April 18, 2019

Archives for June 14, 2013

Volunteers Urgently Needed to Assist Black Forest Fire Victims

The El Paso County Bar Association, in an effort to help victims of the destructive Black Forest Fire, will offer a special Ask-a-Lawyer on Wednesday, June 19, 2013, from 2 pm to 6 pm. The Ask-a-Lawyer is open to victims of the fire or others affected by the fire.

The El Paso County Bar Association urgently needs volunteers to assist with the Ask-a-Lawyer. They specifically need volunteer attorneys in the areas of real estate, landlord/tenant, HOAs, insurance, employment, and probate.

There will be two volunteer shifts, from 2 to 4 pm and from 4 to 6 pm. If you can help, please contact Claire Anderson ((719) 473-9700 or claire@elpasocountybar.org).

Colorado Court of Appeals: Tenant Improvements Could be Retroactively Assessed as Personal Property Tax Because Erroneously Omitted from Tax Rolls

The Colorado Court of Appeals issued its opinion in Marisco Capital Management, LLC v. Denver Board of County Commissioners on Thursday, June 6, 2013. 

Special Notices of Valuation—Omitted Property Versus Omitted Value.

Marsico Capital Management, LLC (MCM) challenged the Board of Assessment Appeals’ (BAA) order upholding the Denver Board of Equalization’s (BOE) order denying several of its petitions. The order was affirmed.

MCM is an investment advisory firm that leases office space in a downtown Denver commercial building. In 2004 and 2005, MCM expanded and remodeled its leased office space and made tenant improvements. Following MCM’s filing of its first personal property declaration schedule in February 2006 for the 2005 tax year, the City Assessor issued a special notice of valuation (SNOV) assessing the value of MCM’s personal property.

In 2009 and 2010, the City Assessor audited MCM for tax years 2005 through 2009. The audit revealed that although MCM had timely reported its tenant improvements in its personal property declaration schedules, its tenant improvements were not valued or assessed personal property taxes for tax years 2005 through 2009, because the City Assessor’s computer system had not included them.

MCM filed protests challenging the five SNOVs for the missing assessments. The City Assessor granted the protests for tax years 2005 through 2007 because the statute of limitations had run, but denied the protests for tax years 2008 and 2009. MCM challenged the SNOVs before the BOE. The BOE reduced the overall value on the two SNOVs but denied the petitions. MCM appealed to the BAA, which denied the appeal.

The issue before the Court of Appeals was whether tenant improvements later discovered by a taxing authority are “omitted property” or “omitted value.” If tenant improvements constitute “omitted property,” they are subject to retroactive revaluation; if they are “omitted value,” additional taxes may not be imposed.

Tenant improvements are “personal property” under CRS § 39-1-102(11) and are subject to personal property tax. However, taxing authorities are prevented from imposing additional taxes based on revaluations of property that has already been valued and taxed. The parties disagreed on whether personal property taxes were previously assessed on the tenant improvements.

MCM argued that by retroactively adding the 2004 and 2005 tenant improvements to the assessment rolls for the 2008 and 2009 tax years, the City Assessor included an omitted value of previously taxed property that, once taxed, could not be reassessed.

The BAA and City Assessor countered that the tenant improvements were never included in the computer system due to an error by the City Assessor. Thus, they were not included in the assessment rolls for tax years 2005 through 2009 and could be retroactively assessed because they are “omitted property.” The Court agreed with the Board and City Assessor.

CRS § 39-5-125(1) allows the assessor to add omitted property to the tax rolls “whenever it is discovered that any taxable property has been omitted from the assessment roll of any year or series of years.” Here, the tenant improvements had never been assessed and therefore were “omitted property” that could be retroactively assessed. The BAA’s order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Announcement Sheet, 6/13/13

On Thursday, June 13, 2013, the Colorado Court of Appeals issued no published opinions and 44 unpublished opinions.

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

Tenth Circuit: In § 1983 Action Where Qualified Immunity Is Not at Issue, Excessive Force Question Is For Jury

The Tenth Circuit Court of Appeals published its opinion in Cavanaugh v. Woods Cross City on Wednesday, June 12, 2013.

Shannon Cavanaugh suffered a serious head injury after being tasered by Daniel Davis, a police officer for Woods Cross City, Utah. She filed an excessive force claim under 42 U.S.C. § 1983 against the City and Davis. The jury found for the City and Davis, and the district court entered judgment in their favor.

Cavanaugh argued that the district court’s refusal to exclude testimony from Officer Davis concerning his perceptions and beliefs prior to the tasering incident was error because whether force was excessive is an objective test. The Tenth Circuit held that allowing Davis’s testimony was harmless error because the district court gave a correct jury instruction.

The court also rejected Cavanaugh’s argument that her F.R.C.P. 59 motion for a new trial should have been granted because there was insufficient evidence that she was an immediate threat. Given the testimony that she left the house with a kitchen knife, had been drinking and taken drugs, her refusal to answer Officer Davis’s questions, and rush to get back in the house, sufficient evidence she was an immediate threat was shown.

The district court’s refusal to give Cavanaugh’s proposed jury instruction on resisting arrest was also not error as use of force may be appropriate when a person is actively resisting seizure, not just arrest.

Finally, Cavanaugh argued that the district court erred in submitting to the jury the question whether Officer Davis used excessive force. Cavanaugh contended the court should have given the jury special interrogatories to decide the factual disputes and made the legal determination itself whether Davis’s conduct was reasonable under the circumstances. The court held that because there were disputed issues of material fact, it was proper for the district court to send the question of whether Officer Davis’s use of force was reasonable to the jury. The use of special interrogatories may be appropriate in some cases but was not required here. The court affirmed.

Tenth Circuit: Unpublished Opinions, 6/12/13

On Wednesday, June 12, 2013, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Bwika v. Holder

Lay v. Haskins

United States v. Carrillo

Perez-Castro vs. Holder

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