June 19, 2019

Archives for June 24, 2013

Daniel R. McCune to Serve as Next President of Denver Bar Association

Dan McCune headshots, CBA. Photo by Jamie CottenDaniel R. McCune will start his one-year term as president of the Denver Bar Association on July 1, representing the association’s 9,354 members.

McCune will focus on providing relevant services to members to help them in their day-to-day law practice and will emphasize health and wellness of attorneys, offering yoga and other health-related benefits to members. He will tweet under the handle @dbapresident.

“It’s important for our members to know that the bar association offers a number of resources that should make the bar association an integral part of their practice,” McCune said. “It’s important that we think outside the box and continue to provide services that will best equip lawyers for the future of legal practice.”

McCune is a shareholder with Kennedy Childs, focusing his practice on complex civil litigation, professional malpractice claims and contentious employment disputes. McCune has been involved with the Federation of Defense and Corporate Council, DRI and the Colorado Defense Lawyers Association, serving as its president from 2000 to 2001. He chaired the Colorado Bar Association’s Economic Task Force, which worked to alleviate the impact of the Great Recession on attorneys, and most recently chaired the Colorado and Denver Bar Associations’ Joint Judicial Task Force, which aims to protect and promote Colorado’s fair and impartial courts.

After graduating from the University of Kansas School of Law, McCune joined the Judge Advocate General Corps, where he worked as a prosecutor. He lives in Golden with his partner Lorraine DAversa and has two daughters—Katie, 25, and Mollie, 18.

Colorado Supreme Court: Announcement Sheet, 6/24/13

On Monday, June 24, 2013, the Colorado Supreme Court issued six published opinions.

In re DCP Midstream LP v. Anadarko Petroleum Corp.

Shaw v. 17 West Mill St, LLC

Larrieu v. Best Buy Stores, L.P.

Qwest Corp. v. Colorado Division of Property Taxation, Department of Local Affairs, State of Colorado

In the Matter of Bass

Vermillion Ranch L.P. v. Raftopoulos Brothers

Summaries for these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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

Self-Help Assistance for Pro Se Litigants Approved by Supreme Court in CJD 13-01

Colorado Supreme Court Chief Justice Michael Bender recently issued Chief Justice Directive 13-01, dated June 12, 2013. The new CJD discusses assistance provided to pro se litigants in non-criminal matters by clerks, family court facilitators, self-represented litigant coordinators, and others.

The CJD defines self-help personnel and related terminology, and elucidates what types of assistance may be provided by the self-help personnel. Additionally, activities prohibited by self-help personnel are enumerated, and the CJD clarifies that the self-help personnel do not practice law by providing that help. A notice to the non-represented litigants is also included in the Directive.

For a complete list of Chief Justice Directives, click here.

Colorado Court of Appeals: Announcement Sheet, 6/20/13

On Thursday, June 20, 2013, the Colorado Court of Appeals issued nine published opinions and 33 unpublished opinions.

Fry v. Lee

In re Estate of Wheeler

People v. Poindexter

People v. McMinn

People v. Halbert

People v. Ruch

Mikes v. Burnett

People v. Lehmkuhl

In re Support of E.K., J.K., and P.K.

Summaries for these cases are forthcoming, courtesy of The Colorado Lawyer.

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

Colorado Court of Appeals: Landlord Granted Security Interest in Decedent’s Personal Property As Described in the Lease

The Colorado Court of Appeals issued its opinion in In re Estate of Wheeler on Thursday, June 20, 2013.

Lease—Security Interest—Personal Property—Collateral.

Mary Beth Wheeler, personal representative of the Estate of David Wheeler, appealed the trial court’s grant of summary judgment to Tower Building, LLC and Lorraine E. Ring (collectively, Landlord). The judgment was affirmed.

David was the sole proprietor of a jewelry store located in a building owned by Landlord. After David died, Landlord filed a claim to recover unpaid rent and interest. Landlord asserted that David’s lease for his jewelry store granted it a security interest in David’s personal property located in the store at the time of his death.

