August 24, 2019

Archives for July 23, 2010

Tenth Circuit: Opinions, 7/23/10

The Tenth Circuit on Friday issued two published opinions and four unpublished opinions.

Published

In United States v. Pope, the Court affirmed the district court’s decision denying Petitioner’s pre-trial motion to dismiss. Petitioner contends that 18 U.S.C. § 922(g)(9) is unconstitutional as applied to him; the statute makes it felony for a person previously convicted of a misdemeanor crime of domestic violence to possess a gun. While Petitioner admits to falling within the realm of the statute, he believes that because the gun was only on his property for self defense, the statute violates his Second Amendment rights. The Court disagreed, however, finding that facts to support his assertions are “outside the indictment, hotly disputed by the government, and intimately bound up in the question of Mr. Pope’s guilt or innocence.”

In Sala v. United States, the Court reversed the district court’s decision. The United States, Petitioner, was not required to refund $24 million of prior paid taxes to Respondent. The taxes paid represent losses of a business scheme intended to shield Respondent from IRS taxation; Respondent’s participation in the venture lacked economic substance and was solely designed to offset his income with little economic risk.

Unpublished

Alvillar v. Utah State Board of Pardons

Amphibious Partners, LLC v. Redman

Pruitt v. Parker

United States v. Redmond

Colorado Court of Appeals: No Suppression of Evidence for Knock-and-Announce Violations

The Colorado Court of Appeals issued its opinion in People v. Butler on July 22, 2010.

Search Warrant—Fourth Amendment—Motion to Suppress—Knock-and-Announce Search—Remedy—Jury Instructions—Invited Error Doctrine.

Defendant Robert Butler appealed the trial court’s judgment of conviction entered on a jury verdict finding him guilty of two counts of attempting to disarm a police officer. The judgment was affirmed.

When officers attempted to execute a search warrant at his residence in connection with an allegation that defendant assaulted someone with a large knife, Butler also was charged with two counts of attempting to disarm a police officer. These charges were heard separately from all other charges regarding the knife incident, and defendant was found guilty of both counts.

Butler’s principal contention on appeal was that the trial court erred in denying his motion to suppress evidence from the police’s “knock-and-announce” search, because the search violated his Fourth Amendment rights; however, suppression of evidence is no longer a remedy in a criminal case for violations of the knock-and-announce rule. The Court of Appeals therefore declined to address whether Butler’s Fourth Amendment rights were violated, because he would have no remedy regardless of the result.

Butler also contended that the trial court erred in adding the phrase “or search warrant executed” to the jury instruction, defining when a police officer acts under color of authority. The Court disagreed. The record shows that when the trial court proposed amending the jury instruction defining when a police officer acts under color of official authority by adding the phrase “or search warrant executed,” defense counsel responded, “That’s fine with me.” The invited error doctrine precludes Butler from appealing this issue because he expressly acquiesced in the instruction at trial.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on July 22, 2010, can be found here.

Colorado Court of Appeals: Restitution Paid to DHS During Dependency and Neglect Action Inappropriate

The Colorado Court of Appeals issued its opinion in People v. Padilla-Lopez on July 22, 2010.

Restitution—Drug Possession—Child Abuse—Dependency and Neglect—Department of Human Services—Victim—CRS §§ 18-1.3-602 and -205.

Defendant appealed the district court’s order imposing restitution. The order was reversed and the case was remanded.

Undercover detectives purchased methamphetamine and cocaine from a third party in defendant’s residence while her children were present. Detectives thereafter executed a search warrant and recovered additional illegal drugs and drug paraphernalia, which were within the children’s reach. Defendant was charged with drug possession and child abuse. To resolve the charges, she pled guilty to two counts of possession, misdemeanor theft, and misdemeanor child abuse. In the plea agreement, defendant stipulated that she would pay restitution. The court ordered defendant to pay $19,295.14 in restitution to the El Paso County Department of Human Services (DHS) for the money it expended to place and keep her two children in foster care through the dependency and neglect action.

Defendant contended that the court erred in ordering her to pay restitution to DHS. Because an essential element of the underlying crime in this case requires wrongful conduct against a child, it follows that DHS is not a “victim” under CRS § 18-1.3-602, and any expenses it incurred were incidental to its duties. Therefore, the court erred in imposing restitution to DHS under CRS § 18-1.3-205. The court’s restitution order was reversed and the case was remanded for further proceedings.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on July 22, 2010, can be found here.

