September 19, 2014

Colorado Court of Appeals: Medical Marijuana Grower Not Entitled to Bring § 1983 Action for Destruction of Plants

The Colorado Court of Appeals issued its opinion in Young v. Larimer County Sheriff’s Office on Thursday, September 11, 2014.

Medical Marijuana Amendment—42 USC § 1983—Seizure—Taking—Constitution.

Young leased property where he grew marijuana plants and distributed marijuana for medical use under the Medical Marijuana Amendment (MMA), Article XVIII, §14 of the Colorado Constitution. After obtaining search warrants, sheriff’s deputies entered Young’s property and seized forty-two marijuana plants by cutting them off just above the roots. This action killed the plants. After Young was acquitted of all charges against him, he brought this action for damages on the basis that the deputies had killed the plants seized from him. The trial court entered summary judgment against Young.

On appeal, Young argued that 42 USC § 1983 provides a remedy for state action that violates a right created by the MMA. Section 14(2)(e) of the MMA requires that medical marijuana that has been seized be returned upon acquittal of criminal charges. However, because federal law criminalizes possession of marijuana, such a claim is not cognizable under § 1983. Further, no express or implied private right of action exists under the MMA. Therefore, the trial court properly entered summary judgment on this claim.

Defendants argued that because Young’s complaint alleged a taking only under federal law (which is foreclosed by the federal criminalization of marijuana), a state law takings claim under Article II, §15 of the Colorado Constitution should not be considered. A valid seizure under criminal law does not constitute a taking for which the owner is entitled to just compensation, even if the defendant is later acquitted of the charges. Therefore, the trial court properly entered summary judgment on the state law takings claim. The judgment was affirmed.

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

Colorado Court of Appeals: Dismissal Prior to Completion of Bankruptcy Case Re-Vests Claims in Debtors

The Colorado Court of Appeals issued its opinion in Mackall v. JPMorgan Chase Bank, N.A. on Thursday, September 11, 2014.

Bankruptcy—Dismissal—Standing—Issue Preclusion—Failure to State a Claim.

Plaintiffs purchased a home and subsequently refinanced it. After the court issued a written order authorizing JPMorgan Chase Bank (Chase), the assigned lender, to sell the house, plaintiffs filed a Chapter 13 petition for bankruptcy. The bankruptcy court dismissed the bankruptcy proceeding before confirmation of a plan or discharge. Plaintiffs thereafter filed a civil complaint against Chase, alleging that Chase’s note was fraudulent and that Chase was not the proper party to enforce it. The district court granted Chase’s motion to dismiss some of plaintiffs’ claims.

On appeal, Chase contended that plaintiffs lacked standing to assert any claims against it because (1) all of the claims were actionable when plaintiffs filed for bankruptcy, and (2) plaintiffs failed to disclose the claims to the bankruptcy court. When a bankruptcy case is dismissed, the debtor is granted standing to assert any claim that it possessed before it filed for bankruptcy, regardless of whether it disclosed the claim to the bankruptcy court during the bankruptcy proceedings. Here, the dismissal of the bankruptcy petition re-vested the claims in plaintiffs, and they had standing to bring those claims against Chase after the dismissal.

Plaintiffs argued that the district court erred in dismissing some of their claims based on issue preclusion. The district court held that both the CRCP 120 order authorizing sale and the bankruptcy court order allowing Chase’s proof of claim precluded some of plaintiffs’ claims. Because the bankruptcy court ruling had preclusive effect on these issues, plaintiffs were barred from re-litigating the issues that were dismissed based on issue preclusion.

Plaintiffs also argued that the district court erred by dismissing several of their claims for failure to state a claim. Because the complaint failed to allege that Chase filed the CRCP 120 actions for any purpose other than to obtain an order authorizing sale, the district court properly dismissed plaintiffs’ abuse of process claim. Plaintiffs’ complaint failed to allege that their property was on the market for sale and, therefore, the district court properly dismissed plaintiffs’ slander of title claim. Additionally, plaintiffs claims for breach of contract, implied covenant of good faith and fair dealing, and promissory estoppel were properly dismissed because the statute of frauds barred any unwritten modification of the loan agreement. Finally, because Chase had the right to seek enforcement of the promissory note against plaintiffs, plaintiffs’ claim for intentional infliction of emotional distress failed. The judgment was affirmed.

