June 24, 2017

Archives for April 2017

Tenth Circuit to Upgrade CM/ECF System

The Tenth Circuit Court of Appeals announced that it will upgrade its CM/ECF system to the Next Generation CM/ECF system (NextGen), beginning on Friday, May 12 at noon and finishing by Monday, May 15 at 7 a.m. CM/ECF will not be available during the upgrade. Frequently asked questions about the NextGen system are available here. There are also electronic learning modules available for the PACER NextGen; they are available here. For more information about the upgrade and NextGen, click here.

Colorado Court of Appeals: District Court Has Broad Jurisdiction Over Any Matter Essential to Resolving Probate Estate

The Colorado Court of Appeals issued its opinion in In re Estate of Owens on Thursday, April 20, 2017.

EstateJurisdictionConstructive TrustTestamentary CapacityUndue InfluenceJury TrialContempt.

Dr. Arlen E. Owens (the decedent) hired Dominguez as his private caregiver in 2010. The decedent died in July 2013. After the decedent’s death, his brother and only living heir, Owens, filed a petition for informal probate of the decedent’s will, and later a petition for determination of testacy and for determination of heirs, alleging that the will that the decedent had signed in 2012 was the product of undue influence by Dominguez and that the decedent had lacked the capacity to execute the will. He also filed a complaint for recovery of estate assets and asked the court to invalidate the will and order the decedent’s estate to be administered under intestate distribution statutes. In 2015, Owens also filed a petition to set aside non-probate transfers for three bank accounts for which Dominguez was payable-on-death (POD) beneficiary. The court imposed a constructive trust over the POD accounts. The court later upheld the will but found that the decedent had not had the capacity to execute the POD designations and had been unduly influenced by Dominguez. After issuance of the final judgment, the court issued a contempt order against Dominguez for violating the constructive trust that included the condition that she could purge the contempt by paying back the money from the bank accounts.

On appeal, Dominguez contended that the district court did not have jurisdiction to set aside the POD designations and impose a constructive trust on the POD accounts because Owens and the estate did not have standing to make such requests. A district court has jurisdiction to determine every legal and equitable question arising in connection with estates. The claims regarding the POD designations arose in connection with and were essential to the estate administration. Thus, the court had jurisdiction to impose a constructive trust, Owens had standing, and the court had jurisdiction to resolve the issues surrounding the POD designations.

Dominguez next asserted that the district court erred when it determined that the decedent had not had the testamentary capacity to designate Dominguez as beneficiary of the POD accounts and that Dominguez had unduly influenced the decedent to designate her as beneficiary of the three accounts. However, the record supports the court’s factual findings and its assessment of the credibility of each witness, and the court of appeals did not displace the district court’s conclusions.

Dominguez next argued that the district court erred when it prevented her from exercising her right to a jury trial. Because Dominguez had the opportunity to exercise her right to a jury trial and failed to do so, she waived her claims to such right.

Dominguez also contended that the district court erred in concluding that the existence of nonliquid assets can be the basis for determining that a contemnor has the present ability to pay. Here, Dominguez could not provide a coherent, consistent account of what had happened to the funds in the POD accounts. The contempt order was supported by analysis of evidence on the record. Thus, the court did not err in holding Dominguez in contempt.

The court of appeals also concluded that neither party was entitled to attorney fees.

The judgments were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 4/27/2017

On Thursday, April 27, 2017, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Diaz v. King

United States v. House

Larson v. Larson

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

Colorado Rules of Judicial Discipline Amended in Rule Change 2017(03)

On Wednesday, April 26, 2017, the Colorado State Judicial Branch released Rule Change 2017(03), amending the Colorado Rules of Judicial Discipline. The rules were amended on April 20, 2017, and will become effective on July 1, 2017.

The rule changes were quite extensive. A redline is available here.  Several definitions were added to Rule 2, “Definitions,” and many other rules in Part A were changed, including Rule 4, “Jurisdiction and Powers,” Rule 5, “Grounds for Discipline,” Rule 6.5, “Confidentiality and Privilege,” and more. Part B was amended to change the title of the Part from “Preliminary Proceedings” to “Informal Proceedings,” and the rule changes in Part B were significant. There were minor changes to Part C, “Disability Proceedings.”

For a redline of Rule Change 2017(03), click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Court of Appeals: Court Overrides Presumption of Fit Parent by Specifying Methods to be Used for Punishment

The Colorado Court of Appeals issued its opinion in In re Marriage of Dean and Cook on Thursday, April 20, 2017.

Parenting TimeContemptEvidenceTranscriptsMagistrateExceeding AuthorityHearingAttorney FeesReasonableness.

