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Judge Lael Montgomery to Retire from Twentieth Judicial District Bench

July 11, 2011 by 1 Comment

The Twentieth Judicial District Nominating Commission will meet at the Boulder County Combined Court on August. 22, 2011, to interview and select nominees for appointment by Governor Hickenlooper to the office of district judge for the Twentieth Judicial District, which serves Boulder County.  The vacancy will be created by the retirement of the Honorable Lael E. Montgomery on October 1.

Eligible applicants for appointment to fill the vacancy must be qualified electors of the Twentieth Judicial District and must have been admitted to the practice of law in Colorado for five years. The appointed district court judge will serve an initial provisional term of two years before facing a retention election. Retained judges serve six-year terms.

Further information about the retirement of Judge Montgomery and applying for the vacancy is available from the Colorado Judicial Branch.

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Trial Skills Training Series: Litigators, Don’t Miss These Programs by National Speaker Larry J. Cohen

July 11, 2011 by Leave a Comment

For this Trial Skills Training Series of Programs, CBA-CLE has engaged the most experienced and successful Colorado and nationally known litigators to teach you the skills and knowledge it takes to achieve their level of success in the courtroom. Each half-day program is dedicated to a particular aspect of the trial to give you in-depth coverage of just what it takes to win at every stage of the litigation process. Whether you attend one, several or the complete series of programs, your level of skill, knowledge and competence will improve with each course you attend. Take advantage of this most excellent and unique training experience.

The Nuts and Bolts of Deposition Practice

Thursday, July 14, at 8:30 am.

Participants may attend live in our classroom or watch the live webcast.

This is a “basic skills” course, designed to train both new lawyers and lawyers new to litigation the skills necessary to take effective depositions. The program will address the deposition practice generally, though it will focus to some extent on the special issues presented when deposing parties and lay witnesses in particular, with some comments about expert witnesses. The presentation will include the issues involved in selecting witnesses for deposition, file review and other preparatory activities, examination strategies and tactics, working with court reporters, examining questions, dealing with objections and post-deposition discovery. There will be both live and videotaped demonstration of deposition techniques.

Examining Experts at Deposition and Trial

Thursday, July 14, at 1:30 pm.

Participants may attend live in our classroom or watch the live webcast.

This program addresses the special issues presented when deposing liability and damages experts. The presentation begins with a review of the strategic and tactical issues lawyers should consider when preparing for and taking experts’ depositions. The program then turns to preparation issues, such as background research, working with consulting experts to prepare for the deposition and the development of an examination outline. A substantial portion of the program is then spent reviewing different examination techniques that can be used to support the examining lawyer’s “theory of the case”, and through cross examination, to challenge the admissibility of the expert’s opinions. Live and videotaped demonstrations illustrate ways in which lawyers can incorporate these techniques in their own practice. The program concludes with suggestions for using experts’ deposition testimony to support case dispositive motions, at evidentiary hearing, and in preparing the lawyer’s own expert for deposition and trial.

Medical Evidence Made Simple: Finding It, Understanding It, Using It

Friday, July 15, at 8:30 am.

Participants may attend live in our classroom or watch the live webcast.

To litigate medical and emotional injury cases successfully, you need to find, organize and interpret medical records and medical research. You also need to deal with health care providers/experts, handle treatment charges and liens, locate dynamic medical exhibits – AND keep costs under control. The presentation includes instruction in the interpretation of medical records, offers recommendations for effective communications with medical experts and demonstrates how to conduct medical/legal research using library resources, CDROM databases and Internet Sites. This program teaches lawyers the practice skills they need and directs them to the resources they can use for any case involving medical evidence, regardless of how simple or complex, common or exotic the medical issues presented.

Examining Doctors at Deposition and Trial

Friday, July 15, at 1:30 pm.

Participants may attend live in our classroom or watch the live webcast.

