April 27, 2017

Archives for May 2, 2016

Ben Leutwyler and Robert Lung Appointed to 18th Judicial District Court

On Friday, April 29, 2016, Governor Hickenlooper appointed Ben Leutwyler and Robert Lung to the Eighteenth Judicial District Court. Leutwyler and Lung will fill vacancies created by the retirement of Hon. Richard Caschette and Hon. Marilyn Antrim, effective July 1, 2016.

Ben Leutwyler is currently a district court magistrate in the Eighteenth Judicial District, where he presides over a domestic relations docket. Prior to his work as magistrate, Leutwyler was a partner at Mike Hulen, PC, where he practiced criminal defense, personal injury, family law, and trust and estate law. He received his undergraduate degree from the University of Iowa and his law degree from Georgia State University College of Law.

Robert Lung is also currently a district court magistrate in the Eighteenth Judicial District, where he presides over dependency and neglect and probate cases. Lung has also been an assistant magistrate for the City of Lone Tree, Assistant City & County Attorney for Broomfield, and a Deputy District Attorney for the Eighteenth Judicial District. He received his undergraduate degree from Regis University and his law degree from the University of Dayton School of Law.

For more information about the appointments, click here.

Colorado Court of Appeals: Contract that Violates Rules of Professional Conduct Unenforceable

The Colorado Court of Appeals issued its opinion in Calvert v. Mayberry on Thursday, April 21, 2016.

Disciplinary Proceeding—Oral Contract—Colo. RPC 1.8(a)—Issue Preclusion—Void Agreement—Equitable Lien—Unclean Hands.

In a question of first impression, the Colorado Court of Appeals decided that an attorney who enters into a contract with a client that violates Colo. RPC 1.8(a) cannot later enforce the contract against the client.

The Colorado Supreme Court disbarred the attorney after a hearing board determined he had committed ethical violations, including some against the former client in this case. Specifically, the hearing board found that the attorney had loaned the former client over $100,000 and secured his interest in the loan funds by recording a false deed of trust in the chain of title on her house. The hearing board also found that the attorney had not complied with Colo. RPC 1.8(a) when he made the loans to the former client. The attorney then filed this case to recoup money he had loaned to the former client, claiming that he had an oral agreement with the client for repayment of the loans, and alternatively asserting that the trial court should impose an equitable lien on the former client’s house. The trial court granted summary judgment for the former client and her daughter (to whom she had quitclaimed her interest in the house), finding that because the oral contract between the former client and the attorney violated Colo. RPC 1.8(a), the attorney was ethically prohibited from enforcing that agreement.

The attorney appealed. On appeal, the former client contended that the doctrine of issue preclusion barred the attorney from relitigating factual issues that were litigated during the disciplinary proceeding. The court agreed; therefore, the hearing board’s factual findings bind the attorney in this case, including its finding that the attorney violated Rule 1.8(a) when he entered into the oral contract with the former client, and the oral contract between the attorney and the former client is void and unenforceable. The attorney contended that the trial court erred in applying the doctrine of unclean hands to bar his request for an equitable lien. Based on the attorney’s misconduct, the court disagreed. The attorney also asserted a fraud claim against the former client’s daughter, but his allegations did not support this claim, and it failed as a matter of law. The district court properly entered summary judgment.

The judgment was affirmed and the case was remanded to the trial court to determine whether fees should be awarded to the former client and her daughter.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Workers’ Compensation Settlement Agreement Precluded Later Reopening for Unknown Injuries

The Colorado Court of Appeals issued its opinion in Amerigas Propane & Indemnity Insurance Co. of North America v. Industrial Claim Appeals Office on Thursday, April 21, 2016.

Mutual Mistake—Workers’ Compensation Claim—Reopening Settlement Agreement.

The worker was injured while working for Amerigas Propane and filed a claim for compensation. The worker and the employer (including the insurer) agreed to settle the claim. The settlement agreement clearly stated that the worker would forever waive his right to request compensation for unknown injuries. It also stipulated that the claim could only be reopened on grounds of fraud or mistake of fact. The worker later moved to reopen the settlement, alleging a mistake of fact in that he had a newly discovered injury that was unknown at the time of the settlement and it was related to the original injury. An administrative law judge (ALJ) reopened the claim. The employer appealed to the Industrial Claim Appeals Office (Panel) and the Panel affirmed. The employer then filed this appeal.

The Colorado Court of Appeals examined the language of the settlement agreement, specifically its statement that the worker waived his right to compensation for “unknown injuries” that arose “as a consequence of” or “result[ed]” from the original injury. The court found the newly discovered injury was clearly and unequivocally covered by this language and therefore the case could not be reopened.

