Colorado Court of Appeals, 1216 COBJ, Vol. 45, No. 12


45 Colo.Law 20

Colorado Court of Appeals

Vol. 45, No. 12 [Page XX]

The Colorado Lawyer

December, 2016

October 2016: Summaries of Published Opinions

The summaries of Colorado Court of Appeals published opinions are written for the CBA by licensed attorneys Teresa Wilkins (Englewood) and Paul Sachs (Steamboat Springs). They are provided as a service by the CBA; are not the official language of the Court; and are available only in The Colorado Lawyer and on the CBA website, (click on “Opinions/Rules /Statutes”). The CBA cannot guarantee their accuracy or completeness. The full opinions, the lists of opinions not selected for official publication, the petitions for rehearing, and the modified opinions are available both on the CBA website and on the Colorado Judicial Branch website, (click on “Courts/Court of Appeals/Case Announcements”).

October 6, 2016

2016 COA 141. Nos. 14CA2195 and 15CA0203. DA Mountain Rentals, LLC v. The Lodge at Lionshead Phase III Condominium Association, Inc. Condominium Declaration—Colorado Common Interest Ownership Act—Attorney Fees—Privilege Log—Disclosure—Discovery.

This case concerns 2012 Amendments to the Condominium Declaration for the Lodge at Lionshead III (Declaration) establishing a condominium community. The Declaration was recorded many years before the enactment of the Colorado Common Interest Ownership Act (CCIOA). DA Mountain Rentals, LLC (DA), which owns one unit, sought a declaratory judgment in district court that the 2012 Amendments were invalid because they violated the terms of the Declaration governing the procedure for adopting amendments. The district court granted the Lodge at Lionshead Phase III Condominium Association, Inc.’s (Association) CRCP 56(h) motion to determine the validity of the 2012 Amendments, determining that (1) the 2012 Amendments had been validly adopted, and (2) the 67% voting requirement they imposed did not violate the terms of the Declaration or CCIOA. The district court thereafter granted the Association’s summary judgment motion on the 2012 Amendments eliminating the lender approval requirements and providing for mandatory buyouts.

On appeal, DA argued that the district court erred when it granted the Association’s two Rule 56 motions. The Declaration’s express terms bar amendments that would eliminate the permanent unanimity requirement for member and lender approval of changes to the undivided interests in the general common elements (GCE) and provisions governing sharing of common expenses, and the CCIOA does not authorize the amendment that would allow the alteration of such rights. The 2012 Amendments are, therefore, invalid to the extent they authorize alteration of GCE interests or the provisions governing the sharing of common expenses. On the other hand, the 2012 Amendments eliminating lender approval to declare obsolescence and instituting a mandatory buyout provision are subject to the rule requiring 60% member approval to amend; because this requirement was met, these amendments were valid under the Declaration.

DA also contended that the district court erred by denying its request for fees and costs incurred in connection with its efforts to obtain disclosure and discovery of documents the Association claimed were privileged. The record supports the determination that the Association was substantially justified in objecting to logging and producing the attorney files requested by DA. Therefore, the court did not abuse its discretion in denying DA’s request for attorney fees.

On cross-appeal, the Association challenged the district court’s rulings requiring the Association to produce privilege logs of certain documents, denying its motion for a protective order for those materials, and granting DA’s motions to compel their production. However, the court did not abuse its discretion in determining that the requested documents were relevant to the fiduciary claims and that there was no privilege. Further, the court addressed proportionality issues when ordering production of the documents and privilege log. Accordingly, the court did not abuse its discretion in ordering disclosure and production of the documents or denying the request for a protective order.

The judgment was affirmed in part and reversed in part, and the case was remanded.

2016 COA 142. No. 15CA0072. Alhilo v. Kliem. Wrongful Death—Exemplary Damages—Habitual Traffic Offender—Evidence—Flight from Scene—Circumstantial Evidence—Noneconomic Damages Cap—Comparative Negligence.

Alhilo died in a collision between his motorcycle and a car driven by defendant Kliem. Alhilo’s mother, the plaintiff, brought this wrongful death action against Kliem. The jury allocated the fault and awarded noneconomic and exemplary damages. Kliem appealed the judgment entered on the verdict.

On appeal, Kliem contended that the trial court erred by excluding evidence of the deceased’s driving record and his status as a habitual traffic offender (HTO). Kliem argued that this evidence was admissible under the exception in CRS § 42-4-1713; however, this case does not support admitting either type of evidence under this statute. Admissibility of HTO status evidence is subject to the rules of evidence, primarily CRE 401 and 403. Here, both rules weigh against admission. Therefore, the trial court did not abuse its discretion by precluding evidence of the deceased’s status as an HTO and his driving record.

Kliem also contended that the trial court erred by admitting evidence of Kliem’s two prior convictions for driving while impaired. The trial court found this evidence relevant, and acknowledging the potential for prejudice, gave an appropriate limiting instruction. Therefore, the trial court did not abuse its discretion in allowing evidence of Kliem’s prior alcohol offenses for purposes of exemplary damages.

Kliem further contended that the trial court erred by admitting evidence that he fled the accident scene. Evidence of Kliem’s flight was relevant to explain why plaintiff was unable to present direct proof of Kliem having been impaired by alcohol, such as a breath test or blood draw shortly after the accident occurred. Further, evidence of Kliem’s flight showed his consciousness of liability. For these reasons, the trial court did not abuse its considerable discretion in allowing evidence of Kliem’s post-accident flight.

Kliem next contended that there was insufficient evidence to prove plaintiff was entitled to exemplary damages. However, the alcohol containers found in Kliem’s vehicle, and the facts that he failed to immediately seek medical attention for his severe injuries, fled the accident scene, and failed to immediately turn himself in to police constitute sufficient circumstantial evidence to support the exemplary damages award.

Kliem also argued that exemplary damages were improper because his left-hand turn was legal. There is no authority requiring that a traffic law violation be shown before exemplary damages can be awarded.

Finally, Kliem contended that the noneconomic damages cap in CRS § 13-21-203 must be applied to an award of noneconomic damages before comparative negligence is apportioned. Once the amount of a plaintiff’s recovery is determined, the noneconomic damages cap in CRS § 13-21-203 comes into play, which merely limits a plaintiff’s recovery to a specified maximum amount. Therefore, the trial court properly determined the amount of plaintiff’s recovery by first apportioning the percentage of comparative negligence attributable to Kliem and then applying the noneconomic damages cap in CRS § 13-21-203 to that amount.

The judgment was affirmed.

2016 COA 143. No. 15CA0206. Semler v. Hellerstein.

Notice of Appeal—Timeliness—Amended Complaint—Jurisdiction—Motion to Dismiss—Fraud—Concealment—Misrepresentation—Civil Conspiracy—Breach of Fiduciary Duty—Breach of Contract—Third Party Beneficiary—Attorney Fees.

Plaintiff Semler and defendant Perfect Place, LLC are both members of the 1940 Blake Street Condominium Association (Association). Defendant Hellerstein owns and controls both Perfect Place, LLC and Bruce S. Hellerstein, CPA P.C. (collectively, Perfect Place defendants). Hellerstein also served as treasurer of the Association. Defendant Bewley is an attorney employed by defendant law firm Berenbaum Weinshienk, P.C. At all relevant times, Bewley represented Hellerstein and his two corporate entities.

The current litigation stems from a related quiet title action in which Perfect Place asked the court to determine that it was the rightful owner of parking spaces C, D, and E. The court presiding over the quiet title action determined that Semler owned parking spaces C and D, while Perfect Place owned parking space E. Semler then brought the current suit...

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