April 29, 2017

Colorado Court of Appeals: Certification of One Claim in Multiple Claim Suit was Abuse of Discretion

The Colorado Court of Appeals issued its opinion in Allison v. Engel on Thursday, April 6, 2017.

Landowners—Default Judgment—Finality—C.R.C.P. 54(b) —Jurisdiction—Certification.

The parties own adjacent parcels of property and for a number of years have had disagreements about the precise boundaries of their neighboring parcels. The Allisons filed a complaint asserting two trespass claims and a claim for declaratory relief. The Engels filed various counterclaims. Numerous motions were filed, and the district court ultimately certified a default judgment on the counterclaim for unjust enrichment as final under C.R.C.P. 54(b). The Colorado Court of Appeals ordered the parties to file supplemental briefs as to whether the unjust enrichment counterclaim is a separate claim for purposes of C.R.C.P. 54(b) and whether there is no just reason for delay of an appeal pertaining solely to that counterclaim.

Generally speaking, the court of appeals has jurisdiction only over appeals from final judgments. Thus, jurisdiction over an appeal from an order the district court has certified as final under Rule 54(b) depends on the correctness of that certification. Here, the district court gave two reasons for concluding that there was no just reason for delay: (1) “avoid[ing] duplicative efforts” and (2) obtaining “a clear sense of direction in terms of the issues to be considered” at trial. The first reason is plainly insufficient to justify certification because the same could be said about any case involving multiple claims or parties as to which a dispositive ruling is entered on one claim, or as to one party, before trial. The second reason is also insufficient to justify certification because it is not a proper function of Rule 54(b) certification to assuage a district court’s doubts about its decision or to provide “guidance” in the resolution of claims. The district court’s reasons do not show that any party will suffer hardship or injustice unless an immediate appeal of the default judgment on the single counterclaim is allowed. The district court abused its discretion, and the court of appeals lacked jurisdiction.

The appeal and cross-appeal were dismissed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Complaint Filed After Denial of Motion to Reconsider was Untimely

The Colorado Court of Appeals issued its opinion in Sterling Ethanol, LLC v. Colorado Air Quality Control Commission on Thursday, February 23, 2017.

Interlocutory Appeal—Motion to Dismiss for Lack of Subject Matter Jurisdiction.

Sterling Ethanol, LLC and Yuma Ethanol, LLC (collectively, Companies) are ethanol manufacturing plants that are sources of air pollution in northeastern Colorado. They are required to operate in accordance with air permits issued by the Colorado Air and Pollution Control Division (Division). After the Division issued two compliance orders addressing the Companies’ alleged violations of their air permits, Companies sought timely administrative review from the Air Quality Control Commission (Commission), which operates pursuant to the Colorado Air Pollution Prevention and Control Act (APPCA). Following an evidentiary hearing, the Commission issued a final order affirming the Division’s orders.

Companies filed a motion to reconsider, which the Commission denied. Companies then filed a complaint in the district court 69 days after the Commission issued its final order and 35 days after the Commission denied its motion to reconsider. The Commission filed a motion to dismiss for lack of subject matter jurisdiction, arguing the complaint was untimely filed. The district court denied the motion. The district court, on the Commission’s request, certified for review the question whether the State Administrative Procedure Act (APA), the APPCA, and the Commission’s procedural rules, read together, compel the conclusion that the complaint was untimely filed, thus depriving the court of appeals of subject matter jurisdiction.

The court held that the district court erred in denying the motion to dismiss because Companies’ complaint was untimely. The party seeking judicial review must file a complaint within 35 days of the effective date of the Commission’s final order, even if that party first filed a motion to reconsider, and the Commission declined to reconsider its order. The plain language of the APPCA, the APA, and the Commission’s procedural rules required such a conclusion.

The order was reversed and the case was remanded for entry of an order dismissing the action.

Summary provided courtesy of The Colorado Lawyer.

