Summaries of Published Opinions, 0121 COBJ, Vol. 50, No. 1 Pg. 88

PositionVol. 50, 1 [Page 88]

50 Colo.Law. 88

Summaries of Published Opinions

Vol. 50, No. 1 [Page 88]

Colorado Lawyer

January, 2021


November 5, 2020

2020 COA 153. No. 17CA2384. Gomez v. JP Trucking, Inc.

Labor and Employment Law—Wages—Overtime—Fair Labor Standards Act—Colorado Minimum Wage Order—Motor Carrier Act—Interstate Drivers.

Plaintiffs were formerly employed as truck drivers for JP Trucking, Inc. (JP Trucking). They filed a complaint alleging that JP Trucking failed to pay them time and a half as required by the Fair Labor Standards Act (FLSA) and Colorado Minimum Wage Order No. 31 (Wage Order). Following a bench trial, the trial court found for plaintiffs and awarded them damages. JP Trucking appealed, and another Court of Appeals division concluded it could not resolve the appeal without further factual findings.

On remand, the trial court found that plaintiffs were exempt from overtime under FLSA's Motor Carrier Act (MCA) exemption. However, the trial court also found that because plaintiffs either did not drive out of state or their out-of-state driving was de minimis, they were not "interstate drivers" under the Wage Order. The court awarded plaintiffs damages under the Wage Order along with reasonable fees and costs.

On appeal, JP Trucking contended that the trial court interpreted "interstate drivers" in the Wage Order too narrowly. FLSA sets federal minimum wage and overtime requirements for certain employees nationwide, while the Wage Order sets the minimum wage and overtime pay requirements for Colorado employees who work in certain industries. The Wage Order provisions are largely patterned after FLSA, and the Wage Order exemption includes employees who are subject to the MCA exemption, which exempts from the foregoing requirements drivers who transport goods in interstate commerce. Here, the trial court's findings on limited remand established that plaintiffs are subject to the MCA exemption, and JP Trucking satisfied its burden of proving that it transported goods in interstate commerce. Accordingly, plaintiffs are exempted from overtime pay.

The judgment was reversed and the case was remanded with directions to enter judgment in favor of JP Trucking and to vacate the damages award.

2020 COA 154. No. 19CA0328. People in the Interest of A.A. Juvenile Law—Dependency and Neglect—Termination of Parent-Child Legal Relationship—Treatment Plan—Due Process—Visitation Services.

The Adams County Human Services Department (Department) filed a petition in dependency or neglect based on concerns that mother and father were using methamphetamine, engaging in domestic violence, and neglecting the children's basic and special educational needs. The juvenile court adjudicated the children dependent or neglected and approved treatment plans for the parents, and it terminated both parents' parental rights 18 months later.

On appeal, mother contended that the juvenile court violated her constitutional right to due process and her statutory right to visitation services when it denied her those services for reasons unrelated to the children's health, safety, or well-being. A child's health and safety are the paramount concerns in determining whether services, including visitation, are necessary and appropriate. Here, mother's visitation was suspended entirely pending two weeks of demonstrated sobriety. Because mother never established two consecutive weeks of clean urinalysis tests, the Department did not offer visitation services for her and the children. But there was no showing that such total deprivation was necessary to protect the children. As a result, mother and the children were deprived of the visitation services required by CRS § 19-3-208(2)(h). Further, the record does not support a determination that the Department made reasonable efforts to reunite mother with the children. Thus, the juvenile court erred when it terminated mother's parental rights.

Father asserted that the Department did not make reasonable efforts to reunify the family or to rehabilitate him. Father met the sobriety requirement and resumed monitored visitation with the children. At a review hearing, the caseworker reported that father was appropriate in visits with both children, but after a later disruptive visit, father's visits were suspended indefinitely. There was no record evidence that the Department made any referrals for therapy or therapeutic visitation for father and E.A. Therefore, the Department did not provide adequate visitation services for father and E. A., nor did it make reasonable efforts to reunite them. Further, the Department failed to provide any substance abuse treatment referrals to father, and thus did not make reasonable efforts to rehabilitate him. Accordingly, the juvenile court erred when it terminated father's parent-child legal relationships with the children.

The judgment was reversed and the case was remanded with directions.

2020 COA 155. No. 19CA0608. Price v. Mountain Sleep Diagnostics, Inc. Colorado Revised Uniform Arbitration Act—Vacating Award—Fraud—Due Diligence.

Price d/b/a Peak Billing (Price) contracted with Mountain Sleep Diagnostics, Inc. (MSD) to provide billing services for MSD and its patients. The contract automatically renewed every year unless one party notified the other of its intent to terminate at least 90 days before the renewal date. Disputes under the contract, including any involving inadequate notice of the contract's termination, were subject to binding arbitration, and the prevailing party in an arbitrated dispute was entitled to attorney fees.

MSD terminated Price's contract less than 90 days before the renewal date, and Price filed a motion to compel arbitration in district court. The court granted the motion, and after a two-day arbitration hearing, the arbitrator awarded Price $124,224 for MSD's breach of the contract plus $24,600 in attorney fees. The trial court affirmed the award. MSD moved to vacate the award, alleging that, while performing billing services for MSD, Price had committed fraud by misappropriating more than $60,000 in payments meant for MSD. The trial court issued an order denying MSD's motion to vacate and granting Price's motion to confirm.

On appeal, MSD argued that the arbitrator's award should be vacated because discoveries MSD made after the arbitration was complete established by clear and convincing evidence that Price procured the arbitration award through fraud, and the district court was required to hold a hearing on the motion to vacate. Though the merits of an arbitration award are generally nonrenewable, a court must vacate an arbitration award if it was "procured by corruption, fraud, or other undue means." A party seeking to vacate an award on these grounds must show by clear and convincing evidence that (1) fraud occurred, (2) the fraud was not discoverable by exercising due diligence before or during the arbitration, and (3) the fraud had a material effect on a dispositive issue in the arbitration. Motions to confirm and vacate arbitration awards should, if possible, be decided only on the written materials submitted. Here, MSD's motion and supporting affidavits did not make a threshold showing that it acted with due diligence to discover the misappropriation before the arbitration was over. Therefore, the district court appropriately denied its motion to vacate the arbitration award without holding a hearing.

The judgment was affirmed.

2020 COA156. No. 19CA0621. TABOR Foundation v. Colorado Department of Health Care Policy and Financing. Taxpayer Bill of Rights—Taxpayer Standing—Individual Standing—Associational Standing—Jurisdiction.

Plaintiffs are the TABOR Foundation, the Colorado Union of Taxpayers Foundation, and two of their members. Plaintiffs filed suit claiming that the Hospital Provider Fee (HPF) Program and the Healthcare Afford ability and Sustainability Fee (HASF) Program, administered by the Colorado Healthcare Afford ability and Sustainability Enterprise (CHASE), violate the Taxpayer's Bill of Rights (TABOR), Colo. Const, art. X, § 20, and are also otherwise unconstitutional. The HPF Program was terminated in 2017 when the General Assembly enacted HASF. Under both programs, hospitals are required to make payments to the state or a state-created enterprise. The...

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