October 9, 2015

Colorado Court of Appeals: Announcement Sheet, 10/8/2015

On Thursday, October 8, 2015, the Colorado Court of Appeals issued 11 published opinions and 20 unpublished opinions.

People v. Marko

People v. Smalley

People v. Duran

People v. Chipman

Laughman v. Girtakovskis

People in Interest of A.W.

Beasley v. Best Car Buys

Roalstad v. City of Lafayette

People in Interest of S.T.

Salazar v. Kubic

Division of Unemployment Insurance v. Industrial Claim Appeals Office

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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Tenth Circuit: Unpublished Opinions, 10/7/2015

On Wednesday, October 7, 2015, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Ray v. Garth

Whisenant v. Sheridan Production Co., LLC

Velasquez-Ramirez v. Lynch

United States v. Martinez-Gutierrez

Conley v. Pryor

Williams v. City of Tulsa

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Renewable Energy Mandate Does Not Require Discriminatory Price Fixing Against Out-of-State Providers

The Tenth Circuit Court of Appeals issued its opinion in Energy & Environment Legal Institute v. Epel on Monday, July 13, 2015.

Colorado voters passed a ballot initiative requiring electricity generators to ensure that 20% of the electricity they sell to Colorado comes from renewable sources. Colorado receives its electricity from an interconnected grid serving 11 states and portions of Canada and Mexico. Electricity can go anywhere on the grid and come from anywhere on the grid. Colorado consumes more energy than it delivers, meaning that some out-of-state coal producers will lose business with out-of-state utilities who feed their power onto the grid. The Energy & Environment Legal Institute (EELI), on behalf of its client energy producer, brought suit in district court, arguing that Colorado’s renewable energy mandate violates dormant commerce clause jurisprudence. The district court ruled against EELI and it appealed.

The Tenth Circuit analyzed dormant or negative commerce clause jurisprudence, likening it to antitrust laws. EELI limited its appeal to the Baldwin test (see Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935)), which applies to certain price control laws controlling “extraterritorial” conduct and requires per se invalidation of the laws. EELI argued Colorado’s renewable energy mandate was such a law because it might result in fossil fuel providers being eliminated from the marketplace. The Tenth Circuit disagreed. The Tenth Circuit found no support for the proposition that Colorado’s renewable energy mandate would negatively affect prices for out-of-state consumers of fossil fuels, finding instead that the mandate was almost certain to raise energy prices in Colorado and may result in lower fossil fuel prices for out-of-state consumers. Since the Tenth Circuit read the dormant commerce clause jurisprudence as preventing discrimination against out-of-state rivals or consumers, there was no support for EELI’s argument against Colorado’s renewable energy mandate, noting that Colorado’s mandate did not directly impact pricing in Colorado or elsewhere.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Unpublished Opinions, 10/6/2015

On Tuesday, October 6, 2015, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Perez-Carrera v. Stancil

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

Tenth Circuit: Generically Limited Plea Document Satisfies ACCA’s Prior Violent Felony Requirements

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ridens on Friday, July 10, 2015.

Ryan Ridens pleaded guilty to being a felon in possession of a firearm and received a mandatory minimum 15-year sentence enhancement under the Armed Career Criminals Act (ACCA) based on three prior violent felony convictions. Ridens challenged one of his convictions, a Kansas burglary for which he pleaded guilty, as not qualifying as a violent felony. The Tenth Circuit found ACCA specifically lists burglaries as violent felonies for purposes of the sentence enhancement. The Tenth Circuit evaluated Kansas’ statutory definition of burglary in existence at the time of Ridens’ guilty plea and found it differed from the generic definition. The Tenth Circuit then applied a modified categorical approach to determine that the charging document in Ridens’ case generically limited the charges. The Tenth Circuit found that the guilty plea to Ridens’ prior burglary offense qualified as a violent felony under ACCA.

The Tenth Circuit affirmed the sentence.

Tenth Circuit: Cases Properly in Federal Court but Arising Under State Law Trigger Article III Protections

The Tenth Circuit Court of Appeals issued its opinion in In re Renewable Energy Development Corp.: Loveridge v. Hall on Friday, July 10, 2015.

