July 19, 2019

Archives for April 17, 2012

Tenth Circuit: Court Lacks Appellate Jurisdiction Because Order Was Not Final; Denied Belated Request for Mandamus Relief

The Tenth Circuit Court of Appeals published its opinion in United States v. Pickard on Monday, April 16, 2012.

The Tenth Circuit dismissed the appeal. Petitioners “are federal prisoners who have been pursuing relief under 28 U.S.C. § 2255. They seek review of the district court’s decision declining to rule on a motion to unseal documents for use during the postconviction proceedings. The [district] court decided that it lacked jurisdiction to consider the motion because the underlying postconviction proceedings were before [the Tenth Circuit] on appeal.”

The Tenth Circuit held that it lacked appellate jurisdiction to review the district court’s order because it was not a final order. It also rejected Petitioners’ belated request for mandamus relief.

Tenth Circuit: Certificate of Appealability Denied; No Facts to Suggest Defendant Prejudiced by Attorney’s Purported Ineffectiveness

The Tenth Circuit Court of Appeals published its opinion in United States v. Moya on Monday, April 16, 2012.

The Tenth Circuit denied Petitioner’s request for appeal. Petitioner, proceeding pro se, filed a motion for relief under 28 U.S.C. § 2255 in the United States District Court for the District of New Mexico. The district court denied the motion and rejected his application for a certificate of appealability (COA). He then sought a COA from the Tenth Circuit, which was denied and his appeal dismissed “because no reasonable jurist could debate the district court’s decision. [Petitioner] argues that his counsel was ineffective in negotiating his plea agreement and that the district court erred in refusing to hold an evidentiary hearing on his attorney’s ineffectiveness. But he has not alleged facts to support a finding that he was prejudiced by his attorney’s purported ineffectiveness.”

Tenth Circuit: Unpublished Opinions, 4/16/12

On Monday, April 16, 2012, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.


Stills v. Astrue

Dunlap v. Clements

AIG Annuity Ins. Co. v. Law Offices of Theodore Coates, P.C.

Johnson, Jr. v. Lappin

No case summaries are provided for unpublished opinions.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

Colorado Court of Appeals: Cattle Who Were “Produced In” Oklahoma and Shipped to Colorado From Missouri Were Considered Securities

The Colorado Court of Appeals issued its opinion in Great Plains National Bank, N.A. v. Mount on April 12, 2012.

Summary Judgment—Food Security Act—Security Interests in Cattle—Uniform Commercial Code.

In this consolidated appeal, defendants Jamie Mount and Cattle Consultants, LLC appealed the district court’s summary judgment in favor of plaintiff Great Plains National Bank, N.A. (Great Plains) on their separate motions for summary judgment. The judgment was affirmed.

This consolidated case involved two disputes. Mount claimed under the Food Security Act of 1985 (FSA) that he purchased 206 head of cattle free of a security interest claimed by Great Plains. Cattle Consultants and Great Plains each claimed a superior security interest in the 206 head of cattle.

In October 2009, Fred Smith obtained a loan from Great Plains and granted a security interest covering “[a]ll cattle” that he owned at the time or would acquire in the future. On November 19, 2009, Great Plains filed a Uniform Commercial Code (UCC) financing statement with the Oklahoma Secretary of State’s office reflecting this interest. Great Plains also filed an effective financing statement (EFS) in Oklahoma, as required by the FSA, on December 17, 2009.

On February 15, 2010, Mount agreed to purchase 206 head of cattle from Smith. That same day, Cattle Consultants financed Mount’s purchase, and Mount granted Cattle Consultants a security interest in the 206 head of cattle. Cattle Consultants filed a UCC financing statement with the Colorado Secretary of State on March 8, 2010.

Mount believed he was buying 206 head of cattle located in Oklahoma, but Smith actually fulfilled the purchase with cattle he had just bought on February 14, 2010 from a broker in Missouri. On February 18, 2010, Smith received a shipment of 231 head of cattle from the Missouri cattle broker. The next day, he loaded 206 of them onto trucks bound for Colorado. Mount paid for the shipping.

Smith paid the Missouri cattle broker with a check with insufficient funds, but Great Plains covered it. Great Plains couldn’t recoup the money from Smith. In April 2010, Great Plains sought to enforce its security interest in the 206 head of cattle purchased by Mount and filed a UCC financing statement against Smith in Colorado.

