April 19, 2019

Archives for April 18, 2013

Nominees Selected for Judgeship in Larimer County Court

The Eighth Judicial District Nominating Commission met on April 10, 2013, to select nominees for a judgeship in the Larimer County Court in the Eighth Judicial District. The vacancy was created by the resignation of Hon. Ronald L. Schultz, effective April 30, 2013.

The three nominees are David Ayraud of Fort Collins, Mary Berenato of Fort Collins, and Kraig Ecton of Fort Collins. Under the Colorado Constitution, the governor has 15 days from April 11, 2013 to appoint one of the nominees. Comments about any of the nominees may be submitted to the governor via email at judicial.appointments@state.co.us.

For the full press release, including contact information for the nominees, click here.

Tenth Circuit: Denial of Motion to Suppress Affirmed; Reasonable Suspicion for Investigatory Stop

The Tenth Circuit published its opinion in United States v. Madrid on Wednesday, April 17, 2013.

Eric Madrid appealed his conviction on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Madrid pled guilty to the charge but preserved his right to appeal the district court’s denial of his motion to suppress evidence. The firearm was found by police in Madrid’s car, which they had stopped after receiving an anonymous 911 call about suspicious activity and a possible fight. Madrid argued on appeal that the investigatory stop lacked reasonable suspicion and violated the Fourth Amendment.

The Tenth Circuit found the district court had properly analyzed the facts in finding reasonable suspicion. The “intrusion on Mr. Madrid’s personal security was brief and minimal, and the government had a strong interest in solving crime and ensuring public safety in the circumstances the officers faced here.”

Madrid also argued that the anonymous 911 call was unreliable. The court found that, based on the totality of the circumstances, the call bore “sufficient indicia of reliability to provide reasonable suspicion” for the stop. The court affirmed the conviction because no Fourth Amendment violation occurred.

Tenth Circuit: Summary Judgment for Defendant Affirmed in Defamation Case

The Tenth Circuit published its opinion in Spacecon Specialty Contractors, LLC v. Bensinger on Monday, April 15, 2013.

Richard Bensinger produced and screened a film about Spacecon Specialty Contractors, LLC. Claiming the film conveyed several defamatory statements, Spacecon filed suit against Bensinger in the United States District Court for the District of Colorado, based on diversity jurisdiction, asserting a state-law claim for defamation per se. The district court granted Bensinger’s motion for summary judgment, concluding the messages conveyed by the film involved matters of public concern and Spacecon did not show Bensinger published the film with actual malice.

“In determining whether statements involve a matter of public concern, [a court] must analyze the content, form, and context of the statements, in conjunction with the motivation or ‘point’ of the statements as revealed by the whole record.” Spacecon focused its arguments on context and motive. The Tenth Circuit held that the film was a matter of public concern based on context. The messages of the film had the potential to impact many groups and the fact that a panel discussion was held after one showing illustrated that the film’s message was one of public concern.

The court then analyzed Bensinger’s motive in making the film. While there was some evidence Bensinger’s motive may have been to harm Spacecon, the fact that the film was a documentary shown to the public and its content and context all supported that it involved matters of public concern.

Spacecon argued the evidence showed Bensinger acted with actual malice. The court disagreed. “[V]iewing the evidence and drawing all reasonable inferences in Spacecon’s favor, no reasonable juror aware of the entire context surrounding the production and dissemination of the film could conclude by clear and convincing evidence that Bensinger included falsehoods in the film knowingly or with a reckless disregard for the truth.”

The court affirmed summary judgment for Bensinger.

Tenth Circuit: Unpublished Opinions, 4/17/13

On Wednesday, April 17, 2013, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Agnew v. Martin

Borde v. Board of County Comm’rs

Blaurock v. Kansas Dep’t of Corr.

SEC v. Gordon

Tucker v. Murphy

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

Tenth Circuit: Unpublished Opinions, 4/16/13

On Tuesday, April 16, 2013, the Tenth Circuit Court of Appeals issued no published opinions and four unpublished opinions.

United States v. Chapman

Hernandez v. Parker

United States v. Garcia-Ruiz

United States v. Herrera-Zamora

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

Colorado Court of Appeals: Announcement Sheet, 4/18/13

On Thursday, April 18, 2013, the Colorado Court of Appeals issued no published opinions and 36 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

HB 13-1277: Creating a Licensing Program for Persons Paid to Manage Common Interest Communities

On March 25, 2013, Rep. Angela Williams and Sen. Morgan Carroll introduced HB 13-1277 – Concerning the Regulation of Persons who Manage the Affairs of Common Interest Communities under the “Colorado Common Interest Ownership Act.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, common interest communities and their unit owners’ associations (HOAs) are not subject to regulation by any state agency. As introduced, the bill requires any person who manages the affairs of a common interest community on behalf of an HOA for compensation, on or after July 1, 2014, to meet minimum qualifications and obtain a license from the director of the division of real estate in the department of regulatory agencies. Licensees are identified as “community association managers.”

