August 24, 2019

Archives for November 14, 2011

Colorado Court of Appeals: Assessors Must Adjust Data for Time when Using Comparative Sales Data to Appraise Taxable Real Property

The Colorado Court of Appeals issued its opinion in Kidder III v. Chaffee County Board of Equalization on November 10, 2011.

Real Property—Assessment—Value—Time Adjustment Analysis.

The Chaffee County Board of Equalization (BOE) appealed an order of the Board of Assessment Appeals (BAA) reducing the 2009 tax year value of a vacant land parcel in Buena Vista (property). The order was reversed and the case was remanded.

Fred D. Kidder III and Diann K. Kidder (collectively, taxpayers) own the property in question. The Chaffee County Assessor originally assigned a 2009 tax year value of $146,484 to the property. The taxpayers filed a petition with the BOE challenging the valuation. Following the BOE’s denial of the petition, the taxpayers appealed to the BAA.

The BOE contended that the BAA’s order failed to comply with the time adjustment requirements of CRS §39-1-104(10.2)(a) and (d). When assessors use comparative sales data to appraise taxable real property, the data must be adjusted for time. Here, the BAA removed the BOE’s time adjustment for the comparative data before reaching a conclusion on the value of the property. Because the statutory language clearly imposes a duty to value property using a time adjustment analysis, the order was reversed and the case was remanded so that a time adjustment may be included.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on November 10, 2011, can be found here.

Colorado Court of Appeals: Award of Attorney Fees Pursuant to CORA Mandatory If Denial of Inspection Was Improper and Party Seeking Disclosure of Records Prevailed

The Colorado Court of Appeals issued its opinion in Colorado Republican Party v. Benefield, State Representative on November 10, 2011.

Colorado Open Records Act—Confidential Constituent Communications—Prevailing Applicant—Attorney Fees.

In this Colorado Open Records Act (CORA) matter, petitioner Colorado Republican Party (CRP) appealed the trial court’s order denying its Motion for Reasonable Costs and Attorney Fees against respondents Colorado State Representatives Debbie Benefield, Bernie Buescher, Morgan Carroll, Gwyn Green, Mary Hodge, Liane “Buffie” McFadyen, Wes McKinley, Michael Merrifield, James Riesberg, and Judy Solano (collectively, Representatives) under CRS §24-72-204(5). The order was reversed and the case was remanded.

Representatives denied access to surveys requested by CRP based on the confidential communication exception of CORA. The court, following an in camera review, ordered the Representatives to produce the completed surveys to CRP, concluding that they were public records subject to disclosure under CORA. A division of the Court of Appeals held that some of the surveys were excepted from disclosure as confidential constituent communications. After remand, the trial court found that Representatives disclosed all non-confidential constituent communications and denied CRP’s request for attorney fees.

CRP argued that the trial court erred in denying its request for attorney fees and costs pursuant to CORA. First, the law of the case doctrine does not apply to the court’s 2007 order awarding attorney fees and costs to CRP. The trial court later reversed the 2007 award after the case was remanded to the trial court from the first appeal. Additionally, unless a statutory exception applies, an award of attorney fees pursuant to CORA is mandatory if: (1) the custodian’s denial of the right of inspection was not “proper”; and (2) the party seeking disclosure is the “prevailing applicant.” If a document whose production is required under CORA was withheld, the denial of the right of inspection of such document was not proper.

Here, the Representatives appear to have acknowledged as much when, after the trial court’s initial order to produce documents, but before filing of the Representatives’ opening brief in the first appeal, they produced 742 surveys to CRP. As to those records, as well as the 183 surveys they disclosed after remand, the right of inspection was improperly denied.

Further, a prevailing applicant is any party who brings a CRS §24-72-204(5) action against a public records custodian and obtains any improperly withheld public record as a result of such action. Here, CRP prevailed by obtaining production of 742 of the surveys pursuant to court order.