All parties moved for summary judgment, and the district court ruled in favor of Great Plains. The court concluded that the cattle were “produced in” Oklahoma, such that under the FSA, Mount’s purchase was subject to Great Plains’ financing statement filed in that state. The court further found that Cattle Consultants’ security interest in the cattle was junior to Great Plains’ security interest. Mount and Cattle Consultants appealed.

Mount argued the trial court misinterpreted the phrase “produced in” under the FSA. The Court had to determine whether Mount’s cattle were “produced in” Oklahoma. If so, they were subject to Great Plains’ security interest. If not, they were free and clear of that security interest. Under the FSA, buyers of farm products generally take free of a security interest created by the seller; however, there is an exception under 7 U.S.C. § 1631(e) that applies where (1) the farm product was produced in a state that has a central filing system; (2) the buyer has failed to register with that state’s secretary of state; and (3) the secured party has filed an effective financing statement covering the farm products being sold.

Mount challenged the district court finding that the cattle were produced in Oklahoma, arguing they were produced in Missouri, which has no central filing system. The phrase “produced in” is undefined in the FSA and no case law was found in this regard. The Court of Appeals therefore looked to the plain and ordinary meaning of the phrase, which it found ambiguous and, as a consequence, turned to legislative history. It noted that Mount’s argument could result in buyers purchasing farm products subject to security interests they had no practical method of discovering (Mount himself believed he was buying cattle from Oklahoma). Based on the purposes of the FSA as stated in its legislative history, the Court held that “produced in” means the location where farm products are furnished or made available for commerce. Therefore, it affirmed the district court’s decision that Mount purchased the cattle subject to the perfected security interest claimed by Great Plains.

Cattle Consultants argued it had a senior security interest in Great Plains because Mount, not Smith, owned the cattle when they entered Oklahoma; therefore, Great Plains did not have a security interest in them and its purchase money security interest (PMSI) had priority over any competing security interest. The Court disagreed. Under the UCC, a security interest is enforceable against a debtor and third parties with respect to the collateral when (1) value is given; (2) the debtor has rights in the collateral; and (3) the debtor has signed a security agreement that provides a description of the collateral. Here, it was undisputed that Great Plains gave value to Smith; Smith had an ownership interest in the cattle; and Smith gave Great Plains a security agreement with an interest in all cattle owned or later acquired.

The Court also disagreed that the PMSI had priority. Great Plains filed its financing statement on November 19, 2009. This filing was done before Smith acquired rights in the cattle and thus was perfected at the moment of attachment. Cattle Consultants did not file their financing statement until March 2010. Great Plains was the first to file, and therefore had priority.

Summary and full case available here.

Colorado Court of Appeals: Insurance Company Had No Duty to Provide Coverage to Third Party Under Lapsed Commercial General Liability Policy

The Colorado Court of Appeals issued its decision in TCD, Inc. v. American Family Mutual Insurance Co. on April 12, 2012.

Summary Judgment—Duty to Defend.

Plaintiff TCD, Inc. appealed the district court’s summary judgment in favor of defendant American Family Mutual Insurance Company (American Family), on the ground that the insurance company had no duty to defend TCD under a commercial general liability (CGL) insurance policy. The judgment was affirmed.

The developer, Frisco Gateway Center, LLC (Gateway), entered into a contract with TCD, the general contractor, to construct a building. TCD subcontracted with Petra Roofing and Remodeling Company (Petra) to install the roof. The subcontract required Petra to “indemnify, hold harmless, and defend” TCD against claims arising out of or resulting from the performance of Petra’s work on the project. Petra also was to name TCD as an additional insured on its CGL policy. American Family issued a CGL policy to Petra, with TCD as an additional insured. The policy was cancelled on June 10, 2007 for nonpayment of the premium.

TCD sued Gateway, seeking payment on the project. Gateway counterclaimed for breach of contract, negligence, and violation of the Consumer Protection Act. This action proceeded to arbitration and resulted in a binding award. As an additional insured under the CGL policy, TCD demanded that American Family defend and indemnify it in the underlying action, but American Family denied coverage.

TCD sued Petra and American Family, asserting claims for declaratory judgment, breach of insurance contract, breach of contract, and negligence. The district court entered a default judgment against Petra and granted summary judgment in favor of American Family.

