June 24, 2019

Archives for October 15, 2012

Change Without Judgment (Part 1)

This article is Part 1. Stay tuned for more.

We often initiate change from a place of deficiency. I’m out of shape; I need to go on a diet. I’m unhappy at work; I need to find a new career. I lost my job; I need to find a new one.

 

That’s a common and normal motivation for change. It’s also rarely effective over the long haul.

Why not? Because when we approach change this way, we actually unleash two competing energies:  one seeks change, and the other promises to punish us if we don’t succeed. This results in a state of internal dissonance, which is what happens when we hold competing beliefs about something. In time, the prospect of punishment and accompanying feelings of fear and guilt and shame overwhelm our good intentions. Our souls are like a stringed instrument with two strings just off, vibrating in that way that makes the oscilloscope bounce all over the place.

That state of clashing energy won’t sustain us in the long term. Deterrence maybe works in the criminal code, but it’s rarely good for our souls. We’re better off changing from a place of internal harmony. I know that sounds touchy-feely, but don’t worry, we aren’t going to hold hands and sing Kumbayah. We just need to learn to make change from a place of being internally in tune.

Trying to make change under the glowering specter of judgment doesn’t promote harmony. If we don’t move past the initial shock of the wakeup call and get to a more sustainable internal place, then achieving the change we want is going to be a tough slog of one step forward, two steps back. Sucking it up and gutting it out can get us a long way, but it won’t get us all the way home.

How about we try something different? How about we try the kind of change that comes when our souls get on the same frequency as our dreams and plans and intentions? How about we make changes by responding to a genuine internal urge to be and do and have what we want?

We can do that by practicing Change Without Judgment.

To be continued.

Five years ago, Kevin Rhodes left a successful 20+ years career in private practice to pursue a creative dream. He recently gave himself the title “Change Guru” to describe his work helping individuals and organizations to make transformative changes. He leads lead workshops on that topic for a variety of audiences, including the CBA’s Job Search and Career Transitions Support Group. To learn more, see http://kevin-rhodes.com/.

Colorado Court of Appeals: No UIM Coverage Exists When Specifically Excluded by Policy Language From Claims Against Insured Vehicle Under Same Policy

The Colorado Court of Appeals issued its opinion in Jacox v. American Family Mutual Insurance Co. on Thursday, October 11, 2012.

Underinsured Motorist—CRS § 10-4-609.

In this underinsured motorist (UIM) coverage action, plaintiff Annabell Jacox appealed the district court’s order granting a motion filed by defendant American Family Mutual Insurance Company (American Family) and determining that Jacox was not legally entitled to UIM benefits. The order was affirmed.

Jacox was a passenger in Winferd Loper’s vehicle when Loper fell asleep at the wheel, resulting in a one-car accident in which Jacox suffered injuries. Jacox filed a civil action against Loper and ultimately settled her suit against him, collecting the liability policy limit for bodily injuries. She also sought UIM coverage under Loper’s American Family policy. The request was denied and Jacox sued. The district court granted American Family’s motion to dismiss, ruling that Jacox was not entitled to UIM benefits under Loper’s policy.

On appeal, Jacox argued she was entitled to UIM benefits pursuant to the amended UIM statute, CRS § 10-4-609. Loper’s policy contained a UIM exclusion applicable to vehicles “insured under the liability coverage of this policy.” Jacox contended that the 2008 amendments to the UIM statute overruled the Supreme Court’s ruling in Terranova v. State Farm Mutual Insurance Company, 800 P.2d 55, 59 (Colo. 1990), which held that the identical exclusion does not violate public policy. The Court of Appeals found that the amendments did not invalidate Terranova and, therefore, the UIM exclusion was valid.

Jacox also argued that the UIM exclusion in Loper’s policy was inconsistent with the “limits of liability” policy provision, because the provision provided that bodily injury liability payments would be offset against the UIM coverage. The Court disagreed that they were inconsistent because, per the exclusion, there was no UIM coverage and therefore there was no limit of liability for a nonexistent UIM coverage. The order of dismissal was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Summary Judgment Reversed Because Trial Court Did Not Rule on Whether Plaintiffs’ Rights to COLA Were Violated

The Colorado Court of Appeals issued its opinion in Justus v. State of Colorado on Thursday, October 11, 2012.

