April 18, 2014

Tenth Circuit: Opinions, 12/13/10

The Tenth Circuit on Monday issued one published opinion and two unpublished opinions.

Published

In Lauck v. Campbell County, the Court affirmed the district court’s decision granting summary judgment for Respondents. Petitioner, a former Deputy Sheriff, brought a state law breach of contract claim and civil rights claims under 42 U.S.C. § 1983 against Campbell County, alleging a denial of procedural due process and retaliation for speech protected by the First Amendment; Petitioner claimed he was improperly transferred and constructively discharged. The Court found that he did not produce sufficient evidence to support his contention that he was constructively discharged, was entitled to a hearing, or was provided an inadequate hearing in violation of his contractual rights. Additionally, the one instance of speech that may be constitutionally protected was not shown to be causally connected to the allegedly retaliatory action by Respondents.

Unpublished

Union Ins. Co. v. Mendoza

Bermudez v. Holder, Jr.

Colorado Court of Appeals: Accrued Leave Time Not a Marital Asset Divisible on Dissolution

The Colorado Court of Appeals issued its opinion in In re the Marriage of Cardona and Castro on December 9, 2010.

Division of Marital Property—Separate Property—Accrued Leave Time.

In this dissolution of marriage proceeding, husband appealed from the permanent orders entered in conjunction with his legal separation from wife. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Wife sold a condominium she had purchased before the parties married and placed $100,000 of the proceeds into a joint account with husband. The funds were used to purchase the marital home and for landscaping. Wife testified that the condominium had increased in value by $60,000 during the marriage. On appeal, husband argued that the trial court abused its discretion by setting aside to wife $80,000 of the proceeds from the sale of the marital home as reimbursement for her contribution of separate property toward purchasing the home. The Court of Appeals agreed.

Marital property does not include property that a party acquired prior to the marriage. Premarital property that is placed in joint tenancy during the marriage reflects an intent to make a gift to the marriage, and such property is presumed marital, absent clear and convincing evidence to the contrary. Accordingly, the Court remanded to the trial court to reconsider its division of the marital home. The trial court may not set aside wife’s contribution as separate property unless it makes further findings explaining why the presumption that wife intended to make a gift to the marriage does not apply. Because the case was remanded for reconsideration of the property division, the Court addressed numerous other arguments raised by husband that were likely to arise on remand.

Husband argued that the trial court abused its discretion in valuing the marital portion of his separate property by considering not only the increase in value of the property during the marriage but also the amount of marital funds that were used to pay down the mortgage. The Court disagreed. When a spouse uses marital income to pay down the debt on separate property, thereby increasing its equity, the increased equity is equitably divided in the marital property division.

Husband argued it was error for the trial court to divide the value of his accrued vacation and sick leave time as part of the marital estate. The Court agreed. The trial court awarded to husband accrued leave time, which was valued at $23,232, but required him to pay wife $11,615 for her share of the asset. This is a question of first impression in Colorado. The Court held that accrued leave time is not a marital asset divisible on dissolution.

Husband contended that the trial court’s valuation of wife’s vehicle was not supported by the evidence. The Court agreed, requiring the trial court to make specific findings sufficient to give the Court an understanding of the basis of its valuation.

Husband argued that the trial court erred in calculating his income for child support purposes. The Court disagreed. The trial court used husband’s actual gross income to calculate child support without deducting the amount he pays into his employer’s cafeteria plan to pay for the children’s daycare and health insurance. This was not error.

Husband argued it was error for the trial court to refuse to award him his travel expenses for exercising parenting time. The Court disagreed, finding no basis to reverse based on the record.

Husband contended it was error for the trial court to allocate the dependency tax exemption for the children inconsistently with its previous order and contrary to CRS § 14-10-115(12). The Court agreed and ordered reallocation in accordance with the statute (by percentage of income attributed to each parent).

Husband argued it was an abuse of discretion for the trial court to award wife $10,000 in attorney fees as a sanction against him for nondisclosure. The Court agreed. The trial court found sanctions appropriate because of husband’s “substantial lack of disclosure throughout this case.” The record, however, did not support this finding.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on December 9, 2010, can be found here.

