ ruling overrides the General Assembly’s intent that § 3833.3-123(1), C.R.S. (2004) applies only to prevailing parties in claims involving persons
who fail to comply with CCIOA or a HOA’s provisions.
Olson v. Hillside Community Church, S.B.C.
Petition for Writ of Certiorari DENIED March 29, 2006.
CHIEF JUSTICE MULLARKEY would grant as to the following issues:


Whether the availability of review of abuse of discretion and failure to perform
mandatory duties is a matter of state-wide concern that cannot be abridged by a home
rule municipality.
Whether the Court of Appeals has erroneously extended the holding of Town of Frisco v.
Baum, 90 P.3d 845 (Colo. 2004), by applying it to a case in which the home rule
municipality had not passed ordinances to implement the jurisdiction the City claims was
conferred by its charter.
Whether the Court of Appeals has exceeded the proper scope of appellate review and misapplied
settled case law on prescriptive easements by ruling that Petitioners did not have a prescriptive
easement based on its own findings of fact.
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