The licensing requirement does not apply to persons who perform clerical, ministerial, accounting, or maintenance functions, not requiring substantially specialized knowledge, judgment, or managerial skill, under the supervision of a licensed community manager or directly for an HOA’s governing board. Licensing examinations will be developed and administered by the director of the division of real estate or by a person or entity under contract with the director.

The bill grants the director powers and duties similar to, but less detailed than, the powers and duties of the real estate commission under existing statutes governing the licensing and supervision of real estate brokers. The director is to monitor the operation of the licensing program during its first year and make recommendations for improvements to the general assembly on or before Jan. 1, 2016. The regulatory scheme is also subject to review after five years under the existing sunset law.

On April 11, the Business, Labor, Economic, & Workforce Development Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact to the state.

On April 17, the Appropriations Committee amended the bill and referred it to the House Committee of the Whole for Second Reading. The Second Reading was laid over.

HB 13-1276: Imposing Notice Requirements on Owners’ Associations Under CCIOA Prior to Referring Delinquent Owners to Collections Agencies

On March 25, 2013, Rep. Angela Williams and Sen. Morgan Carroll introduced HB 13-1276 – Concerning Limitations on the Actions a Unit Owners’ Association under the “Colorado Common Interest Ownership Act” May Take Against a Unit Owner with Respect to the Collection of Debt Owed to the Unit Owners’ AssociationThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the unit owners’ association of a common interest community (HOA) to adopt, and comply with, a policy regarding the collection of delinquent assessments and other past-due amounts from unit owners. The HOA may not refer a unit owner’s account to a collection agency or attorney without first giving the unit owner notice of the total amount due and how it was determined, offering the unit owner a one-time opportunity to enter into a 6-month payment plan, and listing the legal remedies, including foreclosure, that are available to the HOA.

The bill prohibits an HOA from foreclosing its lien for past-due assessments unless the total amount is at least equal to six months of regular assessments and unless the HOA’s executive board has formally approved the foreclosure action on an individual basis.

The bill specifies the terms and conditions of the repayment plan that must be offered. The plan must permit the unit owner to pay off the deficiency in equal installments over a period of at least 6 months; however, the plan requires the unit owner to remain current on regular assessments as they come due during the period and allows the HOA to pursue collection if the unit owner fails to comply with the plan, has previously been subject to a payment plan, or is a bank that has acquired the unit as a result of default by a borrower. For purposes of section 3, “assessments” include fees, charges, late charges, attorney fees, fines, and interest on common expense assessments.

The bill applies its provisions to common interest communities created before July 1, 1992, the effective date of the “Colorado Common Interest Ownership Act,”, as well as to those created after that date.

On April 12, the House amended the bill and passed in on 2nd Reading; 3rd Reading is scheduled for Monday, April 15.

Since this summary, the bill passed Third Reading in the House; it is assigned to the Local Government Committee in the Senate.

HB 13-1274: Authorizing the State Treasurer to Enter Into Lease-Purchase Agreements on Behalf of State Board of Land Commissioners

On March 21, 2013, Rep. Dickey Lee Hullinghorst and Sen. Andy Kerr introduced HB 13-1274 – Concerning the State Board of Land Commissioners’ Investment in Commercial Real Property, and, in Connection Therewith, Granting the State Board of Land Commissioners the Authority to Enter into Lease-Purchase AgreementsThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill makes amendments to an existing definition and creates others in order to clarify what the lands are to which the article refers.

The bill ensures that any lease payments and rental payments for land, including by definition any lease payments from commercial real property, would be distributed in the same way that all revenues generated from state trust lands are currently distributed.

The bill grants the state board of land commissioners the authority to instruct the state treasurer to enter into lease-purchase agreements on behalf of the state school lands for the acquisition, construction, renovation, and improvement of commercial real property that the board will then lease as office space for state agencies or other tenants. The bill specifies that it is the general assembly’s intent that annual lease payments be paid from commercial real property revenues, but sets up secondary and tertiary options in the event of a shortfall. Prior to instructing the state treasurer to enter into such lease-purchase agreements, the bill requires the state board of land commissioners to present a financial plan related to such a lease-purchase agreement to the department of personnel and the office of state planning and budgeting. No later than 60 days after presentation of the financial plan, the capital development committee is required to review the financial plan and may make recommendations. The bill also:

  • Limits the total amount of annual lease payments payable by the state in any fiscal year;
  • Specifies additional procedural and legal requirements relating to the lease-purchase agreements; and
  • Creates the state board of land commissioners’ lease-purchase fund.

The bill makes clear that any interest earned on damage deposits that the state board of land commissioners receives from a lessee related to leases on state lands for nonagricultural purposes may be retained by the state board of land commissioners.

The bill creates the commercial real property operating fund to properly establish how to account for lease revenues generated from all commercial real property investments held by the state board of land commissioners on behalf of any of the state trust funds.

The bill makes conforming amendments to statutory sections related to contracting for services and procurement for the commercial real property operating fund that are consistent with a similar state board of land commissioners cash fund.

The bill was introduced on March 21 and is assigned to the Finance Committee; the bill is scheduled for committee review on April 25 “Upon Adjournment.”