Mary Beth contended that Landlord did not have an enforceable security interest in David’s personal property, because the lease did not sufficiently describe the property. A security interest is enforceable against the debtor and third parties if the security agreement provides a sufficient description of the collateral. Here, the lease described the collateral as all of debtor’s personal property and identified the location of the property as the leased premises. Therefore, the lease for use of Landlord’s building created an enforceable security interest in David’s personal property, which was located in his jewelry store when he died.

Summary and full case available here.

Colorado Court of Appeals: Dismissal of Defamation Claim Pursuant to C.R.C.P. 12(b)(5) Upheld

The Colorado Court of Appeals issued its opinion in Fry v. Lee on Thursday, June 20, 2013.

Defamation—Newspaper Article—CRCP 12(b)(5).

Plaintiff Michele Fry appealed the district court’s judgment dismissing her complaint alleging defamation and related claims against defendants Kurtis Lee and The Denver Post, LLC (Post), pursuant to CRCP 12(b)(5). The judgment was affirmed and the case was remanded with directions.

The Post published an article about Fry after she admitted to Lee, a reporter for the Post, that she accidently plagiarized an online publication authored by the National League of Cities (NLC). Fry then filed an action against Lee and the Post, contending that defendants had published materially false and defamatory statements.

Fry contended that, in ruling on the CRCP 12(b)(5) motion, the district court erred because it did not accept her pleaded facts as true and construe them in the light most favorable to her. Contrary to Fry’s contention, however, the district court was not required to accept the meanings alleged in her amended complaint as factual matters; instead, it properly referred to lay dictionaries to determine, as a matter of law, the ordinary and plain meanings ascribed to the challenged words.

Fry further contended that the district court erred when it granted defendants’ motion to dismiss, because reasonable people could have found that the challenged statements were capable of bearing defamatory meaning and were materially false. However, the words “charged,” “plagiarism,” and “recant” would not be interpreted by a reasonable person to have the defamatory meanings Fry alleged in her amended complaint. Furthermore, the substance of the articles was true.

Fry also argued that the court improperly summarily dismissed her ancillary claims, including respondeat superior, negligence, negligence per se, intentional infliction of emotional distress, and deceptive trade practices, based on the failure of her defamation claims. The district court did not err in dismissing Fry’s ancillary claims, however, given that they alleged damages resulting from defendants’ purportedly defamatory statements.

Defendants requested an award of attorney fees pursuant to CRS § 13-17-201. Because the district court properly dismissed Fry’s claim under CRCP 12(b)(5), defendants’ request for attorney fees was granted.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 6/24/13

On Monday, June 24, 2013, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

United States v. Benavidez

United States v. Motsenbocker

Alamiin v. Morton

United States v. Cabello-Alfaro

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

Tenth Circuit: Denial of F.R.C.P. 12(b)(6) Motion Reversed Because Private Actors Were Not State Actors in § 1983 Case

The Tenth Circuit Court of Appeals published its opinion in Wittner v. Banner Health on Monday, June 24, 2013.

Ian Wittner died at the North Colorado Medical Center after being injected with the drug Haldol during a seventy-two-hour involuntary mental health hold. His parents, Lizbeth Cardenas and George Wittner, brought a § 1983 claim against the Medical Center, the doctor, and the nurse involved in their son’s treatment. The district court granted summary judgment for the defendants and denied the plaintiffs’ F.R.C.P. 59(e) motion to retain jurisdiction over their state law tort claims.

The defendants cross-appealed the district court’s denial of their F.R.C.P. 12(b)(6) motion to dismiss the § 1983 claim for lack of state action. Plaintiffs contended the state of Colorado transformed the private medical facility and its health care employees into state actors by assuming the power to authorize the involuntary commitment of mentally ill persons and delegating that power to designated facilities which the state regulates. Private actors may be considered state actors for constitutional deprivation purposes if the facts meet one of four tests: (1) the nexus test, (2) the public function test, (3) the joint action tests, and (4) the symbiotic relationship test. After applying all four tests, the Tenth Circuit held that the defendants in this case were not state actors and reversed the court’s denial of defendants’ Rule 12(b)(6) motion.

The court affirmed the denial of the plaintiffs’ Rule 59(e) motion because the trial court could not remand state law claims that had never been removed from state court.