Renewable Energy Development Corporation (REDCO) entered into Chapter 7 bankruptcy proceedings and attorney George Hofmann was appointed the bankruptcy trustee. Hofmann consulted with Summit Wind Power, LLC, to determine the value of REDCO’s wind leases on private properties, and eventually discovered that REDCO had failed to pay consideration for some of the leases. Hofmann concluded REDCO’s options were unenforceable and encouraged Summit to pursue its own leases with the private property owners, which it did. Later, Hofmann decided the property owners could not cancel their leases with REDCO in favor of Summit without first offering REDCO the opportunity to cure, so he asked Summit to forgo its leases, but Summit refused. Eventually Hofmann brought adversarial claims in bankruptcy on behalf of REDCO against his other client, Summit. Summit responded with state law claims against Hofmann and his firm for malpractice, breach of fiduciary duty, and more. Hofmann was replaced as REDCO’s bankruptcy trustee. Summit filed suit against Hofmann in federal district court, alleging diversity jurisdiction and the right to have the case resolved in an Article III court. Hofmann argued the case should be resolved in an Article I bankruptcy court, and the district court agreed, removing the case to the bankruptcy court but certifying its decision for immediate appeal.

The Tenth Circuit evaluated Article III jurisdiction under the test articulated in Stern v. Marshall, 131 S. Ct. 2594 (2011) and the public rights doctrine. The Tenth Circuit recognized the conflict between the public rights doctrine and bankruptcy cases, noting that the Supreme Court has suggested certain aspects of public rights may properly find resolution in Article I courts. The Tenth Circuit analyzed Stern‘s holding that when a claim is a state law action not necessarily resolvable by a ruling on the creditor’s claim in bankruptcy, it implicates private rights and thus cannot be finally resolved in bankruptcy court. The Circuit found this scenario present, since the Summit’s claims against Hofmann were far removed from the bankruptcy proceeding. The Tenth Circuit recognized that perhaps cases involving similar factual scenarios should create a new exception to Article III, but declined to issue such a rule. The Tenth Circuit also found that the bankruptcy court could hear the case but not decide the issues, acting as a sort of magistrate or special master, and then deferring to the district court for decisionmaking. The Tenth Circuit also found that the district court retained diversity jurisdiction over the case.

The Tenth Circuit remanded the case to district court.

Tenth Circuit: Unpublished Opinions, 10/5/2015

On Monday, October 5, 2015, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Akers

United States v. Smith

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

Tenth Circuit: Employee’s Onerous Commute Does Not Constitute Discriminatory Intent by Employer

The Tenth Circuit Court of Appeals issued its opinion in Bennett v. Windstream Communications, Inc. on Thursday, July 9, 2015.

Susan Bennett was employed for 12 years by Paetec Communications, Inc. as a Fiber Optic Tech III, where she performed work on fiber optic cables in various areas of Oklahoma and Arkansas. In 2011, Windstream acquired Paetec and implemented new policies requiring the Fiber Optic Techs to check in at regional offices every day at 8 a.m. The closest regional office to Ms. Bennett was in Tulsa, which required her to commute more than four hours every day. However, she never requested an accommodation due to her onerous commute. Frequently, Ms. Bennett arrived at the Tulsa office several hours late, and many days she did not check in at all. Ms. Bennett missed cross-training opportunities because of her failure to report to the Tulsa office.

On May 22, 2012, Ms. Bennett was subject to a disciplinary action for her tardiness and absences, and that day she reported chest and shoulder pain due to work-related stress. Windstream completed a workers’ compensation claim and Ms. Bennett initiated a short-term disability claim with MetLife, Windstream’s disability insurance carrier. MetLife paid benefits to Ms. Bennett through June 27, 2012, and Windstream paid out Ms. Bennett’s remaining vacation and paid leave days through July 27, 2012. Windstream retrieved a company vehicle and tools from Ms. Bennett in June 2012. On July 26, 2012, Windstream sent a letter to Ms. Bennett requiring her to elect one of three options by August 3, 2012: (1) return to work, (2) provide medical documentation supporting continued disability leave, or (3) resign, and advising her that a failure to respond would be considered job abandonment. Ms. Bennett emailed her supervisors on the deadline, advising that the discriminatory conditions Windstream placed on her left her no choice but to petition for severance pay. Windstream sent Ms. Bennett a letter on August 8 informing her that her employment was “separated” due to her failure to return from disability leave.

Ms. Bennett filed suit in district court, alleging gender discrimination in violation of Title VII and age discrimination in violation of the ADEA. The district court granted summary judgment to Windstream and Ms. Bennett appealed. The Tenth Circuit applied the McDonnell Douglas test to evaluate Ms. Bennett’s discrimination claims. Ms. Bennett asserted that her termination was the adverse employment action resulting from discrimination. The Tenth Circuit found that Ms. Bennett failed to articulate discriminatory animus. Although Ms. Bennett claims that she was denied training opportunities given to younger, male technicians, the Tenth Circuit found record support that Ms. Bennett’s failure to report to work was the reason she did not receive training. Ms. Bennett also claims that no other techs were required to check in, but Windstream presented evidence that all the techs were required to check in. The Tenth Circuit found Ms. Bennett failed to establish a prima facie case of gender or age discrimination. Further, Windstream articulated several legitimate, non-discriminatory reasons for the practices about which Ms. Bennett complained.