Public Employees’ Retirement Association—Cost of Living Adjustment—Senate Bill 10-001—Contract Clause—Takings Clause—Impairment—Public Purpose.

Plaintiffs Gary Justus, Kathleen Hopkins, Eugene Halaas, and Robert Laird, Jr., who are recipients of retirement benefits through the Colorado Public Employees’ Retirement Association (PERA), appealed the trial court’s entry of summary judgment in favor of defendants, the State of Colorado, Governor John Hickenlooper, PERA, Carole Wright (chair of the PERA Board of Trustees), and Maryann Motza (vice chair of the PERA Board of Trustees). The judgment was reversed and the case was remanded.

Plaintiffs challenged §§ 19 and 20 of Senate Bill 10-001 (now codified at CRS §§ 24-51-1001 and -1002), which reduced the amount they were entitled to receive as a cost-of-living adjustment (COLA) to their PERA benefits. The trial court ruled that plaintiffs have no contractual right to the COLA in effect when they retired, and that absent such a contractual right, plaintiffs’ claims necessarily fail.

On appeal, plaintiffs contended that the district court erred by granting summary judgment on their Contract and Takings Clause claims, because once they became eligible to retire or had retired, they each acquired a contractual right to the COLA then in effect, which precluded the General Assembly from making any adverse change to the formula. Plaintiffs have a contractual right to have their retirement benefits calculated using the COLA in effect when their rights vested, before the effective date of Senate Bill 10-001. However, §§ 19 and 20 of Senate Bill 10-001 do not violate plaintiffs’ rights under the Contract Clauses if: (1) their contract right has not been impaired; (2) any impairment is not substantial; or (3) the change in the COLA was reasonable and necessary to serve a significant and legitimate public purpose. The trial court did not rule on those issues. Therefore, the case was remanded for the trial court to make these determinations. In light of the conclusion that the court erred in regard to plaintiffs’ Contract Clause claims, the summary judgment on the Takings Clause claim also was reversed, and the case was remanded for further proceedings on that claim.

Summary and full case available here.

Colorado Court of Appeals: C.R.S. § 32-1-1001(1) Does Not Grant Special District the Right to Assign its Right to Receive Revenue

The Colorado Court of Appeals issued its opinion in SDI, Inc. v. Pivotal Parker Commercial, LLC on Thursday, October 11. 2012.

Breach of Contract—Assignment—CRS § 32-1-1001(1).

In this dispute over the terms of several contracts, defendant Pivotal Parker Commercial, LLC (Pivotal) appealed the trial court’s entry of judgment following a bench trial in favor of plaintiff SDI, Inc. (SDI). The judgment was reversed and the case was remanded.

In 1984, the Town of Parker annexed a parcel of undeveloped land known as Stroh Ranch. Cherry Creek South Metropolitan District No. 1 (District) thereafter incurred an obligation to one of the original developers of the Stroh Ranch (later called Stroh Ranch Development, LLC, or SRD) for $11,130,000. SRD later assigned the right to receive development fee revenue to SDI by a purchase and sale agreement (Seventh Amendment). SDI entered into a real estate purchase and sale contract with Pivotal (SDI–Pivotal Contract) for “Filing Nos. 14 and 15.” SDI later sought a declaratory judgment and damages for unpaid development fees pursuant to the Seventh Amendment and the SDI–Pivotal Contract. Following a bench trial, the trial court entered judgment in favor of SDI.

On appeal, Pivotal contended that the trial court erred when it determined that the District validly assigned its right to receive development fee revenue to SDI, and that SDI was entitled to collect, and charge interest on, that amount. The trial court erred in concluding it must look to common law to fill in the statutory silence in CRS § 32-1-1001(1), which defines a special district’s common powers. The statute does not give the District the power to assign its right to receive revenue to a private party. The District’s assignment to SDI in paragraph 6 of the Seventh Amendment, therefore, went beyond the District’s statutory and constitutional powers. Consequently, paragraph 6 of the Seventh Amendment is void, and the trial court erred when it determined that the District validly assigned its right to receive development fee revenue to SDI, and that SDI was entitled to collect, and charge interest on, that amount. The trial court further erred when it declared that SDI has a perpetual lien on Filing Nos. 14 and 15.