The Panel’s order was set aside and the case was remanded to the Panel to direct the ALJ to vacate the worker’s benefits award and to deny his motion to reopen the settlement.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Claimant Released to Full Duty but Unable to Perform Work Entitled to TTD

The Colorado Court of Appeals issued its opinion in Archuleta v. Industrial Claim Appeals Office on Thursday, April 21, 2016.

Workers’ Compensation—Temporary Total Disability Benefits—C.R.S. § 8-42-105(3)(c)—C.R.S. § 8-42-103—C.R.S. § 8-42-105(1).

Claimant sustained a work-related injury in February 2014. His physician imposed temporary restrictions and released him to modified duty. On March 5, the attending physician released him to full duty work with no restrictions. On May 21, the attending physician determined claimant had reached maximum medical improvement (MMI) with no impairment restrictions. Employer filed a final admission of liability.

Claimant continued to maintain that he could perform only light duty work because of his injury. He was laid off one week after reaching MMI because, according to him, he was “hurt on the job,” could no longer perform his duties, and was on “light duty.” He requested a division-sponsored independent medical examination (DIME) to challenge the MMI finding. The DIME physician concluded he was not at MMI. An administrative law judge (ALJ) then awarded claimant temporary total disability (TTD) benefits, finding that he was laid off because of his industrial injury. On review, the Industrial Claims Appeal Office (Panel) reversed, finding that under C.R.S. § 8-42-105(3)(c), once a claimant has been released to full duty work TTD benefits must cease.

On appeal, claimant argued that C.R.S. § 8-42-105(3)(c) applies only to the termination of benefits and because he didn’t have any benefits when the attending physician released him to work, his case should have been analyzed under C.R.S. §§ 8-42-103 and -105(1), which apply to the commencement of benefits and do not have a restriction based on release to full duty. The court of appeals agreed, holding that C.R.S. § 8-42-105(3)(c) did not apply to claimant’s case because the statute can only terminate benefits that have already commenced and therefore can only be applied prospectively.

The order was set aside and the case was remanded with directions to reinstate the ALJ’s order.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Court Within Jurisdiction to Assert Long-Arm Statute Against Foreign Business Selling Products in United States

The Colorado Court of Appeals issued its opinion in Boustred v. Align Corp. Ltd. on Thursday, April 21, 2016.

Interlocutory Appeal—CRCP 12(b)(2) Lack of Personal Jurisdiction—Minimum Contacts—Due Process Clause.

Align Corporation Limited is a Taiwanese company that manufactures and sells remote control helicopters and related parts. Align has no physical corporate presence in the United States, but it engages U.S. distributors to sell its products to retailers, which then sell them to consumers. One of Align’s distributors was defendant Horizon Hobby, Inc.

Boustred purchased a remote control helicopter and a main rotor holder, manufactured by Align, through Horizon. Boustred alleged the main rotor holder broke during testing and caused him to lose an eye. He filed strict liability and negligence claims against Align and Horizon in Larimer County. After service in Taiwan, Align asked the trial court to quash service and dismiss all claims against it for lack of personal jurisdiction. The trial court found that under Archangel Diamond Corp. v. Lukoil it could assert specific jurisdiction over Align, and denied the motion. This interlocutory appeal followed. Align petitioned the court of appeals to address the effect of the U.S. Supreme Court’s plurality opinion in J. McIntyre Machinery, Ltd. v. Nicastro on Colorado’s personal jurisdiction framework under Archangel.

Colorado’s long-arm statute is intended to confer the maximum jurisdiction allowable by the Due Process clauses of the United States and Colorado constitutions. Specific jurisdiction exists when the alleged injuries resulting in litigation arise out of and are related to a defendant’s activities that are significant and purposefully directed at residents of the forum state. If the requisite minimum contacts are established, a court must determine whether its exercise of personal jurisdiction over a defendant is reasonable and comports with notions of fair play and substantial justice. Align argued that merely placing a product into the stream of commerce, without more, is insufficient for a court to assert personal jurisdiction.

The court cited World-Wide Volkswagon v. Woodson, which held that a “forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” Subsequent Supreme Court plurality decisions have differed on the scope of this theory. The court concluded that the narrowest grounds articulated in the plurality opinions, those of Justice Breyer in J. McIntyre and Justice Brennan in Asahi Metal Industry Co. v. Superior Court are controlling and together hold that World-Wide Volkswagon remains the prevailing decision articulating the stream of commerce theory.

Applying that standard, the court found that Boustred made a sufficient prima facie showing of Colorado’s specific jurisdiction over Align and that asserting such jurisdiction is reasonable and does not offend traditional notions of fair play and substantial justice.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 4/29/2016

On Friday, April 29, 2016, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

United States v. Prince

Galloway v. Roberts

Guerrero v. Meadows

Haff v. Firman

Arrington v. Chavez

Stewart v. People of the State of Colorado

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