Colorado Court of Appeals: Claims Against Insurance Company Accrued when Counsel Retained Beyond Statute of Limitations

The Colorado Court of Appeals issued its opinion in Crosby v. American Family Mutual Ins. Co.; Rovenstine v. American Family Mutual Ins. Co. on December 9, 2010.

Summary Judgment—Personal Injury Protection Benefits Under the Former Colorado Auto Accident Reparations Act—Statute of Limitations

Because these two cases presented identical issues on appeal, the Court of Appeals addressed them in a single opinion. In both cases, plaintiffs appealed summary judgment in favor of defendants (collectively, American Family). The summary judgments were affirmed.

These cases are among numerous cases addressing claims that automobile insurers have failed to offer insureds additional personal injury protection (PIP) benefits as mandated by the former Colorado Auto Accident Reparations Act (CAARA). Here, plaintiffs were involved in automobile accidents in which they sustained injuries. At the time of the accidents, they were covered by insurance policies issued by American Family. The policies provided basic PIP benefits and did not comply with the terms of the then applicable Colorado law, which required automobile insurers to provide customers with the option to purchase enhanced PIP benefits that provided unlimited medical and wage loss benefits (subject to total benefit caps).

Other policyholders filed separate putative class action lawsuits against American Family to obtain, among other things, reformation of the policies so that policyholders would be entitled to the enhanced PIP benefits. Three such class action suits were reviewed. In two of them, class certification was denied; in the third, the class was certified and reformation was granted in 2005.

Meanwhile, American Family reviewed its policies in late 2000 and ultimately concluded that it had not complied with Colorado law. American Family alleged that in May 2004, it voluntarily notified some policyholders, including plaintiffs, that they might be eligible for policy reformation. Plaintiffs denied receiving the notification.

In early 2007, American Family, under court order, notified plaintiffs that they were entitled to enhanced PIP benefits. Plaintiffs acknowledged receiving this notification. A tolling agreement existed from June 29, 2007 until March 2, 2008 in that case.

In June 2008, both plaintiffs filed complaints alleging similar causes of action against American Family: (1) breach of contract; (2) willful and wanton statutory bad faith; (3) bad faith breach of insurance contract; and (4) fraudulent concealment and misrepresentation. American Family moved for summary judgment in both cases, arguing that plaintiffs’ contract and tort claims were barred by the applicable three-year statute of limitations. Both trial courts agreed and dismissed plaintiffs’ claims.

The parties did not dispute the claims were based on an alleged violation of CAARA and are governed by a three-year statute of limitations. The claims accrued when plaintiffs knew or should have known that the insurer did not offer extended PIP coverage to the policyholder. Plaintiffs’ claims accrued, at the latest, when they retained counsel in connection with their PIP benefits claims, or when their basic PIP benefits ended. This occurred between July 7, 1993 and May 11, 2003. Accordingly, the summary judgments were affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on December 9, 2010, can be found here.

Colorado Court of Appeals: Conveyance of Property to LLC Prior to Entry of Child Support Judgment Prevents Levy by Debtor’s Creditors

The Colorado Court of Appeals issued its opinion in Meyer v. Haskett on December 9, 2010.

Quite Title—Judgment—Limited Liability Company—Notice—Tax Sale—Standing—Treasurer’s Deed.

In this consolidated appeal, the Sarah D’Ann Haskett Educational Trust (trust) appealed from a summary judgment quieting title to a parcel of real property (property) in Keegan L. Meyer (purchaser). Phillip David Haskett (debtor) appealed from the entry of default judgment. In addition, the trust and debtor both appealed the orders denying their respective motions to vacate the judgments. The judgments were affirmed.

A judgment was entered against debtor for past due child support. Thereafter, debtor and the mother of his child apparently agreed that the judgment would be assigned to the trust for the education of the child. However, prior to the entry of judgment, debtor had conveyed what interest he had in the property to Palmer Divide Energy Resources, LLC (the LLC), a limited liability company in which he was the only member. Prior to these events, the property was sold at a tax sale to purchaser, who later filed a complaint to quiet title and subsequently obtained summary judgments against the trust.

