November 22, 2017

Archives for September 15, 2016

Colorado Court of Appeals: Binding Precedent Dictates that Tree Straddling Property Line Belongs to Property Where Planted

The Colorado Court of Appeals issued its opinion in Love v. Klosky on Thursday, September 8, 2016.

Tree Straddling Property Line.

Plaintiffs and defendants are adjoining landowners whose common boundary is straddled by a 70-year-old tree. Plaintiffs claimed the tree was a nuisance and wanted to cut it down. Defendants wanted the tree to remain. The tree trunk has been on or over the property line for at least 40 years, and the trunk straddled the property line when both plaintiffs and defendants purchased their properties. The trial court, bound by the one Colorado Supreme Court case on point, Rhodig v. Keck, concluded that the tree was not jointly planted, jointly cared for, or treated as a partition, and entered judgment for plaintiffs. The trial court stayed the effect of its decision pending all appeals.

On appeal, defendants contended that the trial court erred in concluding that they did not jointly care for the tree as required by Rhodig. Because defendants did not provide a complete record on appeal on this issue, the Court of Appeals presumed that the trial court’s findings and conclusions were supported by the evidence.

Defendants also contended that the Colorado Supreme Court should reconsider Rhodig because it is the minority rule and it was based on a misreading of a Nebraska case on which it relied. Under the majority rule, a tree on a boundary line belongs to both owners as tenants in common and neither property owner can remove such a tree without the consent of the other. Under the minority rule enunciated in Rhodig, the landowner of the property where the tree was first planted can cut the tree down over the other landowner’s objections unless the other landowner can prove the tree was jointly planted, jointly cared for, or treated as a partition between the properties. The Court concluded that the Supreme Court might wish to reconsider Rhodig based on the many jurisdictions adopting the majority rule and two decisions in other jurisdictions criticizing Rhodig. If the Supreme Court reconsiders Rhodig and adopts the majority rule, it could remand this case to the trial court to issue an injunction to prevent the Kloskys from cutting down the tree. At oral argument, defendants agreed that the trial court’s stay should remain in effect pending any decision by the Supreme Court or the Loves’ failure to timely petition for certiorari. Accordingly, the trial court’s stay was continued.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Arbitration Agreement Must Strictly Comply with Statute

The Colorado Court of Appeals issued its opinion in Fischer v. Colorow Health Care, LLC on Thursday, September 8, 2016.

Arbitration Agreement—Motion to Compel—C.R.S. § 13-64-403—Strict Compliance.

Colorow Health Care, LLC, and its management company, QP Health Care Services, LLC, operate a long-term healthcare facility. When Fischer (the decedent) was admitted to the facility, her daughter, acting under a power of attorney, signed an arbitration agreement. The decedent passed away while a resident of the facility. Plaintiffs Amy and Roger Fischer pleaded tort claims arising from the decedent’s death. Defendants appealed the trial court’s order denying their motions to compel arbitration.

Defendants then filed this interlocutory appeal as of right under C.R.S. § 13-22-228(1)(a), contesting the trial court’s order denying their motions to compel arbitration. C.R.S. § 13-64-403 sets out specific language that an arbitration agreement must include to comply with the Health Care Availability Act. Defendants contended that the statute requires only substantial compliance with its provisions; plaintiffs argued that the arbitration agreement had to strictly comply, and because it admittedly did not, it was invalid. The court of appeals concluded that C.R.S. § 13-64-403 calls for strict compliance, and based on the complete lack of bold-faced type in the agreement, the court agreed that the agreement was invalid.  The court further concluded that this neither creates an absurd result nor violates Colorado’s public policy favoring arbitration.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 9/15/2016

On Thursday, September 15, 2016, the Colorado Court of Appeals issued no published opinion and 31 unpublished opinions.

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

Tenth Circuit: Unpublished Opinions, 9/14/2016

On Wednesday, September 14, 2016, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Williams v. Wilkinson

Bowles v. State of Kansas

Eckert v. Dougherty

United States v. Jones

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