Court Opinions: Colorado Court of Appeals Opinions for Dec. 2

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Dream Finders Homes v. Weyerhaeuser NR

A division of the Colorado Court of Appeals considered whether sophisticated buyers of a defective product who received a warranty from the manufacturer of the product may assert tort claims based on the manufacturer’s alleged misrepresentations about the product and failure to disclose the defect, even though the buyers received the remedy specified in the warranty and the warranty expressly excluded the very type of damages the buyers seek to recover through their tort claims. 

Weyerhaeuser NR Company appeals, among other rulings, the trial court’s judgment entered on a jury verdict finding it liable for negligence, negligent misrepresentation and fraudulent concealment. Dream Finders Homes, LLC and DFH Mandarin, LLC cross-appeal the trial court’s order directing a verdict in favor of Weyerhaeuser on their warranty claims and the court’s order denying their motion for judgment notwithstanding the verdict on their Colorado Consumer Protection Act claim.

The division held the economic loss rule bars the buyers from asserting such tort claims because the manufacturer did not owe the buyers a duty of care under tort law independent of its contractual duties. The division also concluded the trial court didn’t err by granting the manufacturer’s motion for a directed verdict on the buyers’ warranty claims.

The division held the economic loss rule does not generally bar private rights of action under the CCPA. But, despite its holding, the division concluded the trial court did not err by denying the buyers’ motion for judgment notwithstanding the verdict on their CCPA claim because they failed to prove one of the elements of the claim.

The division reversed the judgment entered against the manufacturer on the buyers’ claims for negligence, negligent misrepresentation and fraudulent concealment; affirmed the directed verdict in favor of the manufacturer on the buyers’ warranty claims; and affirmed the judgment entered against the buyers on their CCPA claim. 

BKP v Killmer Lane Newman

The plaintiffs in this case, BKP, Inc., Ella Bliss Beauty Bar, L.L.C., Ella Bliss Beauty Bar 2, L.L.C., and Ella Bliss Beauty Bar 3, L.L.C., filed a lawsuit against attorney Mari Newman and two law firms, Kilmer, Lane & Newman, LLP, and Towards Justice. The lawsuit stems from allegedly false or defamatory statements made from the attorneys during a press conference about a class action suit filed against the employer on behalf of a nail technician. 

Along with the press conference, the attorneys issued a press release that contained an allegedly false statement that “[the employer] forced its [nail] technicians to perform janitorial work without pay, refused to pay overtime, withheld tips and shorted commissions.” 

The attorneys asked the trial court to dismiss the claims under C.R.C.P. 12(b)(5), arguing that the statements were not actionable as defamation because they were either subject to the litigation privilege protected by the Noerr-Pennington doctrine or opinions protected by the First Amendment.

The trial court granted the attorneys’ C.R.C.P. 12(b)(5) motions to dismiss the lawsuit. The employer appealed. 

A division of the Colorado Court of Appeals concluded that, under the facts of this case, neither the litigation privilege nor the Noerr-Pennington doctrine shield attorneys from the allegedly defamatory statements made during a press conference and in a press release. The division affirmed the trial court’s determination that some of the statements made at the press conference were opinions protected by the First Amendment but reversed the trial court’s determination that the statement that “[the employer] forced [the nail] technicians to perform janitorial work without pay, refused to pay overtime, withheld tips and shorted commissions” was protected by the Noerr-Pennington doctrine. The division also concluded those statements were not protected by the litigation privilege. 

The division reversed the trial court’s order dismissing this case and remanded to the trial court to reinstate this case and to proceed accordingly.

Marriage of Stradtmann

Jeremy Stradtmann appealed the child support and maintenance awards entered as part of the dissolution of his marriage to Andrea Stradtmann. 

Jeremy Stradtmann moved out of the marital home in February 2019 when the parties separated. He filed a petition to dissolve the marriage the next month. During the dissolution proceedings, the parties entered into a stipulated temporary order that specified his financial obligations to Andrea Stradtmann from July 2019 through the date on which the court entered permanent orders. Jeremy Stradtmann agreed to pay spousal maintenance, child support and all expenses associated with the marital home. He agreed to pay Andrea Stradtmann$3,740 to $2,822 in spousal maintenance and $918 in child support for July 2019. 