The trust contended that because the treasurer failed to give notice of the tax sale in strict conformity with the applicable statute, there were genuine issues of material fact as to the validity of the treasurer’s deed; therefore, summary judgment was improper. One who has no interest in the land has no right to redeem and, thus, no right to notice. Because debtor had conveyed his entire interest in the property to the LLC prior to entry of the child support judgment, the property was not subject to levy by debtor’s creditors. The writ of execution only entitled the trust to execute against debtor’s property, and debtor had no interest in the property; therefore, the trust was not entitled to notice of the issuance of a treasurer’s deed.

The trust also contended that the trial court erred in denying its motion to reconsider the summary judgment based on newly discovered evidence; namely, that it failed to notify the entire chain of record owners. However, the trust did not have standing to challenge the validity of the treasurer’s deed for defects affecting the rights of third parties.

Debtor contended that the trial court erred in denying his motion to vacate the default judgment entered against him. Debtor conveyed any interest he had in the LLC; thus, he ceased to be a person with an interest of record. Therefore, the trial court did not err in denying debtor’s C.R.C.P. 60(b) motion to set aside the default entered against him.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on December 9, 2010, can be found here.

Colorado Court of Appeals: Release of Liability Legally Insufficient Without Indication of Event Activities or Associated Risks

The Colorado Court of Appeals issued its opinion in Wycoff v. Grace Community Church of the Assemblies of God on December 9, 2010.

Release of Liability—Personal Injury—Minor Child—Premises Liability Act—Licensee—Invitee—CRS § 7-123-105.

Plaintiff appealed the district court’s reduction of judgment entered on a jury verdict in favor of plaintiff and against Grace Community Church (Grace), and Grace appealed the judgment. The judgment was vacated and the case was remanded.

Plaintiff was seriously injured during an overnight event sponsored by Grace on a ranch owned by Seventh Day Adventist Association of Colorado (SDA). Intervenor, American Medical Security Life Insurance Company (insurer), had paid plaintiff’s medical expenses. Plaintiff and insurer filed lawsuits against Grace and SDA. The jury returned verdicts against Grace totaling more than $4 million; the judgment amount was later reduced by the trial court. The ruling regarding SDA was addressed in Wycoff v. Seventh Day Adventist Association of Colorado(Colo.App. Nos. 09CA1034 & 09CA1065,Dec. 9, 2010).

On appeal, Grace contended that the trial court erred in denying its motion for summary judgment based on the release of liability that was signed by plaintiff’s parents. There was no information in Grace’s one-page registration form describing the event activities or their associated risks. Therefore, the form was legally insufficient to release plaintiff’s personal injury claims.

Grace contended that the trial court made two errors under the Premises Liability Act: (1) Grace should not have been considered a “landowner” covered by the Act; and (2) plaintiff should have been considered a “licensee” rather than an “invitee.” The Act is not limited to property owners. A landowner includes one who is legally responsible for the activities conducted on real property. Because Grace was authorized to conduct activities involving its group on the ranch property, it was a landowner as defined by the Act. Further, Grace was properly considered an invitee because (1) Grace invited plaintiff and the other youths to attend its organized event; (2) Grace had plaintiff’s mother sign a permission slip; and (3) Grace required plaintiff to pay for her attendance.

Grace also contended that the trial court acted erroneously (or at least precipitously) in construing the policy to cover prejudgment interest on top of the $2 million policy limits. Conversely, plaintiff and insurer argued that the amount of judgment should have been tied to the higher jury verdicts, regardless of any lesser insurance coverage carried by Grace. CRS § 7-123-105 does not limit the amount of any resulting judgment, but simply addresses “the extent” to which any such judgment is “subject to levy and execution.” The existence and amount of liability insurance provides no basis for limiting a judgment against a nonprofit or charitable defendant. Rather, the issue of liability insurance is relevant only when a plaintiff seeks to levy and execute on a judgment. Therefore, plaintiff and insurer were entitled to entry of judgment against Grace to the full amount of a judgment that would have been entered against a for-profit entity. The judgment was vacated as to the amount, and the case was remanded for entry of a new judgment unreduced by any limits on Grace’s insurance coverage.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on December 9, 2010, can be found here.