Finally, CORA’s costs and attorney fees provision does not afford the trial court discretion. Because the Representatives were required by the Court of Appeals’ ruling to produce at least one document, CRP prevailed. Further, because the Representatives never asserted that they were “unable, in good faith, after exercising reasonable diligence, and after reasonable inquiry, to determine if disclosure of the [records] was prohibited,” they were not shielded by the safe harbor against attorney fees award under CRS §24-72-204(6)(a). The order was reversed and the case was remanded for the trial court to determine the reasonableness of attorney fees to be awarded to CRP.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on November 10, 2011, can be found here.

Colorado Court of Appeals: Negligence Causation Established by Showing that Plaintiff Would Have Been Better Off by Retaining Asset Lost through Transactional Malpractice

The Colorado Court of Appeals issued its opinion in Ludlow v. Gibbons on November 10, 2011.

Real Property—Listing Agreement—Professional Negligence—Contract—Proximate Cause—Injury—Breach of Fiduciary Duty—Transaction Broke—Nonparty Fault Designation.

Plaintiffs (collectively, sellers) appealed the district court’s order granting summary judgment in favor of defendants (collectively, brokers), along with the court’s award of attorney fees and costs to the brokers. The brokers conditionally cross-appealed the district court’s order striking their nonparty fault designations. The summary judgment on the sellers’ negligence claims was vacated, the summary judgment on the sellers’ breach of fiduciary duty claim was affirmed, the award of attorney fees and costs was vacated, and the order striking the brokers’ nonparty fault designations was affirmed.

The sellers entered into an exclusive listing agreement with Gibbons-White, Inc. for the sale of land in Boulder County. The sellers entered into a contract to sell the land to Actis, LLC. The sellers later sued the lawyers and the brokers for professional negligence, claiming that they failed to timely advise the sellers of the contract provision giving Actis a $1,615,909.95 credit against the purchase price at closing for “infrastructure costs.” The district court granted the brokers’ motion for summary judgment as to all claims.

The sellers argued that the district court erred in granting summary judgment to the brokers on their negligence claim. The brokers claimed to be entitled to summary judgment based on the absence of evidence of causation of injury. A plaintiff must prove that but for the professional’s negligence, the plaintiff would have achieved a better result. A plaintiff may prove a more favorable result by proving that he or she would have been better off merely by retaining an asset lost through transactional malpractice. Here, the sellers argued that they would not have sold the property to Actis if the brokers had timely informed them of the infrastructure credit provisions, which was sufficient to establish a genuine issue of material fact as to proximate cause. Therefore, the summary judgment on the sellers’ negligence claims was vacated, along with the award of attorney fees and costs to the brokers.

The sellers also contended that the district court erred by granting summary judgment in the brokers’ favor on the breach of fiduciary duty claim, because the record demonstrated a genuine issue of material fact as to whether the brokers acted as the sellers’ agents in connection with this real estate transaction. A transaction broker is not in a fiduciary relationship with any party to a real estate transaction. Here, there was no written agreement between the brokers and the sellers creating an agency relationship between the parties. Therefore, because the relevant statute precludes the imputation of fiduciary duties to the brokers without a valid written agreement, the brokers had no fiduciary responsibilities to the sellers as a matter of law, and the district court correctly granted summary judgment in the brokers’ favor on the sellers’ breach of fiduciary duty claim.

The brokers argued on cross-appeal that the district court erred in striking their nonparty fault designations. The brokers filed a designation of nonparty fault, pursuant to CRS §13-21-111.5, naming Richard Groves, the president and chief executive officer of Actis, based on the theory of the designation that he had a duty to disclose to the sellers that he had inserted the infrastructure credit provisions in the contracts. However, Groves did not have a fiduciary relationship with the sellers, and the brokers failed to allege any facts that would show he had somehow concealed the provisions from the sellers or in any way had misled the sellers. Therefore, the district court did not err in striking the brokers’ nonparty designations.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on November 10, 2011, can be found here.

