Supreme Court, State of Colorado

SUPREME COURT, STATE OF COLORADO 9:00 a.m.

Oral Argument: Tuesday, March 2, 2010 EN BANC

Bailiff: Sara Rundell/Kate Field

09SA178 (1 HOUR)

Concerning the Application for Water Rights of Pulte Home Corporation-Preble Creek Division and the City and County of Broomfield
Applicant-Appellee:
The City and County of Broomfield,
v.
Opposer-Appellant:
The Farmers Reservoir and Irrigation Company, a Colorado corporation,
Opposers-Appellees:
The Brighton Ditch Company, City of Aurora, Central Colorado Water Conservancy District, City of Englewood, City of Thornton, City of Westminster, East Cherry Creek Valley Water and Sanitation District, Public Service Company of Colorado, United Water & Sanitation District, Lupton Bottom Ditch Company, Lupton Meadows Ditch, New Coal Ridge Ditch Company, New Consolidated Lower Boulder Reservoir, Platte Valley Irrigation Company, Pulte Homes, South Adams Water & Sanitation District, and City of Boulder,
Appellee Pursuant to C.A.R. 1(e):
James Hall, Division Engineer, Water Division 1. / )))))))))))))))))))))))))))))))))))) / For the Applicant-Appellee:
Harvey W. Curtis
David L. Kueter
Sheela S. Stack
For the Opposer-Appellant:
John P. Akolt, III
John C. Akolt, II
Akolt and Akolt, LLC

Appeal from the District Court, Water Division No. 1, 05CW290

Docketed: July 7, 2009

At Issue: December 15, 2009

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Cont’d from Page 1

ISSUE(S):

1. Whether the Court abused its discretion in refusing to consider FRICO’s argument and the evidence in the record regarding several issues that were presented for consideration by the change of water rights that were subjects of the application. The specific issues that the Court refused to consider were the following:

a. Whether historical use of the May 15, 1863 priority in the Lupton Bottoms Ditch Company system on lands that were not within the area commanded by the length of the ditch as claimed for the 1865 priority constituted an expansion of the 1863 priority of the Lupton Bottoms Ditch Company;

b. Whether the historical use of the December 1, 1863 priority in the Brighton Ditch Company system on lands that were not within the area commanded by the length of the ditch as claimed for the 1863 priority constituted an expansion of the 1863 priority of the Brighton Ditch company.

c. Whether the evidence in the record regarding out of priority diversions for the Coal Ridge Waste Reservoir overcame the Presumption of “in priority” diversions for storage in the Coal Ridge Waste Reservoir, which presumption was the basis upon which Broomfield was credited with its full pro rata share of the Coal ridge Waste Reservoir right under the “one fill” rule as the measure of a reservoir right.

d. Whether the historical use of the May 23, 1893 priority adjudicated to the J&S Ditch (now the Slate Ditch) on lands that were not within the area for which the 1893 priority was adjudicated constituted an expansion of the 1893 priority of the Slate Ditch.

2. Determining whether interception of tributary ground water by a ditch that operates at a net loss to the stream constitutes an unlawful interception of ground water in violation of the principle first enunciated by this Court in Comstock v. Ramsay, 133P. 1107(Colo. 1913).

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Oral Argument: Tuesday, March 2, 2010 10:00 a.m.

EN BANC

08SC964 (1 HOUR)

Petitioner:
Frederick A. Soderberg,
v.
Respondents:
Charles J. Nacos and Soderberg Masonry, Inc. / )))))))))) / For the Petitioner:
Mark L. Korb
Charles C. Tucker
Korb Tucker PLLC
For the Respondent:
Heather Fox Vickles
Elizabeth B. Chilcoat
Joseph J. Bronesky
Sherman & Howard L.L.C.

Certiorari to the Colorado Court of Appeals, 07CA1422

Docketed: November 24, 2008

At Issue: December 22, 2009

ISSUE(S):

Whether a party’s failure to contest post-arbitration confirmation proceedings under section 13-22-222, C.R.S. 2008 precludes a district court’s later consideration of a timely motion for modification filed by the same party under 13-22-224, C.R.S. 2008

Whether section 13-22-220(2)’s twenty-day statutory period for post-award modification by an arbitrator extends to arbitrator modifications for clarification that occur on remand from a trial court confirmation proceeding.

Whether C.R.C.P 60(b) is the appropriate vehicle to challenge a confirmed arbitration award after the award has been reduced to judgment.

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SUPREME COURT, STATE OF COLORADO 1:30 p.m.