A district court magistrate approved the stipulation and made it an order of the court. The district court entered a decree dissolving the parties’ marriage in 2020. The court issued oral rulings that it later reduced to writing. The district court ordered Jeremy Stradtmann to pay $1,065 in monthly child support for the parties’ two minor children and $1,399 in monthly maintenance for two years. The district court also found that Jeremy Stradtmann owed $18,700 in retroactive child support and retroactive maintenance for the months of February2019 through June 2019. After giving Jeremy Stradtmann credit for an overpayment, the court ordered him to pay Andrea Stradtmann “a total of $17,803.73 in retroactive support” for that time period.

Jeremy Stradtmann contended on appeal that the district court erred by awarding child support and temporary maintenance retroactively to February 2019 because the court did not obtain personal jurisdiction over him and Andrea Stradtmann until March 28, 2019 and that the court made insufficient findings of fact and conclusions of law to support its permanent maintenance award. 

A division of the Colorado Court of Appeals considered whether the spousal maintenance statute authorizes district courts to award maintenance retroactively to a date before the court acquired personal jurisdiction over the parties. The division concluded that the broad language of the maintenance statute allows such awards.

The division also held that the language of the child support statute precludes the imposition of child support obligations retroactively before the later of the date of the parties’ physical separation, the filing of the petition or service upon the respondent. Finally, the division concluded that the district court made insufficient factual findings and conclusions of law to support its maintenance award.

The division reversed the portion of the judgment awarding permanent maintenance; vacated the portion of the judgment awarding retroactive child support; and remanded the case for further proceedings. The division affirmed the judgment in all other respects.

City and County of Denver v. ICAO

In 2017, Andrew Sipres, a deputy sheriff for the City and County of Denver, was injured at the courthouse where he worked while remanding a defendant into custody. He was diagnosed with a posterior labral tear in his left shoulder and underwent surgery.

After post-surgical treatment and physical therapy, Sipres’ authorized treating physician placed him at maximum medical improvement with a 6% scheduled impairment of the left upper extremity. Sipres disagreed with the rating and requested a division-sponsored independent medical examination. The DIME physician increased his permanent impairment rating to a 16% scheduled impairment of the left upper extremity, which could be converted to an impairment rating of 10% of the whole person. In June 2018, the city filed a final admission of liability based on the DIME physician’s findings, admitting to a scheduled impairment of 16% of the left upper extremity.

Sipres filed two applications for hearing, seeking to convert the admitted scheduled impairment into a whole person impairment rating, which would entitle him to increased benefits. But he failed to take the actions necessary to set the matter for a hearing. 

In June 2019, after six months had passed since Sipres had taken any action on his claim, the city filed a motion to close the claim for failure to prosecute. The claim was closed automatically on Aug. 1, 2019.

A few weeks later, Sipres filed another application for hearing, again seeking conversion to a whole person impairment rating. In response, counsel for the city advised Sipres’ counsel that the claim had been closed. Sipres moved for reconsideration, indicating that neither the city’s motion nor the order to show cause wasn’t in his counsel’s file. 

In October 2019, the director issued an order extending the time within which Sipres could show cause why his claim should not be dismissed for failure to prosecute. 

An administrative law judge and the Industrial Claim Appeals Office upheld the Director’s action. The city appealed.

A division of the Colorado Court of Appeals considered whether the reopening statute, section 8-43-303, C.R.S. 2021, which limits the grounds on which an award may be reopened, constrains the authority of the Director of the Division of Workers’ Compensation to reopen an award that had been closed automatically for failure to prosecute. The division concluded that it does.

The division ruled that the director’s order reopening a claimant’s award after the claimant received initial benefits but failed to prosecute his claim seeking additional benefits, was proper only if the claimant satisfied the criteria in the reopening statute for reopening the award. Because the director, the ALJ and the panel never considered whether Sipres satisfied those statutory criteria, the division set aside the panel’s order and remanded the case to the panel with directions to return it to the director or the ALJ for additional findings.

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