Pivotal also argued that the trial court erred when it concluded that Pivotal breached its contract with SDI. Neither the SDI–Pivotal Contract, the E&T Contract, nor the E&T Contract Assignment provided that Pivotal must transfer a portion of the purchase price of the E&T Contract to SDI as development fees. Therefore, Pivotal did not breach the contract.

Summary and full case available here.

Colorado Court of Appeals: No Error in Denying Challenge for Cause for Juror who Knew Police Officers and Trusted Them, Although It Was “A Close Call”

The Colorado Court of Appeals issued its opinion in People v. Samson on Thursday, October 11, 2012.

Theft—Conspiracy—Juror—Challenge for Cause—Prosecutorial Misconduct—Evidence—Elements.

Defendant Xavier Samson appealed his convictions for theft ($1,000–$20,000 series) and conspiracy to commit theft ($1,000–$20,000 series). The convictions were affirmed.

Samson was or had been roommates with Juan Lopez-Cabello, who, along with Nicolas DelPapa, served as a cashier at Clark’s Market, a grocery store in Pitkin County. Lopez-Cabello and DelPapa allowed Samson to take items from the store without paying for them.

On appeal, Samson contended that the trial court erred in denying his challenge for cause to Juror B. Juror B told the court that he knew most of the officers in the area, was very close to some of them, had friendships with a lot of them, trusted police offers, and would have a difficult time doubting their word. Juror B then indicated that he would listen to all of the evidence, hold the prosecution to their burden of proof, and follow the law and instructions of the court. The trial court denied Samson’s challenge based on these statements, the totality of the circumstances, and its observations of Juror B’s demeanor and credibility, although it noted that it viewed the challenge as a “close call.”The Court of Appeals agreed that the “issue was close,” but perceived no abuse of discretion in the trial court’s ruling.

Samson also contended that reversal was required because the prosecutor committed misconduct during rebuttal closing argument. The prosecutor’s comments were in direct response to defense counsel’s closing argument, were within the realm of fair commentary on Samson’s theory of the case, and were supported by the evidence. Therefore, there was no prosecutorial misconduct.

Samson further argued that the evidence was insufficient to support his conspiracy conviction because the prosecution was required to prove not only that he agreed to take the groceries from Clark’s Market, but also that this agreement extended to the fact that those groceries were valued at between $1,000 and $20,000. The prosecution is only required to prove the elements of theft. Because the completed crime of theft does not require proof of a defendant’s knowledge of the value of the goods taken, it follows that a conspiracy to commit theft does not require the prosecutor to prove an agreement to take goods valued at a particular amount of money. The prosecution was required only to plead and prove the amount beyond a reasonable doubt for purposes of classifying the level of the crime. Here, the prosecution satisfied its burden of proof, and the evidence was sufficient to support Samson’s conspiracy conviction.

Summary and full case available here.

Judicial Ethics Advisory Board Opinion: Judge who Reports Attorney to OARC Must Disclose this When Attorney Before Judge

On Monday, October 15, 2012, the Colorado Judicial Ethics Advisory Board issued Opinion 2012-06.

The Judicial Ethics Advisory Board considered a situation in which a judge had reported an attorney to the police and  Attorney Regulation Counsel. The judge recused from all cases involving the attorney but recently learned that Attorney Regulation Counsel closed the disciplinary proceeding with no action and no police action occurred. The judge feels he can be fair and impartial to the attorney and seeks an opinion regarding whether he is required to disclose his reporting of the attorney, now that the case is closed.

The Judicial Ethics Advisory Board concluded that the judge is only required to disclose his involvement with the attorney’s criminal and disciplinary actions as long as those cases are open. If the cases are closed, the judge has no requirement to disclose his reporting of the attorney. The opinion was based on the Board’s decision in Opinion 2011-01, where the Board determined that a report of misconduct alone is not enough to mandate recusal, unless the facts and circumstances would cause a reasonable person to doubt the judge’s impartiality.

Information about the Colorado Judicial Ethics Advisory Board, as well as all of the Colorado Judicial Ethics Advisory Board Opinions, can be found here,

Tenth Circuit: District Court Committed Plain Error in Basing Length of Sentence Revocation on Defendant’s Need to Participate in Prison-Based Drug Rehabilitation Program

The Tenth Circuit Court of Appeals issued its opinion in United States v. Mendiola on Friday, October 12, 2012.