On appeal, TCD argued that Gateway’s counterclaims were sufficient to raise a genuine issue as to whether American Family had a duty to defend it against those counterclaims. Alternatively, TCD argued it was entitled to have the Court of Appeals consider evidence not contained in the counterclaims that purportedly shows the insurance company had a duty to defend. Finally, TCD argued that CRS § 13-20-808, enacted three years after the CGL policy was cancelled, requires reversal. The Court rejected all three arguments.

TCD argued that Gateway’s claims constituted “property damage” covered by the CGL policy. The Court stated that defense and liability coverage in CGL policies issued to subcontractors generally is limited to property damage caused by an “occurrence.” In this policy, an “occurrence” is “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” In analyzing the counterclaims made by Gateway, the Court found no alleged “accident,” but found that Petra improperly installed the roof, resulting in defects that caused TCD to breach its contract with Gateway.

TCD argued that it should be allowed to go outside the “four corners” of the counterclaims and offer other evidence. The Court found the argument unpersuasive.

In May 2010, the legislature enacted HB 10-1394, codified as CRS § 13-20-808. The Court held that the statute was not retroactive, and therefore was inapplicable. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Statute Regarding “Taking” of Wildlife Not Unconstitutionally Vague; Juvenile Delinquency Conviction Upheld

The Colorado Court of Appeals issued its opinion in People in the Interest of M.C. on April 12, 2012.

Willful Destruction of Wildlife.

M.C., a juvenile, appealed an adjudication of delinquency entered after a bench trial. The judgment was affirmed.

The juvenile and two companions, T.P. and C.P., had gone out to shoot clay pigeons when they encountered a pronghorn antelope. T.P. shot and killed it. The boys went to C.P.’s home and returned that night, dragged the carcass down a hill, and hid it. The juvenile assisted. The juvenile was charged with willful destruction of wildlife, in violation of CRS § 33-6-117(1)(a)(II), which holds that it is unlawful to “intentionally abandon the carcass or body of taken wildlife.” The offense is a class 5 felony. The prosecution responded to a request for a bill of particulars as follows:

[Juvenile] abandoned the wildlife when he left the original kill site with the person who killed the wildlife. He went with the person who killed the wildlife back to a [sic] juvenile’s house. He then returned to the scene with the person who killed the wildlife. He helped move the carcass from the original spot to a different location. He and the others then abandoned the wildlife.

The juvenile moved to dismiss on the ground that the information failed to charge an offense. He argued that CRS § 33-6-117(1)(a)(I) and (II) are not independent and, therefore, the actor had to have “taken” the wildlife. Alternatively, he argued that subsection (II) was unconstitutionally vague because it does not identify what right or interest the actor must have in the wildlife. The court denied the motion.

The juvenile renewed his same arguments on appeal. The Court of Appeals rejected both of them. The Court first found that the plain language of CRS § 33-6-117(1)(a)(I) and (II) describe different ways of committing willful destruction of wildlife—one of which is abandoning wildlife regardless of whether the actor was also the taker.

The Court also found that CRS § 33-6-117(1)(a)(II) was not void for vagueness. A facial challenge requires a showing that the statute is “impermissibly vague in all of its applications.” The juvenile argued that a person can only abandon something in which a person has a right or interest. Here, the statute requires that the wildlife was “taken,” defined as “to acquire possession of wildlife.” Although finding ambiguity in the phrasing (the actor doing the taking is not identified), the Court held that it did not rise to the level of unconstitutional vagueness, because a person of common intelligence has sufficient notice under the statute that subsection (II) could apply to abandonment of wildlife taken by another person. “Abandon” is not defined in the statute, but the plain meaning of the word is clear enough that a person of common intelligence would understand that there was liability for abandoning the carcass of an animal taken by another. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Trial Court Improperly Curtailed Father’s Constitutional Rights to Care, Custody, and Control of Biological Child

The Colorado Court of Appeals issued its opinion in In re the Parental Responsibilities Concerning B.R.D., and Concerning Decker on April 12, 2012.

Presumption of Fit Parent Versus Non-Parent—Custody.

