July 17, 2019

Archives for November 7, 2012

Diversity Bar Exam Scholarship Opportunity

The Center for Legal Inclusiveness is offering two diversity scholarships for the 2013 bar exam. The scholarship includes enrollment in a Kaplan PMBR course and payment of the application fee for the bar exam.

The scholarship is designed to encourage diversity among Colorado attorneys. One of the purposes is to increase representation among underrepresented groups in the legal profession, and preference may be given to applicants who are racial or ethnic minorities, who are GLBT, or who have disabilities. However, all applications are welcomed. Applicants must be permanent residents of Colorado and must plan to practice law in Colorado.

To download the application form, click here.

Change Without Judgment — Getting Over the Threshold (Part 2)

[If you haven’t read Part 1 yet, go back and do it. It’s short, and you’ll be glad you did.]

In his book about story structure called The Writer’s Journey, Christopher Vogler says this about “threshold guardians.”

But on a deeper level they [threshold guardians] stand for our internal demons: the neuroses, emotional scars, vices, dependencies, and self-limitations that hold back our growth and progress. It seems that every time you try to make a major change in your life, these inner demons rise up to their full force, not necessarily to stop you, but to test if you’re really determined to accept the challenge of change.

Threshold guardians are the guards and gatekeepers who stand in the hero’s way, usually early in the journey. You know all about them if you’ve ever tried to make a big change in your life. You start to change and immediately find yourself nose-to-nose with the same old fears and limiting beliefs that have always held you back.

What do we usually do when that happens? We lapse into the same old defeatist thinking that kept us from changing before. What if I fail? What will they think? (Whoever they are!) Who do I think I am, that I should want this? And all the rest.

All that’s normal, and to be expected. It’s part of making big change. But we don’t see it that way. Instead, we judge ourselves for running into these gatekeepers, for having these demons in our psyches. Look at me! I’m so bad! I’m such a failure! I’ll never make it! And so on.

We need to get past our threshold guardians if we want to move on. We do that by first recognizing that they aren’t external. They come from within; they’re the things we create in our own psyches that stand in our way of being and doing something different. Because they’re internal, they’re the toughest barriers to get over. We know how to overcome external challenges; it’s much harder to get over ourselves. And one thing is for sure: blaming ourselves and feeling defeated isn’t going to help.

What is? Vogler’s book offers us a clue:

Successful heroes learn to recognize Threshold Guardians not as threatening enemies but as useful Allies and early indicators that new power or success is coming.

That’s right: our biggest challenges are usually our best opportunities. Instead of beating ourselves up for them, we can learn to welcome and celebrate them. No kidding!

Sometimes, all our internal gatekeepers want before they’ll let us pass is as simple as (a) gratitude (“Thank you for showing up, because that means I’m moving ahead!”) and (b) a simple resolve to keep moving anyway, regardless of the intimidation. Instead of coming at the conversation from the point of view of “I’m so bad,” we come at it from “Wow, look at me – I’m making progress!” And that change in attitude makes all the difference.

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. 

Colorado Court of Appeals: Board of County Commissioners Has Authority to Determine Permitted Uses of Property for Zoning Purposes

The Colorado Court of Appeals issued its opinion in Giuliani v. Jefferson County Board of County Commissioners on Thursday, November 1, 2012.

Medical Marijuana—Local Zoning—Summary Judgment—Colorado Constitution, Amendment 20—Mootness—Medical Marijuana Code.

In this action concerning whether a county may prohibit the operation of a medical marijuana dispensary as a non-permitted use under a local zoning plan, plaintiffs Marc Giuliani and Footprints Health and Wellness, Inc. (collectively, providers) and Christopher Peck and Frank Campbell (collectively, patients) appealed the trial court’s orders partially dismissing their claims and affirming the resolution of the Jefferson County Board of Adjustment (Board). They also appealed the trial court’s summary judgment in favor of defendants, the Jefferson County Board of County Commissioners (BOCC), the Board, and the Jefferson County Division of Planning and Zoning (collectively, County). The appeal was dismissed in part, the judgment was affirmed in part, and the order was affirmed.

The providers leased a commercial unit in a shopping center in unincorporated Jefferson County in September 2009 for the purpose of operating a medical marijuana dispensary. Believing this use would be compatible with the official development plan (ODP) of the shopping center, as zoned, the providers hired a contractor to perform tenant improvements and obtained various permits from Jefferson County.