This program focuses on the problems lawyers face when they examine doctors in deposition and trial, with particular emphasis on offering practical solutions for overcoming those problems. Lawyers should leave this program with specific ideas about how they can more effectively implement their litigation goals when they offer or challenge medical witnesses. This will include recommendations for maximizing the effectiveness of expert and damages witness testimony, using demonstrative materials, and questioning witnesses during direct, cross, and redirect examination.

Larry J. Cohen, Esq. is a certified specialist in injury and wrongful death litigation who has focused in his more than twenty five years of practice on serious medical injury and emotional damages cases, including especially brain injury claims. He received his J.D. from Northwestern University in 1985, and has been admitted to practice in Arizona since 1985. Mr. Cohen also has a Master’s degree and a Ph.D. from Syracuse University, is currently participating in a post-doctoral program in clinical neuropsychology and looks ahead to starting a doctoral studies in clinical psychology when he completes the post-doc. He has taught and done research at the University of Michigan School of Law, has served on the adjunct faculty of the Arizona School of Professional Psychology, now Argosy University and currently teaches as a member of the adjunct faculty at the Sandra Day O’Connor College of Law at Arizona State University and the Phoenix School of Law. Mr. Cohen speaks nationally to groups of lawyers, other professionals, insurance companies, governmental entities, risk managers and other interest groups about litigation and trial practice matters, legal ethics, alternative dispute resolution, and issues in brain damage, law and medicine and law and psychology. He has received awards from the Maricopa County Bar Association, the State Bar of Arizona and the State Bar of New Mexico for excellence in continuing legal education. He also received a President’s Award from the State Bar of Arizona for contributions in continuing legal education.
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Colorado Court of Appeals: Notice Requirements of Indian Child Welfare Act Not Met when Cherokee Nation Not Notified and No Determination Made Concerning the Indian Heritage of the Child’s Biological Father

July 11, 2011 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People In the Interest of L.A.N., a/k/a L.A.C., a Child, and Concerning L.M.B. on July 7, 2011.

Dependency and Neglect—Indian Child Welfare Act Notice Requirements—Psychotherapist–Patient Privilege.

In this dependency and neglect (D&N) proceeding, mother appealed from the judgment terminating her parent–child legal relationship with L.A.N. The judgment was vacated and the case was remanded with directions.

On December 9, 2008, the Denver Department of Human Services (DDHS) received a referral regarding L.A.N., then 7 years old. Staff members at Children’s Hospital reported that the child had been brought to the hospital because of out-of-control behavior and suicidal statements; that mother had refused the hospital’s treatment recommendations; and that mother had attempted to flee with the child when told that the hospital was considering transferring the child to a mental health facility.

On December 12, DDHS filed a D&N petition. After the child’s release from the hospital, she was placed in the custody of her maternal aunt. The aunt hired a therapist to treat the child. On March 11, 2009, based on mother’s no-fault admission, the child was adjudicated dependent and neglected as to mother, and a treatment plan was adopted. In November 2010, the court found mother had not achieved many of the plan’s objectives and terminated her parental rights.

On appeal, mother argued that the juvenile court erred in failing to ensure that the notice requirements of the Indian Child Welfare Act (ICWA) were met. Specifically, she contended that no notice was sent to the Cherokee Nation of Oklahoma after the court was informed that she was affiliated with that tribe, and no determination was made as to whether the child’s biological father had Indian heritage. The Court of Appeals agreed.

When mother appeared before a magistrate, it was determined that notice needed to be sent to the Cherokee Nation; however, DDHS did not comply with that order. Instead, eight months after the order, DDHS filed a motion requesting a finding that the case was not subject to the ICWA. The record did not reflect whether the motion was ruled on. Accordingly, the Court vacated the judgment and remanded the case to give notice to the Cherokee Nation and for an inquiry as to possible Indian heritage on the child’s paternal side.

Mother also argued it was error for the juvenile court to deny her request for production of the therapist’s file. The Court found she was entitled to at least a portion of the file and remanded for further proceedings.