Father sought liberal and expanded parenting time and a share of decision-making authority regarding his son. The trial court denied his request, awarding sole decision-making responsibility, primary residential caretaking, and majority parenting time to Phillip and Sherry Decker, the couple with whom the boy currently was residing. The order was vacated and the case was remanded.

Father and mother are biological parents of a boy born September 2005. Mother gave him up for adoption and he was placed with the Deckers shortly after birth. In January 2006, mother filed a petition stating that she wished to relinquish to the Deckers her parental rights. Several months later, father, who had not known of mother’s pregnancy, learned of the birth. He acknowledged paternity and objected to the adoption. Mother then asked the court to dismiss her relinquishment petition and have the boy returned to her. The Deckers asked the court to terminate mother and father’s parental rights.

In June 2007, mother and father entered into a stipulation with the Deckers that awarded the Deckers sole parental and decision-making responsibility, but also allocated some parenting time to mother and father. Mother and father reserved the right to ask for a modification of parental responsibilities and also paid child support to the Deckers. In December 2008, mother moved to increase her parenting time and to have more decision-making authority. In September 2009, father asked for a similar modification.

In October 2010, the court held a three-day evidentiary hearing. The court found that the boy was deeply attached to father and mother, as well as to the Deckers and their child. The court applied the endangerment standard found in CRS §§ 14-10-129 and -131 and, finding no endangerment, decided that the Deckers should be the primary residential custodians and exercise sole decision-making authority. Father appealed.

Father argued that the court failed to accord him the presumption that he is a fit parent acting in the best interests of the boy. The Court of Appeals agreed. The Court noted that the applicable statutes essentially establish a three-step analysis: (1) there is a presumption that prior orders should remain in effect; (2) to overcome the presumption, the court must find evidence showing that the status quo endangers the child and that a modification will create advantages that outweigh any harm caused by the modification; and (3) the modification must be in the child’s best interests.

In this case, however, the Court determined that the status of the persons involved (father versus non-parents) also is a determining factor. The Court found that parents have a fundamental interest, protected by the Due Process Clause, in the care, custody, and control of their children. A fit parent is presumed to act in the best interest of his or her child. In analyzing appellate decisions addressing conflicts between parents and non-parents, the Court found (1) there is a presumption that the parent has a first and prior right to custody, which presumption may be rebutted; (2) the presumption is given “special weight” by requiring proof of “special factors” that justify interference with a parent’s decisions when the parent has custody; (3) to grant responsibilities to a non-parent over the objection of a parent, a court must find by clear and convincing evidence that such an order is in the child’s best interests based on special factors; and (4) a fit parent who has relinquished custody is nonetheless entitled to the presumption that his or her decisions about the child’s custody are in the child’s best interests.

In this case, father has a constitutionally protected interest in the boy’s care, custody, and control, and is presumed to act in the boy’s best interests. Consequently, the statutory analysis is altered in the following manner: (1) rather than presuming the existing order remains in effect, the court must give “special weight” to father’s modification request (father gains the presumption); (2) the Deckers must be given an opportunity to rebut the presumption by showing that the modification is not in the boy’s best interests and that the present allocation does not endanger him, and they must prove that the present allocation is in the boy’s best interests; (3) the Deckers must satisfy their evidentiary burdens by a preponderance of the evidence standard; and (4) if the court denies father’s request, it must make findings of fact identifying the special factors on which it relied. Because the trial court did not follow the foregoing analytic framework, its ruling was in error and the case was remanded for proceedings conducted under the standards described in the opinion.

Summary and full case available here.

Colorado Court of Appeals: Evidence Sufficient to Support Aggravated Robbery; Proposed Jury Instruction Properly Denied

The Colorado Court of Appeals issued its opinion in People v. Oslund on April 12, 2012.

Felony Murder—Aggravated Robbery.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of reckless manslaughter, first-degree felony murder, and aggravated robbery. The judgment was affirmed.

On September 4, 2009, defendant, his brother, and five others, including Matthew Maez, spent the evening drinking at a party. After becoming severely intoxicated, Maez left the house to ride home with a friend. The friend went back in the house and came out with one of the hosts. They didn’t see Maez, so they waited for him near the car.

The host heard noises coming from defendant’s car nearby. As she reached the car, Maez jumped out, knocked her down, dropped a stereo faceplate and other items, and ran away. The host, who was not able to see that it was Maez, screamed, and defendant and his brother ran out of the house. She told them which way the man had fled, and the two men set out to find him.

