October 25, 2016

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.

Colorado Court of Appeals: Trial Court Lacked Subject Matter Jurisdiction Over Plaintiff’s Claims

The Colorado Court of Appeals issued its opinion in Golden Run Estates, LLC v. Town of Erie on Thursday, October 6, 2016.

Annexation—Subject Matter Jurisdiction—Contract Claims—Annexation Act.

Defendant Town of Erie entered into a pre-annexation agreement with Harber for his property located in unincorporated Boulder County. Harber intended his company, Golden Run Estates, to develop a mixed-use community over approximately 50 years. An annexation agreement and a detailed development plan were supposed to follow the pre-annexation agreement. Golden Run Estates and Harber sued Erie after an annexation agreement was not reached following annexation of the property. They brought two contract claims, a claim for declaratory relief, and a claim for a judicial disconnection decree. The trial court found it had subject matter jurisdiction over the contract claims and entered a judgment for damages. It also ordered judicial disconnection, but concluded it did not have subject matter jurisdiction over the declaratory relief claim.

The sole issue on appeal was the jury award on the two contract claims. Erie argued that the trial court erred in concluding that it had subject matter jurisdiction over the contract claims and in upholding the breach of contract verdict because plaintiffs did not bring their claims within the 60-day limitation period under C.R.S. § 31-12-116(2)(a)(I). The court of appeals determined that the C.R.S. § 31-12-116(2)(a)(I) limitation period is jurisdictional and its time limits cannot be tolled or waived.

Erie also raised arguments relating to the sufficiency of the evidence concerning lost opportunity costs and the property manager’s testimony. Because the court determined that the trial court did not have subject matter jurisdiction over plaintiffs’ contract claims, it did not address these contentions.

Plaintiffs argued that their contract claims did not challenge the annexation of the property but were to enforce the terms of the pre-annexation agreement, so C.R.S. 31-12-116 was inapplicable. The court found plaintiffs’ claims were actually impermissible collateral attacks on the annexation and there was no separate breach of contract claim that wasn’t an argument regarding the annexation itself. The court held that the trial court did not have subject matter jurisdiction over the contract claims and vacated that part of the judgment and the damages award. The case was remanded with directions to grant Erie’s motion for directed verdict and for a determination of the amount of attorney fees incurred by Erie in the appeal.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Property Owner Is Not Liable Under PLA for Injuries Occurring on Sidewalk

The Colorado Court of Appeals issued its opinion in Andrade v. Johnson on Thursday, October 6, 2016.

Personal Injury—Summary Judgment—Premises Liability Statute—Negligence.

Andrade slipped and fell on the damaged public sidewalk adjacent to Johnson’s house and fractured her leg. Andrade filed a complaint against Johnson asserting premises liability and common law negligence claims. The district court granted Johnson’s motion for summary judgment on both claims.

On appeal, based on concessions in her opening brief, the court of appeals determined that Andrade did not contest entry of the summary judgment on the premises liability claim. Based on the undisputed fact that Andrade fell on a public sidewalk, the court concluded as a matter of law that Johnson was not a “landowner” for purposes of the premises liability statute, C.R.S. § 13-21-115 (the Act). Because Andrade’s injury did not occur on Johnson’s property, she had no claim under the Act, and the district court did not err in entering summary judgment on this claim.

Andrade also argued that the district court erred in entering summary judgment on the negligence claim, alleging Johnson had a duty to notify the city engineer about the damaged sidewalk and became liable for Andrade’s injury as a result of her failure to notify. The court considered whether the “no duty” rule was applicable and concluded that it was not because Colorado Springs City Code § 3.4.103(D) expressly provides for civil liability under the circumstances of this case. The court held that (1) the plain language of § 3.4.103(B) unambiguously imposes a duty on owners and occupants of real property to notify the city engineer about any damage to the public sidewalk abutting or adjacent to their property, and (2) this section expressly imposes liability on such owners or occupants when their failure to notify is the proximate cause of a third party’s injury. Because disputed issues of fact remain as to whether the public sidewalk was damaged and whether Johnson’s failure to report it was a proximate cause of Andrade’s injuries, the district court erred by entering summary judgment on this claim.

The summary judgment on the premises liability claim was affirmed. The summary judgment on the negligence claim was reversed and the case was remanded to the district court for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Evidence of Decedent’s Driving History Properly Excluded

The Colorado Court of Appeals issued its opinion in Alhilo v. Kliem on Thursday, October 6, 2016.

Wrongful Death—Exemplary Damages—Habitual Traffic Offender—Evidence—Flight from Scene—Circumstantial Evidence—Noneconomic Damages Cap—Comparative Negligence.