Ms. Bennett also asserted a Title VII retaliation claim, which the Tenth Circuit quickly dismissed based on its analysis of her gender and age discrimination claims. Similarly, the Tenth Circuit dismissed Ms. Bennett’s claims under the Oklahoma Anti-Discrimination Act. The Tenth Circuit also rejected her constructive discharge claim, finding she neither showed Windstream engaged in any discriminatory conduct, nor that such conduct was so egregious that she had no choice but to resign.

The district court’s grant of summary judgment to Windstream was affirmed.

Tenth Circuit: Closure of Mines Justified Revocation of MSHA Modifications

The Tenth Circuit Court of Appeals issued its opinion in Andalex Resources, Inc. v. Mine Safety & Health Administration on Tuesday, July 7, 2015.

Andalex Resources operated two coal mines in Utah. During the course of its mining operations, Andalex requested and received several modifications to rules of the Mine Safety and Health Administration (MSHA). In 2008, Andalex ceased mining operations at both locations and sealed the mines, leaving some infrastructure in place and leaving some equipment underground. The MSHA revoked the modifications in response to Andalex’s sealing of the mines, considering the sealing a “change of circumstances” that would allow revocation under 30 C.F.R. § 44.52(c). Andalex appealed and was granted a hearing in front of an ALJ. Andalex moved for a summary decision, arguing revocation was improper because MSHA had not shown a change of circumstances and also that it was merely maintaining the mines in a “temporary idle status” rather than closing them permanently. The ALJ affirmed the MSHA’s decision to revoke the modifications, ultimately finding that the sealing of the mines was a change of circumstances warranting revocation.

Andalex appealed the ALJ’s decision to the MSHA Assistant Secretary, who affirmed the ALJ. The Assistant Secretary also concluded that the changed circumstances—the closure of the mines—justified revocation of the modifications. The Assistant Secretary further concluded Andalex’s inability to maintain the equipment was alone a change of circumstances sufficient to justify revocation of the modifications. Andalex timely petitioned for Tenth Circuit review.

The Tenth Circuit first noted that it owed wide deference to the agency determinations, particularly where they concern the agency’s area of expertise. The Tenth Circuit noted the evidentiary standard for reasonableness of the agency action was very low—more than a scintilla but less than a preponderance of the evidence. Andalex argued the agency’s action was arbitrary and capricious and that the Assistant Secretary misapprehended or misapplied the § 44.52(c) standards. MSHA countered the Assistant Secretary and ALJ properly applied the factors and correctly found a change in circumstances.

The Tenth Circuit noted that although the Assistant Secretary engaged in speculation, it could find no abuse of discretion in the Assistant Secretary’s conclusion that sealing the mines was a change in circumstances sufficient to support revocation of the modifications. The Tenth Circuit, according deference to the agency actions, also found substantial evidence supported the MHSA’s decisions.

The Tenth Circuit denied the petitions for review.

Colorado Court of Appeals: Announcement Sheet, 10/1/2015

On Thursday, October 1, 2015, the Colorado Court of Appeals issued no published opinion and 10 unpublished opinions.

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

Colorado Court of Appeals: Zip Line at Public School Inherently Dangerous So CGIA Does Not Apply

The Colorado Court of Appeals issued its opinion in Loveland v. St. Vrain Valley School District RE-1J on Thursday, September 24, 2015.

Governmental Immunity—Recreation Area Waiver.

In 2008, 9-year-old Alexa Rae Loveland was playing in her public elementary school’s playground. While using a zip line, she fell and fractured her wrist and right forearm. Alexa and her parents filed a tort action against the school’s principal and St. Vrain Valley School District RE-1J (District).

The District moved to dismiss under CRCP 12(b)(1), asserting lack of subject matter jurisdiction because public school districts and their employees are immune from tort liability under the Colorado Governmental Immunity Act (CGIA). The Lovelands argued immunity was waived under CRS§ 24-10-106(1)(e) because the injury arose from a “dangerous condition” of a “public facility located in any park or recreation area maintained by a public entity.” The trial court granted the District’s motion, finding that playground equipment is not a public facility.