Dean (mother) and Cook (father) divorced in 2006. Father filed a contempt motion on the basis that mother denied his parenting time. On May 19, 2014, the court set the contempt hearing over and ordered mother to engage in therapy. On November 3, 2014, the court found mother in contempt of court, ordered that she could purge the contempt by allowing father to have the children during their 2014 Thanksgiving break, and ordered her to pay father’s attorney fees. Sentencing occurred on January 8, 2015, at which time the court ordered mother to pay father’s attorney fees.

On appeal, mother first contended that the magistrate improperly reconsidered the May 19 order when, on November 3, she changed the nature of the sanctions imposed. On May 19, the magistrate simply adopted the parties’ stipulation for mother to engage in therapy; the order was not imposed to force mother to comply with the parenting time stipulation. No sanctions were imposed until November 3, when the magistrate found mother guilty of remedial contempt.

Mother also challenged the evidence presented at the contempt and sentencing hearings, the weight the magistrate placed on that evidence, and the findings and inferences the magistrate made in her orders. Mother failed to provide a copy of the transcripts from the contempt and sentencing hearings to the district court when she sought review of the magistrate’s orders under C.R.M. 7(a). Therefore, it is presumed that the record supports the magistrate’s orders that mother failed to comply with the parties’ stipulation and was thus in remedial contempt.

Mother also contended that the magistrate exceeded her authority when she ordered mother to restrict the children’s privileges if they did not comply with her instructions to go to father’s home for parenting time. By specifying the methods mother must employ to obtain the children’s compliance, the magistrate’s order improperly disregards the presumption that fit parents act in the best interests of their children. Therefore, that portion of the order was stricken.

Mother further argued that the magistrate demonstrated bias against her and should have been disqualified. Mother’s allegations were based only on the magistrate’s legal rulings and the resolution of conflicting evidence, which are not bases for disqualification. Further, mother did not seek to have the magistrate disqualified under C.R.C.P. 97.

Lastly, mother argued that the magistrate should have held a hearing on the reasonableness of father’s attorney fee affidavit. Mother objected to father’s fee affidavit on the basis that it was ambiguous and lacked clarity, and she requested a hearing on the issue of reasonableness. Once she raised these assertions, the magistrate should have held a hearing on this issue.

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: Vacation and Sick Leave are Pecuniary Losses Compensable to Victim Under Restitution Act

The Colorado Court of Appeals issued its opinion in People v. Perez on Thursday, April 20, 2017.

RestitutionVacationSick LeaveProximate CausePecuniary Loss.

Perez pleaded guilty to leaving the scene of an accident resulting in serious bodily injury. After the court sentenced Perez, the prosecution requested restitution based on the victim missing 55 days of work after the accident, including use of vacation and sick leave. Perez argued that the victim’s expenditure of leave was not compensable and that he was not the proximate cause of the victim’s losses because he pleaded guilty to leaving the scene of an accident resulting in serious bodily injury but not to any crime establishing that he was the proximate cause of the victim’s injury. The district court held that Perez was the proximate cause of the victim’s losses and ordered restitution.

On appeal, Perez claimed that the district court erred in holding that his actions were the proximate cause of the victim’s injuries because it did not make an express finding on the issue. The court’s rejection of Perez’s proximate cause contention necessarily implied that it found Perez to be the proximate cause of the victim’s injuries, and the record supports that finding. The conduct underlying the charge of leaving the scene of an accident resulting in serious bodily injury was Perez hitting the victim with his car. The crime for which Perez pleaded guilty arose from acts that injured the victim. Therefore, there was no error in this finding.

Perez next contended that vacation and sick leave are not compensable under the Restitution Act (the Act) because the loss of leave is not a pecuniary loss. The court of appeals concluded that expenditure of vacation and sick leave is a loss of employee benefits comparable to lost wages that is compensable under the Act.

Lastly, Perez contended that the court erred in calculating his restitution to the victim by five work days. The award of an additional five days of missed work was not supported by the record and results in a windfall to the victim, and must be reduced.

The order was affirmed in part and the case was remanded for reduction of the restitution award.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Administrative Fire Chief Engaged in Fire Protection Duties Under FPPA

The Colorado Court of Appeals issued its opinion in Dolan v. Fire & Police Pension Association on Thursday, April 20, 2017.

FirefighterInjuryOccupational Disability BenefitsFire and Police Pension AssociationPolicemen’s and Firemen’s Pension Reform ActFire ChiefAmended Complaint.

Dolan joined North Metro Fire Rescue in 1986, and in 2007, he sustained an injury that prevented him from passing the physical tests for firefighting duties. After approximately two years of attempted rehabilitation, North Metro terminated Dolan. Dolan promptly filed for occupational disability benefits with the Fire and Police Pension Association (FPPA).

While working for North Metro, Dolan also worked for the Elk Creek Fire Protection District: he was Elk Creek’s paid fire chief from 1998 through 2003; he returned as a volunteer in 2008; and in 2010, he was again hired as a paid fire chief.

