August 20, 2017

Archives for March 1, 2017

Finalists Selected for Jefferson County Court Vacancy

On Tuesday, February 28, 2017, the Colorado State Judicial Branch announced the selection of three nominees to fill a vacancy on the Jefferson County Court. The vacancy will be occasioned by the resignation of Hon. Tammy Greene, effective April 1, 2017.

The three nominees are Jennifer Melton of Golden, Harold Sargent of Lakewood, and AnnMarie Megill Spain of Arvada. Jennifer Melton is a solo practitioner in Golden, where she primarily practices criminal defense. Harold Sargent is an attorney with the First Judicial District Attorney’s Office. AnnMarie Megill Spain is a solo practitioner at The Spain Law Firm in Arvada, where she practices criminal defense and family law.

Under the Colorado Constitution, the governor has 15 days from February 28 in which to appoint one of the nominees to the vacancy. Comments about any of the nominees may be emailed to the governor at gov_judicialappointments@state.co.us. For more information about the nominees, click here.

Colorado Court of Appeals: Condominium Declarations Control Over Contrary Provision in CCIOA

The Colorado Court of Appeals issued its opinion in Francis v. Aspen Mountain Condominium Association, Inc. on Thursday, February 23, 2017.

Condominium Declaration—Common Expenses—Amendment—Colorado Common Interest Ownership Act—Motion for Leave to Amend—Indispensable Parties.

The Francis parties are trusts and their fiduciaries and other individuals with ownership interests in the Aspen Mountains Condominiums. The parties’ dispute arose from a contested 2010 vote that amended the original 1972 condominium declaration to reallocate the common interest shares and common expenses. The 1972 declaration had originally allocated common interest shares and common expenses based on unit size, and the amended declaration reallocated common interest shares equally among all units. Common expenses increased for the Francis parties, and they later filed suit, seeking a judgment voiding the reallocation of the common interest shares. The trial court ruled in favor of the Aspen Mountain Condominium Association, Inc. (AMCA), finding that the 2010 amendment had been properly adopted.

On appeal, the Francis parties first contended that the trial court erred by partially granting AMCA’s motion for a determination of law. Here, the declaration required a unanimous vote to alter the percentage of the undivided interests in the general common elements. The trial court erred by holding that the Colorado Common Interest Ownership Act, which went into effect in 1992, nullified the 1972 declaration’s requirement of a unanimous vote to alter ownership interests in the common elements.

The Francis parties also contended that the trial court erred in denying their motion for leave to amend the complaint to assert additional breach of fiduciary duty claims against AMCA. The motion was submitted after the discovery deadline and only a few months before trial. Further, the case had been pending for more than five years, and the Francis parties had already amended the complaint five times and could have added the newly asserted claim at any point. Therefore, the court did not abuse its discretion in denying leave to amend.

Next, the Francis parties argued that the trial court erred by denying their CRCP 59(a) motion to amend the judgment based on failure to join as indispensable parties the beneficiaries of the various trusts included among the Francis parties. The proposed additional parties were alleged to be beneficiaries of trusts that were already parties to the action and were represented by their respective trustees. As a matter of law, the beneficiaries’ interests were sufficiently protected by the trustees’ participation in the action on their behalf.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Department of Human Services Did Not Suffer Injury and Therefore Lacked Standing

The Colorado Court of Appeals issued its opinion in People in Interest of D.Z.B. on Thursday, February 23, 2017.

Juvenile—Delinquent—Pre-Adjudication Placement—Department of Human Services—Standing.

D.Z.B. had a complex history with the Arapahoe County Department of Human Services (Department) and the juvenile court. Over the Department’s objection, the court placed him in a residential child care facility managed by the Department, in lieu of bond, while his adjudication was pending.

On appeal, the Department asserted that the court lacked authority to place D.Z.B. in the facility pre-adjudication and in lieu of bond over the Department’s objection. The Department was not a party to the delinquency actions against D.Z.B., so it alleged as an injury the costs of D.Z.B.’s care. The obligation and costs of D.Z.B.’s care are incidental to his delinquency action because the Department has a statutory duty to care for and house children removed from their homes in delinquency actions. Thus the Department did not show an injury in fact. Further, the Children’s Code does not confer standing on the Department to challenge a juvenile court’s ruling regarding pre-adjudication placement. The Department lacked standing to appeal.

The appeal was dismissed.

Summary provided courtesy of The Colorado Lawyer.

SB 17-097: Broadening Application of Presumption of Conveyance for Adjacent Rights-of-Way

On January 27, 2017, Sen. Beth Martinez Humenik and Rep. James Coleman introduced SB 17-097, “Concerning the Presumption that a Conveyance of an Interest in Land also Conveys an Interest in Adjoining Property Consisting of a Vacated Right-of-Way.”

Under current law, a conveyance by warranty deed carries the presumption that the grantor’s interest in an adjoining vacated street, alley, or other right-of-way is included with the property whose legal description is contained in the deed. However, this presumption does not apply to other types of deeds or to a lease, mortgage, or other conveyance or encumbrance.

The bill removes the language containing the presumption from the warranty deed statute and relocates it, with amendments, so as to broaden the application of the presumption of conveyance of an adjoining vacated right-of-way to include not only warranty deeds but also all forms of deeds, leases, and mortgages and other liens.

The bill was introduced in the Senate and assigned to the Judiciary Committee. It was amended in committee and referred to the Senate Committee of the Whole for Second Reading. The bill passed Second Reading with amendments and passed Third Reading with no further amendments. The bill was introduced in the House and assigned to the Local Government Committee.

Tenth Circuit: Unpublished Opinions, 2/28/2017

On Tuesday, February 28, 2017, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

Hartz v. Campbell

Thompson v. Coulter

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