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In Colorado’s District Courts

1) Breach of Contract

Colorado Contracts can be verbal or written.  The most common type of contract is a debt or lending agreement entered into with a Bank or Credit Union.  Other frequently used contracts include the Colorado Real Estate Commission’s standard form for the purchase and sale of residential real estate, lease agreements, and agreements for the provision of Health Care or Assisted Living.  The Entertainment Industry in Colorado uses a significant number of production and agency agreements.  Other frequently litigated matters concern insurance contracts.  Almost all contracts have a tax implication.  Contracts in Colorado are frequently electronically signed pursuant to Colorado’s electronic signature statute.  

While some types of contract must be in writing, e.g., real estate contracts, the elements of a Colorado breach of contract claim are the same for both written and verbal contracts.  To recover from the defendant, the plaintiff must prove, by a preponderance of the evidence (the ‘more likely than not’ standard), that the defendant entered into a contract with the plaintiff, that the defendant failed to perform a promise (or promises) contained within the agreement, and that the Plaintiff did ‘substantially perform’ his end of the bargain (usually by making payment).  The Plaintiff must then prove damages.  Coors v. Security Life of Denver Ins. Co., 91 P.3d 393 (Colo. App. 2003)(elements of a breach of contract claim).  Civil Actions for money owed are almost always breach of contract actions.

Our extensive contract experience begins with negotiation and drafting of contracts and ends with jury trials for breach.  Litigation risks can (and should) be minimized in the initial drafting.  Many times, doing an up-front investigation of the person on the other side of a transaction is the most well-spent professional time.  We offer all of these services.   

2) Judicial Confirmation and Enforcement of Colorado Arbitration Award

Arbitration is a frequent form of Alternative Dispute Resolution in Colorado.  On multiple occasions now, a firm Client has prevailed in an Arbitration only to be told by the other side of the dispute that they still do not intend to pay the Arbitration Award.  In those situations, one has no option other than to judicially enforce the Arbitration Award.

The Colorado Uniform Arbitration Act provides that a party may go to Court to seek “confirmation” of the Award pursuant to Section 13-22-222, C.R.S.  Pursuant to 13-22-225, C.R.S., an Award recipient may also ask (and should) that the client be allowed to enforce the Award as a civil judgment of the Court.  

To do so, we file a Motion to Confirm Arbitration Award and for Enforcement as a Civil Judgment.  The motion should be accompanied by a proposed order of judgment.  As exhibits, the motion should contain any written agreement to arbitrate that exists between the parties.  The Arbitration Award itself should also be attached as an exhibit and should be incorporated into the motion’s proposed order.  Within the motion itself, filers can (and should) request that the Court grant their attorneys’ fees and costs for having to confirm the Award under Section 13-22-225, C.R.S. (2016).  It is also likely that a request for pre- and post-judgment interest is appropriate.

The issues before the Court in an arbitration confirmation proceeding are strictly limited to the consideration of whether statutory grounds exist to vacate, modify, or correct the arbitration award.  In the absence of such grounds, the Court should affirm the award.  State Farm Mut. Auto. Ins. Co. v. Cabs, Inc., 751 P.2d 61 (Colo. 1988).

3) Declaratory Judgments

What are my rights under this statute?  Under the terms of this contract?  Pursuant to this Will?  Or this Trust?  Our firm can help a person can obtain a legally binding declaration of rights from Colorado District Courts under Colorado Rule of Civil Procedure 57 and Sections 13-51-101, et seq., C.R.S.  Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

4) Judicial Foreclosure

A Colorado judicial foreclosure is authorized by C.R.C.P. 105.  Rule 105 provides a procedure to adjudicate all rights of the parties owning real estate or who have liens in real estate.  The exact procedures for the foreclosure are explained in C.R.S. sections 38-38-101, et seq.

A judicial foreclosure is necessary where the security for a promissory note is a mortgage or a deed of trust to a private trustee.  Also, any party desiring the enforcement of equitable or statutory liens, e.g., a homeowner assessment lien under C.R.S. 38-33.3-316(d)(11), or a mechanic lien (C.R.S. 38-22-113), will need to foreclose judicially.  Finally, an action to foreclose in court may be necessary where there are substantial lien priority issues that should best be resolved before the property goes to sale.

The firm’s expertise in this area stems from the frequent need to judicially foreclose judgment liens in real estate.