Dolan initially received disability benefits, but these were later revoked based on a finding that because his position at Elk Creek had involved fire protection, he was ineligible for benefits under the Policemen’s and Firemen’s Pension Reform Act (the Act). A hearing officer recommended that Dolan repay the benefits he received after he signed his employment contract with Elk Creek in 2010, and the FPPA’s Board of Director’s (Board) affirmed the recommendation. Dolan filed for C.R.C.P. review of the Board’s decision in district court and also asserted several common law claims against FPPA. The district court affirmed the Board’s decision. Dolan then moved to amend his complaint, which was denied as untimely, and a trial was held on his remaining common law claims. The court found for FPPA and entered final judgment against Dolan.

On appeal, Dolan argued that the Board and the district court misapplied the law in discontinuing his disability benefits because, since his termination from North Metro, he was never re-employed in a position directly involved with the provision of fire protection under the Act. Re-employment in a full-time salaried position that directly involves the provision of fire protection precludes a firefighter from collecting disability benefits. Because Dolan acted in a command capacity at the scenes of fires and accidents, the hearing officer concluded it was not necessary to find that he was involved in “hands on” firefighting or medical care to conclude that his position was directly involved with the provision of fire protection. The Board adopted the hearing officer’s conclusions of fact and law that Dolan’s duties as Elk Creek fire chief directly involved fire protection. Because nothing in the Act suggests that re-employment at a position directly involved with the provision of fire protection must be limited to physically fighting fires, the district court and the Board did not misapply the law in determining that Dolan was no longer eligible for disability benefits after re-employment at Elk Creek.

Dolan also argued that the district court erred in denying his motion to amend his complaint when it determined his claim was untimely. Dolan sought leave to amend his complaint on August 30, 2013, approximately one year after he filed his initial complaint, seven months after the district court initially found in favor of the FPPA, and four months after the district court finalized its C.R.C.P. 106 order. Because Dolan presented the district court with an as-applied challenge to the FPPA regulations, the court correctly determined that claim was time barred by C.R.C.P. 106(b). Further, even if Dolan’s claim presented a facial challenge to the FPPA regulations, the court’s denial of his claim was not error because Dolan failed to show that his delay in bringing the claim was justified.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 4/27/2017

On Thursday, April 27, 2017, the Colorado Court of Appeals issued no published opinion and 33 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, 4/26/2017

On Wednesday, April 26, 2017, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

Craine v. National Science Foundation

Kincaid v. Bear

United States v. Batton

United States v. Thomas

Baker v. City of Loveland

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

Bills Delaying Accrual of Property Tax Abatement Refund Interest, Encouraging Mental Health Treatment for Peace Officers, and More Signed

On Monday, April 24, 2017, the governor signed eight bills into law. To date, the governor has signed 166 bills this legislative session. Some of the bills signed Monday include a bill delaying the accrual date of the property tax abatement refund interest, a bill expanding consumer options in fingerprint-based background checks, and a bill allowing campus liquor licenses for on-campus consumption of alcoholic beverages. The bills signed Monday are summarized here.

