May 30, 2017

Archives for July 27, 2016

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.