Defendant Joseph Mendiola appealed the district court’s imposition of a two-year term of imprisonment following revocation of his supervised release. Mendiola argued that, in light of the Supreme Court’s recent decision in Tapia v.United States, 131 S. Ct. 2382 (2011), the district court committed plain error in basing the length of the revocation sentence on Mendiola’s need to participate in a prison-based drug rehabilitation program.  In Tapia, the Supreme Court held 18 U.S.C. § 3582(a) did not permit a sentencing court to impose or lengthen a prison term in order to foster a defendant’s rehabilitation. In light of Tapia, the Tenth Circuit agreed with Mendiola, reversed and remanded to the district court with directions to vacate Mendiola’s revocation sentence and resentence him.

Tenth Circuit: Unpublished Opinions, 10/12/12

On Friday, October 12, 2012, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Conkle v. Astrue

Oryem v. Richardson

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

Developers Going Green but Foregoing LEED Certification

Attendees at the Office & Industrial Market Update and 2013 Forecast Summit presented by The Colorado Real Estate Journal and Otten, Johnson, Robinson, Neff & Ragonetti on September 6 heard from a panel of general contractors who reported that developers of industrial properties frequently choose to meet LEED standards without seeking the official LEED certification, because the certification process adds $50,000 to $100,000 to the cost of the building.

Along those same lines, a September 5 Wall Street Journal article focused on a new apartment building to be built in Manhattan by a developer who was one of the first to build a LEED-certified skyscraper a decade ago. For its new building, the developer, the Durst Organization, plans to incorporate “green” features, but will not seek LEED certification. The developer says it wants the chance to be more innovative and not be bound by LEED’s checklist of features.

LEED has been criticized by others for being too lax in its standards, and for certifying buildings before they are actually in operation.

Meanwhile, the U.S. Green Building Council, which oversees LEED standards and certification, has said it is working on updated standards (LEED v4). Members of the Council are currently scheduled to vote on the updated standards in June 2013. According to the Council, “LEED v4 focuses on increasing technical stringency from past versions and developing new requirements for project types such as data centers, warehouse & distribution centers, hotels/motels, existing schools, existing retail, and mid-rise residential.”

It remains to be seen whether changes to the LEED standards will bring developers back into the LEED fold.

The public comment period for changes to the LEED standards is now open. Click here for information on how to submit your comments.

Vicki Hellmer‘s practice is focused on commercial real estate financing, including construction and permanent loans and workouts. She represents both lenders and borrowers, on loans involving all types of real estate—multi-family housing, mixed-use, hotel, office (including medical office), residential condominiums, and major retail projects. Vicki has also represented clients in the acquisition and disposition of properties, and the structuring of real estate joint ventures. She also contributes to the firm’s Rocky Mountain Real Estate Blog, where this article originally appeared.

Colorado Court of Appeals: Jury Instruction Suggesting Methods of Deliberation Not Directive But Rather Facilitative of Open Communications

The Colorado Court of Appeals issued its opinion in People v. Poe on Thursday, October 11, 2012.

Jury Instruction—Evidence—Possession of Drugs and Drug Paraphernalia.

Defendant Alexander Poe appealed the judgment of conviction entered on a jury verdict finding him guilty of possession of a schedule II controlled substance (methamphetamine), possession of marijuana, and possession of drug paraphernalia. The judgment was affirmed.

While Poe was out with a female friend, his parole officer and two other parole officers searched his apartment. They found drugs and drug paraphernalia. He returned during the search and was arrested.

On appeal, Poe contended that the trial court erred when it gave the jury an instruction with suggestions on how deliberations should be conducted. However, the court did not direct the jury to deliberate in a certain way. The court merely offered suggestions, which were given to facilitate the very same open and honest deliberation of which Poe now claims he was deprived. Therefore, the court did not abuse its discretion in offering suggestions to the jury to keep an open mind and reach a considered decision during final deliberations.

Poe also contended that the evidence presented to the jury was insufficient to convict him of the possession charges. The drugs and drug paraphernalia were found in Poe’s one-bedroom apartment, which he owned, and there was no evidence that any other person lived at the apartment or that Poe had a female houseguest as he claimed. Further, Poe’s parole conditions required him to request permission to have an overnight guest, and he had not made such a request. Although Poe had a female friend who claimed ownership of the illegal items, the evidence sufficiently supported the jury’s conclusion that the items found were under Poe’s dominion and control.

Summary and full case available here.