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

Comment Period Open for Changes to the Federal Rules of Civil, Appellate, Bankruptcy, and Criminal Procedure

The Judicial Conference Committee on Rules of Practice and Procedure has opened the public comment period for several proposed changes to the following rules and forms:

  • Appellate Rules 4, 5, 21, 25, 26, 27, 28.1, 29, 32, 35, and 40, and Forms 1, 5, 6, and New Form 7;
  • Bankruptcy Rules 1010, 1011, 2002, 3002, 3002.1, 3007, 3012, 3015, 4003, 5009, 7001, 9006, and 9009, and New Rule 1012, and Official Forms 11A, 11B, 106J, 201, 202, 204, 205, 206Sum, 206A/B, 206D, 206E/F, 206G, 206H, 207, 309A, 309B, 309C, 309D, 309E, 309F, 309G, 309H, 309I, 312, 313, 314, 315, 401, 410, 410A, 410S1, 410S2, 416A, 416B, 416D, 424, and Instructions, and new Official Forms 106J-2 and 113;
  • Civil Rules 4, 6, and 82; and
  • Criminal Rules 4, 41, and 45.

A PDF of the proposed changes may be found here.

The public comment period closes on Tuesday, February 17, 2015, at 11:59 p.m. Members of the public who wish to present testimony may appear at public hearings on the proposed amendments.

Comments and supporting files must be submitted electronically using the Regulations.gov portal. After choosing the appropriate link below, click the “Submit a Comment” link. This will display the comment web form. You can then enter your submitter information and attach your comment as a file (up to 10MB), or type your comment directly on the web form. When you have finished attaching or typing your comment, click the “Preview Comment” link to review. Once you are satisfied with your comment, click the “Submit” button to send your comment to the advisory committees. Upon completion, you will receive a tracking number for your submission.

Detailed instructions on how to submit a comment are given in the Regulations.gov FAQs.

Colorado Court of Appeals: Witness’s Failure to File Tax Returns for Several Years Probative of Character for Truthfulness

The Colorado Court of Appeals issued its opinion in Leaf v. Beihoffer on Thursday, September 11, 2014.

Negligence—Driving Under the Influence of Drugs—Impeachment—Evidence—Tax Returns—CRE 608(b)—Guilty Plea—Jury Instructions.

Defendant Beihoffer’s car rear-ended plaintiff Leaf’s taxicab on an icy road. Beihoffer ultimately pleaded guilty to a misdemeanor charge of driving under the influence of drugs (DUI). Leaf sued Beihoffer for negligence, and the court entered judgment in Beihoffer’s favor.

On appeal, Leaf contended that the district court committed reversible error by allowing impeachment evidence that he had failed to file income tax returns for several years, because that evidence was not probative of his truthfulness and was unfairly prejudicial. Evidence of a witness’s failure to file income tax returns for several years is probative of the witness’s character for truthfulness and therefore admissible under CRE 608(b) to impeach the witness’s credibility. Therefore, the court did not err in admitting such evidence.

Leaf also contended that the district court erred by not giving preclusive effect to Beihoffer’s DUI guilty plea and by excluding evidence of the plea offered for impeachment. However, evidence of Beihoffer’s DUI guilty plea had no preclusive effect in this case. The court also did not err in excluding evidence of the guilty plea for impeachment, because there was sufficient cumulative evidence presented to the jury on this undisputed issue.

Finally, because Leaf did not allege a negligence per se claim in this case, the district court did not abuse its discretion in rejecting Leaf’s proposed definitional instruction of DUI. The judgment was affirmed.

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

Tenth Circuit: Opinion Amended Upon Request for Rehearing

The Tenth Circuit Court of Appeals released its amended opinion in Bayless v. United States on Friday, September 12, 2014. In this case, the United States filed a petition for panel rehearing, which was granted in part. Modifications were made to pages 2 and 23 of the published opinion. The request for rehearing was otherwise denied. To read the summary of the original opinion, click here.

