January 16, 2018

Archives for January 3, 2018

Colorado Court of Appeals: Easement Deed Valid Even Without Description of Dominant Estate

The Colorado Court of Appeals issued its opinion in City of Lakewood v. Armstrong on Thursday, December 28, 2017.

Real Property—Easements Appurtenant—Dominant Estate—Servient  Estate—Statute of Frauds—Constructive Notice—Extrinsic Evidence—Reverter Clause.

In 1984, Mackey executed a deed (Mackey deed) purporting to convey to Jefferson County a permanent public easement over a portion of the southeast corner of her property. Jefferson County executed a deed to the City of Lakewood (Commissioners deed) conveying the Mackey deed easement using the same legal description. The Commissioners deed contained a reverter clause that required Lakewood to use the easement exclusively for public open space, park, and recreational purposes. In 2011, the Armstrongs bought the property from Mackey’s successor in interest and occupied it. After the Armstrongs attempted to obstruct the easement’s use by locking a gate at one entrance to it, Lakewood filed suit. The district court entered summary judgment for Lakewood, finding that the easement was a valid express easement appurtenant.

On appeal, the Armstrongs asserted that the district court erred in granting Lakewood’s motion for summary judgment because the Commissioners deed violates the statute of frauds and is void for failing to legally describe the easement itself or the dominant estate. An easement does not require the precise description that a possessory interest does. While an instrument must identify with reasonable certainty the easement created and the dominant and servient estates, no particular words are necessary. Here, although the Commissioners deed does not expressly describe a dominant estate, it describes the entire servient estate and describes the easement itself with reasonable certainty and is not rendered invalid by any deficiency in the easement’s description. Further, the easement was recorded in the Jefferson County Clerk and Recorder’s Office over 25 years before the Armstrongs’ purchase of the property. Therefore, the Armstrongs had constructive notice of the easement.

The Armstrongs also contended that the district court impermissibly looked to extrinsic evidence to interpret the Commissioners deed. However, a court may consider extrinsic evidence to determine whether the description of an easement in a deed is reasonably certain or instead is invalid for vagueness. The district court did not err in considering undisputed extrinsic evidence to determine that the easement’s description encompassed the entire servient estate and what, if any, dominant estate the easement served for the purpose of determining whether the easement was identified with reasonable certainty and was therefore valid.

The Armstrongs further contended that the district court erred in enforcing the Commissioners deed because the reverter clause in the deed had been triggered, so the deed expired. The easement’s use is the determinative factor for triggering the reverter clause, not the zoning of the land benefited. Lakewood produced undisputed evidence showing that the dominant estate served by the easement has been continuously used exclusively for public open space, park, and recreational purposes. The reverter clause was not triggered.

The Armstrongs additionally argued that the Commissioners deed was void because Jefferson County did not have the authority to purchase the easement for use by Lakewood. Here, Jefferson County had the authority to purchase an easement for access to a public park or open space owned by Lakewood under its implied powers to promote public projects or public open space and parkland.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Parent’s Counsel Not Necessarily Entitled to be Present at In Camera Interview of Children

The Colorado Court of Appeals issued its opinion in People in Interest of S.L. on Thursday, December 28, 2017.

Dependency and Neglect—Due Process—In Camera Review—Ineffective Assistance of Counsel—Disclosures—Expert Witness.

The Rio Blanco County Department of Human Services (Department) became involved with the parents in this case as a result of concerns about the children’s welfare due to the condition of the family home, the parents’ use of methamphetamine, and criminal cases involving the parents. Attempts at voluntary services failed, and on the Department’s petition for dependency and neglect, the district court ultimately terminated the parents’ rights.

On appeal, the parents contended that the Department failed to make reasonable efforts to reunify them with their children. Specifically, the parents contended that the Department did not give them sufficient time to complete the services under their treatment plans and failed to accommodate their drug testing needs. The termination hearing was not held until more than a year after the motion to terminate was filed. For nine months before the motion to terminate was filed, the Department provided numerous services to the parents, including substance abuse therapy, therapeutic visitation supervision, drug abuse monitoring, and a parental capacity evaluation. The Department also provided counseling for the children. Both parents missed drug tests and tested positive during the testing period, and both were arrested for possession of methamphetamine during the pendency of the case. The Department made reasonable accommodations to meet the parents’ needs and the parents had sufficient time to comply with their treatment plans. The record supports the trial court’s findings that termination was appropriate because (1) the court-approved appropriate treatment plan had not been complied with by the parents or had not been successful in rehabilitating them; (2) the parents were unfit; and (3) the conduct or condition of the parents was unlikely to change within a reasonable time.

Father also contended that the trial court’s decision to interview the 9-year-old twin children together in chambers fundamentally and seriously affected the basic fairness and integrity of the proceedings and violated his due process rights. Father also argued that answers the judge gave to the children’s questions during the interview were improper. More than five months before the termination hearing, the court interviewed the children in chambers. The interview was recorded and transcribed, and a copy of the transcript was provided to the parties before the termination hearing. Whether counsel may be present during an in camera interview of a child in a dependency and neglect proceeding is determined on a case-by-case basis and is within the trial court’s discretion. In making this determination, the trial court should consider, among other things, the child’s age and maturity, the nature of the information to be obtained from the child, the relationship between the parents, the child’s relationship with the parents, any potential harm to the child, and ultimately any impact on the court’s ability to obtain information from the child. In addition, in the interests of fairness and to allow for the record to be fully developed, the trial court should allow the parents or trial counsel to submit questions to the child, which the court may ask in its discretion. Further, the interview, regardless of whether counsel is present, must be on the record, and a transcript of the interview must be made available to the parties before a termination hearing. Here, the trial court did not abuse its discretion in the interview procedures that it followed nor in the weight it accorded to the information solicited.

Father next contended that he was provided ineffective assistance of counsel. Although his trial counsel failed to meet discovery and disclosure deadlines for an expert witness, the record fails to demonstrate the necessary prejudice to establish a claim based on ineffective assistance.

Father further contended that the trial court abused its discretion and violated his due process rights in allowing five of the Department’s witnesses to testify as experts despite the Department failing to comply with C.R.C.P. 26(a). Despite inadequacies in the C.R.C.P. 26 disclosures, the bases for the experts’ testimony at the hearing had been disclosed to father. Therefore, the trial court did not abuse its discretion in concluding that father was not prejudiced by the inadequate C.R.C.P. 26(a) disclosures.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 1/2/2018

On Tuesday, January 2, 2018, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

Pliuskaitis v. USA Swimming

United States v. Stine

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