November 23, 2017

Archives for June 10, 2014

Three District Court Judges Appointed to 18th Judicial District

On Friday, June 6, 2014, Governor Hickenlooper appointed Natalie Chase, Frederick Martinez, and David Stevens to the District Court Bench in the Eighteenth Judicial District. Two of the judges were appointed due to an increase in the number of judges per HB 14-1050 and the other was appointed to fill a vacancy created by the retirement of Hon. William Sylvester. All three appointments are effective July 1, 2014.

Natalie Chase is currently a co-owner of Schafer & Chase, where she primarily practices criminal defense and family law. Prior to forming her own firm, Chase was a prosecutor for the City of Aurora. She received her J.D. from the University of Denver in 2003 and her undergraduate degree from the University of Denver in 2000. She is a member of the Colorado Bar Association, the Colorado Criminal Defense Bar, and the Colorado Women’s Bar Association. She is also on the Board of Directors for the Arapahoe County Bar Association and is the chair of the 18th JD Access to Justice Committee.

Frederick Martinez currently practices at Hall & Evans, where he specializes in defense litigation of individuals, professionals, and transportation corporations. His expertise ranges from railroad defense, professional responsibility, and criminal defense to general tort litigation. He is a frequent presenter on ethics and professional responsibility issues and topics related to railroad litigation. He received his J.D. from the University of Colorado in 1987 and his undergraduate degree from Colorado College in 1984. He is a member of the Colorado, Denver, Nebraska, Wyoming, and Hispanic bar associations, as well as the National Association of Railroad Trial Counsel and the Colorado Defense Lawyers Association.

David Stevens is a co-owner of Stevens & Eisenstein Law Offices, where he focuses on personal injury law, including medical malpractice, car accidents, work-related injuries, and Social Security Disability claims. He is also an instructor at Arapahoe Community College, where he teaches classes on wills & probate and torts. He received his J.D. in 1983 from Thomas M. Cooley Law School and his undergraduate degree from Michigan State University. He is also a graduate of an international law program at Universite de Caen in France. He is affiliated with several bar associations and professional organizations, including as a Fellow of the Colorado Bar Foundation; past-president of the Arapahoe County Bar Association; board chairman of the Arapahoe County Bar Foundation; and several other official roles for the Arapahoe County Bar Association. 

For more information about the appointments, click here.

Governor Announces Appointment to 15th Judicial District Nominating Commission

On Friday, June 6, 2014, Governor Hickenlooper announced his appointment of Joshua Lee Vogel to the Judicial Nominating Commission for the Fifteenth Judicial District. Vogel will serve as an attorney from Prowers County for a term expiring December 31, 2019.

Each of Colorado’s 22 judicial districts has a nominating commission comprised of seven members, no more than four of which may be from the same political party and no more than three of which may be admitted to practice law in Colorado. Each judicial district nominating commission also has a non-voting Colorado Supreme Court justice as its chair. Judicial nominating commissions review applicants for vacancies on the county and district court benches in their judicial districts and submit nominees for appointment to the governor. For more information about judicial nominating commissions, click here.

Colorado Court of Appeals: Condemnors Have Absolute Right to Abandon Proceedings at Any Time Before Title Vests

The Colorado Court of Appeals issued its opinion in Sinclair Transformation Co. v. Sandberg on Thursday, June 5, 2014.

Condemnation—Interest on Attorney Fees—Surface Damage Bond—Dismissal by Petitioner.

Sinclair Pipeline Company (Sinclair) owns a pipeline system that transports petroleum products from Wyoming to Denver. Sinclair uses an easement that passes through respondents’ (landowners) property. Sinclair initiated this condemnation proceeding to secure the rights to lay a second pipeline on landowners’ property and use some of their property that, though underlying the original pipeline, was not within the easement. The district court found that Sinclair had condemnation authority to build the new pipeline and entered an order allowing it to take immediate possession of the properties to install it while continuing to use the original pipeline. In 2007, while the case was on appeal, Sinclair installed the new pipeline but did not put it to use.

Five years later, the Supreme Court concluded that Sinclair did not have statutory condemnation authority under CRS § 38-5-105. On remand, landowners sought $192,573.95 in attorney fees and costs, plus interest. Before the court ruled, Sinclair paid all the fees and costs without interest, which the district court determined landowners were not entitled to.

Sinclair filed a notice of abandonment of condemnation proceedings and a declaratory judgment action seeking to enjoin the landowners from removing the new pipeline and seeking recognition of its rights under the easement to operate the new pipeline. Landowners objected and filed counterclaims. The district court dismissed the condemnation action.

On appeal, landowners argued it was error to deny them interest on their attorney fees and costs. The Court disagreed. The fees were awarded under CRS § 38-1-122. There is no provision in any sections pointed to by landowners for a right to interest. Therefore, the district court correctly denied the request.

