October 23, 2017

Archives for May 11, 2016

Bill Walters to Receive DBA Award of Merit at Annual Awards Ceremony

The Denver Bar Association is hosting its annual ceremony to recognize the recipients of its 2016 DBA Awards on Wednesday, June 29, 2016, at the Ralph L. Carr Colorado Judicial Center. The winners of the 2016 DBA Awards are:

  • Bill Walters — Award of Merit
  • Maureen Watson — Young Lawyer of the Year
  • Jerry Pratt — Volunteer Lawyer of the Year
  • Metro Volunteer Lawyers’ Power of Attorney Clinic — Outstanding Programs/Projects
  • The Honorable Shelley Gilman — Judicial Excellence Award
  • Jerry Conover and Howard Rosenberg — Founders Award
  • Norman Campbell, Barbara Chamberlain, Lucy Marsh, Anthony Yuthas and Jon Nicholls — Outstanding Sustained Volunteer Award

3521Bill Walters will receive the DBA Award of Merit. The Award of Merit recognizes outstanding service and contributions to the DBA and the legal profession, rendered to improve the administration of justice. Walters is a past president of the DBA, past president of the CBA, former board member for CBA-CLE, past chair of the Colorado Lawyers Committee, past Chair of the Legal Aid Foundation of Colorado, and a member of the Colorado Nonprofit Corporation Code Revision Committee. Walters is a former partner at Heizer Paul LLP, where he specialized in representing nonprofit organizations, including trade and specialty organizations. Walters has been a frequent lecturer on many topics, including legal risk management for directors and officers, contract law, copyright and trademarks, legislative intellectual property, employment law, computer contracts, social media, hotel negotiations, and antitrust law.

Maureen Watson will receive the Young Lawyer of the Year Award, which is given to a DBA member and attorney who is 37 or under or has been in practice less than three years. Watson is currently general counsel at CQG, Inc., and is the Executive Council Chair of the DBA Young Lawyers Division. Prior to her work at CQG, Inc., Watson was an associate at Fennemore Craig, P.C., where she practiced primarily in the areas of business torts and personal injury. Watson was a contributing author for the 2014 Annual Survey of Colorado Law.

10071Jerry Pratt will receive the Volunteer Lawyer of the Year Award, which is given annually to a DBA member who has performed extraordinary voluntary legal or community service. Pratt is a solo practitioner at the Law Offices of Gerald D. Pratt in Lone Tree. Pratt has over 33 years of trial experience in both civil and criminal cases, serving as lead counsel in a wide variety of cases, including professional liability, products liability, personal injury, insurance bad faith, construction claims, insurance defense, and criminal defense. He has also devoted a significant part of his practice to legal ethics and is a member and past chair of the CBA Ethics Committee. He is a frequent speaker at CLE programs.

Gilman (Formatted)The Honorable Shelley Gilman will receive the Judicial Excellence Award, which is given to members of the judiciary who exemplify outstanding service or make exceptional contributions to the improvement of the justice system. Judge Gilman was appointed to the Denver District Court in 1998, where she has presided over domestic, civil, and criminal cases. Prior to her appointment, she practiced in several county trial offices and the appellate division of the Colorado State Public Defender. She was also in private practice in Denver, specializing in juvenile, criminal, and appellate matters.

MVL at 45Jerry Conover and Howard Rosenberg will receive the Founders Award. Conover and Rosenberg were founding volunteers of the Thursday Night Bar, the weekly legal aid clinic that has now become Metro Volunteer Lawyers.

Norman Campbell, Barbara Chamberlain, Lucy Marsh, Anthony Yuthas and Jon Nicholls will receive the Outstanding Sustained Volunteer Award. The Outstanding Sustained Volunteer Award honors long-term commitment to pro bono legal representation through Metro Volunteer Lawyers in furtherance of access to justice, while consistently showing outstanding professionalism and dedication to helping those of limited means. The five recipients have demonstrated years of commitment to MVL. Norman Campbell is a solo practitioner in Brighton. Barbara Chamberlain was the Executive Director of Metro Volunteer Lawyers for many years. Lucy Marsh is a professor at the University of Denver Sturm College of Law, where she has received the DU Law Star Excellence in Teaching Award. Anthony Yuthas is a solo practitioner focusing on bankruptcy law. Jon Nicholls is one of the founders of the Thursday Night Bar, and is also Of Counsel at Nicholls & Associates in Denver.

MVLMetro Volunteer Lawyers’ Power of Attorney Clinic will receive the Outstanding Programs/Projects award, which is given to programs that provide legal education, outreach, pro bono services or fundraising. The Power of Attorney Clinic pairs volunteer attorneys with elderly clients wishing to complete advance planning documents, allowing the clients to give legal authority to trusted friends or family members to arrange their financial or medical affairs.