Colorado Court of Appeals: Court Has No Discretion to Modify Interest Rate and Compounding Period to Apply to Child Support Arrearages

The Colorado Court of Appeals issued its opinion in In re the Marriage of Tognoni on November 10, 2011.

Child Support—Arrearages—Interest—Attorney Fees.

In this post-dissolution of marriage matter, husband appealed the judgment awarding wife child support arrearages, interest, and attorney fees. Wife cross-appealed the attorney fees amount. The arrearages and interest judgment were affirmed, the attorney fees award was vacated, and the case was remanded for further proceedings.

Husband contended that the trial court erred by entering summary judgment on the arrearages and interest amount. The arrearages amounts determined by the parties differed by $14.24, and the trial court used husband’s expert’s calculation when entering judgment. There were no material disputed factual issues concerning the arrearages amount. Accordingly, the trial court did not err by entering summary judgment on this issue.

Husband also contended that the trial court erred in finding that it lacked discretion under CRS §14-14-106 to determine the appropriate interest rate and compounding period to apply to the child support arrearages. The right to interest, absent an agreement to pay it, is determined by statute. A court has no discretion to modify the interest rate or to determine the compounding period, although such interest may be waived by the judgment creditor.

Husband further contended that the trial court abused its discretion by awarding wife one half of her attorney fees without providing him an opportunity to respond to the allegation that his position lacked substantial justification. Because the trial court granted summary judgment without a hearing, husband had no opportunity to respond to wife’s allegation that his position lacked substantial justification or to present evidence concerning the factors outlined in CRS §13-17-103(1). Accordingly, the attorney fees award was vacated.

Wife also sought attorney fees she incurred on appeal under CRS §13-17-102, contending that the appeal was substantially frivolous. Because husband raised a plausible interpretation of the interest statute and the attorney fees award was vacated, husband’s appeal was not frivolous. Therefore, wife’s request for attorney fees was denied.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on November 10, 2011, can be found here.

Colorado Court of Appeals: Second Action to Seal the Same Arrest and Criminal Records that Were Subject of Earlier Action Barred by Claim Preclusion

The Colorado Court of Appeals issued its opinion in F.M. v. People on November 10, 2011.

Criminal Records—Claim Preclusion.

F.M. appealed the order dismissing his second action to seal the same arrest and criminal records that had been the subject of an earlier action by F.M. The order was affirmed.

F.M. was charged with four counts of felony menacing after he mailed an envelope to his supervisor containing flour. When it spilled, a coworker called the police, who summoned a hazmat team. F.M. was acquitted. In 2006, F.M. brought the previous action to seal the arrest and criminal records concerning these charges, based on his acquittal. The prosecution objected. Applying the statutory balancing test, the district court held that the public interest outweighed F.M.’s privacy interest, declined to seal the records, and dismissed the action. F.M. did not appeal. In 2009, F.M. commenced this action, again based on his acquittal, which was dismissed by the court based on claim preclusion.

F.M. contended that the district court erred in holding that this action was barred by claim preclusion. Claim preclusion bars a second action seeking to seal the same arrest and criminal records that had been the subject of an earlier action by the same petitioner. Here, the two actions involved the same parties, the same subject matter, and the same claims for relief and a final judgment was entered in the first action. Therefore, F.M.’s claims were properly barred by claim preclusion.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on November 10, 2011, can be found here.

Colorado Supreme Court: Week of November 13, 2011 (No Opinions)

The Colorado Supreme Court issued no opinions for the week of November 13, 2011.