SB 17-036: Limiting Evidence Presented in District Court on Appeal from Agency Groundwater Decisions

On January 11, 2017, Sen. Ray Scott and Reps. Jon Becker & Jeni Arndt introduced SB 17-036, “Concerning the Appellate Process Governing a District Court’s Review of Final Agency Actions Concerning Groundwater.”

Under current law, the decisions or actions of the ground water commission (commission) or the state engineer regarding groundwater are appealed to a district court, and the evidence that the district court may consider is not limited to the evidence that was presented to the commission or state engineer. Therefore, unlike appeals from other state agencies’ decisions or actions under the ‘State Administrative Procedure Act’, a party appealing a decision or action of the commission or state engineer may present new evidence on appeal that was never considered by the commission or state engineer.

The bill limits the evidence that a district court may consider, when reviewing a decision or action of the commission or state engineer on appeal, to the evidence presented to the commission or state engineer.

The bill was introduced in the Senate and assigned to the Agriculture, Natural Resources, & Energy Committee.

Colorado Supreme Court: Amendment 64 Applies to Sentences for Crimes Being Appealed at Effective Date

The Colorado Supreme Court issued its opinion in People v. Boyd on Tuesday, January 17, 2017.

Amendment 64—Marijuana Legalization—Constitutional Amendment.

The Colorado Supreme Court considered whether Amendment 64 deprived the state of the power to continue to prosecute cases where there was a non-final conviction for possession of less than one ounce of marijuana and where there was a pending right to appeal when Amendment 64 became effective. The court concluded that Amendment 64 nullified the state’s authority to continue to prosecute respondent on appeal because the amendment superseded the underlying statutory authority for the prosecution. The court contemplated United States v. Chambers, 291 U.S. 217 (1934), in which the U.S. Supreme Court held that when a statute is rendered inoperative, no further proceedings can be had to enforce it in pending prosecution. Accordingly, the court affirmed the Colorado Court of Appeals’ judgment reversing respondent’s conviction.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Amendment 64 Deprives State of Power to Prosecute Crimes of Possession of Small Amounts of Marijuana

The Colorado Supreme Court issued its opinion in Russell v. People on Tuesday, January 17, 2017.

Expert Testimony—Amendment 64—Marijuana Legalization—Constitutional Amendment.

The Colorado Supreme Court considered whether a police officer’s testimony that defendant was under the influence of methamphetamine was properly admitted as lay testimony or should have been qualified as expert testimony. Because any error in admitting the officer’s testimony as lay testimony was harmless given the otherwise overwhelming evidence, the court declined to answer whether the trial court erred in admitting the testimony. The court also considered whether Amendment 64 deprived the state of the power to continue to prosecute cases where there was a conviction for possession of less than one ounce of marijuana pending on direct appeal when the amendment became effective. The court concluded that under People v. Boyd, 2017 CO 2, Amendment 64 nullified the state’s authority to continue to prosecute petitioner/cross-respondent during her appeal because Amendment 64 superseded the underlying statutory authority for the prosecution. Accordingly, the court affirmed the Colorado Court of Appeals’ judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Amendment 64 Deprived State of Power to Continue Prosecutions of Small Amount Marijuana Offenses

The Colorado Supreme Court issued its opinion in People v. Wolf on Tuesday, January 17, 2017.

Amendment 64—Marijuana Legalization—Constitutional Amendment.

The Colorado Supreme Court considered whether Amendment 64 deprived the state of the power to continue to prosecute individuals for possession of less than one ounce of marijuana after Amendment 64 became effective. The court concluded that under People v. Boyd, 2017 CO 2, Amendment 64 nullified the state’s authority to continue to prosecute respondent at his jury trial because Amendment 64 superseded the underlying statutory authority for the prosecution. Accordingly, the court affirmed the Colorado Court of Appeals’ judgment vacating respondent’s conviction and sentence.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Jury Finding of No Dependency and Neglect Not Final Appealable Order

The Colorado Court of Appeals issued its opinion in People in Interest of S.M.-L. on Thursday, November 17, 2016.

Dependency and NeglectFinal and Appealable Order.

