August 25, 2019

Archives for August 11, 2010

Colorado Court of Appeals: Summary Judgment Appropriate for Eminent Domain Proceeding; No Genuine Dispute over Value

The Colorado Court of Appeals issued its opinion in City of Steamboat Springs v. Johnson on August 6, 2010.

Eminent Domain—Greenbelt—Summary Judgment—Easement Appurtenant—Value.

Charles Johnson and Johnson Excavation, Inc. (collectively, Johnson) appealed the district court’s partial summary judgment on valuation issues regarding Johnson’s Lot 4 and Johnson’s interests in a greenbelt. The judgment was affirmed in part and reversed in part, and the case was remanded for further proceedings.

The City of Steamboat Springs (City) decided to construct a new highway on what once was greenbelt area. To do so, it obtained a judicial decree that it owned the greenbelts, condemned or acquired property owners’ appurtenant rights to restrict use of that area to anything but greenbelts, and acquired adjoining properties. The district court granted the City’s motion for partial summary judgment as to the value of most of Johnson’s interests, including Lot 4 and the greenbelt interests.

Johnson argued that summary judgment is unavailable in takings cases because property owners have a constitutional right to require that a jury determine the amount of compensation. However, the summary judgment rule, C.R.C.P. 56, plainly applies to eminent domain proceedings.

Here, there was no genuine dispute as to the value of Lot 4. Therefore, summary judgment was proper on this issue. Johnson’s greenbelt interests were an easement appurtenant to his Lot 4 property. The value of that lost interest depends not on the effect on the greenbelts themselves, but rather on the effect on Lot 4. Because the district court did not measure before and after values of Lot 4 but relied on appraisals of the greenbelts themselves, the case was remanded to determine the proper amount by which loss of the greenbelts diminished the value of Lot 4.

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: Lack of Signature on Subcontract Does Not Automatically Invalidate Otherwise Enforceable Agreement to Arbitrate

The Colorado Court of Appeals issued its opinion in E-21 Engineering, Inc. v. Steve Stock & Associates, Inc. on August 6, 2010.

Arbitration—Signature—Evidentiary Hearing—Counterclaims—Statute of Limitations.

Defendant Steve Stock & Associates, Inc. (Stock) appealed the trial court’s orders staying arbitration and dismissing its counterclaims against plaintiff E-21 Engineering, Inc. (E-21). The orders were vacated and the case was remanded for an evidentiary hearing.

E-21 sent Stock a letter of intent to enter into a formal subcontract with Stock for the performance of certain aspects of work on a project. Although E-21 sent Stock a subcontract, which included a provision for mandatory arbitration, neither party signed the subcontract. After Stock began work, E-21 wrote Stock a letter rescinding the letter of intent. Stock demanded arbitration, E-21 moved to stay the arbitration, the trial court stayed the arbitration because there was no written agreement, Stock filed counterclaims against E-21, and the court dismissed Stock’s counterclaims as being untimely.

On appeal, Stock contended that the trial court erred in concluding that the parties had not agreed to arbitrate and by failing to hold an evidentiary hearing to resolve the issue of arbitrability. The lack of signature in and of itself does not invalidate an otherwise enforceable agreement to arbitrate. Because the trial court’s determination of arbitrability was based on an erroneous legal conclusion and because the court did not make factual findings regarding enforceability absent a signed document, the case was remanded for an evidentiary hearing and for a determination as to whether the parties had agreed to arbitrate any disputes.

Stock also contended that the trial court erred in dismissing its counterclaims as untimely. If the trial court determines on remand that the parties agreed to arbitrate, this issue is moot. If the trial court finds on remand that there was no agreement to arbitrate, the court erred in dismissing Stock’s counterclaims because they are compulsory and would be revived pursuant to CRS § 13-80-109.

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: Service Providers to Disabled, Former Sex Offender Had No Duty to Warn and Were Immune from Liability to Third Parties

The Colorado Court of Appeals issued its opinion in J.C. v. Dungarvin Colorado, LLC on August 6, 2010.

Negligence—Service Provider—Developmental Disabilities—Sex Offender—Immunity.

In this negligence action, plaintiffs J.C. and C.C., individually and on behalf of M.C., appealed the district court’s summary judgment in favor of defendants Dungarvin Colorado, LLC (Dungarvin, LLC); Dungarvin Colorado, Inc. (Dungarvin, Inc.); Carmel Community Living Corporation (Carmel); The Resource Exchange (TRE); and Daniel Barriera. The judgment was affirmed.

Defendants provided residential and day services to D.C., who had developmental disabilities and was a juvenile sexual offender. Plaintiffs alleged that after D.C. turned 21, he sexually assaulted M.C. Plaintiffs filed suit, claiming that TRE, Dungarvin, Inc., Carmel, and Barriera negligently failed to properly supervise D.C. and negligently failed to warn plaintiffs about his history of committing sexual offenses. The trial court concluded that defendants were immune from liability as service providers.