Tenth Circuit: Compulsory Savings Accounts for Release-Eligible Prisoners Do Not Violate Substantive Due Process

The Tenth Circuit Court of Appeals issued its opinion in Reedy v. Werholtz on Thursday, November 10, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioners are a group of inmates in the custody of the Kansas Department of Corrections. They challenge two policies that require money obtained by the inmate to be saved for use upon release from prison. One provision requires each inmate to place 10% of funds received from sources outside the Department of Corrections into a “forced savings account;” the other provision requires inmates who are employed through either traditional or private work-release programs to deposit a specified portion of their earnings into a “mandatory savings account.” If the prisoner dies before release, funds in the compulsory savings accounts go to the prisoner’s estate. Petitioners contend that these policies “(1) violate their private-property rights without due process, in violation of the Fifth and Fourteenth Amendments; (2) are unconstitutionally vague; (3) violate the federal and Kansas constitutional prohibitions on cruel and unusual punishment; and (4) impose punishment in violation of the ‘principles of ex post facto.'”

The Court dismissed the inmates’ contentions. First, some issues raised that were raised were not mentioned in the opening brief, “much less argued,” and were therefore abandoned; those issues include vagueness, cruel and unusual punishment (the Eighth Amendment), the ex post facto doctrine, and the Kansas Constitution. Petitioners did, however, adequately raise a substantive due process challenge. “Prisoners are entitled to substantive due process; but substantive-due-process rights available to free persons may be denied to prisoners if the denial ‘bear[s] a rational relation to legitimate penological interests.'”

The Court determined that “compulsory savings accounts for release-eligible prisoners do not violate substantive due process because they are rationally related to the legitimate penological purpose of ensuring that inmates have funds upon release to ease their transition into free society. . . . The lifers, however, are differently situated. Because they will never be released, there can be no legitimate penological interest in accruing funds to help ease their transition into society.” Nevertheless, the Court could not review the merits of their claims, and determine whether there is some other justification for their having compulsory savings accounts, as their claims were not yet exhausted under the Prison Litigation Reform Act of 1995.

Federal Health Care Reform to Be Reviewed by the Supreme Court

On Monday, November 14, 2011, the United States Supreme Court agreed hear oral argument regarding the constitutionality of last year’s federal health care reform law, the Patient Protection and Affordable Care Act. The justices announced their decision to hear issues from state appeals in a brief order issued Monday.

SCOTUSblog reports that oral arguments are likely to be held in March. A ruling is expected to be issued in June.

Setting the stage for a historic constitutional confrontation over federal power, the Supreme Court on Monday granted three separate cases on the constitutionality of the new federal health care law, and set aside 5 1/2 hours — probably in March — for oral argument.  The Court, however, did not grant all of the issues raised and it chose issues to review only from three of the five separate appeals before it.  It is unclear, at this point, whether all of the cases will be heard on a single day.

The Court will hold two hours of argument on the constitutionality of the requirement that virtually every American obtain health insurance by 2014, 90 minutes on whether some or all of the overall law must fail if the mandate is struck down, one hour on whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, and one hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled.   The Court chose those issues from appeals by the federal government, by 26 states, and by a business trade group.  It opted not to review the challenges to new health care coverage requirements for public and private employers.  It left untouched petitions by a conservative advocacy group, the Thomas More Law Center, and three of its members, and by Liberty University and two of its employees.

Accepting the constitutional dispute on its very first examination of the cases brought to it speedily by lawyers, the Court wrote three separate orders outlining how it would deal with the cases.  That meant that they would not be grouped together, but that they likely will be heard close together, if not back-to-back on a single day.

The allotment of 5 1/2 hours for oral argument appeared to be a modern record; the most recent lengthy hearing came in a major constitutional dispute over campaign finance law in 2003, but that was only for 4 hours.   The length of time specified for the health care review was an indication both of the complexity of the issues involved, and the importance they hold for the constitutional division of power between national and state governments.

Colorado is one of the twenty-six states joining Florida in challenging the law.

Tenth Circuit: Unpublished Opinions, 11/10/11

On Thursday, November 10, 2011, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

Unpublished

Richardson v. Astrue

Lujan v. County of Bernalillo

United States v. Leutwiler

Union Pacific Railroad Company v. U.S. Army Corps of Engineers

United States v. Wilson

United States v. Santos-Santos

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.