Colorado Court of Appeals: Reserve Asset Not Unreasonable at Time of Transfer to Warrant Broker’s Garnishment

The Colorado Court of Appeals issued its opinion in CB Richard Ellis, Inc. v. CLGP, LLC on July 22, 2010.

Garnishment—Distribution—Constructively Fraudulent Transfer.

In this garnishment action, judgment creditor and garnishor, CB Richard Ellis, Inc., a real estate brokerage company (broker), appealed the trial court’s order denying its traverse of answers to garnishment filed by the garnishees, who are the only owners of the judgment debtor, CLGP, LLC (LLC). The order was affirmed.

The LLC is a limited liability company that was formed in Colorado for the sole purpose of purchasing and selling land in Douglas County (property). The LLC has two members: (1) Gesco Corporation, which is owned by Gerald Student, a real estate manager; and (2) Richard Hatch, a real estate attorney who specializes in real estate lending. The LLC bought the property in 2004 for approximately $1 million. The LLC entered into a listing agreement with the broker to sell the property. Before the time period for the listing agreement expired, Student told the broker that he was taking over responsibility for negotiations with Grand Peaks, a potential buyer. Grand Peaks subsequently purchased the property, and the broker did not receive any commission from the purchase. The garnishees set aside a $200,000 reserve asset to insure the disputed broker fee before distributing the remaining net proceeds to the garnishees. The parties later submitted their dispute to arbitration concerning the broker’s commission. The LLC hired outside counsel to litigate the arbitration and paid counsel’s fees out of the $200,000 reserve asset. The arbitrator awarded the broker $395,000. The LLC paid broker the remaining $44,500 from the reserve asset, and the broker proceeded to garnish the garnishees. However, the trial court ruled that the distribution from the LLC to the garnishees was not a constructively fraudulent transfer.

As a threshold matter, the LLC claimed that the broker failed to preserve its claim under CRS § 38-8-106(1). Because the parties tried this issue by consent, the broker’s claim was preserved.

The broker argued that the trial court erred when it concluded that the distribution from the LLC to the garnishees was not a constructively fraudulent transfer. However, the $200,000 reserve asset was not unreasonable at the time of the transfer, especially in light of the fact that the maximum commission owed to the broker, which was a contingent liability, was $177,000. The trial court applied the proper legal standard when considering this form of constructive fraud, and its finding supported its ruling that the broker did not show that the garnishees should have reasonably foreseen that the distribution would create an unreasonable risk of insolvency. Accordingly, the trial court did not err in denying the broker’s garnishment of the garnishees.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on July 22, 2010, can be found here.

Colorado Court of Appeals: New Uninsured Motorist Policy Not Created by Adding Additional Vehicle to Existing Policy

The Colorado Court of Appeals issued its opinion in Snell v. Progressive Preferred Insurance Company on July 22, 2010.

Automobile Insurance—Underinsured Motorist Coverage—CRS § 10-4-609.

Plaintiff appealed the district court’s grant of summary judgment in favor of defendant Progressive Preferred Insurance Company (insurer). The judgment was affirmed.

In April 2006, plaintiff purchased automobile insurance from insurer, which included uninsured/underinsured motorist (UM/UIM) coverage with limits of $25,000 for each person and $50,000 for each accident. Plaintiff was involved in an accident in her 1995 Suzuki Sidekick and recovered the policy liability limit of $50,000 from the other driver. Plaintiff thereafter made a claim against her own policy for UIM coverage, which was denied by insurer. Plaintiff filed suit against her insurer, and the trial court granted summary judgment in favor of insurer.

On appeal, plaintiff argued that the district court erred by granting summary judgment in favor of insurer. Specifically, plaintiff argued that CRS § 10-4-609(1)(c), as amended, permitted her to file a UIM claim against insured. Senate Bill 07-256 amended CRS § 10-4-609. As amended, § 10-4-609(1)(c) provides that the amount of the coverage available “shall not be reduced by a set off from any other coverage, including . . . other uninsured or underinsured motor vehicle insurance.” The bill also removed language from § 10-4-609(2) that had permitted insurers to include policy language prohibiting “stacking” of UM/UIM limits in policies issued to an insured and resident relatives of the insured. Section 4 of the bill provides that it “shall take effect January 1, 2008, and shall apply to policies issued or renewed on or after the applicable effective date of this act.”

