June 25, 2017

Archives for July 2016

Hon. Alex R. Bencze to Retire from Arapahoe County Court

Bencze2On Thursday, July 28, 2016, the Colorado State Judicial Branch announced the retirement of Hon. Alex R. Bencze from the Arapahoe County Court, effective January 1, 2017. Judge Bencze was appointed to the Arapahoe County Court bench in August 1998. Prior to that, he was an attorney in private practice. He also was a staff attorney at the Colorado Public Defender’s Office until 1982. He received his undergraduate degree from Indiana University Northwest and his doctorate in law degree from the University of Denver.

Applications are now being accepted for the vacancy. Eligible applicants must be qualified electors of Arapahoe County and must have been admitted to practice law in Colorado for five years. Applications are available from the State Judicial website and from the ex officio chair of the Eighteenth Judicial District Nominating Commission, Justice William Hood, III. Applications must be received no later than 4 p.m. on August 4, 2016.

For more information about the vacancy, click here.

Tenth Circuit: Unpublished Opinions, 7/28/2016

On Thursday, July 28, 2016, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

United States v. Fisher

Case summaries are not provided for unpublished opinions.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

Chief Justice Directive 12-03 Regarding Court Compensation of Expert Witnesses Amended

On July 21, 2016, Chief Justice Nancy Rice of the Colorado Supreme Court signed an amended version of CJD 12-03, “Directive Concerning Court Compensation of Expert Witnesses and Professionals Conducting Mental Health Evaluations, Sanity Evaluations, and Competency Evaluations,” effective July 1, 2016. The CJD was amended in conjunction with the establishment of the new Office of Respondent Parents’ Counsel. The experts covered by the CJD now fall within the purview of the Office of Respondent Parents’ Counsel, so the reference to C.R.S. § 19-3-607 was removed. The Office of Respondent Parents’ Counsel now has the related state funding and is statutorily responsible for payment of expert witnesses in these cases.

For the full text of the CJD 12-03, click here. For all of the Chief Justice Directives, click here.

Colorado Court of Appeals: Announcement Sheet, 7/28/2016

On Thursday, July 28, 2016, the Colorado Court of Appeals issued two published opinions and 34 unpublished opinions.

People v. Geisick

Rucker v. Federal National Mortgage Association

Summaries of these cases are forthcoming

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Title Insurance Does Not Cover Loss of Property at Foreclosure Sale

The Tenth Circuit Court of Appeals issued its opinion in BV Jordanelle, LLC v. Old Republic National Title Insurance Co. on Tuesday, July 26, 2016.

In 2008, BV loaned $6.3 million to PWJ Holdings, which owned the Aspens Property in Wasatch, Utah. In exchange for the loan, BV received a mortgage for one parcel in the Aspens Property, and obtained a title insurance policy through Old Republic. PWJ defaulted on the loan, and BV foreclosed on the property in 2009, acquiring title to the property at a trustee’s sale. The property was located in an improvement district, but PWJ did not pay the assessments for the improvement district, and the district initiated foreclosure proceedings in 2010. BV sued the district in state court, seeking to stop the foreclosure and retain title, but the court issued a decree in 2012 allowing the district to complete the foreclosure. Because Utah law holds that improvement district liens are superior to all other liens, the improvement district obtained title to the insured property, extinguishing BV’s interest.

BV did not learn about the improvement district’s lien until 2010, after it had acquired title to the property. When it learned of the lien, BV sought compensation from Old Republic under the title insurance policy, but Old Republic denied coverage. BV sued Old Republic, contending Old Republic had breached the insurance policy by refusing to compensate it for the loss of the property and by failing to defend BV in the state court litigation with the improvement district. The district court granted judgment on the pleadings to Old Republic, concluding that the policy did not entitle BV to recovery for loss of the property or defense in the state court suit. BV appealed.

The Tenth Circuit applied Utah law in affirming the district court. BV contended it was entitled to coverage based on six different covered risks: loss caused by a defect in title, loss by encroachments that affect title, loss caused by unmarketable title, loss caused by enforcement of subdivision regulations, loss caused by a governmental taking, and loss caused by the imposition of a statutory lien for services, labor, or material used in construction. The Tenth Circuit found that none of the covered risks applied.