Landowners also argued it was error to dismiss the condemnation action instead of consolidating it with the declaratory judgment action. The Court disagreed. Condemnors have an absolute right to abandon condemnation proceedings at any point before title has vested.

Landowners further argued it was error for the district court not to determine their surface damages and apply Sinclair’s surface damage bond to reimburse them before dismissing the condemnation action. The district court based its decision on agreement by the parties that there were issues of material fact concerning the surface damages that could be resolved in the declaratory judgment action. Moreover, the surface damage bond and additional money deposited by Sinclair as security for its taking immediate possession of the property was transferred to the court registry for the declaratory judgment action. The Court perceived no error in proceeding in this manner. The judgment of dismissal and the orders were affirmed.

Summary and full case available here.

Colorado Court of Appeals: Meaningful Remedy May Be Available to Landowners so Summary Judgment Inappropriate

The Colorado Court of Appeals issued its opinion in Sinclair Transportation Co. v. Sandberg on Thursday, June 5, 2014.

Easement — Partial Summary Judgment.

Sinclair Pipeline Company (Sinclair) operates a pipeline system that transports petroleum products from Wyoming to Denver and uses an easement that passes through defendants’ (landowners) properties. The easement was created by agreement in 1963 and provided its owner and “its successors and assigns” the right to “construct, maintain, inspect, operate, protect, repair, replace, change the size of, and remove” a six-inch pipeline across landowners’ property (original pipeline).

In 2006, Sinclair approached landowners to propose amending the easement to allow it to build a ten-inch pipeline on the property (new pipeline). Landowners declined, and Sinclair sought the right through a condemnation proceeding. The district court determined Sinclair had condemnation authority. In 2007, while the case was on appeal, Sinclair installed the new pipeline but did not put it to use. Ultimately, the Supreme Court determined Sinclair did not have statutory condemnation authority.

Sinclair then abandoned the condemnation proceeding and instituted this declaratory judgment action under CRCP 57 and CRS § 13-51-106 to determine its rights under the easement and prevent landowners from removing the new pipeline. The district court dismissed the condemnation action and addressed all other claims in this case.

Sinclair moved for partial summary judgment and the district court ruled, as a matter of law, that Sinclair had the right to treat the new pipeline as a replacement of the original one, as long as it removed the original one. The partial summary judgment was certified as a final judgment under CRCP 54(b) for purposes of appeal.

Sinclair removed the original pipeline and began using the new one. Four months after the summary judgment order was issued and Sinclair had begun using the new pipeline, landowners moved to stay the order, which the district court denied because Sinclair had “already fully executed” it and there “was nothing left . . . to stay.”

On appeal, landowners argued Sinclair lacked standing because factual disputes existed as to whether Sinclair was a successor in interest to the original owner of the easement, and an easement of the type involved in this case could not be assigned. The Court of Appeals disagreed, finding that the evidence presented by Sinclair was sufficient to prove its successorship interest in the easement.

The Court rejected landowners’ argument that Sinclair lacked standing, because ownership interests in this type of easement cannot be assigned. The language of the easement itself was a conveyance to Old Sinclair and its “successors and assigns.”

Landowners argued that partial summary judgment was inappropriate because any right to replace the pipeline was subject to numerous conditions as to which factual disputes exist and was defeated by Sinclair’s non-compliance with other parts of the agreement. The Court disagreed, finding that the reasonable expectation of the parties to such an agreement would be that the new pipeline could be put in before the old one being removed so as not to disrupt service.

Landowners further contended that Sinclair abandoned the contract right to the easement because it acted as though that right had expired when it sought to use condemnation authority to install the new pipeline. The Court disagreed. Sinclair’s condemnation action was an attempt to install the new pipeline and not remove the old pipeline after landowners had denied them the permission to do so. The order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Bank Could Waive Obligations Under C.R.S. § 38-38-106(6) Without Violating Public Policy

The Colorado Court of Appeals issued its opinion in Armed Forces Bank, N.A. v. Hicks on Thursday, June 5, 2014.

CRS § 38-38-306(6)—Waiver—Motion to Amend Answer—Counterclaim—Discovery.

In December 2006, Glenwood Commercial, LLC borrowed $6 million from Bank Midwest to build a condominium complex in Glenwood Springs. The loan was secured by a deed of trust on the property where the complex was to be built. The Hickses, who were principals of Glenwood Commercial, provided separate but identical personal guaranties for the loan. Bank Midwest assigned the loan and guaranties to Armed Forces Bank, which later filed suit against Glenwood Commercial and the Hickses for defaulting under the loan agreement. The district court thereafter granted the bank’s motion for summary judgment against the Hickses.

On appeal, the Hickses contended that the district court erred as a matter of law because the bank’s statutory obligations under CRS § 38-38-106(6) could not be waived, and that, in any event, the Hickses’ guaranty documents do not contain a waiver of the bank’s statutory obligations under CRS § 38-38-106(6). CRS § 38-38-106(6) does not contain a prohibition against waiver, and the ability to waive the provisions of CRS § 38-38-106(6) would not violate public policy. Here, the plain language in the guaranty agreements unambiguously waived all of the Hickses’ defenses against the bank other than actual payment of the debt. Therefore, the Hickses waived their defenses based on CRS § 38-38-106(6) in their guaranty agreements and the district court properly granted summary judgment in the bank’s favor.