The business opened in late October 2009. Two months later, the zoning administrator issued a zoning violation notice to the providers, stating the operation of a medical marijuana dispensary was not a permitted use in the zone district. The providers appealed to the Board, which affirmed the administrator’s conclusion.

In May 2010, the providers filed this action, seeking declaratory and injunctive relief and money damages. In March 2011, the patients were permitted to intervene and joined the providers’ claim that the County was preempted by Amendment 20 to the Colorado Constitution from interpreting its zoning regulations so as to impose a de facto ban on medical marijuana dispensaries.

The trial court granted in part the County’s motion to partially dismiss the complaint and denied the request for a preliminary injunction. It also affirmed the Board’s resolution that the dispensary was not a permitted use. It then granted the County’s motion for summary judgment on all remaining claims.

Amendment 20, passed in November 2000, permits patients to possess and use medical marijuana without criminal prosecution in certain circumstances. In the 2010 legislative session, the Colorado Medical Marijuana Code (Code) was enacted. Pursuant to authority granted in the Code, the BOCC approved a resolution in July 2010 prohibiting businesses that cultivate, manufacture, or sell marijuana or marijuana products within unincorporated Jefferson County. None of the parties addressed how the Code affected the issues they raised on appeal, and the Court of Appeals therefore requested supplemental briefing to determine whether the claims were moot in light of the Code’s enactment.

The County asserted that any claims for prospective relief were moot because the Code would prevent the providers from operating the dispensary in unincorporated Jefferson County. The Court agreed.

The Court held that even if it assumed that Amendment 20 created a constitutional right to distribute marijuana for medical use and to receive in from a provider of one’s choice, such rights are not unfettered. Here, the request for declaratory and injunctive relief would have no practical legal effect because of the County’s July 2010 ban on dispensaries and the Code’s requirement that all existing and new dispensaries operate their businesses in accordance with applicable state or local laws. Thus, even without the ban, the providers would have needed to apply and be approved by a local licensing authority. Such approval cannot be obtained under the ban; therefore, the claims for injunctive and declaratory relief are moot.

Alternatively, the patients and providers claimed they were “grandfathered” under CRS § 38-1-101. The Court disagreed. The statute limits the broad land-use-planning authority of counties by prohibiting a local government from enacting or enforcing an ordinance, resolution, or regulation in such a way that terminates or eliminates by amortization a nonconforming property use that was lawful at its inception. Here, assuming the statute applies, the dispensary was not lawful in 2009; therefore, there was no basis for it to be lawfully grandfathered.

The providers argued it was error to dismiss their equitable estoppel claim because the Colorado Governmental Immunity Act (CGIA) does not apply to claims seeking injunctive and declaratory relief. The Court disagreed. Equitable estoppel applies where a plaintiff detrimentally relies on a defendant’s misstatement of fact. It lies in tort. Here, the providers claimed the County led them to reasonably believe a dispensary was a permitted use on their property. Thus, the claim was a tort claim and it was not error to dismiss it under the CGIA (the nature of the damages sought is immaterial).

The providers also contended it was error to dismiss their money damages claims for the County’s violations of their due process, equal protection, and article XVIII, § 14, rights under the Colorado Constitution. The Court disagreed. The due process clause of the Colorado Constitution does not create an implied cause of action in damages. Equal treatment under the laws in Colorado is a right under the due process clause. The providers thus have no entitlement to money damages for state due process and equal protection claims.

The providers further argued that the Board impermissibly based its decision on a de facto ban on dispensaries. Because the Board reasonably concluded the dispensary was not a use expressly contemplated by the zoning resolution, the Court found no abuse of discretion. The appeal was dismissed with respect to the patients’ and providers’ claims for declaratory and injunctive relief. In all other respects, the judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Occupational Disease Statutorily Presumed to Have Resulted from Employment as Firefighter

The Colorado Court of Appeals issued its opinion in City of Littleton Fire Rescue v. Industrial Claim Appeals Office on Thursday, November 1, 2012.

Workers’ Compensation—Firefighter—Brain Cancer—CRS § 8-41-209.

This workers’ compensation appeal arose from an order issued by the Industrial Claim Appeals Office (Panel). The City of Littleton Fire Rescue and its insurer (collectively, Littleton) sought review of the Panel’s order in favor of Littleton’s employee, firefighter Jeffrey Christ (claimant). The order was affirmed.