The Tenth Circuit specifically found that a Utah Supreme Court opinion precluded BV’s claims regarding the defect in title, as that case held the defect must be present at the time of acquisition of the property. BV argued that because the improvement district was contemplated before it acquired the property, the defect was present, but the Tenth Circuit disagreed. The Tenth Circuit also rejected BV’s claims due to loss caused by encroachment, noting those claims were not raised in BV’s complaint. Similarly, the Tenth Circuit refused to consider BV’s claim for loss caused by unmarketable title because it was not raised in district court. The Tenth Circuit disposed of the remaining claims by finding that the improvement district’s notice to enforce a subdivision regulation was not in effect at the time BV acquired title, any governmental taking would have happened after BV acquired title, and the improvement district’s lien was not for any services, labor, or materials used in construction.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Unpublished Opinions, 7/27/2016

On Wednesday, July 27, 2016, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Xiong v. Knight Transportation Inc.

United States v. Moncada

Bradshaw v. Gatterman

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

Dr. Ulrich Herrmann, Chief Judge of the III Civil Panel in Germany, to Speak at Brown Palace

Herrmann_pic_02The Colorado Bar Association International Law Section and the Colorado Chapter of the German American Chamber of Commerce are hosting a luncheon with Dr. Ulrich Herrmann, Chief Judge of the III Civil Panel of the Supreme Court of Germany. Dr. Herrmann will discuss the refugee crisis, Brexit, and political freedom of speech.

Dr. Herrmann was appointed presiding justice of the Federal Court of Justice (Bundesgerichtshof) and chairman of the 3rd Civil Panel on August 4, 2015. The Bundesgerichtshof is the German Federal Supreme Court for civil, family, and criminal cases. As chairman of the 3rd Civil Panel, his jurisdiction includes state liability, liability of notaries, service contracts, mandate law, law of private foundations and several other subjects. Dr. Herrmann was first appointed to the Justice of the Federal Court of Justice and to the 3rd Civil Panel in December 2003. He has additionally served as judicial tasks representative for the court on IT matters since March 2007.

Dr. Herrmann began his law career as an assistant at the Institute of Civil Procedure and Insolvency Law of the University of Bonn, writing his doctoral thesis on “The Principle Structure of a Pending Civil Law Suit” (Die Grundstruktur der Rechtshängigkeit). He was appointed as a judge at the Regional and the Local Court of Bonn in February1990. Over the following seven years, Dr. Herrmann served first as presidential and later as presiding judge of the Regional Court of Frankfurt (Oder) in the state of Brandenburg. Here he was also responsible for the personal matters of the judges of the district court.

In August 1998, Dr. Herrmann became judge of the Higher Regional Court of Brandenburg, where he continued to take responsibility for the personal matters of regional judges. In December 1999, he became chief of staff of the Brandenburg Ministry of Justice and in December 2002, he was appointed vice president of the agency for legal exams of the state of Brandenburg.

He originally hails from the city of Bonn in North Rhine Westphalia. He is married and has two children, aged 24 and 30 years old.

The program will take place on Friday, August 5, 2016, from noon to 1:30 at the Brown Palace. To register, call (303) 860-1115, ext. 727, or email lunches@cobar.org.

Tenth Circuit: Lack of Economic Marketability Does Not Equate to Unmarketable Title

The Tenth Circuit Court of Appeals issued its opinion in Fidelity National Title Insurance Co. v. Woody Creek Ventures, LLC on Tuesday, July 26, 2016.

Woody Creek acquired two parcels of land in Pitkin County and purchased two title insurance policies from Fidelity, insuring, among other things, access and marketability of title. The two parcels were separated by a tract of land owned by the Bureau of Land Management, but Woody Creek assumed it could access the more remote parcel via a roadway crossing the BLM’s tract. It subdivided the parcels and sought prospective buyers. When a prospective buyer expressed concern about access to the remote lot, Woody Creek discovered that it had no legal right of access.

