The Rule of 7 or why do I have to learn new deadlines after practicing law for 29 years?

On January 1, 2012, the Colorado Supreme Court changed all of the  Rules of Civil Procedure to make all deadlines divisible by 7.  I learned in law school that an answer was due 20 days after service.  Now it is 21 days after service.  Answers to discovery requests were always due in 30 days.  Now it is 35 days.  I can understand that all new deadlines are divisible by 7, but why did the Supreme Court give a District Court judgment debtor 21 days to answer  Rule 69 Interrogatories and only give a County Court judgment debtor 14 days to answer Rule 369 Interrogatories?   Why couldn't it be the same amount of time? 

Now the Colorado State Legislature has joined into the Rule of 7.  It changed all deadlines that affect court proceedings to be divisible by 7 as well.  This is effective on July 1, 2012.  So if you want to appeal a county court judgment, you now have 21 days to do so, instead of the 15 you used to have.  So take heed all you attorneys who get the desperate phone call from the procrastinating litigant on the 13th day, you still have 8 more days to file that appeal! 

Terry Ehrlich, Esq.  Arnold & Arnold, LLP
http://www.arnoldarnold.com/

If you are a landlord or represent a landlord, that deliquent tenant has a few more days.  The tenant formerly had to appear not less than five days or more than 10 days after the summons was issued. It has now been changed to not less than seven and not more than fourteen days from the date of issuance of the summons. 

Garnishment deadlines have also changed as of July 1, 2012.  Writs of Continuing Garnishment now last for 182 days, instead of 180.  Two more days of wages!  However, a garnishee who thinks they have an exemption now has fourteen days, instead of ten, to file the claim of exemption.  However, the exemption still can't claim "I can't pay because I have no money".

The Legislature has also decreed that you have to stay married to that "jerk", "deadbeat" or whatever label you give to your soon to be ex-spouse one day longer.  You can't get a decree of marriage until 91 days have passed since the Court acquired jurisdiction over the respondent.  It used to be 90 days. 

This blog is not intended to be an exhaustive list of all changes in deadlines.  You will need to assume that all deadlines must be divisible by 7.  If you are looking at a deadline that you think is 10 days, think again.  It is probably 14 days!  Good luck with relearning all of deadlines you memorized in law school!     

          

Finding Assets- Disclosure Hearings

Rule 69, C.R.C.P. provides for Execution and Proceedings Subsequent to Judgment.  The Rule allows a creditor to either serve written interrogatories on the judgment debtor, who must be personally served under Rule 45, CR.C.P., or serve a subpoena on the judgment debtor to appear in Court to answer questions concerning property.  You can serve a subpoena duces tecum and require the judgment debtor to bring documents with him, so you can verify the answers. County Court allows Interrogatories to be served under Rule 369, C.R.C.C.P., but does not provide for subpoenas. 

There is a dispute as to whether Rule 45 requires a judgment debtor to be served a witness fee.  Many attorneys serve a witness fee in accordance with the requirements of Rule 45.  This office does not serve a witness fee on a judgment debtor who is personally named.  Judge King in Douglas County agreed with this and said that Rule 69 is a rule that affects proceedings occuring post-judgment.  He ruled that it doesn't make sense to give a judgment debtor money to appear in court and answer questions about his/her own assets.    So at least one judge doesn't require the witness fee.  There may be a divergence of opinions on this issue.    

At the Rule 69 hearing, you can ask questions of the debtor regarding his/her/its assets.  The debtor is required to answer truthfully, under oath. The judgment creditor is allowed to bring a court reporter to the Rule 69 hearing.  A deposition of any person, including the judgment debtor, may be taken  upon order of the Court under Rule 69 (i).    Rule 69 (f) also allows for the creditor to subpoena a debtor of the judgment debtor.  The debtor must owe the judgment debtor at least $500.00.  The Court is  allowed to make reasonable orders for mileage and expenses.       