During the course of treatment, the therapist submitted a letter to the guardian ad litem (GAL) to “share some of [her] observations” regarding the case. The GAL provided the letter to the court and the other parties without attempting to reserve the privilege between the child and the therapist. In June 2010, mother’s attorney subpoenaed the therapist for a deposition and to produce her entire case file. The therapist moved to quash the subpoena, arguing that the information and documents were privileged under CRS § 13-90-107(1)(g).

Following a hearing, the court ordered the therapist to participate in a deposition or a “chat” with mother’s attorney, but not to produce any record. Following the deposition, mother’s counsel renewed the request for the release of the therapist’s file, citing C.R.E. 612. The juvenile court affirmed its earlier order.

The Court concluded that because DDHS and the GAL had disclosed privileged information that was adverse to mother in seeking to terminate her parental rights, the privilege was waived; therefore, it was an abuse of discretion to deny mother access to the therapist’s file because it deprived her of a fundamentally fair opportunity to protect her rights. The case was remanded for the court to conduct an in-camera review of the therapist’s file and to identify the portions of the file that are discoverable.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on July 7, 2011, can be found here.

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Colorado Court of Appeals: Initial Notice of Appeal of Revocation of Parental Rights Was Noncompliant and Ineffective because it Lacked the Mother’s Signature or Statement Authorizing Appeal

July 11, 2011 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People In the Interest of R.D., a Child, and Concerning M.D. on July 7, 2011.

Dependency and Neglect—Ineffective Notice of Appeal Under C.A.R. 3.4(d)—Jurisdiction.

In this dependency and neglect proceeding, mother appealed the trial court’s judgment terminating her parent–child legal relationship with R.D. The appeal was dismissed for lack of jurisdiction.

R.D. was approximately 8 months old when he was removed from mother’s care; therefore, the case fell under the expedited permanency planning statutes. If mother’s parental rights were terminated, the permanency plan was for the maternal grandparents, who had custody of the child, to adopt. On August 30, 2010, mother’s parental rights were terminated in a written order that was served on the parties by mail on September 2, 2010. Based on that date, mother’s notice of appeal was due on or before September 27, 2010.

On October 8, 2010 (eleven days late), mother’s counsel filed a notice of appeal. As good cause for the untimely filing, counsel alleged she had not heard from mother since the termination hearing on August 4, and needed to confirm that mother intended to appeal, because it would delay the adoption by the grandparents. Counsel attached a certificate documenting her efforts to locate mother.

Rather than ruling on the motion, the Court of Appeals ordered counsel to show cause why the appeal should not be dismissed for failure to secure mother’s signature or specific authorization to appeal. Counsel did not respond, and the appeal was dismissed on January 11, 2011.

On January 19, 2011 (114 days late), mother’s counsel filed a motion requesting the Court to reconsider the dismissal of appeal. The motion stated that mother had contacted counsel on January 3, but did not explain why she failed to contact counsel sooner. Counsel attached an amended notice of appeal with mother’s signature. On April 20, 2011, a motions division of the Court of Appeals granted the motion and noted an opinion would issue in due course. The Court dismissed the appeal for failure to timely appeal.

The Court reviewed C.A.R. 3.4(d) and determined that the initial notice of appeal was noncompliant because it lacked mother’s signature or a statement from counsel that mother had authorized the appeal. The notice therefore was ineffective and did not invoke the Court’s jurisdiction.

The Court then considered whether the amended notice of appeal invoked the Court’s jurisdiction. It concluded that it did not. The delay was attributable solely to mother and no explanation was given for her conduct; therefore, no good cause under either C.A.R. 2 or C.A.R. 26(b) was shown for the untimely filing of the amended notice of appeal.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on July 7, 2011, can be found here.

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Colorado Court of Appeals: Disqualification from Receiving Unemployment Insurance Benefits Requires an Employer to Show the Presence of a Controlled Substance through a Drug Test Conducted by a Licensed or Certified Facility

July 11, 2011 by 1 Comment

The Colorado Court of Appeals issued its opinion in Sosa v. Industrial Claim Appeals Office of the State of Colorado on July 7, 2011.