Woody Creek submitted a claim to Fidelity under the title insurance policies, and Fidelity retained counsel on Woody Creek’s behalf. Counsel ultimately negotiated the purchase of a 30-year revocable right-of-way grant from the BLM to allow Woody Creek access to the remote parcel. Woody Creek maintained that it suffered a covered loss because the lack of permanent access significantly diminished the value of the remote parcel. Fidelity filed an action for declaratory judgment that Woody Creek was not entitled to coverage for its alleged losses because the right-of-way cured the access issue. Woody Creek counterclaimed for declaratory judgment on the existence of coverage, breach of contract, and bad faith breach of insurance contract. The parties filed cross-motions for partial summary judgment on the coverage issues.

After a hearing, the district court granted Fidelity’s motion and denied Woody Creek’s. The court concluded that the 30-year right-of-way fell within the plain meaning of “access” and left the question of whether Fidelity may be required to pay for future loss of access for another day. The court concluded that the possibility of future litigation did not render the title unmarketable, and rejected Woody Creek’s bad faith claims as a matter of law. Woody Creek appealed.

The Tenth Circuit first addressed Woody Creek’s argument that Fidelity’s purchase of a 30-year right-of-way did not cure the access issue because the right-of-way was revocable and temporary. Fidelity argued that although the title insurance policy guaranteed access, it did not guarantee unrestricted, unregulated, or permanent access. The Tenth Circuit construed the phrase “right of access” and determined that permanent, unrestricted access was not contemplated by the phrase. The Tenth Circuit decided that the Colorado Supreme Court would have construed the phrase “right of access” to include the 30-year right-of-way obtained by Fidelity.

The Tenth Circuit next considered whether the lack of permanent access supported Woody Creek’s claim for unmarketability of title, and concluded it did not. Woody Creek cited a treatise on title insurance law for the proposition that lack of access makes title unmarketable. Fidelity disagreed and suggested that Colorado case law supported its position that even complete lack of access does not render title unmarketable. The Tenth Circuit evaluated the cases and affirmed the district court’s decision, noting the distinction between economic marketability and marketability of title. The Tenth Circuit noted that a parcel of land could be worth no money but have clear title.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Unpublished Opinions, 7/26/2016

On Tuesday, July 26, 2016, the Tenth Circuit Court of Appeals issued five published opinions and two unpublished opinions.

James v. James

United States v. Gordon

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

Denver Senior Law Day is This Friday, July 29, 2016

2016 cover sample_Layout 1The Denver Senior Law Day will be held this Friday, July 29, 2016, at the PPA Event Center in Denver. The event will run from 8 am to noon. Join some of Denver’s top elder law attorneys to learn about legal issues affecting older adults. Topics to be presented include fraud prevention, Medicare issues, estate planning basics, probate procedures, and more. The Ask-A-Lawyer table will return for this year’s event, and each attendee will receive a copy of the 2016 Senior Law Handbook.

Registration is now open online — click here to register. Questions? Call (303) 757-4342 or email SLD@denverprobatelaw.com.

For more information, visit www.denverseniorlawday.com.

Hon. Sam Cassidy to Resign from Archuleta County Court

AR-140829505On Friday, July 22, 2016, the Colorado State Judicial Branch announced the resignation of Hon. Sam Cassidy from the Archuleta County Court, effective September 20, 2016. Judge Cassidy was appointed to the Archuleta County Court in August 2014. Prior to his appointment, he taught business law and ethics at the University of Denver and frequently handled pro bono cases. He has also served as Colorado’s lieutenant governor, the Senate minority leader, and a state senator from Senate District 6. He received his law degree from the University of Tulsa Law School in 1975.

Applications are now being accepted for the vacancy. Eligible applicants must be qualified electors of Archuleta County and must have graduated high school or attained the equivalent degree. Applications are available from the State Judicial website or from the ex officio chair of the Sixth Judicial District Nominating Commission, Justice Brian Boatright. Applications must be received no later than noon on August 16, 2016, and anyone wishing to nominate another must do so no later than noon on August 9, 2016.

For more information about the vacancy, click here.

Tenth Circuit: Unpublished Opinions, 7/25/2016

On Monday, July 25, 2016, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

In re Jester: Jester v. Wells Fargo Bank N.A.

Webb v. Smith

Kellum v. Mares

United States v. McBride

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