If the debtor fails to answer the interrogatories within 21 days after service of the interrogatories, the creditor can file a motion with the Court requesting an order to have the judgment debtor appear in court at a specified time to show cause why he should not be held in contempt for failure answer the interrogatories.  It is generally better to prepare this Motion as a contempt citation and serve the citation at least 21 days prior to the hearing.  If the judgment debtor fails to appear for this show cause hearing, the Court can issue a bench warrant for the debtor’s arrest.

If the debtor fails to appear on the date specified on the Rule 69 subpoena, the Court will issue a bench warrant for his or her arrest. This also applies to corporate officers or registered agents who fail to appear.    

Submitted by Terry Ehrlich

Pilot Program in Civil Cases in Certain Counties

PILOT PROGRAM IN CVIL CASES IN CERTAIN COUNTIES

WHO:  The pilot program applies to District Court civil litigation business cases, including breach of contract, business tort actions, (e.g. unfair competition, fiduciary duty, fraud, misrepresentation) transactions involving the Uniform Commercial Code, commercial real property transactions, cases involving business dealings, intellectual property, business transactions with commercial banks or other financial institutions, and product liability.  There are other matters as well.

Excluded are :  Construction defect claims; foreclosure actions or for rent on real property, replevin cases, and cases involving a statute or rule that contains distinct time frames for the proceeding.  (Mechanic Lien foreclosures would be included in this). There are other exclusions not listed.

WHAT:  Plaintiff must file a disclosure statement within 21 days after service of the complaint.  Defendant must file an answer within 21 days after service of the disclosure statement.  The parties are to meet and confer within 14 days after filing of the answer.  An initial case management conference will be held within 49 days after the answer is filed.  Seven days prior to the conference, the parties will submit a joint report.

WHERE:   Jefferson, Gilpin, Adams, Denver, and Arapahoe Counties.  

WHEN:  On January 1, 2012, the Colorado Supreme Court instituted a pilot program for civil cases. It expires on January 1, 2014.  

HOW DOES THIS AFFECT YOU:   You will need to give us more information up front in order to file the disclosure statement.  The statement must include a listing of all person with information related to the claims and a brief description of the information each such individual is believed to possess; and a list of documents related to the claims, whether they are supportive or harmful.      

Be aware of the change of dates in when the answer is due. 

Your case may move faster than before.  A single judge is assigned to the case from start to finish.  The judge will manage the case much more closely than before.  Requests for extensions and continuances will be denied by the Court, so we have to be sure that trial dates work for all witnesses schedules. 

Medical Advance Directives

             Medical Advance Directives.

            One often overlooked area of planning is that of advance medical planning.   These are documents in which you can express your wishes to your family and medical care givers.   The following are typical:

Medical Durable Power of Attorney.  This document appoints an agent to make medical decisions for you in the event you lack legal capacity to express your desires.  Typically, a person appoints his or her spouse or adult child.  This document usually has a very broad grant of authority.  The agent gains the authority only after the principal has lost legal capacity.  This document can be drafted with “customized” limitations to the agent’s authority.

Declaration as to Medical Treatment (Living Will).  This document provides in advance for the cessation of active medical treatment for a person when certain specific conditions are met.  A person must have an irreversible or terminal condition and be in a persistent vegetative state in order for this directive to be effective.  These conditions must be certified by two physicians.   Upon satisfaction of those conditions, the living will directs that further medical procedures cease.

HIPPA Release.  This document is effective immediately and grants a spouse or other trusted person access to medical records.

Medical Order for Scope of Treatment (MOST).   This document must be prepared with the assistance of a physician, advanced practice nurse or physician assistant.  This is normally used at a stage of life when further treatment may not be desired.  It can include “do not resuscitate” orders. 

Other Directives.   You may see other documents such as the “Five Wishes” or similar documents.  These often contain simplified versions of the directives described above, along with other instructions.

Submitted by Rich Arnold Copyright 2012

Work on Federally-Own Projects - Summary of Payment Remedy under the Miller Act

WORK ON FEDERALLY-OWNED PROJECTS.