On appeal, plaintiffs contended that (1) the district court erroneously concluded, as a matter of law, that Dungarvin, LLC and Carmel were service providers pursuant to CRS § 13-21-117.5(2)(f); and alternatively, (2) notwithstanding defendants’ immunity from liability to third parties under CRS § 13-21-117.5(4) and (6), defendants owed a duty of care to M.C. and a duty to warn M.C. Providers of services to persons with developmental disabilities are not liable to third parties for the torts of the developmentally disabled persons they serve, unless a developmentally disabled person communicates to the provider a serious and credible threat of imminent physical violence and serious bodily injury against a specific person or persons. Furthermore, the provision of services to a person with developmental disabilities does not impose on a provider a duty of care with respect to third persons, unless expressly imposed by federal or state law.

Here, Dungarvin, LLC and Carmel met their initial burden to show that there was no genuine issue of material fact as to whether they were authorized by the Department of Human Services to provide services to persons with developmental disabilities, and plaintiffs failed to rebut that position. In addition, defendants were not providing services to D.C. based on his status as a sex offender when the sexual assault allegedly occurred, and plaintiffs did not allege that D.C. communicated to defendants a serious and credible threat of imminent physical violence and serious bodily injury against M.C. Thus, as providers, defendants were immune from liability for D.C.’s violent, assaultive, disorderly, or harassing behavior; had no duty to warn M.C.; and had no duty of care with respect to M.C. that arose from providing services to D.C.

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: Supplemental Attorney’s Fees Not Contemplated under Supersedeas Bond

The Colorado Court of Appeals issued its opinion in Holt Group, LLC v. Kellum on August 6, 2010.

Supersedeas Bond—Appeal.

Pioneer General Insurance Company (Pioneer) appealed the trial court’s order (1) allowing The Holt Group, L.L.C. (Holt) to execute against a supersedeas bond for $91,120; and (2) requiring the balance of the bond to remain in effect during a second appeal of a $210,364 attorney fees award entered in favor of Holt. At issue in this appeal is the extent of Pioneer’s obligation as surety for defendants Willie Kellum and Kellum Enterprises, Inc. (collectively, Kellum) in the underlying action. The order was affirmed in part and reversed in part, and the case was remanded with directions.

In the underlying action, Holt, a law firm, sued Kellum for $244,371 in unpaid attorney fees. A jury determined that Holt was entitled to only $27,849 in unpaid attorney fees (Holt I). The trial court entered judgment for that amount and, under a prevailing-party provision of the retainer agreement, awarded Holt $210,364 for attorney fees and costs incurred in litigating the case. Kellum appealed the judgment and fee award and, through Pioneer, posted a $306,000 supersedeas bond to stay execution of judgment on those matters during the appeal. Subsequently, the court vacated the $210,364 attorney fees judgment, awarded $38,403 in supplemental attorney fees (Holt II), and reinstated its award of $210,364 in attorney fees. Kellum thereafter appealed the reinstated award (Holt III).

Pioneer contended that the trial court erred when it determined that the $38,403 in supplemental attorney fees was a cost covered by (and therefore recoverable by) Holt under the terms of the supersedeas bond. At hearing, the trial court set the bond amount at $306,000, a figure arrived at by multiplying the combined $27,890 jury verdict and the $210,364 prevailing-party attorney fees award by 125 percent. The $38,403 was excluded from the bond because it had not yet been reduced to judgment. Therefore, because the $38,403 was not an amount contemplated under the supersedeas bond, this part of the court’s order was reversed and the case was remanded to the trial court.

Pioneer also contended that the trial court erred in holding that the supersedeas bond was not discharged, but still in effect, with respect to the $210,364 fee award that had been vacated by the division in Holt I, reinstated on remand, and appealed in Holt III. Because the Court of Appeals in Holt I disturbed only the amount of Holt’s attorney fees, and not Kellum’s basic responsibility to pay for them, Kellum did not prosecute the appeal in Holt I to the effect required to allow for the discharge of the supersedeas bond as it related to attorney fees. This part of the order was affirmed.

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: Successful Completion of Deferred Judgment and Sentence Qualifies for Petition for Removal from Sex Offender Registry

The Colorado Court of Appeals issued its opinion in People v. Perry on August 6, 2010.

Sexual Assault on a Child—Sex Offender Registry—Deferred Judgment—Removal Petition.

Defendant appealed the trial court’s order denying his petition to be removed from the sex offender registry (SOR). The order was reversed and the case was remanded.

In August 1991, defendant pled guilty to one count of sexual assault on a child, in violation of CRS § 18-3-405 and pursuant to a two-year deferred judgment and sentence agreement. In August 1993, after defendant had successfully completed the deferred judgment and sentence agreement, the court dismissed the case (acting on the prosecution’s motion). Defendant registered as a sex offender in 2008, pursuant to the direction of a parole officer who was supervising him in connection with an unrelated conviction not involving a sex offense. Soon after registering, defendant filed this petition seeking to be removed from the SOR.