The Department of Human Services (Department) filed a dependency and neglect petition regarding S.M-L., B.M-M, and R.S. (the children). The petition named D.S. as R.S.’s biological father and named G.S. as the mother of all of the children. The Department asserted that father had sexually abused his stepdaughter S.M-L. He was arrested and criminally charged with sexual abuse. Father denied the allegations and mother believed S.M-L was lying about them. Mother requested a bench trial and father requested a jury trial.

As to mother, the court found the allegations in the petition had been proven by a preponderance of the evidence and entered an order adjudicating the children dependent and neglected. However, the jury returned a verdict as to father finding that R.S. was not dependent or neglected. The Department moved for an adjudication of father notwithstanding the verdict. The trial court denied the motion and dismissed father from the petition. Both the Department and mother appealed.

The Colorado Court of Appeals issued an order to show cause why the appeal should not be dismissed for lack of a final, appealable order, noting that it was unaware of any authority for the proposition that dismissing a parent from a petition based on a jury verdict was a final appealable order. C.R.S. § 19-1-109(2)(c) provides that an order decreeing a child to be neglected or dependent shall be a final and appealable order upon the entry of the disposition. This section does not address the dismissal of a party from the petition based on a jury’s verdict finding a child was not dependent or neglected as to that party. The court also noted that after the jury determined that R.S. was not dependent or neglected as to father, the trial court did not have jurisdiction to enter any orders other than dismissal of the petition. Because a jury’s “no adjudication” verdict is not a proper basis for a motion for adjudication notwithstanding the verdict and thus is not a final appealable order under C.A.R. 3.4(a) or C.R.S. § 19-1-109(2)(c), the Department’s appeal was dismissed.

Mother challenged her adjudication on several grounds, but the court found no reversible error because the evidence supported the trial court’s factual findings.

The Department’s appeal was dismissed and the order adjudicating mother was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Appeal Waiver Precluded District Court Review of Sentence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Amado on Monday, November 14, 2016.

Elias Vega Amado, an illegal immigrant, was caught in 2013 with guns, drugs, money, and other incriminating evidence. He was charged with five counts, and pleaded guilty to possession of methamphetamine and illegal reentry. As part of his plea agreement, he “knowingly and voluntarily waive[d] his right to . . . move to modify under 18 U.S.C. 3582(c)(2) or some other ground, his sentence as imposed by the court[.]” His Guidelines range was 235 to 293 months, and he was sentenced to 240 months.

In 2014, the Sentencing Guidelines were amended, and the base offense levels for drug quantities were lowered, effectively lowering minimum sentences for drug offenses. Under the new Guidelines scheme, Defendant’s Guidelines range would be from 188 to 235 months. Defendant filed a motion under 18 U.S.C. § 3582(c)(2) for sentence reduction, which the government opposed. The district court denied his first motion without explanation. Defendant appealed, but asked that pleadings be held in abeyance because the government reportedly would not oppose another motion for sentence reduction. Defendant filed a second motion for sentence reduction in district court, which the district court again denied, issuing findings as to both motions. The district court opined that defendant’s first motion did not present a close question, given the plea waiver and the seriousness of defendant’s offenses. The district court construed the second motion as a motion to reconsider and held it was untimely filed. Defendant appealed.

On appeal, the Tenth Circuit evaluated defendant’s claim that his appeal waiver was not knowing and intelligent because he did not anticipate the amendment to the Guidelines. The Tenth Circuit was not persuaded. The Tenth Circuit held that it had previously ruled that a defendant’s waiver of unforeseeable future events was both commonplace and enforceable. The Tenth Circuit affirmed the district court’s denial of defendant’s first motion.

Turning to the second motion, the Tenth Circuit found the only problem was that after the district court determined the motion was untimely, it ruled on the motion anyway instead of dismissing it.

The Tenth Circuit affirmed the district court’s decision on defendant’s first motion. As to the second motion, the Tenth Circuit vacated the judgment and remanded with instructions to dismiss it.