            Miller Act Remedies.  On federally-owned projects, Miller Act bonds are usually required to be filed with the Contracting department of the government.  Procedures under the Miller Act require that the claimant who DOES NOT have a direct contract with the contractor who furnished the bond, give written notice to the prime contractor by certified or registered mail within ninety (90) days from the date that labor, materials or equipment were last furnished.  The right to recover under the Miller Act is lost if the required notice is not given.  It should be noted that other jurisdictions have expressly ruled that giving written notice “requires receipt of the notice by the contractor.”  This means that the notice should be received by the contractor prior to the ninety days, regardless of whether it was sent by registered mail or not.  This issue has not been ruled on in Colorado or in the 10^th Circuit, but it is good practice to follow this rule.  See, Pepper Burns Insulation, Inc. v. Artco Corp., 970 F.2d 1340, 1343 (C.A.4 (N.C.),1992); U.S. for Use and Ben. of B & R, Inc. v. Donald Lane Const., 19 F.Supp.2d 217, 226 (D.Del.,1998). Only those who have not contracted directly with the contractor providing the bond need give the Miller Act notice.  Interest can also be recovered on the bond from the contractor and surety. U.S. for the Use of C.J.C., Inc. v. Western States Mechanical Contractors, Inc., 834 F.2d 1533 (10^th Cir. 1987).

            Parties who have a contract directly with the general contractor as well as subcontractors and suppliers who have given timely notice by certified or registered mail must commence suit on the Miller Act bond in Federal Court.  The suit must be commenced within one (1) year after the date that labor, materials or equipment were last furnished.

Submitted by Jean C. Arnold, Esq.

ETHICAL CONSIDERATIONS IN DIVORCE AND FAMILY LAW

Mandatory and Permissive Withdrawal of Legal Representation
   
            A lawyer must withdraw from representation if any of three circumstances exist.   First, if the representation will result in violation of the RPC.  Second, if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.  Third, if the client discharges the lawyer.  Colo. RPC 1.16(a). 

Permissive withdrawal may occur when the attorney is in compliance with Colo. RPC 1.16(b).  Seven circumstances are described in the rule.  I will touch on only a few.  A lawyer may withdraw if the withdrawal can be accomplished without material adverse effect on the interests of a client.  A lawyer may also withdraw if the client fails substantially to fulfill an obligation to the lawyer.  These permissive reasons for withdrawal are tempered by the tribunal’s authority to order the attorney to continue the representation (Colo. RPC 1.16(c)).  In short, if you plan to get out of the case do so well in advance of any hearing.  I recommend seeking withdrawal at least 90 days prior to any hearing of the matter.

Permissive withdrawal is also allowed when the client persists in a course of action involving the lawyer’s services that the lawyer believes to be fraudulent.  This circumstance may require a “noisy withdrawal.”  If the client intends to present false testimony or evidence, the attorney may not participate, and has a duty to the court to correct false statements (Colo. RPC 3.3).  The attorney must also keep client confidentiality (Colo. RPC 1.16).  Thus, the attorney should cite as the basis of withdrawal that “professional considerations require termination.”   Ordinarily, this should be sufficient.

© 2011 Richard M. Arnold, Arnold & Arnold, LLP, Attorneys at Law

Colorado Pre-Lien Legislation 2012

Colorado Pre-Lien Update

The Colorado Association of Home Builders Government Affairs Committee removed mechanics’ liens as a proactive item from their 2012 legislative agenda and as such will not be proceeding with a bill on this issue. 

In 2011, House Bill 11-1020, initiated by the CAHB was considered by the House Economic and Business Development Committee.  On March 3, 2011 the Committee - on a 13-0 vote - referred HB 11-1020 to a Legislative Committee for further study.  I participated on the committee through the summer and early fall.  A revised version of a possible bill was reviewed this week by CAHB, who decided not to pursue the bill in the 2012 legislative session.

Jean Arnold, Esq.