New Legal Technology: Reduced Risk, Increased Flexibility, Automated Systems—Better for Lawyers

tech-lawIt’s estimated that 90% of lawyers use mobile to check email; 34% of lawyers use tablets in the courtroom; 27% of law firms have legal blogs; 10% of individual lawyers have blogs; 48% use a tablet at work (and the tablet is capturing laptop share); 17% use litigation support software; 39% of blogs resulted in clients or referrals; 40% of solos and 30% of all lawyers use cloud services; and 58% use Dropbox to transfer and store files. Technology (including legal technology) moves fast, with new products and updates arriving at a dizzying pace.

Wouldn’t it be nice if this burgeoning technology resulted in less time in the office and an increase in billings? Many attorneys are finding this to be the case. Automating systems and keeping better track of files and cases has actually resulted in more flexibility and peace of mind for attorneys, even those having to juggle more responsibilities. In addition, smaller firms have discovered by using new technologies they are able to better compete with larger firms.

This year’s first Colorado Legal Technology Expo is October 27-28, 2014, at the CBA-CLE offices in Denver. The Legal Technology Expo is free and the place for the technology and legal communities to interact and to mutually benefit.

Not only will there be legal technology companies exhibiting, but short, educational seminars offered on the latest in technology for the legal community. Legal technology tips and best practices will be shared by experts with topics that include: Managing Interruption and Info Overload; Cloud Security; E-Recording; Using the Latest in Technology to Market Your Law Firm; and 5 Technologies Every Lawyer Should be Using Today.

We invite you to drop by, even for an hour or two, to the free Legal Tech Expo. Click here to find out more and to register for the 20-30 minute educational seminars.

CLE Program: The 2014 Colorado Legal Technology Expo

This CLE presentation will take place from Monday, October 27 through Tuesday, October 28, 2014. Click here to register.

 

Colorado Supreme Court: Trial Court Erroneously Denied Party Its Counsel of Choice

The Colorado Supreme Court issued its opinion in In re People v. Hoskins on Monday, September 8, 2014.

Disqualification of Retained Counsel of Choice—Colo. RPC 1.9(a).

In this original CAR 21 proceeding, the Supreme Court reviewed the trial court’s order disqualifying petitioners’ retained counsel of choice under Colo. RPC 1.9(a). The trial court found that counsel previously represented another party in the same matter for which counsel now represents petitioners, and that the former client and petitioners have materially adverse interests. The Court held that, because the record before it was insufficient to support a finding that the interests of petitioners and the former client are materially adverse in this criminal proceeding, the trial court abused its discretion by disqualifying petitioners’ retained counsel of choice under Colo. RPC 1.9(a). Accordingly, the Court made the rule absolute, reversed the trial court’s order disqualifying petitioners’ counsel of choice, and remanded the case to the trial court for further proceedings.

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

Model Criminal Jury Instructions Released by Colorado Supreme Court

On Wednesday, September 3, 2014, the Colorado Supreme Court announced the release of new Model Criminal Jury Instructions. The Colorado Supreme Court Model Criminal Jury Instructions Committee has been working to develop the new model instructions since its official creation in October 2011, and intends to keep the instructions up-to-date by issuing periodic supplements or new editions. Interim updates will be published on a new website called the “Reporter’s Online Update.”

The Model Criminal Jury Instructions are meant to be guidelines and are not mandatory. Individual cases may require additional instructions, or none of the model instructions may apply. A precise format for criminal jury instructions has never been mandated in Colorado, and the committee endeavored to accurately state the law in the instructions while using neutral language in order to maximize the instructions’ utility.

The Committee also created a helpful Desk Guide, which contains the Chief Justice’s order approving the model jury instructions, a hyperlinked list of chapters, and comments on the use of each chapter in the instructions.

For more information about the model criminal jury instructions, click here. To access the jury instructions via the Committee’s website, click here.

Tenth Circuit: Plaintiff Failed to Exercise Due Diligence to Discover Theft; RICO Limitations Period Expired

The Tenth Circuit Court of Appeals issued its opinion in Robert L. Kroenlein Trust v. Kirchhefer on Monday, August 25, 2014.