Alhilo died in a collision between his motorcycle and a car driven by defendant Kliem. Alhilo’s mother, the plaintiff, brought this wrongful death action against Kliem. The jury allocated the fault and awarded noneconomic and exemplary damages. Kliem appealed the judgment entered on the verdict.

On appeal, Kliem contended that the trial court erred by excluding evidence of the deceased’s driving record and his status as a habitual traffic offender (HTO). Kliem argued that this evidence was admissible under the exception in C.R.S. § 42-4-1713; however, this case does not support admitting either type of evidence under this statute. Admissibility of HTO status evidence is subject to the rules of evidence, primarily CRE 401 and 403. Here, both rules weigh against admission. Therefore, the trial court did not abuse its discretion by precluding evidence of the deceased’s status as an HTO and his driving record.

Kliem also contended that the trial court erred by admitting evidence of Kliem’s two prior convictions for driving while impaired. The trial court found this evidence relevant, and acknowledging the potential for prejudice, gave an appropriate limiting instruction. Therefore, the trial court did not abuse its discretion in allowing evidence of Kliem’s prior alcohol offenses for purposes of exemplary damages.

Kliem further contended that the trial court erred by admitting evidence that he fled the accident scene. Evidence of Kliem’s flight was relevant to explain why plaintiff was unable to present direct proof of Kliem having been impaired by alcohol, such as a breath test or blood draw shortly after the accident occurred. Further, evidence of Kliem’s flight showed his consciousness of liability. For these reasons, the trial court did not abuse its considerable discretion in allowing evidence of Kliem’s post-accident flight.

Kliem next contended that there was insufficient evidence to prove plaintiff was entitled to exemplary damages. However, the alcohol containers found in Kliem’s vehicle, and the facts that he failed to immediately seek medical attention for his severe injuries, fled the accident scene, and failed to immediately turn himself in to police constitute sufficient circumstantial evidence to support the exemplary damages award.

Kliem also argued that exemplary damages were improper because his left-hand turn was legal. There is no authority requiring that a traffic law violation be shown before exemplary damages can be awarded.

Finally, Kliem contended that the noneconomic damages cap in C.R.S. § 13-21-203 must be applied to an award of noneconomic damages before comparative negligence is apportioned. Once the amount of a plaintiff’s recovery is determined, the noneconomic damages cap in C.R.S. § 13-21-203 comes into play, which merely limits a plaintiff’s recovery to a specified maximum amount. Therefore, the trial court properly determined the amount of plaintiff’s recovery by first apportioning the percentage of comparative negligence attributable to Kliem and then applying the noneconomic damages cap in C.R.S. § 13-21-203 to that amount.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Notice of Appeal Timely Filed 49 Days After Denial of Motion for Reconsideration

The Colorado Court of Appeals issued its opinion in Semler v. Hellerstein on Thursday, October 6, 2016.

Notice of Appeal—Timeliness—Amended Complaint—Jurisdiction—Motion to Dismiss—Fraud—Concealment—Misrepresentation—Civil Conspiracy—Breach of Fiduciary Duty—Breach of Contract—Third Party Beneficiary—Attorney Fees.

Plaintiff Semler and defendant Perfect Place, LLC are both members of the 1940 Blake Street Condominium Association (Association). Defendant Hellerstein owns and controls both Perfect Place, LLC and Bruce S. Hellerstein, CPA P.C. (collectively, Perfect Place defendants). Hellerstein also served as treasurer of the Association. Defendant Bewley is an attorney employed by defendant law firm Berenbaum Weinshienk, P.C. At all relevant times, Bewley represented Hellerstein and his two corporate entities.

The current litigation stems from a related quiet title action in which Perfect Place asked the court to determine that it was the rightful owner of parking spaces C, D, and E. The court presiding over the quiet title action determined that Semler owned parking spaces C and D, while Perfect Place owned parking space E. Semler then brought the current suit, claiming that Bewley and Hellerstein devised a scheme to gain title to Semler’s parking spaces C and D. Semler’s first amended complaint alleged claims only for breach of fiduciary duty against Hellerstein, aiding and abetting that breach against Bewley, and civil conspiracy against all defendants. The court granted defendants’ motions to dismiss. Semler then moved to amend his complaint a second time, proposing to add claims for fraud, nondisclosure and concealment, negligent misrepresentation, negligent supervision, vicarious liability, and breach of contract. He also more clearly explained that he was seeking damages for lost income opportunities he suffered as a result of having to defend against the quiet title action. The court denied Semler’s second motion to amend based on lack of standing to pursue alleged fraud or misrepresentation against the prior owner of the parking spaces and awarded attorney fees in favor of defendants.

