In re: Kayla Fox v. William Alfini, Jr. D.C. and Brady Chiropractic Group. P.C. (December 3, 2018, 2018 WL 6441601)

Background

Kayla Fox who was in her early thirties suffered a stroke immediately after receiving chiropractic treatment and survived. Fox and her parents later contacted an attorney to discuss a possible malpractice action against the chiropractor. The attorney recorded a portion of this initial consultation.

Fox filed a lawsuit against the chiropractor for professional negligence.  Discovery ensued, and, during a deposition of Fox’s mother, defendants learned that her attorney had recorded his initial consultation with Fox and her parents. The defendants jointly moved to compel the production of this recording. In their motion, the defendants argued that the presence of third parties “vitiate[d] a claim of attorney-client privilege” and that, therefore, the recording was discoverable. Fox opposed the motion. She asserted that she had diminished mental capacity as a result of her stroke. She thus contended that her parents’ presence was necessary to facilitate her communications with her attorney and did not destroy the attorney-client privilege. The district court ultimately concluded that Fox’s capacity diminished such that the presence of her parents was necessary to assist in the representation. The court ruled that the attorney-client privilege did not protect the recording and granted defendants’ request to compel the production of that recording.

Holding/Reasoning

The court noted the attorney-client privilege in Colorado is codified by statute but is not without exception. Presence of a third-party generally destroys the privilege unless the presence of a third person is necessary to make the conference possible. The Colorado Supreme Court found the District Court had not abused its discretion as its findings that Fox had not shown her mental capacity was diminished such that the presence of her parents was necessary to assist in the representation was amply supported. The evidence in the record indicated Fox had made numerous assertions on social media prior to the meeting with her attorney indicating that her symptoms had disappeared and that it was as if nothing happened.  The Court ultimately held the presence of a third party during an attorney-client communication will ordinarily destroy the privilege unless the third party’s presence was reasonably necessary to the consultation or another exception applies. Here, the client’s parents’ presence at initial consultation was not reasonably necessary to consultation, and thus presence of parents destroyed any attorney-client privilege that attached to recording of consultation.

Louella Maxine Patterson and Robert A. Lees v. M. Tracy James (December 13, 2018, 2018 WL 6545118)

Background

After her husband passed away, Louella Maxine Patterson filed a tort action against her late husband’s children and attorney, M. Tracy James seeking appointment as personal representative of the estate. Patterson asserted numerous allegations against James including that James failed to notify Patterson probate proceedings had been initiated and James unreasonably billed the estate of her late husband. James moved to dismiss these claims and the trial court granted her motion. James then moved for attorney fees. The trial court awarded attorney fees and costs jointly and severally against Patterson and her attorney. James also asserted that Patterson’s and her attorney’s defense of the fee request lacked substantial justification.

Patterson appealed the trial court’s order requiring her to pay James’ attorney fees and costs. Patterson’s attorney appealed the trial court’s order that he be jointly and severally liable for the fees and costs.

Holding/Reasoning

The Court of Appeal looked at and determined that there was nothing that prevented the trial court from entering a fee award against Patterson’s attorney and that he be jointly and severally liable. Although the legislature did not grant specific authority for a joint and several award, it was not required to do so. The legislature had generally authorized joint and several fee awards. The Court of Appeal also upheld the fee award against Patterson in order to effectuate the statutory goal of deterring unnecessary tort litigation. Based on the trial court’s finding, which found ample support in the record, the Court of Appeals could not conclude the trial court’s decision to impose joint and several liability was manifestly arbitrary, unreasonable, or unfair.

Kelly A. Trujillo v. Regional Transportation District (December 27, 2018, 2018 WL 6801808)

Background

Kelly Trujillo filed a complaint alleging she was injured while attempting to catch a shuttle bus at the Mall Bus Turnaround located at Civic Center Station in downtown Denver. She claimed she stepped on a tree grate that was not properly secured, thereby causing her to fall.

Regional Transportation District (“RTD”) filed a motion to dismiss based on its assertion of governmental immunity pursuant to the Colorado Governmental Immunity Act (“CGI”). Trial Court denied the request for a hearing and the motion. RTD appealed.

Holding/Reasoning

The Court of Appeals reasoned the CGIA serves as a shield against tort liability for public entities. However, there are some exceptions in which the statute waives immunity, such as for “[a] dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic. . . of any public highway, road, street, or sidewalk within the corporate limits of any municipality . . .” The key question was whether the walkway was a sidewalk. The trial court concluded the area where the tree grate was located was a sidewalk and therefore RTD was subject to the waiver provision of CGIA. However, the Court of Appeals concluded the Turnaround was a public roadway as that term is used in the CGIA. However, the limit of the public roadway determines only one side of the sidewalk. The other side is determined by property lines. The Court of Appeal could not discern where the property lines were based on the record before them. The Court of Appeals remanded the case to the trial court for a hearing to determine where the property lines were, where the boundary of the sidewalk way, and whether this incident occurred within that boundary.

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