Colorado Court of Appeals: Plaintiff Who Paid to Attend Event at Which Host Remained at All Times and Regulated Activities Is an Invitee, Not a Licensee

The Colorado Court of Appeals issued its opinion in Wycoff v. Seventh Day Adventist Association of Colorado on December 9, 2010.

Premises Liability Act—Licensee—Invitee—Personal Injuries—Jury Instructions.

Plaintiff appealed the district court’s judgment in favor of the Seventh Day Adventist Association of Colorado (SDA). The judgment was reversed and the case was remanded.

Plaintiff was seriously injured during an overnight event sponsored by Grace Community Church (Grace) on a ranch owned by SDA. Intervenor, American Medical Security Life Insurance Company (insurer), had paid plaintiff’s medical expenses. Plaintiff and insurer filed lawsuits against Grace and SDA. The trial court entered judgment for SDA based on a jury verdict finding that SDA was not liable for plaintiff’s injuries. The claims against Grace were addressed in Wycoff v. Grace Community Church (Colo.App. Nos. 09CA1151, 09CA1200 & 09CA1222, Dec. 9, 2010).

On appeal, plaintiff argued that the trial court erred in instructing the jury that plaintiff was only a “licensee” of SDA. Plaintiff had paid Grace to attend the event and Grace had paid SDA to use SDA’s ranch. SDA staff remained on the ranch at all relevant times, and SDA reserved the right to regulate activities conducted on the ranch. Plaintiff was thus an “invitee” of both Grace and SDA. The trial court erred in ruling that plaintiff was SDA’s licensee rather than invitee. This error resulted in erroneous jury instructions that imposed SDA lesser duties than those actually imposed by the Premises Liability Act. The judgment was reversed and the case was remanded for a new trial.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on December 9, 2010, can be found here.

Colorado Court of Appeals: Statutory Lien May Be Given Priority Over Previously Perfected Security Interest if Statute Indicates Such Legislative Intent

The Colorado Court of Appeals issued its opinion in North Valley Bank v. McGloin, Davenport, Severson and Snow, P.C. on December 9, 2010.

Attorney’s Charging Lien Priority.

Plaintiff North Valley Bank (bank) appealed the trial court’s judgment in favor of defendants (collectively, attorneys). The judgment was affirmed.

The bank loaned $100,000 to BLR Construction Company, LLC (contractor). The contractor signed notes granting the bank a security interest in the contractor’s accounts receivable and in all proceeds of these accounts. The bank perfected the security interest by filing by filing its Uniform Commercial Code (UCC) financing statement, UCC-1, with the Colorado Secretary of State.

Thereafter, the contractor was hired by Custom Landscapes of Colorado, Inc. (landscaper) to work on a project financed by the State of Colorado (State). The contractor billed the landscaper $53,145. The landscaper did not pay, and the contractor retained the attorneys to assist in collection of the debt.

The attorneys sued the landscaper, alleging breach of contract, open account, and unjust enrichment. The attorneys also filed notice of an attorney’s lien under CRS § 12-5-119 against any award the contractor might receive as a result of the lawsuit. The bank contacted the attorneys and informed them it had a perfected security interest in any money the contractor might be awarded in the lawsuit. The landscaper joined the State as a defendant. The trial court entered judgment in favor of the contractor and against the State in the amount of $51,402.

The State sent a check for $51,402 to the attorneys, who kept $41,381 as reimbursement for legal services and $3,000 as a retainer against any future services they might render. They forwarded $7,021 to the contractor.

The bank then filed this case against the attorneys, raising claims for replevin, conversion, and declaratory relief. Following a Bench trial, the trial court held that the attorney’s lien was superior to the bank’s perfected security interest and entered judgment in the attorneys’ favor. The bank appealed.