On appeal, defendants asserted that Semler’s notice of appeal was untimely and, therefore, the Colorado Court of Appeals lacked jurisdiction to consider the appeal. The court determined that Semler timely filed his notice of appeal 49 days after the court denied his C.R.C.P. 59 motion for reconsideration.

Semler contended that the trial court erred by denying his motion for leave to amend his complaint a second time. The court’s dismissal of the action was specifically premised on Semler’s fraud claims, which were new to the second amended complaint. It was therefore apparent to the court that although the trial court denied the motion to amend, it considered the claims in the second amended complaint when ruling on the motion to dismiss.

Semler argued that the trial court erred in granting defendants’ motions to dismiss. Semler’s fraud, concealment, and misrepresentation claims were all premised on conversations and transactions between the prior owner of the parking spaces and defendants in which Semler was not involved. Semler lacked standing to bring those claims. Semler’s claims for lost opportunity damages are too remote and unforeseeable to be recoverable under these claims. Therefore, these claims failed to state a claim upon which relief could be granted and should have been dismissed under C.R.C.P. 12(b)(5).

Semler also contended that defendants conspired with each other to obtain his parking spaces. He is not entitled to relief on a civil conspiracy claim against Bewley because a director cannot conspire with the corporation that he serves, which is the premise of Semler’s argument. Additionally, because Hellerstein was not acting in his role as treasurer when he engaged in the allegedly fraudulent conduct, Semler’s breach of fiduciary duty claim against Hellerstein fails. Because these claims fail, Semler’s aiding and abetting breach of fiduciary duty claim against Bewley and negligent supervision and vicarious liability claims against Bewley’s law firm, Berenbaum Weinshienk, fail as well.

As to his breach of contract claim, although Semler was not a party to the contract between Berenbaum Weinshienk and the Association in which Berenbaum Weinshienk agreed that it would not represent one Association member against another, Semler sufficiently pleaded a third-party beneficiary breach of contract claim pursuant to this agreement. Therefore, the case was remanded to the trial court for further proceedings on this claim.

Semler also contended that if the dismissal order is reversed, the attorney fees award in favor of defendants must also be reversed. Only Semler’s breach of contract claim survives C.R.C.P. 12(b) dismissal. Thus, because that claim was not pleaded against the Perfect Place defendants, the attorney fees award to them remains undisturbed. The order awarding fees award under this statute to Bewley and Berenbaum Weinshienk was reversed.

The orders were affirmed in part and reversed in part, and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Specific Proviso in Condominium Declaration Precluded Certain Non-unanimous Amendments

The Colorado Court of Appeals issued its opinion in DA Mountain Rentals, LLC v. The Lodge at Lionshead Phase III Condominium Association, Inc. on Thursday, October 6, 2016.

The Lodge at Lionshead Condominium Association established a Condominium Declaration years before the adoption of the Colorado Common Interest Ownership Act, which it attempted to amend in 2012 to establish a condominium community. The Association’s proposed amendment was adopted by a supermajority of owner-members. DA Mountain Rentals, an owner of one of the condominium units, protested that the amendments could only be adopted by unanimous consent of the members pursuant to a specific proviso in the Declaration. DA sought a declaratory injunction in district court prior to the Association’s recording of the amendments, and the amendments have not yet become effective due to the litigation.

After discovery, the Association moved for determination of law pursuant to C.R.C.P. 56(h). The court granted the motion and determined that the 2012 Amendments had been validly adopted and the 67 percent voting requirement they imposed did not violate the terms of the Declaration or CCIOA. The Association next moved for summary judgment, which the court also granted. DA filed two appeals. The first appeal challenged the district court’s grant of the Rule 56 motion and the summary judgment motion. The second appeal challenged post-judgment attorney fee and cost awards. The Association moved to dismiss the second appeal because the attorney fee issue was not ripe. A division of the court of appeals partially granted the Association’s motion to dismiss as to the attorney fee issue and consolidated the remaining issues.

The court of appeals first addressed whether the 2012 amendments were valid under the Declaration and the CCIOA, since they would eliminate unanimous member and lender consent requirements for shared expenses and determining obsolescence. The court first considered whether the amendments were permitted under the Declaration without unanimous consent. Because the 2012 amendments could affect the members’ common expenses, the court found that those provisions affecting the common expenses were not allowable under the Declaration. As to the 2012 amendments concerning obsolescence, those were not subject to the unanimous consent requirement and were allowable.