  • HB 17-1049“Concerning the Elimination of Refund Interest Related to a Property Tax Abatement,” by Reps. Dan Thurlow & Matt Gray and Sen. Don Coram. If property taxes are levied erroneously or illegally and a taxpayer has not protested the valuation within the time permitted by law, then the taxpayer has 2 years from the start of the property tax year to file a petition for abatement or refund with interest. The bill delays the start of the refund interest so that it accrues from the date a complete abatement petition is filed, with the exception of an abatement or refund for taxes paid as a result of omitted property being added to the assessment roll.
  • HB 17-1115“Concerning the Establishment of Direct Primary Health Care Agreements to Operate without Regulation by the Division of Insurance,” by Reps. Perry Buck & Joann Ginal and Sens. Jack Tate & John Kefalas. The bill establishes parameters under which a direct primary care agreement may be implemented. An agreement may be entered into between a direct primary health care provider and a patient for the payment of a periodic fee and for a specified period of time. The provider must be a licensed, registered, or certified individual or entity authorized to provide primary care services.
  • HB 17-1120“Concerning the Designation of a Campus Liquor Complex on the Campus of an Institution of Higher Education that is Licensed to Serve Alcohol Beverages for Consumption on the Licensed Premises to Allow the Institution to Obtain Permits to Serve Alcohol Beverages at Other Facilities Within its Campus Liquor Complex, and, in Connection Therewith, Making an Appropriation,” by Rep. Yeulin Willett and Sen. Don Coram. The bill allows a higher education institution that has a license to serve alcohol beverages for on-premises consumption to apply for designation as a campus liquor complex, thereby allowing the institution to designate multiple facilities on the campus as locations for serving alcohol beverages.
  • HB 17-1184“Concerning Developing Additional Resources for Modern Technology Education in Public Schools,” by Rep. Crisanta Duran and Sen. Kevin Grantham. The bill directs the State Board of Education, in the course of revising the academic standards, to incorporate into the standards for each subject skills relating to the use of information and communications technologies to find, evaluate, create, and communicate information.
  • HB 17-1215“Concerning Mental Health Support for Peace Officers,” by Rep. James Coleman and Sens. Daniel Kagan & Bob Gardner. The bill encourages each sheriff’s office and each municipal police department to adopt a policy whereby mental health professionals, to the extent practicable, provide on-scene response services to support officers’ handling of persons with mental health disorders, and counseling services to officers.
  • SB 17-108“Concerning Continuation of the Regulation of Speech-Language Pathologists by the Director of the Division of Professions and Occupations, and, in Connection Therewith, Implementing the Recommendations of the 2016 Sunset Report of the Department of Regulatory Agencies,” by Sen. Larry Crowder and Rep. Janet Buckner. The bill extends the automatic termination date of the “Speech-language Pathology Practice Act” to September 1, 2022.
  • SB 17-189“Concerning Elimination of the Requirement that a Law Enforcement Agency is the Only Entity Authorized to Take Fingerprints for Purposes of a Background Check,” by Sen. John Cooke and Rep. Mike Foote. The bill removes the statutory requirement that a law enforcement agency is the only authorized entity able to take fingerprints for background checks. If an approved third party takes the person’s fingerprints, the fingerprints may be electronically captured using Colorado bureau of investigation-approved or federal bureau of investigation-approved livescan equipment.
  • SB 17-190“Concerning Prohibiting a Carrier from Setting Fees for a Dental Service that is Not Paid For by the Carrier,” by Sens. Dominick Moreno & Larry Crowder and Rep. Matt Gray. The bill prohibits a contract between a carrier and a dentist from requiring a dentist to provide services to a covered person at a fee set by, or subject to the approval of, the carrier unless the services are covered services under the person’s policy and the carrier provides payment for the service under the person’s policy in an amount that is reasonable and not nominal or de minimis.

For a complete list of the governor’s 2017 legislative decisions, click here.

Colorado Court of Appeals: Robberies Were Sufficiently Similar for Joinder of Criminal Trials

The Colorado Court of Appeals issued its opinion in People v. Butson on Thursday, April 20, 2017.

Bank RobberyJoinderSpecial ProsecutorStatements to PoliceSettlement NegotiationsCRE 408.

Butson was charged in three cases with bank robbery and conspiracy to commit bank robbery. Butson was interviewed by police, waived his Miranda rights, and provided details about the planning and commission of the robberies. He later moved to suppress his statements on the theory that he made them during the course of settlement discussions and therefore they were inadmissible at trial under CRE 408. The trial court denied the motion. Butson was also charged with witness tampering based on a letter he sent to a witness. Because the prosecutor in the bank robbery cases had handled the letter, Butson contended that he was entitled to a special prosecutor in all of his cases. The court determined that the prosecutor was not a potential witness in the witness tampering case and denied Butson’s request for a special prosecutor. The prosecution moved to join the three bank robbery cases for trial, which motion was granted, and a jury found Butson guilty of all but two counts. The witness tampering case was later dismissed.

On appeal, Butson first contended that the district court erred by joining the three bank robbery cases for trial. A trial court may try two or more criminal complaints together if the offenses could have been joined in a single complaint. Two or more offenses may be charged in the same charging document if the offenses are of the same or similar character or are based on two or more connected acts or transactions or are part of a common scheme or plan. Here, Butson and his sons committed all of the robberies during the course of a few months, all involved the same banks in relatively close proximity to each other, and all were sufficiently similar in planning and execution. Accordingly, the district court did not abuse its discretion in joining the cases for trial.

Butson next contended that where the lead prosecutor in the consolidated bank robbery cases was endorsed as a witness in the later-filed witness tampering case, the district court erred in denying his motion for a special prosecutor. Butson argued that a special prosecutor was necessary to prevent the appearance of impropriety created by the prosecutor’s potential appearance as a witness in the related witness tampering case. However, appearance of impropriety is not a basis for disqualification, and Butson failed to show any prejudice. The district court did not abuse its discretion in denying Butson’s motion for a special prosecutor.

Butson also contended that his statements to police during a custodial interrogation constituted settlement negotiations, or an offer to compromise a claim, and therefore the interview was inadmissible under CRE 408 to prove his guilt. Generally, Rule 408 bars the admission in a criminal proceeding of statements made in connection with the settlement of a civil claim. As Butson acknowledges, his statements to police, even if construed as an offer to compromise, were made during discussions concerning criminal charges, not a civil claim. Moreover, his statements, which he made to a government agent, would be admissible under an exception to the rule. Therefore, the district court did not err in denying his motion to suppress the statements.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.