November 18, 2017

Archives for August 18, 2017

Colorado Court of Appeals: Class Did Not Cease to Exist When Settlement Entered

The Colorado Court of Appeals issued its opinion in EnCana Oil & Gas (USA), Inc. v. Miller on Thursday, August 10, 2017.

Class Action Settlement—Arbitration Provision—C.R.C.P. 23—Survival of the Class.

A certified class of Colorado oil and gas royalty owners (the Class) and EnCana Oil & Gas (USA), Inc. (EnCana) litigated, beginning in 2005, EnCana’s alleged underpayment of royalties on natural gas it produced. In 2008, EnCana and the Class entered into a settlement agreement that detailed payment of funds to settle past claims, established the methodology EnCana would use for future royalty payments, and included an arbitration clause. The district court’s final judgment approved and incorporated the settlement agreement, dismissed the 2005 case with prejudice, and reserved jurisdiction to enforce the agreement. In 2016, oil and gas royalty owners (Owners), purporting to act on behalf of the Class, filed a demand for arbitration alleging EnCana had underpaid royalties owed to Class members in violation of the settlement agreement. EnCana filed a new case in district court asserting that (1) the class ceased to exist when the 2005 case was dismissed with prejudice in 2008, and (2) the 2008 settlement agreement did not authorize arbitration on a class-wide basis. The district court found that the class had not ceased to exist and the claims should be resolved in class-wide arbitration, and entered summary judgment against EnCana.

On appeal, EnCana contended that the district court erred in finding that the Class continued after the case was dismissed. The court of appeals determined that the Class survived the 2008 dismissal because (1) compliance with the settlement agreement became part of the dismissal order, so the district court retains jurisdiction to give effect to the agreement; and (2) the agreement continues for the lives of the leases or royalty agreements covered by the settlement agreement and expressly burdens and benefits successors and assigns of the parties.

EnCana also claimed that the district court failed to satisfy C.R.C.P. 23. The district court did not err in declining to engage in further Rule 23 analysis after the 2008 dismissal and judgment approving the settlement agreement.

The court next rejected EnCana’s contention that Class counsel failed to provide sufficient notice of the arbitration demand.

EnCana then argued it was error to determine that the settlement agreement contained a contractual basis to conclude that EnCana and the Class agreed to class arbitration. EnCana asserted that because the arbitration clause is silent on class arbitration, the district court should have presumed that the parties agreed to bilateral arbitration only. The settlement agreement explicitly names all members of a certified class as a party to the agreement, frames the disputes in class- or subclass-wide terms, and provides relief on a class- or subclass-wide basis. The arbitration clause’s context thus demonstrates an agreement to class rather than bilateral arbitration. Further, to conclude that the settlement agreement evidenced that the parties contemplated engaging in approximately 5,850 individual arbitrations to resolve future disputes rather than a single class arbitration would be absurd.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: “Legal Disability” Means Inability to Bring Lawsuit Due to Some Policy of Law

The Colorado Court of Appeals issued its opinion in T.D. v. Wiseman on Thursday, August 10, 2017.

“Legal Disability” for Tolling Statute of Limitations—C.R.S. § 13-80-103.7(3.5)(a).

T.D.’s complaint alleged she had endured 10 years of sexual and physical abuse from defendant, her former stepfather. She alleged that she was 7 years old when the abuse began and that it continued until about 1990, when she was in high school. She alleged that the abuse caused her to become dependent on drugs and alcohol, and she suffered from post-traumatic stress disorder, psychological disorders, self-mutilation, eating disorders, depression, and a cycle of abusive relationships.

In August 2005, T.D. disclosed defendant’s alleged abuse to the doctors who had been treating her. She attempted suicide in 2012. Thereafter she was able to maintain sobriety. T.D. filed a lawsuit in 2015 asserting assault, battery, sexual assault and battery, extreme and outrageous conduct, and false imprisonment. Defendant filed a motion for summary judgment, asserting that T.D.’s claims had accrued in 2005 when she disclosed the alleged abuse to her doctors. Consequently, her claims were time-barred by the six-year statute of limitations in C.R.S. § 13-80-103.7(1). T.D. argued that the record contained genuine issues of material fact concerning whether she had been a “person under disability” until 2012 because of her addictions and psychiatric disorder, so the statute would have been tolled until her disability was lifted. The trial court granted the motion for summary judgment, finding no genuine issues of material fact in the record about when her claims accrued or whether the statute of limitations barred those claims.