Defendant argued that the trial court misinterpreted the relevant statutes. Specifically, he challenged the trial court’s determination that, although he successfully completed his deferred judgment and sentence, he is statutorily ineligible to petition for removal from the SOR because the underlying offense to which he pled guilty was sexual assault on a child.

The plain language of CRS § 16-22-108(1)(d)(I) and (II) evinces a clear legislative intent to authorize the filing of removal petitions by individuals, such as defendant, who have successfully completed a deferred judgment and sentence agreement that was based on a plea of guilty to the offense of sexual assault on a child. Further, §§ 16-22-102(3), and -113(1)(d) and (3)(b)(II) can be interpreted in a manner that is consistent with this legislative intent. Therefore, because defendant is not now a person who “is convicted” of sexual assault on a child within the meaning of subsection (3)(b)(II), he is not statutorily foreclosed from petitioning the court for removal from the SOR pursuant to subsection (1)(d). The order was reversed and the case was remanded for consideration of defendant’s petition.

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: No Double Jeopardy When Same Act Used to Prove Burglary and Felony Murder

The Colorado Court of Appeals issued its opinion in People v. Medina on August 6, 2010.

Felony Murder—Burglary—Assault—Double Jeopardy—Jury Instruction—Complicity—Perjured Testimony—Due Process—Inconsistent Factual Theories.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of felony murder, manslaughter, and burglary (which were merged into the felony murder conviction), and criminal trespass. The judgment was affirmed.

Defendant argued that a felony murder conviction cannot stand where the predicate felony is a burglary committed for the purpose of assault. The felony murder statute applies where a defendant “commits or attempts to commit . . . burglary” (or other predicate crimes) and anyone causes death of a nonparticipant “in the course of or in furtherance of” (or in immediate flight from) that crime. Because defendant committed a burglary with the intent to commit an assault, and the victim was murdered during the course of this burglary, the jury did not err in finding defendant guilty of felony murder.

Defendant argued that his right against double jeopardy was violated when the same act (breaking the threshold of the apartment to shoot the victim) was used to prove both the burglary and the felony murder. Burglary, even where actuated by intent to commit an assault, is a felony murder predicate. This holding raises no issue of double jeopardy.

Defendant contended that the burglary instruction was “misleading” because it referred to the victim’s “building,” rather than the victim’s “dwelling” within that building. However, even where the building in question also happens to be a dwelling, as here, a first-degree burglary instruction need not reference that point.

Defendant also challenged the complicity instruction, arguing that it erroneously failed to include the statutory requirement that the accomplice act “with the intent to promote or facilitate the commission of the offense.” Although the pattern instruction should have included this language, it is not plain error to omit this language.

Defendant argued that the prosecution knowingly presented perjured testimony; however, there was no direct proof that the witness perjured his testimony or that the prosecutor knew of any perjury. The determination as to credibility was for the jury to decide and cannot be reviewed on the record.

Defendant contended that his right to due process was violated because the prosecution argued “inconsistent factual theories.” The prosecution had argued that defendant was the shooter but could be convicted of felony murder “no matter who [was] the shooter.” These arguments were not inconsistent but were alternative theories on which defendant properly could be convicted of murder depending on how the jury viewed the evidence. The judgment was affirmed.

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.

No Colorado Supreme Court Opinions: Week of August 8, 2010

There are no new cases to report.

Tenth Circuit: Opinions, 8/10/10

The Tenth Circuit on Tuesday issued three published opinion and one unpublished opinions.

Published

In Brooks, Jr. v. Gaenzle, the Court affirmed the district court’s grant of summary judgment for Respondents. Petitioner claimed that his constitutional rights were violated and officers committed an unlawful seizure of his person; Petitioner was shot while fleeing an attempted armed robbery in which Petitioner shot at officers. However, officers actions were reasonable under the circumstances and their actions did not constitute an unlawful seizure.

In Stanko v. Davis, the Court affirmed the district court’s dismissal of Petitioner’s habeus corpus petition. Petitioner brought the petition to challenge the execution of his federal sentence; however, while “a federal prisoner does not need prior circuit authorization to bring a second or successive § 2241 petition,” the dismissal of Petitioner’s petition was proper as it was both successive and abusive.

In Frederick v. Swift Transportation, Co., the Court affirmed the district court’s decision finding Petitioner negligent. The jury instructions were not improper, as the consumption of illicit drugs does not necessarily make an employees actions outside the scope of employment. Additionally, expert and other witness testimony introduced was not improper under FRE 403.

Unpublished

United States v. Espinoza-Aguilar

Tenth Circuit: Opinions, 8/9/10

The Tenth Circuit on Monday issued one published opinion and two unpublished opinions.

Published

In Therrien v. Target Corp., the Court affirmed the district court’s decision finding Target negligent. Respondent assisted a Target security officer in the apprehension of a shoplifter, and was stabbed in the process. The Court found that there was sufficient evidence that Target was aware “of the danger to customers that could arise in the apprehension of suspected shoplifters” and that its actions, including those of the security officer, were unreasonable.

Unpublished

United States v. Sells

Coleman v. Estep