2016 was another prolific and successful year for our Appellate Practice Group. Our appellate attorneys were involved in 25 appeals in the state appellate courts of Colorado, Minnesota, and Montana, as well as the United States Court of Appeals for the Tenth Circuit. In all those appeals, we advanced the interests of our clients –whether appellants, appellees, or amicus curiae — vigorously, ethically, and efficiently, and in most, our arguments carried the day or were integral in favorably shaping the law.
Here are the highlights from those decisions that have been published this past year…
We started out the year with Espinoza v. Arkansas Valley Adventures, LLC, 809 F. 3d 1150, representing an outfitter in connection with a tragic rafting accident on the Arkansas River. On appeal to the United States Court of Appeals for the Tenth Circuit, we successfully defended against the contention that our client’s thorough, complete, and unambiguous release was rendered invalid by virtue of a Colorado statute making it a misdemeanor for outfitters to act carelessly or imprudently. We argued — and the court agreed — that the statute did not purport to address civil liability nor could it otherwise be interpreted to imply the overruling of decades of Colorado common law, which has repeatedly and consistently upheld similar releases with regard to recreational activities.
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We were twice successful in April.
In Boustred v. Horizon Lobby, Inc., 2016 COA 67, we represented a local distributor which, along with a Taiwanese manufacturer, was sued by a Colorado resident, who himself was injured while operating a model helicopter produced by that manufacturer and sold by our client. The manufacturer argued that it was not subject to the jurisdiction of Colorado courts because of its limited contact with the state. That argument was rejected in the district court.
Our efforts before the Colorado Court of Appeals were primarily directed at clarifying the applicable United States Supreme Court holdings that would govern the resolution of that same contention on appeal. The court agreed with our detailed analysis and, thereafter, easily concluded that the evidence before the district court sufficed to establish that the manufacturer had sufficient contacts with Colorado to justify its court’s exercise of jurisdiction.
In Ray v. Connell, 2016 MT 95, we represented a real estate agent accused of defamation and intentional interference with business interests flowing from certain statements he made during a series of city council meetings. We defeated those claims in the district court and, on appeal to the Montana Supreme Court, we focused our efforts on the well-settled absolute privilege afforded individual expressing criticism at “official meetings authorized by law,” where those meetings were undertaken by governmental bodies responsible for addressing the underlying subject matter giving rise to the criticism. The court agreed and, based thereon, affirmed the dismissal of all the claims against our client, each of which we further established was exclusively premised upon our client’s absolutely-privileged statements.
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In October, we added to Colorado’s claim preclusion jurisprudence in Layton Construction Co., Inc. v. Shaw Contract Flooring, Inc., 2016 COA 155, where we represented a flooring subcontractor in an indemnification action brought by its general contractor. After securing our client’s dismissal with prejudice, we fought — for the next two years –against the general contractor’s subsequent commencement of another indemnification action against our client. That fight spanned from one district court to another and, eventually, to the Colorado Court of Appeals, where we successfully argued that the doctrine of claim preclusion applied, barring the general contractor’s second bite at the indemnification apple. We also focused heavily upon the nature of the contentions advanced by the general contractor on appeal, which we argued were substantially frivolous. That focus was well-placed because the court additionally awarded our client its appellate attorney fees as a sanction against both the general contractor and its counsel of record.
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The following month, we prevailed on behalf of our client, an airport parking facility, in McGill v. DIA Airport Parking, LLC, 2016 COA 165. There, the plaintiff claimed she was injured when the side-view mirror of a bus owned by our client struck her as it drove past. We beat back the plaintiff’s claims at trial, obtaining defense verdicts from the jury. On appeal, the plaintiff argued that the admission of her prior conviction for bank fraud denied her a fair trial. We offered the Colorado Court of Appeals several bases upon which to affirm, and the court agreed that the plaintiff’s past conviction for bank fraud, while approximately twenty years old and not involving a great sum of money, was still probative of her current character for truthfulness, at least to some degree. Its admission, therefore, was not improper and did not require a reversal of the judgment in favor of our client.
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Finally, we ended the year with another victory for our client in Przekurat v. Torres, 2016 Colo. App. LEXIS 1677, where we represented a social host, who threw a celebratory party attended by an underage individual. Unfortunately, that individual drank to excess, drove from the party and later injured his passenger, the plaintiff, in a single-car accident. On appeal to the Colorado Court of Appeals, we concentrated upon the plain language of the state’s social host statute and relied upon its prior interpretation to argue that liability for our client required evidence that he actually knew the individual was underage. The court agreed and affirmed the judgment for our client, holding that mere constructive knowledge of the individual’s age would not suffice to permit statutory liability.
Our successes were not limited only to published decisions in 2016, but also extended to unpublished decisions as well, where we prevailed in 12 of 13 such appeals on behalf of our clients.
In addition, our appellate attorneys were tapped to represent 2 amicus curiae in the Colorado Supreme Court.
2016 was an outstanding year for our Appellate Practice Group and, on behalf of all our appellate attorneys, we extend our sincere thanks and appreciation to our clients for the opportunity to be of service.
We look forward to more appellate success in 2017.