Tenth Circuit: Communications Decency Act Does Not Provide Immunity from Suit

The Tenth Circuit Court of Appeals issued its opinion in General Steel Domestic Sales, L.L.C. v. Chumley on Tuesday, November 1, 2016.

General Steel employed Ethan Chumley until 2005, when he left to start his own company, Armstrong Steel. The two parties have had numerous legal disputes since then. Armstrong Steel initiated a negative online advertising campaign against General Steel, so that when internet users search for General Steel, negative advertisements from Armstrong Steel appear that redirect the internet user to Armstrong Steel’s web page entitled “Industry Related Legal Matters.” The web page contains 37 posts, 20 of which are at issue in this action. The 20 posts summarize, quote, and reference lawsuits involving General Steel, and contain selective snippets of court documents.

General Steel filed suit in district court with four claims: (1) unfair competition and unfair trade practices under the Lanham Act, (2) libel and libel per se, (3) intentional interference with prospective business advantage, and (4) civil conspiracy. Armstrong Steel sought summary judgment, claiming immunity from suit and liability under Section 230 of the Communications Decency Act (CDA). The district court found that Armstrong Steel was entitled to immunity for three posts because they simply linked to third-party content. However, the court refused to extend CDA immunity to the other 17 posts and the internet search ads, finding that the defendants were not entitled to immunity because they created and developed the content by selectively quoting and summarizing the court documents in a deceiving way. Armstrong Steel appealed the district court’s denial of immunity and claims appellate jurisdiction under the collateral order doctrine.

The Tenth Circuit analyzed whether the CDA provided immunity from suit or simply immunity from liability. The Tenth Circuit noted that if the CDA provided immunity from suit, the appeal would be effectively unreviewable, but if it provided immunity from liability, the Tenth Circuit would lack jurisdiction because the order of the district court was not a final order. The CDA does not contain “an explicit statutory or constitutional guarantee that trial will not occur,” so it does not provide immunity from suit.

The Tenth Circuit dismissed the appeal.

Tenth Circuit: Rehearing En Banc Denied in Planned Parenthood v. Herbert

On Friday, October 28, 2016, the Tenth Circuit Court of Appeals issued its opinion in Planned Parenthood Association of Utah v. Herbert. The original opinion issued on July 12, 2016, and subsequent to that opinion’s issuance, a poll was called sua sponte to consider en banc rehearing. A majority of active judges voted to deny rehearing.

Judge Briscoe and Judge Bacharach wrote separate concurrences of the decision to deny rehearing. Judge Gorsuch wrote a separate dissent, in which he was joined by Chief Judge Tymkovich, Judge Hartz, and Judge Holmes.

Tenth Circuit: Parties Should Assume Finality in Face of Agency Ambiguity and File Protective Appeal

The Tenth Circuit Court of Appeals issued its opinion in Tulsa Airports Improvement Trust v. Federal Aviation Administration on Friday, October 14, 2016.

Tulsa Airports Improvement Trust (TAIT) has been working to reduce noise from the Tulsa airport through grants from the Federal Aviation Administration (FAA). In 2002, while waiting for some FAA grants to go through, TAIT instructed its contractors to place projects on hold. As a result, some contractors terminated their contracts or demanded increases, causing TAIT to pay them approximately $700,000. TAIT sought reimbursement from the FAA. The FAA initially reimbursed TAIT, but then demanded repayment of approximately $656,000, finding the costs were not allowable under the grants. TAIT repaid the FAA, but in 2010, TAIT sought reconsideration, and the FAA provided reimbursement for approximately $559,000.

In October 2012, TAIT informed the FAA that it had reviewed the remaining unpaid expenses and had found several categories that it believed were eligible for reimbursement. The FAA responded on October 24, 2012, that it had reviewed the information and could not make a favorable determination. TAIT appealed to the FAA’s Associate Administrator for Airports on December 6, 2012, and on December 31, 2012, the FAA issued a letter stating that the FAA was unable to find potentially eligible costs that had not been reimbursed, and stating that TAIT should submit any further information to the FAA. TAIT did not respond to the letter.