5) Foreign Judgment Enforcement in Colorado

Judgments from other states are enforceable in Colorado.  Judgments from foreign countries can also become enforceable.  While the full faith and credit clause of the Constitution does not apply to judgments rendered in foreign countries, Colorado’s Uniform Foreign-Country Money Judgments Recognition Act provides a way to create recognition and enforcement.  Generally, where a money judgment is valid in the foreign country rendering the judgment, and the judgment meets the requirements under the statute, the matter will not subject to re-trial.  However, even where the statute does not apply, a foreign judgment creditor can always bring a conventional Colorado lawsuit upon the foreign country judgment pursuant to the common law doctrine of “comity.”

Our firm has been successful in enforcing both out-of-state and out-of-country judgments in Colorado.  The Firm’s most notable case in this area involved judicial recognition of a judgment entered by the Courts of the African country of Malawi.

6) Fraud & Misrepresentation

The firm’s expertise with fraud and negligent misrepresentation claims arose through a number of business representations.  Civil litigation clients will often pursue a valid fraud claim in instances where there is a risk that the debtor’s ultimate strategy is a discharge in bankruptcy court.  Proving a fraud claim can make a debt non-dischargeable in bankruptcy proceedings.   

Fraud is a challenging tort to prove because of it has multiple claim elements.  Colorado fraud exists where the defendant makes a false representation of a past or present fact.  The misrepresented fact must also be ‘material.’  Further, for fraud to apply, at the time the representation was made the defendant: (a) knew the representation was false, or (b) was aware that he did not know whether the representation was true or false.  The defendant must also make the representation with the intent that the Plaintiff rely on the representation.  The Plaintiff must then in fact rely on the representation and this reliance must be shown to be justified.  Importantly, the plaintiff must also show that the reliance caused damages to the Plaintiff. See, Barfield v. Hall Realty, Inc., 232 P.3d 286 (Colo. App. 2010)(for the elements of a fraud claim).

In asserting fraud, one must also be cognizant of Colorado’s Economic Loss Rule, which may bar a tort recovery where a recovery in contract exists.      

7) Quiet Title

Like judicial foreclosure, “Quiet Title” actions are C.R.C.P. Rule 105 civil actions.  Such actions must generally be brought in the Colorado County where the real estate is located.  Such actions are generally deemed to be ‘equitable,’ such that a jury is unavailable to the plaintiff.  However, pursuant to statute, the proper parties are usually those with recorded interests, pursuant to Section 38-35-114, C.R.S.

The purpose of a quiet title suit is to clear title to the subject real estate via the complete adjudication of rights of all parties to the action.  Such actions are sometimes necessary to resolve title issues prior to sale, adverse possession issues, boundary disputes and easement issues.  They can also arise where a tenant has made improvements to a leased property.  Quiet title often arises in the probate context where title to the deceased’s real estate is unclear; the estate must generally bring such actions in those instances.

Because ‘full relief’ is awarded by the Court in these disputes, pursuant to Rule 105(a)(4), C.R.C.P., parties named in a quiet title action are generally forced to bring any and all claims they have against the other parties.  The failure to do so will generally bar future claims.  

When quiet title actions are brought, the filer should also record a notice of lis pendens, which means ‘notice of pending action,’ in the real estate record.  Section 38-35-110, C.R.S., sets out the parameters for recording a lis pendens.  Lis pendens filings are designed to provide notice to third parties that there is a suit involving the property.  Filing a lis pendens has serious consequences: it generally renders title unmarketable.

8) Petitions to Seal Criminal Convictions and Criminal Records

Of the 22,800 civil actions filed in 2015, 3,794 of these were petitions to seal a criminal conviction or to seal a criminal record, or 17% of all civil actions filed in Colorado in fiscal 2015.  This is, by far, the largest aspect of Colorado civil practice.

Record sealing is the practice of sealing court records that are otherwise publicly accessible.  In the digital age, background searches are frequently conducted prior to entering into employment, rental, or other business relationships.  Such searches are fast becoming the norm because the data is directly applicable to security clearance and professional licensing.  In fact, this law firm conducts such searches on behalf of clients.  To avoid the adverse consequences of having criminal records, actions to seal the record are sometimes the only remedy.

It is critical to note that, while this firm does not practice criminal law, a guilty plea or conviction will usually preclude a sealing of the record.  Sealing is, however, an option in some drug convictions or deferred judgment situations.  In many instances, these matters are decided on a balancing test: the petitioner’s need for privacy versus the public’s right to know the information.

Matthew J. Casebolt

Attorney & Counselor at Law