Approximately fifteen minutes later, defendant and his brother returned and announced it was Maez who had broken into his car and that he had punched Maez when he refused to return his property.Defendant had blood on his hand and was holding a stick.

Defendant’s brother returned with property he took from Maez, including the items from defendant’s car. (At trial, the prosecution introduced evidence that defendant’s brother also had taken Maez’s wallet and watch.)

Maez was found and taken to the emergency room by friends.The emergency room doctor diagnosed Maez with blunt force trauma to his head and eventually confirmed he was bleeding into his brain. Maez later died from his injuries.

Defendant was arrested in Nebraska about a month later. The jury found him guilty of reckless manslaughter, first-degree felony murder, and aggravated robbery. He was sentenced to life in prison without parole.

On appeal, defendant argued the evidence was insufficient to prove aggravated robbery because there was no evidence he acted with the intent, if resisted, to kill, maim, or wound Maez; therefore, his felony murder conviction must be reversed. The Court of Appeals disagreed. The prosecution, under CRS § 18-4-302(1)(c), was required to prove beyond a reasonable doubt that during the robbery or immediate flight, defendant had the intent “if resistance [was] offered, to kill, maim, or wound the person robbed or any other person.”

It was undisputed that defendant caught and punched Maez and that Maez suffered blunt force trauma to his head. The forensic pathology expert testified that if the injuries were caused by a fist alone, the fist would have been broken or severely injured. Defendant’s hands were not broken or injured. Five witnesses testified that defendant returned with a stick, and that the stick and defendant’s hands were bloody. Witnesses also testified that personal property belonging to Maez was missing when he arrived at the hospital.

Defendant argued that a reasonable juror could not convict him because there was no evidence that (1) defendant knew Maez’s identity when he set out after him; (2) the injuries on his hands were consistent with Maez’s injuries; and (3) defendant started the chase with a stick or weapon. The Court found that such evidence was not necessary to prove aggravated robbery and that the appropriate weight of any evidence, absent or present, was an issue for the jury. Reviewing the record as a whole, and in the light most favorable to the prosecution, the Court concluded there was sufficient evidence to enable a reasonable juror to find, beyond a reasonable doubt, that defendant intended to wound, maim, or kill Maez.

Defendant also asked for a jury instruction on defense of property, which the trial court denied. The Court analyzed this as requiring evidence in the record that defendant used force to prevent what he reasonably believed to be an attempt by Maez to commit theft. The Court agreed with the trial court that any assault in this case occurred after the theft had been accomplished. Defendant could not have been acting to prevent the theft. Rather, he was acting in response to what had already occurred; he was trying to apprehend the thief and recover the property. Therefore, it was not error not to give the instruction. The judgment was affirmed.

Summary and full case available here.

Colorado Supreme Court Makes Minor Change to Rule for Judicial Duty to Report Misconduct

The Colorado Supreme Court has amended Chapter 20 of the Colorado Rules of Civil Procedure, Rule 251.4 – Duty of Judge to Report Misconduct or Disability. The minor change updates a reference to the Colorado Code of Judicial Conduct. The updated rule now references RULE 2.15 instead of Canon 3(B)(3).

This amendment was adopted on April 12, 2012 and is effective immediately.

Click here to review the red line changes to Rule 251.4, outlined as Rule Change 2012(04).

Judge Diana Barber to Retire from Montrose County Court Bench

The Seventh Judicial District Nominating Commission will meet May 23, 2012, at the Montrose County Justice Center, to interview and select nominees for appointment by Governor Hickenlooper to the office of associate county judge for Montrose County. The vacancy will be created by the retirement of the Honorable Diana Barber on April 30, 2012.

Pursuant to HB 12-1323, the qualifications for the Associate Montrose County Court have changed to require the judge to maintain his or her official residence in Montrose County (a class B county) and keep chambers in the portion of Montrose County included in the southwestern water conservation district. The chambers are currently in Nucla. The applicant must also be admitted to the practice of law in Colorado.

Applications are due by Friday, May 4. The appointed county court judge will serve an initial provisional term of two years before facing a retention election. Retained judges serve four-year terms.

Further information about applying for the vacancy is available here from the Colorado Judicial Branch.