Unemployment Benefits—Marijuana—Drug Test—CRS § 8-73-108(5)(e)(IX.5).

Claimant sought review of a final order of the Industrial Claim Appeals Office (Panel) disqualifying him from receiving unemployment benefits under CRS §8-73-108(5)(e)(IX.5). The order was set aside.

Swift Beef Company (employer) discharged claimant for testing positive for marijuana while at work. A deputy of the Division of Employment and Training disqualified claimant from receiving unemployment insurance benefits for violating the company’s zero tolerance policy. Although the hearing officer determined that claimant “tested positive for marijuana,” he also found that claimant was not impaired at work on August 10; that claimant had a valid medical marijuana license; and that employer failed to prove that the drug test was performed at a certified laboratory. The Panel reversed the hearing officer’s decision that claimant was not at fault in connection with his separation from employment.

On appeal, claimant contended that the Panel erred as a matter of law by imposing a disqualification under CRS § 8-73-108(5)(e)(IX.5), given the hearing officer’s finding that employer failed to prove the testing laboratory was licensed or certified. To support a disqualification, § 8-73-108(5)(e)(IX.5) expressly requires an employer to show the presence of a controlled substance through a drug test conducted by a facility or laboratory licensed or certified to conduct drug testing. There was no evidence that the laboratory performing claimant’s drug test was licensed or certified as expressly required under § 8-73-108(5)(e)(IX.5). Because claimant neither stipulated to the licensed or certified status of the facility or laboratory nor stipulated to having drugs in his system during working hours, the Panel’s disqualification order was set aside and the case was remanded with instructions to reinstate the hearing officer’s decision.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on July 7, 2011, can be found here.

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Colorado Court of Appeals: Insufficient Evidence of Lost Gross Profits with Respect to Lost Sales of Chemical Gases to Survive Motion to Dismiss at Close of Evidence

July 11, 2011 by Leave a Comment

The Colorado Court of Appeals issued its opinion in United States Welding, Inc. v. B&C Steel, Inc. on July 7, 2011.

Breach of Contract—Evidence—Damages—C.R.E. 1006.

In this breach of contract case, plaintiff United States Welding, Inc. (seller) appealed from a judgment in favor of defendants B&C Steel, Inc. and Metro Steel Fabricating, Inc. (collectively, purchasers) and Buckeye Welding Supply Company, Inc. (competitor). The judgment was affirmed in part and reversed in part, and the case was remanded.

At trial, purchasers and competitor objected to the evidence of seller’s calculation of damages because it lacked an adequate foundation and was based on a summary of documents not in evidence under C.R.E. 1006. The trial court sustained the objection, and at the conclusion of seller’s case, granted purchasers’ motion to dismiss.

Seller contended that the trial court erred in dismissing its claims at the close of its evidence on the ground that it had not presented sufficient evidence of its lost profits. Damages should place the injured party in the same position it would have enjoyed had the contract not been breached. If overhead remained unchanged, then lost gross profits would be the proper measure of damages. Here, seller’s lost gross profits from the sale of carbon dioxide and oxygen as a retailer may be awarded as net profits because the overhead expenses were fixed. However, the evidence did not include all the direct material costs, direct labor costs, and factory overhead associated with the manufacture of acetylene. Therefore, there was insufficient evidence of lost gross profits with respect to the lost sales of acetylene to survive a motion to dismiss at the close of seller’s evidence.

Seller also argued that the trial court abused its discretion in rejecting its exhibit summarizing the calculation of gross profits as to oxygen and carbon dioxide. Seller provided purchasers a copy of the summary of damages approximately four months before the commencement of the trial. The supporting documents were first produced at trial, and those pertaining to oxygen and carbon dioxide were admitted without objection. Therefore, there was substantial compliance with C.R.E. 1006, because there was sufficient evidence to support the admission of the damages summary as to oxygen and carbon dioxide before the summary was offered at trial. Thus, the trial court abused its discretion in rejecting the exhibit as to those gases.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on July 7, 2011, can be found here.