Plaintiff’s policy renewed for the period from October 27, 2007 through April 27, 2008, and initially insured a 1987 Chevrolet 510 pickup truck. On January 14, 2008, plaintiff added liability coverage for a 1995 Suzuki Sidekick to the policy. This resulted in a premium increase of $83 for the policy period. Plaintiff made no changes to the coverage limits or to the UM/UIM coverage on the policy. As a matter of law, once plaintiff had procured UM/UIM coverage, the number of vehicles on the policy was immaterial to that coverage, because under Colorado law, the coverage applies to the individuals insured, not to vehicles. Therefore, because plaintiff was not issued a policy and did not renew a policy on or after January 1, 2008, the amendment to CRS § 10-4-609(1)(c) did not apply to plaintiff, and she was not entitled to recover UIM benefits pursuant to the terms of her policy with insured. Accordingly, the court properly entered summary judgment for insurer.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on July 22, 2010, can be found here.

Colorado Court of Appeals: Penalties for Government’s Undervaluing of Property in Eminent Domain Do Not Include Consideration of Prejudgment Interest

The Colorado Court of Appeals issued its opinion in City of Colorado Springs v. Andersen Mahon Enterprises, LLP on July 22, 2010.

Eminent Domain—Offer—Award—Attorney Fees—Prejudgment Interest—CRS § 38-1-122(1.5).

In this eminent domain proceeding, petitioner City of Colorado Springs (City) appealed the trial court’s order awarding attorney fees to respondent Andersen Mahon Enterprises, LLP. The order was reversed.

The City and Andersen Mahon were unsuccessful in negotiating just compensation for the taking of Anderson Mahon’s property, which was to be used by the City to widen a roadway. Andersen Mahon rejected the City’s final written offer of $1.2 million. On August 15, 2008, the City filed a Petition in Condemnation. On September 4, 2008, the City took possession and deposited into the court registry $1,024,000, a sum equal to its appraised value of the property. After the valuation trial in April 2009, a court-appointed board determined that the value of the property on September 4, 2008 was $1,542,294. This award was 28.5 percent higher than the City’s final written offer of $1.2. Andersen Mahon then moved for an award of attorney fees pursuant to CRS § 38-1-122(1.5). It argued that prejudgment interest should be added to the board’s valuation award in determining whether the City’s final written offer had been exceeded by 30 percent. The trial court agreed with Andersen Mahon and awarded attorney fees.

On appeal, the City argued that prejudgment interest is separate from the “award by the court,” within the meaning of CRS § 38-1-122(1.5). The Court of Appeals agreed. Under § 38-1-122(1.5), property owners are entitled to reimbursement for attorney fees they incur in challenging the governmental entity’s valuation of their condemned property if the court’s award exceeds the condemning entity’s last written offer by 30 percent. The phrase in this statute, “award by the court,” means only the property valuation award, and not the valuation award plus prejudgment interest. Because the award (not including prejudgment interest) did not exceed the 130 percent threshold of the last written offer by the City, Andersen Mahon was not entitled to attorney fees. Therefore, the award of attorney fees was reversed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on July 22, 2010, can be found here.

Colorado Court of Appeals: Order or Judgment of Magistrate Without Consent of the Parties Requires District Court Review Prior to Appeal

The Colorado Court of Appeals issued its opinion in In re the Marriage of Stockman on July 22, 2010.

Jurisdiction—C.R.M. 7(a) and (b).

Following a contempt hearing, a magistrate found husband guilty of two counts of contempt and ordered wife to submit an attorney fees affidavit. Following receipt of the affidavit, the magistrate entered remedial sanctions against husband, requiring him to pay $750 of wife’s attorney fees. The last line of the order read, “Any appeal of this order must be taken within 45 days pursuant to Rule 7(b), C.R.M.”

Wife entered this pro se appeal forty-three days after entry of the magistrate’s order. Although wife followed the directions provided by the magistrate, those directions were erroneous. Any order or judgment of a magistrate entered without the consent of the parties requires district court review prior to an appeal. Because wife did not seek district court review first, the Court of Appeals lacked jurisdiction. Accordingly, the appeal was dismissed without prejudice.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on July 22, 2010, can be found here.