The court next considered whether the construction of the Declaration conflicted with the CCIOA, and determined that it did not. The court evaluated the unanimity requirement as related to the CCIOA and found that there was no conflict between the Declaration and the CCIOA. The court similarly concluded that the obsolescence amendments did not conflict with the CCIOA. The court next evaluated the mandatory buyout provision in the 2012 amendments and found that it was valid. The court rejected DA’s arguments about attorney fees and costs.

The court then considered the Association’s cross-appeal on whether the district court abused its discretion by ordering the production of documents the Association contended were privileged. The court engaged in a lengthy analysis of the sequence of events in district court, and whether subsequent Colorado Supreme Court precedent required the court to retroactively engage in a proportionality review. The court of appeals found that the district court had actively managed discovery after the Association asserted privilege, and the district court retained discretion to do so as it saw fit. The court found no abuse of discretion by the district court.

The court affirmed in part, reversed in part, and remanded with directions.

Colorado Supreme Court: Test Enunciated to Determine Personal Jurisdiction for Non-resident Company Based on In-state Contacts

The Colorado Supreme Court issued its opinion in Griffith v. SSC Pueblo Belmont Operating Co. on Monday, September 26, 2016.

Constitutional Law—Personal Jurisdiction—Corporations and Business Organizations—Related or Affiliated Entities.

The Colorado Supreme Court held that, to exercise personal jurisdiction over a nonresident parent company based on the in-state contacts of its resident subsidiary, a trial court shall perform the following analysis: First, the trial court shall determine whether it may pierce the corporate veil and impute the resident subsidiary’s contacts to the nonresident parent company. If so, the court shall analyze all of the nonresident company’s contacts with Colorado, including the resident subsidiary’s contacts, to determine whether exercising either general or specific personal jurisdiction over the company comports with due process. Conversely, if the trial court concludes that it may not pierce the corporate veil, it shall treat each entity separately and analyze only the contacts that each parent company has with the state when performing the personal jurisdiction analysis. Here, because the trial court did not perform this two-step analysis when it determined that petitioners were subject to personal jurisdiction in Colorado, the court made its rule to show cause absolute.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Newly Announced Griffith Test Applied to Determine Personal Jurisdiction

The Colorado Supreme Court issued its opinion in Meeks v. SSC Colorado Springs Colonial Columns Operating Co. on Monday, September 26, 2017.

Constitutional Law—Personal Jurisdiction—Corporations and Business Organizations—Related or Affiliated Entities.

The Supreme Court holds that the trial court must apply the test announced in Griffith v. SSC Pueblo Belmont Operating Co., 2016 CO 60, __ P.3d __, to determine whether nonresident parent companies may be haled into court in Colorado based on the actions of their resident subsidiaries. It also held that, although an evidentiary hearing is not always required for a ruling on a CRCP 12(b)(2) motion, this case requires a hearing to fully address this case’s complex record and to apply the fact-intensive Griffith test.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: City Waived Immunity by Failing to Maintain Road

The Colorado Court of Appeals issued its opinion in Dennis v. City & County of Denver on Thursday, September 22, 2016.

Colorado Governmental Immunity Act—Deteriorated Roadway—Unreasonable Risk to Health or Safety of Public.

Heyboer sustained injuries as a passenger on a motorcycle that could not timely brake when a car unexpectedly turned left in front of it. Dennis, as conservator and guardian for Heyboer, brought this negligence and premises liability action against the City and County of Denver (City). The complaint alleged that (1) the City had a duty to maintain the roadway free from dangerous conditions that physically interfered with the movement of traffic, (2) it breached that duty by allowing the roadway to fall into disrepair, (3) it knew of the deteriorated state of the road from prior complaints, and (4) Heyboer’s injuries resulted from the City’s breach of its duty of care.

The City moved to dismiss under C.R.C.P. 12(b)(1), asserting immunity and denying the allegations. The district court conducted a hearing and granted the City’s motion.

On appeal, Heyboer argued that she satisfied her burden of proving an unreasonable risk to the health or safety of the public; she contended that the court erred in finding no evidence of an unreasonable risk and, by doing so, erred as a matter of law in refusing to find a waiver of immunity. Both the record and the court’s factual findings demonstrated that the City failed to maintain the road as required by C.R.S. § 24-10-103(2.5), thereby creating an unreasonable risk to the health or safety of the public. The court of appeals concluded that the district court clearly erred in its factual finding that the record contained no evidence of an unreasonable risk to the health and safety of the public. This also leads to the conclusion that it was error to find, as a matter of law, that there was no waiver of immunity under the Colorado Governmental Immunity Act.

The judgment was reversed and the case was remanded for reinstatement of the complaint.

Summary provided courtesy of The Colorado Lawyer.

Ask the Experts: Why Do Lawyers Get Sued?