Robert L. Kroenlein owned and operated J&B Liquors, a liquor store in Wyoming, through the Robert L. Kroenlein Trust. When Kroenlein died, his daughter became trustee, and his son-in-law, Eric Alden, took over management of the store. Alden lived in another town and left the operations of the store to another manager. During this time, the store purchased Anheuser Busch products from a distributor named Orrison through a salesman named Kirchhefer. Unbeknownst to Alden, Kirchhefer was operating a scheme in which he would order more beer than J&B needed and then steal the extra beer and sell it to other bars. As early as 2005, J&B’s accountants discovered that beer purchases exceeded sales. Eventually, Alden discovered that Kirchhefer was the thief, set up security cameras to capture the theft, and called law enforcement.

On August 15, 2011, Alden filed a complaint through the Kroenlein Trust against Kirchhefer, the bars to which he was selling the stolen beer, and the owners of the bars, alleging two state law claims and six RICO claims. According to the complaint, the defendants engaged in a pattern of racketeering by committing wire fraud. The district court granted summary judgment to defendants on the grounds that all of Kroenlein’s RICO claims were time-barred. The district court also determined that no “enterprise” existed between Kirchhefer and the other defendants, and therefore the RICO claims were barred on this alternative ground as well.

Kroenlein appealed, alleging the district court erred in determining its claims were time-barred. Kroenlein argued there was no way for it to have discovered its injury prior to August 31, 2007, and alternatively the limitations period was equitably tolled by defendants’ fraudulent concealment. The Tenth Circuit disagreed, concluding that had Kroenlein exercised due diligence it would have discovered the fraud as early as September 2005 under the injury-discovery rule. RICO’s four-year statute of limitations expired in 2009. RICO requires only discovery of harm, not discovery of the source of harm. Kroenlein’s equitable tolling for fraudulent concealment claims also failed because the undisputed evidence failed to support that by the exercise of due diligence plaintiff could not have known a cause of action may have existed.

The district court’s summary judgment was affirmed.

Civil Access Pilot Project Extended to June 30, 2015

Chief Justice Directive 11-02 was amended in July to extend the period for the Civil Access Pilot Project until June 30, 2015. In June 2013, the project was extended to December 31, 2014. The court extended the pilot project for an additional six months in order to eliminate confusion, give the court time to determine whether the project achieved its stated goals, and consider what changes should be made to the Colorado Rules of Civil Procedure, if any.

The Civil Access Pilot Project was developed in order to streamline the litigation process by identifying and narrowing issues at the earliest stage of litigation, require active ongoing case management by a single judge, and attempt to keep litigation costs proportionate to the issues being litigated. It applies to certain business actions, including claims for breach of contract, business tort actions, actions regarding the application of the Uniform Commercial Code, actions involving commercial real property, private actions for securities fraud, actions involving intellectual property, and more.

For CJD 11-02 regarding the Civil Access Pilot Project, click here. For all the Colorado Supreme Court’s Chief Justice Directives, click here.

Colorado Court of Appeals: Substantial Compliance with Notice Provisions Sufficient for Hospital to Enforce Lien

The Colorado Court of Appeals issued its opinion in Wainscott v. Centura Health Corporation on Thursday, August 14, 2014.

Auto Accident—Hospital Lien Statute—Notice—Substantial Compliance—Colorado Consumer Protection Act—Fraudulent Concealment.

Donald Wainscott was injured in an auto accident caused by third parties (tortfeasors). He received treatment at St. Anthony Central Hospital, which is managed and operated by Centura Health Corporation. To secure payment of these medical expenses, Centura asserted a statutory hospital lien against any settlement or judgment that Donald Wainscott might receive as a result of the accident. The trial court declared that Centura’s failure to strictly comply with the hospital lien statute rendered its lien unenforceable.

On appeal, Centura argued that it substantially complied with the hospital lien statute and that the trial court erred in finding the lien was unenforceable. Because minor filing and notice deficiencies should not invalidate an otherwise valid hospital lien, substantial compliance may be sufficient to satisfy the filing and notice provisions of Colorado’s hospital lien statute. A lienholder substantially complies when it satisfies the statute’s purposes through timely actual notice of the lien to those against whom the lienholder attempts to enforce the lien. Because Centura did identify and serve the tortfeasors’ insurer and Donald Wainscott, Centura substantially complied with the hospital lien statute and the trial court erred in finding the lien was not enforceable.