Claimant was diagnosed with glioblastoma multiforme (GBM), a type of brain cancer, and sought workers’ compensation benefits to cover his treatment. Littleton objected, and the case was brought before an administrative law judge (ALJ). The ALJ recognized that claimant’s cancer was statutorily presumed to have resulted from his employment; however, she ruled that Littleton had proved that claimant’s cancer was not caused by his occupational exposures. Claimant then appealed to the Panel, which ruled that Littleton had failed to sustain its burden of proof. The Panel reversed the ALJ’s order and remanded for a determination of benefits. Littleton appealed.

The firefighter’s statute creates a substantive presumption (in the nature of affirmative evidence) that claimant’s GBM resulted from his employment as a firefighter. To overcome that presumption, Littleton was required to affirmatively prove, by a preponderance of the evidence, that claimant’s cancer did not result from, arise out of, or arise in the course of his employment. Littleton did not disprove specific causation, however, and Littleton’s evidence was insufficient to rebut the presumption of the fireman’s statute because it “merely denied the underlying legislative premise of a causal relationship between the firefighter’s occupational exposure and the development of cancer.” The Panel’s order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Hotel Had No Duty to Detain Intoxicated Patron and Therefore Not Responsible for Subsequent Motor Vehicle Accident

The Colorado Court of Appeals issued its opinion in Groh v. Westin Operator LLC on Thursday, November 1, 2012.

Duty of Care—Innkeeper–Guest Relationship—Summary Judgment—Nonfeasance.

Plaintiff Jillian Groh appealed the trial court’s summary judgment in favor of defendant Westin Operator, LLC (Westin). The judgment was affirmed.

Groh and eleven of her friends spent an evening visiting bars in Denver and consuming alcohol. After the bars closed, the group gathered in a room of the Westin Hotel in downtown Denver, owned and operated by Westin. Groh had reserved the room in advance and was the only registered guest.

Around 2:45 a.m., a Westin security guard heard noises and investigated. He told Groh that she and the others needed to quiet down. Groh acquiesced, but the guard entered the room and told the others to be quiet, as well. Groh argued with him, claiming he wasn’t allowed to enter the room without her permission. The guard then re-entered the room and said everyone had to leave. Members of the group protested that the room had been rented so they could avoid having to drive after drinking.

Eventually, the manager was called. He determined that Groh could stay but that the others had to leave. Groh said that if her friends had to leave, she would leave too. For purposes of a summary judgment motion only, Westin conceded that Groh was evicted.

Several friends left and were not involved in the subsequent events. A little after 3:00 a.m., Groh and the remaining friends left the hotel. Groh called her brother and he advised her to take a taxi home. It was cold out, but the guard refused to let the party re-enter the Westin. Groh and the group then walked into a parking garage and, notwithstanding passing a taxi, one friend, Angela Reed, offered to drive. Groh gave her the keys to her PT Cruiser, which had five seatbelts. Seven people got it. Reed was the only one who used her seatbelt.

Around 4:00 a.m., on northbound I-225, Reed crashed into a slow-moving vehicle towing a vehicle with a flat tire. One passenger died; the others sustained injuries. Groh sustained severe injuries that left her in a persistent vegetative state. Reed’s blood alcohol content was estimated at between 0.170 and 0.222 at the time of the accident. She was charged with several felonies.

Groh, individually and by and through her guardians and conservators,brought negligence and breach of contract claims against the Westin. The district court granted summary judgment for the Westin. Groh appealed.

Groh argued that the Westin had a common law duty to protect her and prevent her from driving while intoxicated. Thus, the question was whether the Westin owed Groh a duty of care to take reasonable measures to protect her against the injury she sustained. Groh was injured as the result of riding as a passenger, without a seatbelt, in a vehicle driven by an intoxicated driver. In her fourth amended complaint, Groh contended the Westin had a duty to determine whether it was safe for her to drive home. The Court characterized this as a claim of nonfeasance on the part of the Westin.

The Colorado Supreme Court, in University of Denver v. Whitlock, 744 P.2d 54, 56 (Colo. 1987), analyzed the requirements of making out a claim of nonfeasance. Nonfeasance requires a special relationship, one of which is innkeeper to guest. However, once an individual ceases to be a guest of a hotel, the special relationship is terminated. Here, Groh was lawfully evicted because she breached her contract by having too many people stay in her room. Once evicted, the innkeeper–guest relationship terminated. Because there was no special relationship, there was no duty of care to take affirmative action to prevent the injury Groh sustained.

Groh also argued that the Westin was responsible under the assumed duty of care doctrine. Under this doctrine, “a party may assume duties of care by voluntarily undertaking to render service.” Here, the record did not contain evidence demonstrating that the scope of any such assumed duty would be so broad as to include preventing a former guest from being injured while riding as a passenger in a car driven by an intoxicated driver.