Colorado Court of Appeals: Character Evidence Properly Admitted Against Defendant; Prosecution Had No Duty to Disclose Statement

The Colorado Court of Appeals issued its opinion in People v. Williams on Thursday, October 11, 2012.

Robbery—Felony Murder—Testimony—CRE 404(b)—Fruit of the Poisonous Tree Doctrine—Evidence.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of first-degree felony murder and three counts of aggravated robbery. The judgment was affirmed in part and reversed in part, and the sentence was vacated in part.

J.T. and his wife, A.T., owned a tattoo shop in Denver from which J.D. sold marijuana and cocaine. The couple was at the store with their friend N.C. when two men carrying handguns entered the shop through the back door with their faces covered by masks or bandanas. One of the robbers shot and killed J.T., and the robbers fled with cash and drugs. Defendant and Dewayne O’Bannon were charged with the crimes.

On appeal, defendant contended that the trial court erred by denying his motion for a mistrial because the testimony of T.M., who met defendant in the Denver County Jail and testified as to defendant’s admissions that defendant threatened him, was a discovery violation and was improper under CRE 404(b). Because the challenged statement was not made by the accused to the police or prosecution, the prosecution was not required to disclose it under Crim.P. 16. Further, the trial court struck the statement from the record and instructed the jury not to consider it for any purpose. Even assuming that the statement did violate CRE 404(b), it was not substantially prejudicial because it was cumulative of other admissible testimony from witnesses who feared retaliation from defendant for testifying at his trial. Therefore, the trial court did not abuse its discretion by denying defendant’s motion for a mistrial.

Defendant also contended that the trial court erred by admitting testimony from a witness whose identity was discovered from an illegal seizure, in violation of the “fruit of the poisonous tree” doctrine. When defendant was arrested during a routine traffic stop, the police had probable cause that he provided false identifying information to the police. Because defendant’s seizure was legal, the fruit of the poisonous tree doctrine was inapplicable.

Defendant further contended that there was insufficient evidence to support the aggravated robbery convictions because A.T. and N.C. did not exercise control over, or have a right to control, the money taken from J.T.’s pockets. A.T., as the shop’s co-owner and J.T.’s wife, had sufficient ownership or control over the money in J.T.’s pockets. In contrast, there was no evidence that N.C., a friend who just happened to be in the tattoo shop, had control over the money or any claim to the stolen money. Therefore, the judgment was reversed as to the conviction of aggravated robbery of N.C., and the sentence imposed for that conviction was vacated.

Summary and full case available here.

Colorado Court of Appeals: No Proper Basis for Writ of Attachment Since Defendants Did Not Counterclaim; Plaintiffs Not Entitled to Damages, Attorney Fees, or Costs

The Colorado Court of Appeals issued its opinion in Hiner v. Johnson on Thursday, October 11, 2012.

CRCP 102—Writ of Attachment—Counterclaim—Damages—Attorney Fees.

In this case pertaining to CRCP 102, plaintiffs David Hiner and Deelila Quick appealed the trial court’s order denying their request for damages, attorney fees, and costs against defendants Dr. Bruce Johnson and Dr. Michael King. The order was affirmed.

At the request of defendants, the trial court issued a writ attaching proceeds that had been obtained by plaintiffs in a settlement with a defendant who was not part of this appeal. Subsequently, the trial court, at plaintiffs’ request, discharged the writ.

Plaintiffs contended that the trial court erred in denying their request for damages, attorney fees, and costs as a result of defendant’s wrongful request for a writ of attachment. CRCP 102(a) only authorizes a court to issue a writ of attachment for the party bringing the claim, which would be a plaintiff or a defendant who has asserted a counterclaim. Here, although defendants did not assert a counterclaim, they requested the writ of attachment. Because defendants did not assert a counterclaim, CRCP 102(a) did not provide a basis for the court to issue a writ of attachment. As a result, the writ of attachment was improperly issued, and the trial court properly discharged the writ under CRCP 102(w). Plaintiffs are not entitled to damages, attorney fees, or costs in this case because (1) CRCP 102(d) only authorizes an award of costs or damages to the plaintiff if a defendant who has asserted a counterclaim and is not entitled to an attachment; and (2) CRCP 102(n)(2) only authorizes an award of damages to a plaintiff if the defendant who has asserted a counterclaim does not prevail at such a hearing.

Summary and full case available here.