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Colorado Court of Appeals: Lien Holder’s Knowing Inclusion of Interest, Accrued from the Date Due to the Date of Filing the Lien Statement, Did Not Render Lien Void as Excessive

July 11, 2011 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Honnen Equipment Co. v. Never Summer Backhoe Service, Inc. on July 7, 2011.

Mechanic’s Lien—Interest.

Defendant Homestead Capital Company, Inc. (Homestead) appealed from the trial court’s judgment and decree of foreclosure of the mechanic’s lien claimed by defendant Never Summer Backhoe Service, Inc. (Never Summer). The judgment was affirmed.

Homestead argued that Never Summer’s inclusion of accrued interest in a lien statement rendered the lien void as an excessive lien pursuant to CRS §38-22-128. Section 38-22-101(5) expressly provides that, once the right to a lien has been established, interest can be recovered “at the rate provided for under the terms of any contract or agreement” under which the work was performed. That interest is recoverable even if the owner of the property is not in privity with any of the contracting parties, and it begins to accrue when it becomes due. Accordingly, Never Summer’s knowing inclusion of interest, accrued from the date due to the date of filing the lien statement, did not render its lien void as excessive under § 38-22-128.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on July 7, 2011, can be found here.

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Colorado Court of Appeals: Trial Court Erred by Allowing Amendment of Pleadings after Trial to Include Claim of Breach of Implied Warranties under the UCC

July 11, 2011 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Maehal Enterprises, Inc. v. Thunder Mountain Custom Cycles, Inc. on July 7, 2011.

Automobile—Manufacturer—Dealer —Amendment of Pleadings—CRS § 12-6-120(1)(d)—Damages.

Defendant Thunder Mountain Custom Cycles, Inc. (TMCC) appealed and Pikes Peak Harley-Davidson (PPHD) cross-appealed various aspects of the trial court’s judgment on PPHD’s claims of (1) violation of statutes regulating automobile dealers; (2) breach of contract; and (3) negligent misrepresentation. The judgment was affirmed in part and reversed in part, and the case was remanded.

This case arises from the parties’ agreement allowing plaintiff Maehal Enterprises, Inc., doing business as PPHD, to act as a dealer of motorcycles manufactured by TMCC. After the State Department of Revenue Auto Industry Division informed PPHD that it was not authorized to sell TMCC’s motorcycles, PPHD brought suit, and the case ultimately proceeded to a bench trial.

TMCC contended that, because the parties did not intentionally and actually try a claim under the Uniform Commercial Code (UCC), the trial court abused its discretion when it permitted PPHD to amend the pleadings after trial to include a claim of breach of implied warranties under the UCC. PPHD did not plead a breach of implied warranties claim under the UCC. It also confirmed before trial that it was not asserting any implied warranties claims. Additionally, neither party mentioned the UCC nor adduced any testimony discussing implied warranties under the UCC at trial. Accordingly, the court abused its discretion by allowing the amendment and entering judgment on the amended claim.

PPHD contended that the trial court erroneously concluded that TMCC did not violate CRS § 12-6-120(1)(d), which makes it unlawful for a manufacturer to cancel a dealer franchise agreement by nonrenewal without just cause. However, there was record support for the trial court’s finding that the one-year dealer contact had been terminated by mutual agreement of the parties. Accordingly, the trial court did not err in its conclusion that there was just cause for nonrenewal of the dealer contract. Thus, TMCC did not violate § 12-6-120(1)(d).

PPHD also contended that the trial court erroneously determined that it was not entitled to recover for its loss or damage caused by TMCC’s and its owner’s violation of the relevant statutes that make it unlawful for a manufacturer to own a motor vehicle dealer. Although the treble damages provision of §12-6-122(2) does not apply to a violation of the independent control of dealer provision, PPHD could recover for its loss or damage caused by TMCC’s and its owner’s violation of the independent control of dealer provision pursuant to §12-6-122(3).