To register for the DBA Awards Ceremony, click here, call (303) 860-1115, or email lunches@cobar.org.

Colorado Court of Appeals: Permanent Injunction Barring Trespass Not Preempted by NLRA

The Colorado Court of Appeals issued its opinion in Wal-Mart Stores, Inc. v. United Food & Commercial Workers International Union on Thursday, May 5, 2016.

Unions—Trespass—Permanent Injunction—National Labor Relations Act—Preemption—Subject Matter Jurisdiction.

United Food and Commercial Workers International Union (UFCW) and Organization United for Respect at Walmart (collectively, unions) engaged in demonstrations at Walmart stores at several locations in Colorado. In response, Walmart mailed a letter to UFCW’s general counsel asking him to direct the unions to immediately cease protesting on Walmart’s property. When the activities continued, Walmart filed an unfair labor practice charge (labor charge) with the National Labor Relations Board (Board), claiming that the unions violated the National Labor Relations Act (NLRA). This charge was later dismissed by Walmart. However, Walmart then filed a complaint for injunctive and declaratory relief from trespass in district court, requesting a permanent injunction enjoining the unions from engaging in certain types of activities on Walmart’s property. The unions filed a motion to dismiss under C.R.C.P. 12(b)(1), claiming the NLRA preemption deprived the district court of subject matter jurisdiction. The court denied the motion and then granted Walmart’s motion for summary judgment.

On appeal, the unions argued that the district court erred in denying their motion to dismiss because Walmart’s lawsuit is preempted by the NLRA. The federal issue in Walmart’s labor charge is unrelated to the trespass issue in Walmart’s state claim, and therefore the controversies are not identical. The NLRA does not arguably prohibit, and thus does not preempt, Walmart’s state claim to enjoin the unions from trespassing on its premises.

The unions also argued that, assuming the district court has subject matter jurisdiction over their activities, it applied the incorrect legal standard and erred by granting Walmart’s motion for summary judgment and permanently enjoining the unions from trespassing at Walmart-owned stores that are subject to Walmart’s nonexclusive easements over the property. The unions contended that because the properties contain nonexclusive easements, Walmart does not have exclusive possession of them and the district court should have required Walmart to show that the unions’ activity unreasonably interfered with Walmart’s use and enjoyment of the property. The unions do not dispute that Walmart possesses and has title to the property in question. Thus, to sustain its trespass claim, Walmart only had to prove that the unions entered its property without its permission. Accordingly, the court did not abuse its discretion by issuing the injunction.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Statutory Maintenance Guideline Formula Advisory, Not Mandatory

The Colorado Court of Appeals issued its opinion in In re Marriage of Vittetoe on Thursday, May 5, 2016.

Dissolution of MarriageMarital PropertySeparate Property—Gift—MaintenanceGuideline.

In this dissolution of marriage proceeding, the primary issues at the permanent orders hearing concerned the division of the marital estate and wife’s maintenance request.

On appeal, wife contended that the district court misclassified a home as marital property and thus erred in including it as part of the marital estate. Specifically, wife argued that the home was her separate property by virtue of a resulting trust, or, alternatively, that the home was a separate gift and the court should have divided only the marital increase in value. Wife’s mother (mother) lived in the home throughout the parties’ marriage, and her 1977 will stipulated that her real property be held in trust and “used in the manner that is most beneficial to my children.” In 2005, mother recorded a quitclaim deed that listed herself and wife as joint tenants. When mother died, the home passed to wife. Wife argued to the district court that in executing the quitclaim deed, mother intended for wife to hold the home in trust for the siblings but did not intend for wife to obtain any beneficial interest in the home. There was sufficient evidence in the record to support the district court’s conclusion that no resulting trust formed and that mother intended for wife to take a beneficial interest in the home. However, the district court’s findings on whether the home was a gift are insufficient. The case was remanded for reconsideration, directing the district court to make specific findings, by clear and convincing evidence, on whether the home was a gift to the marriage or wife’s separate property, and further findings consistent therewith, if necessary.

Husband’s sole contention on cross-appeal was that the district court erred when it awarded wife maintenance in an amount that exceeded the statutory “cap” under C.R.S. § 14-10-114(3)(b)(I). Husband asserted that the plain language of the statute prohibited the court from entering a maintenance award that exceeded 40% of the parties’ combined monthly adjusted gross income. By describing the guideline formula as advisory and not presumptive, and by requiring the district court to consider other financial factors before awarding maintenance, the General Assembly indicated that it did not intend to “cap” the amount of maintenance available to a spouse. Therefore, under the new maintenance statute, the district court must consider the guideline formula and make findings concerning the relevant factors cited in the statute. After it has done so, the court, in its discretion, may award maintenance that exceeds the guideline formula amount if appropriate under the circumstances.