In Colorado, the right to an attorney’s lien is created by statute. CRS § 12-5-119 creates an attorney’s “charging lien.” The language therein specifically grants the attorney “a first lien on such demand in suit or on such judgment for the amount of his fees.” The charging lien attaches “immediately” when a judgment is obtained, and the attorney does not need to take any further steps to enforce the lien against his client. To enforce the lien against third parties, proper notice must be given. The language is plain and clear that the charging lien comes first in priority.

The bank argued that the UCC gives its previously perfected security interest priority over the attorney’s lien. The Court disagreed for two reasons. First, a statutory lien may be given priority over a previously perfected security interest if the statute, as here, indicates a “specific legislative intent to give such a priority.” Second, the statute that the bank relied on, CRS § 4-9-333, does not apply to the facts of this case. An attorney’s charging lien is a statutory lien for services; thus, it is not covered by the UCC.

Finally, because the bank did not argue that it was entitled to a part of the judgment (only the whole judgment), the Court concluded that the distribution of the judgment to the attorneys and the contractor was appropriate. Accordingly, the judgment was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on December 9, 2010, can be found here.

Colorado Court of Appeals: Wheelchair Assistance to Passengers Not “Airline Services” Warranting Preemption

The Colorado Court of Appeals issued its opinion in Paredes v. Air-Serv Corporation, Inc. on December 9, 2010.

Negligence—Airline—Federal Aviation Authority Authorization Act (FAAAA)—Preemption.

Plaintiff appealed the district court’s judgment dismissing his complaint alleging negligence against defendants Air Serv Corporation, Inc. and United Airlines, Inc. The judgment was reversed and the case was remanded.

Plaintiff’s complaint alleged, in a single negligence claim, that while he was traveling by air on United-operated flights from Florida to his home in Alaska, he was in a weakened condition and required wheelchair assistance. While being transported, plaintiff’s wheelchair caught the edge of the jetway and he fell from the wheelchair, suffering injuries. The trial court dismissed plaintiff’s complaint, finding that his state law negligence claim was preempted by the Federal Aviation Authority Authorization Act (FAAAA), 49 U.S.C. § 41713(b)(1) (1994).

On appeal, plaintiff argued that the trial court erred in concluding that the FAAAA preemption provision preempted his common law negligence claim. Congress expressly preempted any state regulation relating to rates, routes, or services of any air carrier. The act of providing wheelchair assistance to passengers, however, is “too tenuous, remote, or peripheral” to the provision of airline services to come within the intent of the preemption provision. Plaintiff’s common law claim alleging negligence by defendants in providing wheelchair assistance to an airline passenger in deboarding and transferring him to another flight is, therefore, not preempted by 49 U.S.C. § 41713(b)(1). The trial court’s judgment and order of dismissal was reversed and the case was remanded with directions to reinstate plaintiff’s amended complaint.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on December 9, 2010, can be found here.

Colorado Court of Appeals: Unsettled Law at Time of Trial Not So Plain or Obvious to Provide Relief

The Colorado Court of Appeals issued its opinion in People v. Moore on December 9, 2010.

Curtis Advisement—Waiver—Right to Testify—Juror—Sixth Amendment.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of attempted first-degree murder, two counts of first-degree burglary, first-degree assault, sexual assault, menacing, and violation of a protection order. The judgment was affirmed in part and vacated in part.

Defendant contended that the trial court gave him a defective Curtis advisement, and therefore his waiver of the right to testify was not knowing and voluntary [People v. Curtis, 681 P.2d 504 (Colo. 1984)]. During the Curtis advisement, the trial court told defendant that the prosecution may ask during cross-examination about his prior convictions and whether they were obtained by plea or by a guilty verdict. Although decided after defendant’s trial, this advisement was erroneous. Because the law was unsettled at the time of defendant’s trial, however, the unpreserved error in the Curtis advisement, if any, was not plain or obvious. Accordingly, the Curtis advisement did not entitle defendant to any relief.