On cross-appeal, the Wainscotts contended that the district court erroneously dismissed their Colorado Consumer Protection Act (CCPA) and fraudulent concealment claims under CRCP 12(b)(5) for failure to state a claim on which relief can be granted. The basis of the Wainscotts’ CCPA claim was an injury resulting from Centura’s failure to bill Medicare. However, during the period of time in question, Centura was required to refrain from billing Medicare and to seek payment from the tortfeasors’ liability insurer. Thereafter, it had the option of billing Medicare. Centura’s failure to advise the Wainscotts that it was obeying the law did not constitute a deceptive or unfair trade practice. Further, Centura did not have a duty to disclose that it planned to pursue payment from the tortfeasors or their insurer.Accordingly, the district court properly dismissed the CCPA and fraudulent concealment claims.

The district court’s dismissal of the Wainscotts’ CCPA and fraudulent concealment claims was affirmed. The summary judgment as to the Wainscotts’ declaratory action to determine the validity of Centura’s hospital lien was reversed. The case was remanded for further proceedings to determine whether the amount of Centura’s asserted lien represents “reasonable and necessary charges” under CRS § 38-27-101.

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

Tenth Circuit: Nurse’s Refusal to Assess Inmate’s Severe Abdominal Pain Violated Prisoner’s Eighth Amendment Rights

The Tenth Circuit Court of Appeals issued its opinion in Al-Turki v. Robinson on Tuesday, August 12, 2014.

Homaidan Al-Turki was a prisoner with Type II diabetes and other health conditions. On the night of October 5, 2008, he suddenly experienced severe abdominal pain. The pain was so severe he collapsed, vomited, and believed he was dying. He used his cell’s intercom to contact a correctional officer and request to go to the prison’s medical center. The officer called the medical center, where nurse Mary Robinson was the only medical staff person on duty. Robinson refused to see Al-Turki, despite knowing that severe abdominal pain can be a symptom of several life-threatening conditions and knowing that Al-Turki’s Type II diabetes made him susceptible to certain serious illnesses of which severe abdominal pain is an early symptom. Robinson also refused to allow him to be transported to a medical facility, claiming he was a flight risk.

Al-Turki reported his severe pain to a second correctional officer two more times that night, and the officer called Robinson both times. Robinson refused to see Al-Turki and advised the officer that he should file a written request for medical care the following morning. At some point in the night, Al-Turki either fell asleep or lost consciousness. When he awoke at 4 a.m., the pain was slightly better, and at 6 a.m. he was no longer experiencing pain. At a previously scheduled medical appointment at 10 a.m., he passed two kidney stones.

Al-Turki filed suit under 42 U.S.C. § 1983 against several prison officials, including Robinson, based on the officials’ failure to provide him medical assistance or treatment during the several hours he was in extreme pain while passing a kidney stone. The district court granted qualified immunity to all prison officials except Robinson, who filed an interlocutory appeal with the Tenth Circuit. The district court concluded Al-Turki could prove a claim of deliberate indifference to his medical needs in violation of the Eighth Amendment. The district court also concluded the law is clearly established that a medical professional who knows of and appreciates an inmate’s risk of serious medical harm must make a good faith effort to assess the individual.

The Tenth Circuit addressed Robinson’s two issues: (1) whether the evidence was sufficient to satisfy the objective prong of the Eighth Amendment extreme indifference test, and (2) whether her actions violated clearly established state law. As to the first claim, Robinson claimed that Al-Turki’s pain could not satisfy the objective prong because kidney stones are a relatively benign, albeit painful, condition and he was only in pain for a few hours. The Tenth Circuit stoutly rejected her argument, noting that Al-Turki was in so much pain he vomited and believed he was dying. He demonstrated significant suffering and was provided neither medical treatment to ease his suffering nor medical diagnosis to ease his fear of death. The Tenth Circuit similarly rejected her qualified immunity arguments based on Al-Turki’s relatively short period of suffering and benign diagnosis, since the facts concerning duration and diagnosis were not known at the time and he could have been suffering from any of a number of life-threatening conditions.

As to Robinson’s second claim, the Tenth Circuit ruled that Robinson violated clearly established law by choosing to ignore Al-Turki’s complaints. The denial of qualified immunity was affirmed.