EthicsThe ABA Standing Committee on Lawyers’ Professional Liability compiled a comprehensive Profile of Legal Malpractice Claims, evaluating claims from 2008 through 2011. According to the Committee’s report, real estate lawyers held the dubious honor of having the highest percentage of malpractice claims, followed by family law, trust and estate, and personal injury law. Forty-five percent of all malpractice claims were filed due to substantive errors, like failure to know or properly apply the law, discovery errors, procedural choice errors, missing deadlines, and conflicts of interest. Administrative errors counted for the second-highest reason for claims, including procrastination in performance or follow-up (read: not returning phone calls), lost files, calendaring errors, and other clerical errors. Together, nearly three-quarters of all legal malpractice claims filed during the Committee’s study period were due to errors. That is a frightening statistic.

One way to avoid becoming the subject of a malpractice claim is to choose clients carefully. Everyone has experienced “problem” clients—clients who won’t leave you alone, who lack the ability to pay, and who seem to criticize your every move. Attorney Sally Field (no relation to the actress) compiled a list of the top ten warning signs for problem clients:

  1. Clients who want to change lawyers in the middle of the case;
  2. Clients who trash the lawyer they just left;
  3. Clients who are reluctant to answer basic questions;
  4. Clients who are overly opinionated about the law without justification;
  5. Clients who have unreasonable expectations;
  6. Clients who micromanage everything;
  7. Clients who won’t let you end an excessively long initial client interview;
  8. Clients who want to exact revenge or punishment through the legal system;
  9. Clients who make negative comments about judges, courts, and the judicial system; and
  10. Companies with unusually high turnover of key staff or unusual corporate structures.

Bottom line? Many potential malpractice claims can be avoided by refusing to represent those clients who seem like trouble from the outset. Avoiding mistakes is helpful, too.

Sally Field, along with John Palmeri, will discuss common reasons for lawyer malpractice lawsuits in a panel discussion moderated by Heather Kelly. Join us for this interesting and informative breakfast CLE on Tuesday, September 27, 2016. Call (303) 860-0608 to register, or click the links below.



CLE Program: Why Lawyers Get Sued

This CLE presentation will occur on September 27, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 8:30 a.m. to 9:30 a.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Event Data Recorders, Drones, and Evidence: What You Need to Know

DroneThe Denver District Attorney’s monthly newsletter for September 2016 warned consumers about connecting their cell phones to the computers in rental cars. The newsletter warned, “Once your phone is connected to the car, it can access all your phone’s information such as GPS searches, home address, phone calls, contacts, etc. The information is stored indefinitely, waiting for the next person to connect to the car, and to your private information. The risk is obvious.”

The risk to rental car drivers concerns the car’s Event Data Recorder, or EDR. However, EDRs in cars can be useful for more than accessing another driver’s playlist. EDRs can record when and how often drivers use certain features in cars, such as the hand brake or the turn signal. The raw data from a vehicle’s EDR can be enormously useful in litigation. C.R.S. § 12-6-402 governs the use of EDR evidence in litigation, providing

EDR data is the personal information of the vehicle’s owner and the data shall not be retrieved by a person who is not the owner unless:

  1. The owner or the owner’s agent has consented to the retrieval in the last 30 days;
  2. The data is retrieved by a technician performing service or repair;
  3. The data is subject to discovery pursuant to the rules of civil procedure in an auto accident case;
  4. A court or administrative agency with jurisdiction orders the data be retrieved;
  5. The EDR is installed after the manufacturer or dealer sells the vehicle; or
  6. A peace officer retrieves the data pursuant to a court order as part of an investigation.

Another relatively new source of litigation evidence comes from drones. Drones, or unmanned aerial systems, collect video evidence from their on-board cameras. The use of drones is fraught with controversy, as cases collect regarding people shooting drones in the airspace above their property, people expressing surveillance concerns regarding drones, and more. The Federal Aviation Administration has promulgated rules regarding the use of drones, but more will be developed as these unmanned aircraft gain popularity.

Savvy lawyers need to know about the complexities of digital evidence preservation and the ethical considerations of working with technology and the experts who gather the data. Join Fay Engineering and Chad Lieberman, Esq. for an exciting presentation about the cutting edge technology of drones, dash cams and black boxes. Digital information is being gathered by our vehicles, our phones, and in nearly every aspect of our lives. The technology of aerial photography continues to rapidly change. The presentation covers the latest advances in evidence collection by drones and commercial services. Register online here, or by clicking the links below.



CLE Program: New Technology for Evidence Preservation: Drones, Dashcams, Black Boxes and More

This CLE presentation will occur on September 26, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 12 p.m. to 1:30 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

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.