On November 14, 2013, TAIT filed a breach of contract action in the Court of Federal Claims, invoking jurisdiction under the Tucker Act and arguing that the FAA had wrongfully determined the payments in question were not allowable grant costs. The Court of Federal Claims found that it did not have subject matter jurisdiction because 49 U.S.C. § 46110 or 49 U.S.C. § 47111 vested exclusive jurisdiction in the United States Court of Appeals, and transferred the case to the Tenth Circuit. The Tenth Circuit considered it a petition for review of agency action.

The Tenth Circuit concluded that § 47111 did not apply, because it only applies to the withholding of payments that are determined to be allowable. Since the payments in question were never determined to be allowable, § 46110 governed review. The Tenth Circuit next found that the December 31, 2012, letter from the FAA was a final order. The letter constituted a final determination that the costs were not allowable, and although the FAA invited TAIT to submit further information for review, that did not affect the finality of the letter.

The Tenth Circuit then concluded that TAIT’s appeal was not timely filed. TAIT had sixty days to file an appeal, but did not do so until eight months after the expiration of the statutory period. TAIT did not offer any reasonable grounds to justify its delay. The Tenth Circuit noted that agency-created confusion had been recognized in some circuits as a basis for justifying delay, but in this case there was no agency-created confusion. The Tenth Circuit agreed with the D.C. Circuit that parties should assume finality in the face of ambiguity and file protectively for review.

The Tenth Circuit dismissed the appeal as not timely filed.

Tenth Circuit: Jurisdictional Time Limit Not Tolled When Rule 4(a)(4)(A) Requirements Not Met

The Tenth Circuit Court of Appeals issued its opinion in Williams v. Akers on Tuesday, September 20, 2016.

George Rouse hanged himself shortly after being booked into the Grady County Law Enforcement Center in Oklahoma. His mother, Regina Williams, brought suit under 42 U.S.C. § 1983, arguing the defendants knew he was suicidal but failed to inform jail staff of that fact. Defendants asserted qualified immunity and moved to dismiss Williams’ § 1983 claim. The district court denied the motion on October 8, 2014, concluding Williams’ complaint adequately alleged facts showing defendants’ violated Rouse’s clearly established Fourth Amendment rights.

Eight months later, defendants filed a motion to reconsider the district court’s denial of their motion to dismiss. The district court denied the motion on July 31, 2o15. Defendants then filed an appeal of the October 2014 motion with the Tenth Circuit. Noting the jurisdictional defect, the Tenth Circuit requested additional briefing from the parties on August 24, 2015. Defendants argued that because their notice of appeal was filed only four days after the district court denied their motion to reconsider, it was timely filed as to the October 2014 motion to dismiss.

The Tenth Circuit disagreed. The Tenth Circuit noted that Fed. R. App. P. 4(a)(4)(A)(vi) allows a party to enlarge the 30-day time limit for filing an appeal if that party timely files a Rule 60(b) motion, in which case the time limit is tolled until 30 days after the entry of the order disposing of the motion for reconsideration. The Tenth Circuit remarked that it appears that defendants believed they could enlarge the time for filing their notice of appeal from the October 2014 order by filing a motion for reconsideration. However, because the motion for reconsideration was not filed within Rule 4(a)(4)(A)’s mandated 30-day time limit, the notice of appeal was not timely.

The Tenth Circuit also addressed the defendants’ attempt to change the focus of the appeal after the Tenth Circuit requested additional briefing on jurisdiction. Although the Tenth Circuit could look to the notice of appeal, the docketing statement, and the request for the district court to stay proceedings as evidence of defendants’ intent, the Tenth Circuit found only an intent to appeal the October 2014 order, not the July 2015 order. Due to the untimeliness of the appeal from the October 2014 order, the Tenth Circuit lacked jurisdiction to consider the defendants’ arguments.

The Tenth Circuit dismissed the appeal for lack of jurisdiction.