On January 1, 2012, the Colorado Civil Access Pilot Project (“CAPP”) took effect, imposing new procedural rules for certain types of business disputes in Denver, Jefferson, Gilpin, Adams and Arapahoe Counties.  CAPP aims to decrease the costs of litigation and to help cases move through the legal system at a faster pace.  It is still too early to tell whether CAPP will accomplish its stated goals, but it will undoubtedly change the process for resolving commercial real estate disputes in the Denver metro area. 

denver courthouse.jpgWith certain exceptions, CAPP is mandatory for most commercial business disputes.  The following is a brief description of some of CAPP’s most important changes:

Pleadings.  CAPP requires plaintiffs to include more substantive details in their complaints and defendants to deny such allegations with specificity.  The goal is to reduce the number of contested issues at the outset of the litigation process so that parties can streamline their cases and reduce discovery expenses.

Disclosures.  Under CAPP the deadline for a defendant to answer a complaint begins to run from the date of service of plaintiff’s initial disclosures.  This dramatically changes the standard rules of civil procedure which require the parties to simultaneously exchange disclosures thirty days after all pleadings have been served.  This means that a plaintiff will need to do more work at the outset of a case to organize relevant documents and to identify individuals with knowledge of relevant facts.  CAPP also makes changes to the contents of the initial disclosures themselves by requiring parties to make disclosure of information, whether it is supportive or harmful.

Active Case Management.  Under CAPP, the judge initially assigned to a case will remain assigned until final resolution.  CAPP also requires judges to undertake a more active role in the case by holding an initial case management conference and by continuing to monitor the case as it moves forward.

Experts.  CAPP limits each party to one expert per issue, imposes new requirements for expert reports, prohibits expert depositions, and limits the expert’s testimony at trial to what is in the expert’s report.  In this way, CAPP hopes to curb the litigation costs associated with experts.  CAPP is silent on the question of what constitutes an “issue,” and this may be an area of dispute in applying the new rules.

Limitations on Extensions of Time.  Under the standard rules of civil procedure, requests for extensions of time are usually granted as a matter of course.  Under CAPP, however, such requests will be automatically denied absent extraordinary circumstances.  Also, a motion to dismiss the complaint, filed by a defendant, will no longer stay that defendant’s deadline for filing an answer.

Photo by mediafury (Flickr)

condoDevelopers often secure FHA approval for their condominium projects, enabling buyers to obtain FHA loans.  Whether or not those approvals remain in place is left to the owners’ association for the project.  As investors continue to snap-up condominium units one at a time or in bulk, it is important to review the status of the FHA approval for the project.  As highlighted in a recent Denver Post article, the FHA backs nearly one-third of all mortgages in the United States, up from 5% in 2005.  The article also reports that nearly two-thirds of Denver metro-area condominium projects have rejected or expired FHA approvals.  As the article suggests, this could be the result of many factors, including FHA’s limit on the number of renters in a project.  Even for those projects with intact FHA approvals, investors should talk to the association to understand the association’s plans for renewing the registration and assuring that all the FHA requirements (such as the limit on renters) are satisfied.  The association’s plans (or lack thereof) with respect to FHA registration could have serious implications for the investor’s ability to rent the condominium units or sell them to consumers. 

Photo by Butterbean Man (Flickr)

Negotiations occurring over e-mail may, in certain circumstances, create a binding contract.  Two cases out of New York have held that where a meeting of the minds is evident through email correspondence, a contract can arise.

  • Naldi v. Grunberg:  Although the court ultimately determined there was no “meeting of the minds” of the parties and therefore no contract, the Supreme Court of New York, Appellate Division (which is an intermediate appellate court) stated that the terms “writing” and “subscribed” under the statute of frauds should be construed to include, records of electronic communication (such as e-mail) and electronic signatures (such as a name typed at the end of an e-mail).
  • Newmark & Co. Real Estate Inc. v. 2615 E. 17th St. Realty:  The Supreme Court of New York ruled that an e-mail under which the sending party’s name is typed can constitute a subscribed writing for purposes of satisfying the statute of frauds.

In reaching these decisions the Supreme Court of New York relied on the federal Electronic Signatures in Global and National Commerce Act (“ESIGN”) and a New York statute similar to the Uniform Electronic Transactions Act (“UTEA”), a version of which has been enacted in Colorado. 

Although Colorado courts have not yet interpreted ESIGN and Colorado’s adopted form of the UTEA yet, these cases are noteworthy because of their impact on interstate business transactions (and in particular transactions with parties in New York).  Further, Colorado’s version of the UTEA could provide a basis for similar rulings in Colorado.

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Currently, amnesty programs through the Internal Revenue Service, State of Colorado, and City and County of Denver are providing taxpayers the opportunity to pay various overdue taxes with limited or no interest payments and no penalties.  A summary of the applicable taxes and relief provided under each program is as follows: 

  • The IRS is permitting eligible employers that have been improperly classifying employees as independent contractors to pay ten percent of the employment tax liability that would have been paid to the worker for the most recent tax year.  Upon payment, the IRS will forgive all accrued interest and penalties and will not undertake any employment tax audit regarding worker classification for such workers in prior years.
  • The State of Colorado is allowing individuals and businesses to pay taxes due on or prior to December 31, 2010 with one-half of the accrued interest and no penalties.  This program applies for all Colorado taxes except the International Fuel Tax Agreement, the Passenger Mile Tax, and the International Registration Program.
  • The City and County of Denver is permitting taxpayers to pay any sales, use, and occupational privilege taxes that were incurred on or before June 30, 2011 with one-half of the accrued interest and no penalties.

Each of these programs will, or is expected to, expire soon so taxpayers wishing to take advantage of the various benefits provided should act fast.  Additional information on these programs, including information on how to apply, may be found here.

CREW Denver‘s 12th Annual Women of Influence awards luncheon was held on Tuesday, 10/18/2011, at The Ritz-Carlton, in Denver. The theme of this year’s event was “Celebrating Women Making Projects Happen.” Alecia Huck, of Maverick & Company, was the event’s guest emcee, and CREW Network President Collete English Dixon was a special guest. Otten Johnson was the Diamond Sponsor, and First American Title Insurance Company was the Emerald Sponsor. The event was a big success with over 325 guests in attendance. This year, 12 projects were nominated for the Women of Influence award, with over 140 women on those project teams. 

 The nominated projects were:

• 1099 Osage Apartments
• Apartments at Yale Station
• DaVita Headquarters
• Denver Health Pavilion M
• Denver Museum of Nature and Science Education and Collections Facility
• Denver Union Station Transit Project
• IKEA Centennial
• Lakeside Center
• Metro State College of Denver Student Success Building
• South Academy Station
• Renaissance Denver Downtown/City Center Hotel by Marriott (f/k/a Colorado National Bank Building)
• The Denver Hospice   

IKEA Centennial won the 12th Annual Women of Influence award. Click here for a video about the project and the women on the team who made it happen.