Oral Argument: Tuesday, March 2, 2010 EN BANC

Bailiff: Margrit Parker/David Scherr

09SC536 (1 HOUR)

Petitioners:
Specialty Restaurants Corp. and Colorado Insurance Guaranty Association c/o Western Guaranty Fund Services,
v.
Respondents:
Stephanie Nelson and Industrial Claim Appeals Office of the State of Colorado. / ))))))))))))))) / For the Petitioner:
Kristin A. Caruso
Nancy A. Fitzgerald
McElroy, Deutsch, Mulvaney
& Carpenter, LLP
For the Respondent Stephanie Nelson:
Stephanie J. Stevenson
The Law Office of Stephanie J.
Stevenson, P.C.
For Amicus Curiae Workers Compensation Education Association:
Susan Phillips

Certiorari to the Colorado Court of Appeals, 08CA1069

Docketed: June 26, 2009

At Issue: December 23, 2009

ISSUE(S):

Whether the court of appeals erred in holding that the 2007 amendment to section 8-43-406(2), C.R.S., which increased the aggregate maximum lump sum payment available to a workers’ compensation claimant, applied to a claimant whose injury occurred prior to the amendment.

Whether the court of appeals erred in failing to apply the presumption that a prior judicial interpretation of a statutory provision is adopted by the legislature when that same statutory provision is amended.

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SUPREME COURT, STATE OF COLORADO 9:00 a.m.

Oral Argument: Wednesday, March 3, 2010 EN BANC

Bailiff: Alison Flint/Christie Henke

09SA248 (1 HOUR)

Plaintiff-Appellant:
The People of the State of Colorado,
v.
Defendant-Appellee:
Sir Mario Owens. / )))))))))))))))))))))))))))))) / For the Plaintiff-Appellant:
Carol Chambers
District Attorney
and
John W. Suthers
Attorney General
Daniel W. Edwards
Special Deputy District Attorney
For the Defendant-Appellee:
James A. Castle
and
Jennifer L. Gedde
Jennifer L. Gedde, LLC
and
C. Keith Pope
and
Jonathan D. Reppucci
Reppucci Law Firm
and
Mark Larrañaga
Walsh & Larrañaga
and
Esteban A. Martinez
Martinez Law, LLC
AND
Keyonyu X O’Connell
and
Ingrid J. DeFranco
Law Offices of Ingrid J. DeFranco

Appeal from the District Court, Arapahoe County, 06CR705

Docketed: July 29, 2009

At Issue: December 21, 2009

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Cont’d from Previous Page

ISSUE(S):

Whether the no-extensions of time provision to the two-year time limitation in the unitary review in death penalty cases statute that is based upon important public policy as determined by the general assembly, where the statutory time period provides a meaningful opportunity to attack the conviction and sentence, and where the statute provides for a reliable procedure, is facially unconstitutional.

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Oral Argument: Wednesday, March 3, 2010 10:00 a.m.

EN BANC

09SC223 (1 HOUR)

Petitioners/Cross-Respondents:
Judith A. Smith and James R. Smith,
v.
Respondent/Cross-Petitioner:
Executive Custom Homes, Inc. / ))))))))) / For the Petitioners/Cross-Respondents:
Timothy J. Schutz
Richard W. Hanes
Hanes & Schutz, LLC
For the Respondent/Cross-Petitioner:
Gordon L. Vaughan
Jessica Kyle Muzzio
Vaughan & DeMuro

Certiorari to the Colorado Court of Appeals, 08CA426

Docketed: March 20, 2009

At Issue: December 18, 2009

ISSUE(S):

Whether the court of appeals erred as a matter of law in holding that the petitioners’ claim for relief for personal injuries under section 13-80-104 of the Colorado Revised Statutes accrued approximately one year before the subject personal injuries were suffered.

Whether the court of appeals erred in reversing the trial court’s grant of summary judgment for the respondent/cross-petitioner by finding that the repair doctrine equitably tolled the statute of limitations under section 13-80-104 of the Colorado Revised Statutes.

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SUPREME COURT, STATE OF COLORADO 9:00 a.m.

Oral Argument: Thursday, March 4, 2010 EN BANC

Bailiff: Amy Beard/Christie Henke

09SA168 (1 HOUR)

In the Matter of the Application for Water Rights of the Upper Eagle Regional Water Authority in Eagle and Summit Counties, Colorado
Applicant-Appellee:
Upper Eagle Regional Water Authority,
v.
Opposers-Appellants:
Dick Wolfe, State Engineer for the State of Colorado; Alan C. Martellaro, Division Engineer for Water Division 5; and Colorado Water Conservation Board;
Opposers-Appellees:
Eagle County Board of Commissioners, Climax Molybdenum Company, City and County of Denver acting by and through its Board of Water Commissioners, Town of Gypsum, Lake Creek Metropolitan District, Grand Valley Water Users Association, Orchard Mesa Irrigation District, and Ute Water Conservancy District. / )))))))))))))))))))))))))))) / For the Applicant-Appellee:
Glenn E. Porzak
P. Fritz Holleman
Kevin J. Kinnear
Eli A. Feldman
Porzak Browning & Buschong LLP
For the Opposers-Appellants:
John W. Suthers
Attorney General
Paul L. Benington
Assistant Attorney General

Appeal from the District Court, Water Division No. 5, 98CW205

Docketed: June 24, 2009

At Issue: December 15, 2009

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Cont’d from Page 8

ISSUE(S):

Whether the water court’s retained jurisdiction under an augmentation plan may be invoked to “preclude” future injury as well as to “remedy” actual injury.