On interlocutory appeal, a division of the Court of the Appeals reversed, holding that the zip line constituted a public facility located in a recreation area. The Supreme Court granted certiorariand held that “an individual zip line apparatus on a public playground does not qualify as a ‘public facility’ under the recreation area waiver when that apparatus is divorced from the rest of the playground.” Because the trial court made no findings of fact regarding “the remaining requirements of the recreation area waiver,” however, the Supreme Court remanded the case. On remand, the District again moved to dismiss and the trial court again granted the motion.

On this second appeal, the Lovelands argued that it was error for the trial court to conclude they had not satisfied the requirement that the injury was a result of a dangerous condition that was a result of the physical condition of the public facility. The Court of Appeals agreed. The zip line was inherently dangerous and its mere presence was the physical condition of the playground, the use of which created the dangerous condition that caused Alexa’s injuries.

The trial court also found that the Lovelands had not shown that the particular zip line constituted an unreasonable risk to public health or safety. The Court held there was not enough evidence presented on this issue and, thus, it was error for the trial court to hold this was not shown as a matter of law. A hearing is therefore necessary to make factual findings on this issue.

The Court further held that the trial court properly dismissed the claims against the principal because there was no allegation that she was involved in the decision to install the zip line. Rather, the allegations went to claims of negligent supervision, which are barred by the CGIA. Because an award of attorney fees is mandatory when a trial court dismisses an action under CRCP 12(b), the principal is therefore entitled to her reasonable attorney fees on appeal as they relate to the claims against her. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Real Estate Broker Properly Disciplined by Commission for Conversion of HOA Funds

The Colorado Court of Appeals issued its opinion in In re Disciplinary Action Against the Real Estate Broker’s License of Bernard McConnell v. Colorado Real Estate Commission on Thursday, September 24, 2015.

Real Estate Commission Discipline.

In 2010 and 2011, while serving as president of the Pinecliff Homeowners Association (HOA), McDonnell wrote four checks totaling $10,000 on the HOA’s account payable to himself or his business. When the treasurer discovered one of these checks, McDonnell claimed he had written the check by mistake and repaid the HOA. When the treasurer’s term ended, McDonnell took custody of the HOA’s accounting records and refused to appoint a new treasurer.

The next year, an HOA board member called for a meeting to discuss accounting issues. McDonnell declined to attend and resigned. He then deposited the remaining $8,000 he had withdrawn for non-HOA purposes into the HOA bank account.

When the HOA board discovered the checks, they reported McDonnell to the police and the Colorado Real Estate Commission (Commission). No criminal charges were filed, but the Commission opened an investigation. The Commission charged McDonnell with four violations of the Colorado Real Estate Broker License Law. McDonnell appealed the Commission’s order sanctioning him on some of those counts.

The Court of Appeals first rejected McDonnell’s contention that the Commission did not have authority to sanction him for conduct that does not involve “selling, exchanging, buying, renting or leasing” real estate. The Court cited numerous provisions that allow the Commission to sanction a broker’s improper conduct outside of the real estate context, particularly when it speaks to the broker’s honesty, dignity, or moral character.

The Court also rejected McDonnell’s argument that CRS § 12-61-113(1)(g) (providing for sanctions for failure to properly account for funds) only applies to a licensee’s conduct involving real estate matters. The plain language of the section is clearly broader and not so limited.

McDonnell argued that CRS § 13-16-113(1)(g.5) (providing for discipline for conversion of funds of others and diverting funds of others without authorization) applies only to real estate transactions and that, even if it applies, his conduct was not conversion because he always intended to return the money. The Court disagreed, again holding that the section applies to more than just real estate transactions. Moreover, the Commission’s conclusion that McDonnell took the funds from the HOA without authorization and used them was amply supported in the record.

The Court further rejected McDonnell’s argument that CRS § 12-61-113(1)(t) (providing for discipline for any other conduct that constitutes dishonest dealing) only applies in the real estate context. It also rejected his argument that his actions did not rise to the level of dishonest dealing. Although “dishonest dealing” is not defined in Colorado statute or case Law, a court can determine the meaning of an undefined phrase of common usage by ascertaining its usual and ordinary meaning. Here, McDonnell’s misrepresentations and misappropriations demonstrate the ordinary meaning of a dishonest act.

The Court agreed with McDonnell that he could not be disciplined under CRS § 12-61-113(1)(n) (providing for discipline for incompetency or endangerment to the public). The administrative rule implementing this section provides an exhaustive list of grounds for unworthiness or incompetence, none of which were done by McDonnell and none of which apply outside of the real estate context. Accordingly, the Court affirmed the Commission’s conclusions as to three of the four counts, along with the Commission’s sanctions.

Summary and full case available here, courtesy of The Colorado Lawyer.