PPHD further contended that the trial court erred in concluding that TMCC was not obligated to repurchase its motorcycles and parts following termination of the dealer contract. Because the franchise agreement expired more than twelve months after PPHD took possession of the motorcycles, TMCC was under no obligation to repurchase the motorcycles. The case was remanded, however, to permit the trial court to consider PPHD’s claim for reimbursement of parts, which is not constrained by the same twelve-month period.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on July 7, 2011, can be found here.

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Colorado Court of Appeals: Police Authorized to Search Vehicle’s Passenger Compartment Incident to Recent Occupant’s Arrest as Search Occurred Before SCOTUS Gant Case

July 11, 2011 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Hopper on July 7, 2011.

Search—Suppression of Evidence—Special Offender Interrogatories—Culpable Mental State—Special Offender Statute—Newly Discovered Evidence—New Trial.

Defendant appealed the judgments of conviction entered on jury verdicts finding him guilty of two counts of possession of a controlled substance and two special offender sentencing counts. He also appealed the length of his mandatory parole term. The judgment was affirmed.

In March 2007, the police stopped the vehicle defendant was driving to execute an arrest warrant for one of the two other men (Ryan Bowler and Rodney Putney) riding in the car. After the three men were removed from the vehicle, the police searched it. They found a rifle in the back seat; a sawed-off shotgun on the front floorboard; a handgun on the rear floorboard; and a bag of cocaine and a bag of methamphetamine, both under the driver’s seat. They also found drug paraphernalia, including spoons, cotton swabs, and syringes. Defendant was charged with two counts of possession of a controlled substance, two special offender counts, and one count of possession of a dangerous weapon.

Defendant contended that, because he and his companions were outside the vehicle and in police custody at the time the vehicle was searched, and the police had no reason to believe that evidence related to the arrest would be found in the vehicle, the evidence seized during the search must be suppressed. The search in this case occurred before Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Therefore, the police were authorized to search a vehicle’s passenger compartment incident to a recent occupant’s arrest, and defendant was not entitled to have the evidence seized from that search suppressed.

Defendant also contended that the trial court erred in submitting to the jury two special offender interrogatories, neither of which included a culpable mental state element. The interrogatories, however, tracked the language of the applicable version of the special offender statute, and that version does not explicitly include any culpable mental state elements.

Defendant also contended that the trial court erred in denying his Crim.P. 33 motion for new trial based on newly discovered evidence. Newly discovered evidence must be of sufficient consequence for reasons other than its ability to impeach, or cast doubt on, the evidence already presented at trial. Here, the testimony that defendant offered as new evidence—from inmates who indicated their knowledge that Bowler expressed an intent to testify falsely against defendant—would only cast doubt on Bowler’s testimony and credibility. Therefore, the trial court did not abuse its discretion in concluding that defendant was not entitled to a new trial.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on July 7, 2011, can be found here.

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Denver Bar Association Governance 2011-12: Meet Your New DBA Officers

July 11, 2011 by Leave a Comment
 

President

Irene Bloom

  

President-elect

James G. Benjamin
 

Immediate Past President

Stacy A. Carpenter

  

First Vice President

William W. Hood III

Second Vice President

Lucia C. Padilla

Trustees

Catherine A. Chan

Paul Chessin

Janet Drake

Michelle B. Ferguson

Vance O. Knapp

Daniel R. McCune

Meshach Rhoades

Daniel A. Sweetser

Andrew M. Toft

Young Lawyers Division Chair

Gillian M. Bidgood

Treasurer

Richard Strauss

Executive Director

Charles C. Turner

New Board of Governors Representatives

Donna Bakalor

James G. Benjamin

Jaclyn K. Casey

Sheri M. Danz

Thomas J. DeMarino

Katayoun A. Donnelly

James G. Gaspich

William W. Hood III

Jerri L. Jenkins

Craig D. Joyce

Vance O. Knapp

Jonathan M. Lucero

D. Scott Martine

Richard M. Murray

Lucia C. Padilla

Siddhartha H. Rathod

Meshach Rhoades

Continuing Board of Governors Representatives

D. A. Bertram

Gillian M. Bidgood

Ilene Lin Bloom

Edward D. Bronfin

Stacy A. Carpenter

Catherine A. Chan

Paul Chessin

Kwali M. Farbes

Michelle B. Ferguson

Richard L. Gabriel

David H. Goldberg

Kendell L. Gracey

Wesley B. Howard, Jr.