Whether the water court erred by dismissing the State’s retained jurisdiction petition after finding that genuine issues of material fact exist.

Whether the water court erred by not extending the augmentation plan’s 10-year retained jurisdiction period, which expires on August 1, 2010.

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Oral Argument: Thursday, March 4, 2010 10:00 a.m.

EN BANC

09SA169 (1 HOUR)

In the Matter of the Application for Water Rights of the City of Aurora, City of Colorado Springs, Colorado
River Water Conservation District, Eagle Park Reservoir Company, Eagle River Water & Sanitation District, Upper
Eagle Regional Water Authority, and Vail Associates, Inc. in Eagle, Garfield, Grand, Pitkin, and Summit Counties, Colorado
Applicants-Appellees:
Upper Eagle Regional Water Authority; City of Aurora; City of Colorado Springs; Colorado River Water Conservation District; Eagle Park Reservoir Company; Eagle River Water & Sanitation District; and Vail Associates, Inc.;
v.
Opposers-Appellants:
Dick Wolfe, State Engineer for the State of Colorado; Alan C. Martellaro, Division Engineer for Water Division 5; and Colorado Water Conservation Board;
Opposers-Appellees:
City of Aspen; Gregory A. Caretto; City and County of Denver, acting by and through its Board of Water Commissioners; Grand Valley Water Users Association; Town of Gypsum; Orchard Mesa Irrigation District; Pitkin County Board of Commissioners; Steven J. Pittel; Public Service Company of Colorado; Southeastern Colorado Water Conservancy; and Ute Water Conservancy District. / ))))))))))))))))))))))))))))))))))))))) / Applicants-Appellees:
Glenn E. Porzak
P. Fritz Holleman
Kevin J. Kinnear
Eli A. Feldman
Porzak Browning & Bushong LLP
Opposers-Appellants:
John W. Suthers
Attorney General
Paul L. Benington
Assistant Attorney General

Appeal from the District Court, Water Division No. 5, 98CW270

Docketed: June 24, 2009

At Issue: January 15, 2010

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Cont’d from Page 10

ISSUE(S):

Whether a water court’s retained jurisdiction under an augmentation plan may be invoked to “preclude” future injury as well as to “remedy” actual injury.

Whether the water court erred by dismissing the State’s retained jurisdiction petition after finding that genuine issues of material fact exist.

Whether the water court erred by not extending the augmentation plan’s 5-year retained jurisdiction period, which has now expired.

SUPREME COURT, STATE OF COLORADO 1:30 p.m.

Oral Argument: Thursday, March 4, 2010 EN BANC

Bailiff: Elias Quinn/Britta Stunkard

09SC586 (½ HOUR)

Petitioners:
Benchmark/Elite, Inc. and Colorado Insurance Guaranty Association,
and
Industrial Claim Appeals Office of the State of Colorado,
v.
Respondent:
Richard Simpson.. / )))))))))))))))) / For the Petitioners:
Thomas L. Kanan
Lee & Kinder, LLC
For the Respondent Richard Simpson:
Chris Forsyth
Chris Forsyth Law Office, LLC
For the Respondent Industrial Claims Appeals Office:
John W. Suthers
Attorney General
Katie Allison
Assistant Attorney General

Certiorari to the Colorado Court of Appeals, 07CA1581

Docketed: July 10, 2009

At Issue: January 15, 2010

ISSUE(S):

Whether the court of appeals erred in remanding for a determination on the claimant’s “time of disablement” for the purpose of setting the applicable statutory limit on claimant’s Workers’ Compensation benefits.

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Oral Argument: Thursday, March 4, 2010 2:00 p.m.

EN BANC

09SC769 (½ HOUR)

Petitioner:
City of Colorado Springs,
and
Industrial Claim Appeals Office of the State of Colorado,
v.
Respondent:
Steven Bennett. / )))))))))))))))))))))) / For the Petitioner:
T. Paul Krueger II
Ritsema & Lyon, P.C.
For the Respondent Steven Bennett:
Steven U. Mullens
Pattie J. Ragland
Steven U. Mullens, P.C.
For the Respondent Industrial Claims Appeals Office:
John W. Suthers
Attorney General
A. A. Lee Hegner
Assistant Attorney General
Katie Allison
Assistant Attorney General
For Amicus Curiae Colorado Self-Insurers’ Association:
Frank M. Cavanaugh
Hall & Evans LLC

Certiorari to the Colorado Court of Appeals, 08CA2179

Docketed: September 11, 2009

At Issue: January 15, 2010

ISSUE(S):

Whether the court of appeals erred in remanding for a determination on the claimant’s “time of disablement” for the purpose of setting the applicable statutory limit on claimant’s Workers’ Compensation benefits.