Finally, Groh argued it was error to rule that she breached her contract with the Westin, because the Westin waived any such claim when she was given three keys when she checked in. She cited no authority, and the Court found none, that would support such an argument. The summary judgment in favor of the Westin was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Trial Court Erred in Requiring Jury to Determine Penalties but Error was Corrected in Trial Court and Therefore There Was No Harm

The Colorado Court of Appeals issued its opinion in Graham v. Zurich American Insurance Co. on Thursday, November 1, 2012.

Employment—Colorado Wage Claim Act—Penalties—Jury—Attorney Fees.

Zurich American Insurance Company appealed from the trial court’s final judgment in favor of Michael Graham. The judgment was affirmed and the case was remanded.

After being terminated from his job at Zurich, Graham brought an action to recover certain bonuses that, in his view, constituted unpaid wages under the Colorado Wage Claim Act. The jury found in Graham’s favor and awarded $28,326.98 in damages, but it failed to add certain penalties that are mandatory under the Wage Claim Act. After the court gave the jury additional instructions, the jury entered a verdict in favor of Graham that included penalties. The court entered judgment on the first verdict in the amount of $28,326.98, plus penalties and interest.

Zurich contended that the court erred in granting judgment for Graham. It is the jury’s responsibility to make the necessary factual findings as to whether the employee made a written demand for payment, whether the employer paid the employee within fourteen days, and whether the employer’s failure to pay was willful. After receiving the jury’s factual findings, the court is then responsible for determining the penalties as a matter of law. Here, the court erred in requiring further deliberations after it received the first verdict. The court should have recognized that the first verdict contained all the necessary factual findings, and it should have corrected the jury’s determination of penalties as a matter of law. Therefore, although the court erred in further instructing the jury to determine penalties, it corrected its error by entering judgment on the first verdict and determining penalties based on the jury’s factual findings. The judgment was affirmed and the case was remanded to the court to determine, in its discretion, whether Graham should be awarded the reasonable attorney fees he incurred in defending this appeal.

Summary and full case available here.

Tenth Circuit: Utah Supreme Court’s Dismissal on Laches Grounds Constitutes a Decision on the Merits

The Tenth Circuit issued its opinion in Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne on Monday, November 5, 2012.

The Fundamentalist Church of Jesus Christ of Latter-Day Saints (“FLDS”)  filed a complaint in federal district court seeking declaratory and injunctive relief regarding the Utah probate court’s reformation and administration of a religious charitable trust (“Trust”). FLDS also moved for a temporary restraining order and a preliminary injunction against the probate court’s administration of the trust. This federal suit was stayed pending settlement negotiations.

While the federal case was pending, FLDS filed a petition for extraordinary writ with the Utah Supreme Court raising substantially the same claims as the federal complaint. The Utah Supreme Court dismissed the petition finding that FLDS’s claims regarding the trust were barred by the equitable doctrine of laches. FLDS then renewed its motion for temporary restraining order and preliminary injunction in federal court. The district court entered a temporary restraining order and also granted FLDS’s motion for a preliminary injunction, finding there was no basis for laches. The district court also found that the Utah Supreme Court’s finding of laches was not a judgment on the merits for res judicata purposes.

Defendants appealed the district court’s order granting FLDS a preliminary injunction. The Tenth Circuit certified the following question to the Utah Supreme Court:

Under Utah preclusion law, is the Utah Supreme Court’s discretionary review of a petition for extraordinary writ and subsequent dismissal on laches grounds a decision “on the merits” when it is accompanied by a written opinion, such that later adjudication of the same claim is barred?

In its answer to the Tenth Circuit’s certified question, the Utah Supreme Court concluded that such a decision is a decision on the merits for res judicata purposes that would preclude a subsequent action on the same claims between the same parties.

Having received the Utah Supreme Court’s answer, the Tenth Circuit concluded that FLDS was precluded from pursuing its claims in federal court.  The district court erred in granting a preliminary injunction, and specifically erred in holding that the Utah Supreme Court’s finding of laches was not a judgment on the merits for res judicata purposes.

Accordingly, the Tenth Circuit VACATED the district court’s grant of preliminary injunction and REMANDED with directions to dismiss the claims filed by the FLDS Association as barred by res judicata.

Tenth Circuit: Unpublished Opinions, 11/5/12

On Monday, November 5, 2012, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Gamez-Tapia

C & A Construction Company v. DHC Development

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