Victoria V. Johnson

Michael O. Keating

John H. Kechriotis

Jennifer Madsen

Daniel R. McCune

Patrick T. O’Rourke

Jerremy M. Ramp

Judith A. Smith

Richard Strauss

Daniel A. Sweetser

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Meet the New CBA President, David Masters, on His Statewide Tour

July 11, 2011 by Leave a Comment

Throughout his term, Colorado Bar Association President David Masters is traveling the state to visit local bar associations. His scheduled visits are listed below:

Bar Association Date Time City Venue
Northwestern Colorado July 20 3:30 pm Steamboat Springs Sweetwater Grill, 811 Yampa St.
Ninth Judicial District, Continental Divide, Pitkin County July 21 3 pm Edwards Eagle County Justice Center
Mesa County July 22 11 am Grand Junction The Doubletree Hotel, 743 Horizon Dr.
Seventh Judicial District July 22 5:15 pm Gunnison The Trough, 37610 US Highway 50
Weld County August 16 12 pm Greeley TBD
Thirteenth Judicial District August 17 12 pm Sterling TBD
Southeastern Colorado and Sixteenth Judicial District August 17 5 pm La Junta TBD
Fremont/Custer September 12 Dinner TBD TBD
Pueblo September 13 Lunch Pueblo TBD
First Judicial District October 24 12 pm Golden DA’s office, 500 Jefferson County Parkway
Adams County October 25 Lunch Brighton Adams County Government Center
El Paso County January 17, 2012 Lunch Colorado Springs TBD

More dates around the state are being planned. Watch for updates on Legal Connection when they are finalized. For more information about upcoming visits, please contact Jill Lafrenz.

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Tenth Circuit: District Court May Properly Exercise Personal Jurisdiction over a Nonparty to Enter Contempt Orders when Nonparty Has Actual Notice of Injunctive Order and Violates It in Concert with a Party

July 11, 2011 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in ClearOne Comm’cns, Inc. v. Bowers on Friday, July 8, 2011.

The Tenth Circuit affirmed the district court’s decision. The case stems from the same facts as the case decided by the Tenth Circuit on June 27, 2011. Here, Petitioner contends that the district court erred in four respects: 1) in holding him in contempt of its injunctive orders; 2) in determining that it could exercise personal jurisdiction over him; 3) in directing him to appear in person at the July 31, 2009 show cause hearing, and in turn denying him the opportunity to present evidence and cross-examine ClearOne’s witnesses due to his failure to appear in person at that hearing; and 4) in refusing to recuse from the underlying case prior to trial and/or prior to the commencement of post-judgment proceedings.

The Court concluded that the district court did not err in any of these regards. Petitioner “was found by the district court to have been in active concert or participation with the WideBand defendants in violating the district court’s restraining and injunctive orders by producing and selling products that utilized the misappropriated trade secret. Consequently, it was unnecessary for [Respondent] to establish the essential elements of a trade secret misappropriation claim against him. Instead, all Respondent had to establish was that Petitioner violated the terms of the district court’s injunctive orders,” which it did, and there is no error in the district court’s determination. Additionally, the district court properly exercised personal jurisdiction over Petitioner for the purpose of entering contempt orders; the record establishes that Petitioner had actual notice of the district court’s injunctive orders and violated those injunctive orders in concert with a party. By doing so, Petitioner submitted himself to the district court’s jurisdiction. The Court also found Petitioner’s failure to seek a continuance of the hearing or voice any objections, and in turn choosing to attend the hearing via telephone, served as an acceptance of the terms outlined in the district court’s order and was not a violation of Petitioner’s due process rights. Lastly, the district court judge need not have recused herself from the case, as there was no evidence to show that her husband had an interest in the case.

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