Defendant contended that the trial court erred by denying his motion to excuse one of the jurors, because during trial she had been exposed to a newspaper article containing prejudicial information about him. After the trial court learned that the juror was exposed to the article, it inquired further and determined that (1) the juror’s husband read the article to her and she didn’t pay attention to it; and (2) she could remain fair and impartial. Accordingly, the court did not abuse its discretion in denying defendant’s motion.

Defendant contended that the trial court violated his Sixth Amendment right to confront the witnesses against him by admitting pen packs and certificates of authenticity into evidence at his habitual offender trial. The documents in the pen packs were prison and court records relating to defendant’s prior convictions and were created for routine administrative purposes. Therefore, they were not testimonial and did not trigger defendant’s right to confrontation.

Defendant contended that one of his first-degree burglary convictions was erroneously entered. Defendant was sentenced, on separate counts, for first-degree burglary (assault/menace) and for first-degree burglary (deadly weapon). This was error, because the court may not impose multiple punishments for each prohibited method a defendant uses to commit the offense. Accordingly, the case was remanded to the trial court to vacate defendant’s first-degree burglary (assault/menace) conviction.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on December 9, 2010, can be found here.

Finalists Selected to Fill Judgeship in Jackson County Court

The Eighth Judicial District Nominating Commission has nominated three candidates for a Jackson County court judgeship created by the retirement of the Honorable Rex A. Shaw, effective February 9, 2011.

Nominees for the bench are Randy Lloyd Hodgson of Walden, Margaret H. Mitchell of Cowdrey, and Cindy Lu Wilson of Coalmont. All were selected by the commission on December 6, 2010 at the Larimer County Justice Center.

Under the Colorado Constitution, Governor Ritter has until December 23, 2010, to appoint one of the nominees as county court judge for Jackson County.

Comments regarding any of the nominees emailed to the Governor’s office.

Finalists Selected to Fill Judgeships in Eighth Judicial District

The Eighth Judicial District Nominating Commission has nominated six candidates for two district court judgeships created as a result of Judges Jolene C. Blair and Terence A. Gilmore not being retained by a majority of voters in the November 2010 election. The vacancies will occur on January 11, 2011.

Nominees for the bench are Julie Kunce Field, Stephen Enderlin Howard, John A. Jostad, Norman Allan Townsend, and Matthew Richard Zehe, all of Fort Collins, and David M. Herrera of Bellvue. All were selected by the commission in a meeting from December 6-7, 2010.

Under the Colorado Constitution, Governor Ritter has until December 23, 2010, within which to appoint two of the nominees as district court judges for the Eighth Judicial District, serving Jackson and Larimer counties.

Comments regarding any of the nominees emailed to the Governor’s office.

Three New Judges Named to Denver and Boulder Courts

Last week, Governor Bill Ritter announced the appointments of three new judges to County and District Court benches:

  • Alan Bruce Jones of Denver was appointed to the District Court bench in the 2nd Judicial District. Jones has been a partner at Holland & Hart since 1988. Before that he served as a law clerk to Judge Will Garwood of the 5th U.S. Circuit Court of Appeals. He earned his law degree from the University of Texas School of Law in 1978.
  • John Eric Elliff of Denver also was appointed to the District Court bench in the 2nd Judicial District. Elliff is currently an equity partner at Husch Blackwell. Before that he worked at Morrison Foerster as an associate and as the firm’s managing partner of its Denver office. He received his law degree from the University of Colorado School of Law in 1987.
  • Karolyn Val Quevli of Boulder was appointed to the Boulder County Court bench. Quevli is currently a deputy district attorney in the 1st Judicial District, which serves Gilpin and Jefferson counties. She also has worked as a prosecutor in the 20th Judicial District, which serves Boulder, and the 9th Judicial District, which served Garfield, Pitkin and Rio Blanco counties. She earned her law degree from the University of Colorado in 1991.

District Court judges serve an initial provisional term of office of two years before facing a retention election. If retained by the voters, District Court judges serve six-year terms.

County Court judges serve an initial provisional term of office of two years before facing a retention election. If retained by the voters, County Court judges serve four-year terms.