The judgement was affirmed in part and vacated in part, and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Officer Had Probable Cause to Arrest Person Filming Security Checkpoint at Airport

The Tenth Circuit Court of Appeals issued its opinion in Mocek v. City of Albuquerque on Tuesday, December 22, 2015.

Phillip Mocek was arrested in a security checkpoint of the Albuquerque Sunport airport for concealing his identity after filming airport security procedures and being questioned on suspicion of disorderly conduct. Mocek was ultimately charged with disorderly conduct, concealing name or identity, resisting an officer’s lawful command, and criminal trespass. At trial, Mocek introduced the video footage taken prior to the arrest, and was acquitted on all counts. Mocek then brought this action in the district court alleging First and Fourth Amendment violations and seeking damages under 42 U.S.C § 1983, as well as declaratory relief. Mocek also sued the officers and City of Albuquerque for malicious abuse of process under New Mexico tort law. The district court granted the defendants’ Rule 12(b)(6) motions to dismiss for all claims, Mocek appealed, and the Tenth Circuit Court of Appeals affirmed the dismissal of all claims.

First, the Tenth Circuit affirmed the dismissal of the constitutional claims against the individual police officers (including the arresting officer, Officer Dilley) and TSA agents, holding the individual defendants are entitled to qualified immunity because their actions were reasonable and in compliance with the Fourth and First Amendments. With respect to the Fourth Amendment claims against the individual defendants, the Tenth Circuit reasoned Officer Dilley possessed reasonable suspicion that justified stopping Mocek and asking him to identify himself, considering the fact that an airport security checkpoint is a location where “order was paramount.” Further, it was reasonable for Officer Dilley to believe that an investigative stop for disorderly conduct at an airport security checkpoint required production of some physical proof of identity, and given Mocek’s continued refusal to show identification, it was reasonable for Officer Dilley to believe he had probable cause to arrest Mocek for violating a New Mexico criminal statute that prohibits the obstruction of a public officer’s legal performance of his duty. In short, Officer Dilley’s interpretation of the aforementioned New Mexico statute in establishing probable cause to arrest Mocek was reasonable, and therefore, Officer Dilley and the other individual defendants were entitled to qualified immunity on Mocek’s Fourth Amendment claims.

In rejecting Mocek’s claim that the individual defendants unconstitutionally retaliated against the exercise of his First Amendment right to film at the security checkpoint, the Tenth Circuit determined Mocek could not satisfy the third prong of a retaliation claim: that the government’s actions were substantially motivated in response to his protected speech. The Tenth Circuit reasoned when Mocek was arrested, it was not clearly established that Mocek could show the requisite motive where his arrest was arguably supported by probable cause, and therefore, the individual defendants were entitled to qualified immunity on Mocek’s First Amendment retaliation claim.

Second, with respect to Mocek’s claims for declaratory relief against the defendants in their official capacities, the Tenth Circuit affirmed the district court’s dismissal of the claim against the TSA defendants for lack of jurisdiction because Mocek’s pleadings never identified a federal waiver of sovereign immunity (which is required because a suit against a government agent is treated as a suit against the government, and the federal government may only be sued where it has waived sovereign immunity). As for the claim for declaratory relief against the police defendants in their official capacities, the Tenth Circuit affirmed the district courts dismissal, reasoning Mocek had not sufficiently alleged that his past injury resulted in continuing, present adverse effects, and because Mocek had not alleged any injury beyond a subjective chilling effect.

Third, in affirming the district court’s dismissal of Mocek’s claim that the City of Albuquerque is liable under § 1983 because it caused his injuries through unconstitutional policies and practices, the Tenth Circuit held the complaint, aside from conclusory statements, contained no allegations giving rise to an inference that the municipality itself established a deliberate policy or custom that caused Mocek’s injuries.

Fourth, considering Mocek’s claims that the arrest and subsequent filing of a criminal complaint against him constituted a malicious abuse of process, the Tenth Circuit first determined the claims were property before it through either diversity jurisdiction or through the district court’s unchallenged exercise of supplemental jurisdiction. With respect the merits of the claims, the Tenth Circuit upheld the district court’s dismal, finding Mocek was unable to satisfy either the absence of probable cause or the procedural impropriety theories of liability. Under the absence of probable cause theory, the Tenth Circuit found there was at least arguable probable cause to arrest him for concealing identity, and even if there was no probable cause for the other three charges, Mocek nowhere argues that they rendered the complaint as a whole obviously devoid of probable cause. Under the procedural impropriety theory, the Tenth Circuit found Mocek’s brief does not point to anything procedurally improper surrounding his arrest. Therefore, in determining Mocek failed to establish liability under either theory, the Tenth Circuit held Mocek had not established that the arrest and subsequent filing of a criminal complaint against him constituted a malicious abuse of process, thereby affirming the district court’s dismissal of said claims.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Tenth Circuit: Class Certification Improper Where Parties Fail to Demonstrate Commonality

The Tenth Circuit Court of Appeals issued its opinion in Soseeah v. Sentry Insurance on Friday, December 18, 2015.