The court of appeals determined that the issue of when the claim accrued was not properly before it, and assumed it accrued at the latest in 2005. The court then considered whether there was a factual dispute about whether the applicable statute of limitations was tolled because T.D. was a “person under disability.” Under C.R.S. 13-80-103.75(3.5)(a), a “person under disability” is a person who is (1) a minor under 18 (2) “declared mentally incompetent”; (3) “under other legal disability and who does not have a legal guardian”; or (4) “in a special relationship with the perpetrator of the assault” and “psychologically or emotionally unable to acknowledge the assault or offense and the resulting harm.” T.D. was 43 when the trial court granted the summary judgment motion, so she was not a minor from 2005 to 2011, when the statute of limitations was running. The record did not contain disputed facts about whether she was mentally incompetent during the years during which the statute of limitations ran. The court concluded that “legal disability” denotes an inability to bring a lawsuit based on a “policy of the law.” No facts in the record indicated that T.D. lacked the power to timely bring her suit. Lastly, while a familial relationship can constitute a “special relationship,” T.D. did not demonstrate that she was “psychologically or emotionally unable to acknowledge the assault or offense and the resulting harm.”

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Petition for Mandamus Relief Should Have Been Transferred to Executive Director

The Colorado Court of Appeals issued its opinion in Gandy v. Raemisch on Thursday, August 10, 2017.

C.R.C.P. 106—Dismissal—Transfer of Canadian Prisoner to Canada to Serve Life Sentence—Mandamus Relief.

Gandy is a Canadian citizen serving a habitual criminal life sentence in the custody of the Colorado Department of Corrections (DOC). Gandy applied numerous times to DOC to be transferred to serve the remainder of his sentence in the Canadian penal system. In 2016, the DOC prisons director (director) denied Gandy’s 2015 application in writing. The director stated that under DOC Administrative Regulation 550-05, Gandy would be eligible to reapply in two years. The director did not forward Gandy’s application to DOC’s executive director.

Gandy filed a complaint in district court seeking mandamus relief under C.R.C.P. 106, requesting the court to direct DOC to “process and submit” his application for transfer to the U.S. Department of Justice and asking for nominal punitive damages for alleged violations of his constitutional rights. The court granted defendants’ motion to dismiss for failure to state a claim on which relief can be granted.

On appeal, Gandy contended he was entitled to mandamus relief, arguing that he was entitled to final review of and decision on his transfer application by the executive director.  DOC’s transfer application process imposed a duty on the director to process Gandy’s application and then send it to the executive director for his final review and decision. Because this duty is clear, mandamus relief was appropriate.

Gandy also argued that the two-year reapplication waiting period was improperly imposed. The Colorado Court of Appeals agreed, finding that DOC regulations do not require or provide for the imposition of a two-year waiting period before permitting an offender to reapply.

Gandy further argued that the district court erred when it dismissed his constitutional claims for failure to state a claim because the regulation conflicts with federal treaties and thus violates the Supremacy Clause. However, the court found no conflict between DOC regulations and international treaties.

Gandy next argued that defendants discriminated against him by refusing to process his transfer request due to his national origin. The court agreed with the district court that Gandy did not plead any facts supporting this allegation.

The judgment dismissing Gandy’s constitutional claims was affirmed. The judgment dismissing the complaint seeking mandamus relief was reversed, and the case was remanded with directions to enter an order directing the director to forward the transfer application and recommendations to the executive director for final review and decision.

Summary available courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 8/17/2017

On Thursday, August 17, 2017, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Aery v. Board of County Commissioners of Tulsa County

Worthen v. United States

McElhaney v. Bear

United States v. Burtons

Kirby, Jr. v. Roberts

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