The Hickses also contended that the district court erred by denying their motion to amend their answer to assert a counterclaim against the bank. The bank was presented the proposed final plat after the January 1, 2010 deadline had passed and after it had filed suit for breach of the note. Therefore, it had the right to repudiate the modification and forbearance agreements and proceed with its contractual remedies. The district court’s denial of the motion to amend on the basis that the counterclaim as alleged was futile and would not survive a motion to dismiss was not an abuse of discretion.

The Hickses further argued that the district court abused its discretion by denying their motion to compel production of documents requiring the bank to produce documents pursuant to its obligations under CRCP 26(a)(1). However, production of the documents was not required under CRCP 26(a)(1) and the Hickses had not requested such documents under CRCP 34 or by any other discovery mechanism. Thus, the district court did not abuse its discretion in denying the motion to compel. The judgment was affirmed.

Summary and full case available here.

Tenth Circuit: District Court Abused Discretion by Disregarding 10th Circuit’s Mandate

The Tenth Circuit Court of Appeals issued its opinion in Zinna v. Congrove on Thursday, June 5, 2014.

This is an appeal of a prior remand by the Tenth Circuit in Zinna v. Congrove, 680 F.3d 1236 (10th Cir. 2012), in which the Tenth Circuit determined the district court had abused its discretion in only awarding Zinna $8,000 in attorney fees. The Tenth Circuit remanded for issuance of a reasonable attorney fee award. On remand, the district court disregarded the mandate of the Tenth Circuit, thereby abusing its discretion.

Congrove asserted that Zinna failed to timely appeal the attorney fee award, because he had not appealed a November 2012 judgment awarding attorney fees for the trial court action until after a March 2013 ruling for “legal services of trial and appellate counsel.” The Tenth Circuit disagreed, noting that in the particular facts of this case, the trial court attorney fee award was not final until the March 2013 order. Because Zinna timely appealed the March 2013 order, the trial court attorney fee issue was timely appealed. The Tenth Circuit did not examine Zinna’s request for appellate attorney fees, deciding that the issue was inadequately briefed. However, the Tenth Circuit examined the award of trial court fees and determined that the district court abused its discretion in awarding only a minimal amount of attorney fees.

The district court judgment was affirmed as to appellate attorney fees due to inadequate briefing. The judgment was reversed and remanded as to the trial court attorney fees. Zinna’s request to have the matter reassigned to a different district court judge was granted.

 

Tenth Circuit: Pretrial Confinement Period Included in Calculation of Total Confinement Period for Immigration Purposes

The Tenth Circuit Court of Appeals issued its opinion in Garcia-Mendoza v. Holder on Monday, June 2, 2014.

Enrique Garcia-Mendoza is a citizen of Mexico who lawfully entered the United States in January 1996 as a temporary visitor for six months and never left. In 2010, he was arrested and charged with driving under the influence. He could not afford bond and remained confined during the pretrial period for a total of 104 days. He was sentenced to 270 days with credit for time served, and was released after serving a total of 197 days. Upon release, the Department of Homeland Security seized Garcia-Mendoza and initiated removal proceedings. Petitioner conceded that he exceeded his authorized stay and applied for cancellation of removal. The immigration judge denied his request because Garcia-Mendoza had been confined for more than 180 days and therefore could not meet the good moral character requirement. Subsequently, Garcia-Mendoza petitioned the state trial court for a sentence amendment, alleging that his counsel failed to advise him of the immigration consequences of his guilty plea and requesting the sentence to be reduced to 166 days with no credit for time served in the pretrial period. The court granted the motion, nunc pro tunc, and reduced his sentence. However, the IJ again denied cancellation of removal, because Garcia-Mendoza’s actual time served was greater than 180 days. The BIA upheld the IJ’s decision, and Garcia-Mendoza appealed to the Tenth Circuit.

The Tenth Circuit reviewed 8 U.S.C. § 1101(f)(7) and determined that the clear statutory language did not account for nunc pro tunc sentence adjustments but rather required that no actual period of confinement exceed 180 days. The Tenth Circuit also considered Garcia-Mendoza’s argument that the pretrial confinement period should be excluded because it does not qualify as confinement as a result of a conviction. Upon analysis of circuit precedent, the Tenth Circuit affirmed the BIA’s interpretation of the statute as including the pretrial period when conviction was entered. The decision of the BIA was affirmed.

Tenth Circuit: Unpublished Opinions, 6/9/2014

On Monday, June 9, 2014, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

United States v. Stacy

Guinn v. Colorado Attorney Regulation Counsel

Guinn v. Farmers Insurance Co.

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.