Mr. Soseeah, after being injured in a motor vehicle accident, made a claim for uninsured and underinsured motorist (“UM/UIM”) benefits under two policies of automobile insurance issued by Sentry Insurance. Additionally, Mr. Soseeah demanded that Sentry reform his two policies to provide UM/UIM coverage in accord with two recent New Mexico Supreme Court cases. According to the complaint, Mrs. Soseeah never executed a valid waiver of UM/UIM coverage under the two policies, or, alternatively, her waiver was legally insufficient under the New Mexico Supreme Court precedent. However, Sentry refused to reform the policies and rejected Mr. Soseeah’s claim for UM/UIM benefits.

Plaintiffs Delbert Soseeah, Maxine Soseeah and John Borrego then filed a class action against defendants Sentry Insurance, and a number of its related entities, claiming, in part, that Sentry failed to timely and properly notify them and other Sentry automobile insurance policyholders of the impact of two New Mexico Supreme Court decisions regarding the availability of UM/UIM coverage under their respective policies. In the first case, Progressive Northwestern Insurance Co. v. Weed Warrior Services, the New Mexico Supreme Court held that “the insurer may not exclude the maximum possible level of UM/UIM coverage in an auto liability policy unless it has offered it to the insured and the insured has exercised the right to reject the coverage through some positive act.” In the second case, Jordan v. Allstate Insurance Co., the New Mexico Supreme Court imposed upon insurers retroactive technical requirements for valid offers and rejections of UM/UIM coverage.

The proposed plaintiff class filed a number of amended complaints that contained various claims against Sentry, three of which were eventually addresses by the Tenth Circuit Court of Appeals. The complaint alleges Sentry’s failure to notify its New Mexico policyholders that UM/UIM coverage limits were reformed by Weed Warrior and Jordan, coupled with Sentry’s refusal to reform Mr. Soseeah’s policies and rejection of his claim for UM/UIM benefits, amounted to (1) a violation of New Mexico’s Unfair Practices Act (UPA), (2) a contractual breach of the insurance policies, and (3) a breach of the implied covenant of good faith and fair dealing. Further, the complain alleges three form letters sent by Sentry to its policyholders in an attempt to comply with the notice requirements of Weed Warrior and Jordan were in fact “misleading an inaccurate” in light of the two decisions. Lastly, the complaint defined a proposed class of Sentry policyholders, alleging all such insureds were entitled to policy reformation and proper notice.

The district court granted plaintiffs’ motion for class certification, thereby establishing a class of all insureds under policies issued in New Mexico by Sentry from May 20, 2004 to April 1, 2011 in which UM/UIM coverage was purportedly rejected, including as subclasses (1) insureds who received the first and second form letter, and (2) insureds who received the third form letter. Sentry subsequently sought and was granted permission to appeal the district court’s class certification ruling to the Tenth Circuit Court of Appeals.

First, the Tenth Circuit held the district court abused its discretion in concluding that the general class it certified satisfied Rule 23(a)(2)’s commonality requirement, which requires plaintiff to demonstrate that the class members have suffered the same injury that is capable of class wide resolution. In rejecting the claim of the plaintiff class under the UPA, the court found the UPA did not impose any duty on Sentry with respect to notifying existing policyholders of the impact of Weed Warrior and Jordan. Plaintiffs’ breach of contract claim cannot give rise to the common injury required for class certification, the court held, because plaintiffs have not identified a single contractual provision in any of the policies at issue, let alone one that is contained in all of the policies at issue, that would have imposed a duty on Sentry to inform the certified class of the impact of Weed Warrior and Jordan. Lastly, considering plaintiff’s bad faith claim, the court again concluded the class was unable to satisfy the common injury requirement necessary for class certification. Even assuming Sentry acted in bad faith with respect to the class by failing to inform them of the impact of Weed Warrior and Jordan, the Tenth Circuit failed to see how the purported lack of notice and information could have injured a policyholder in the absence of a viable claim against Sentry for UM/UIM benefits, considering a large percentage of the certified class members did not have any such claim at all. Therefore, the Tenth Circuit concluded the district court abused its discretion in certifying the general class.

Second, the Tenth Circuit remanded to the district court for further consideration of the certification of the two subclasses, as the Tenth Circuit did not have enough information to determine whether the district court abused its discretion is certifying said subclasses.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Tenth Circuit: Unpublished Opinions, 5/10/2016

On Tuesday, May 10, 2016, the Tenth Circuit Court of Appeals issued three published opinions and six unpublished opinions.

United States v. Ibarra

Lane v. Lane

Harvey v. Segura

Lane v. Barney

United States v. Saenz

United States v. Justice

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