August 24, 2019

Archives for July 15, 2013

Nominations Sought for Richard Marden Davis Award

The Denver Bar Foundation, combined with Davis Graham & Stubbs and the Davis family, seeks nominees for the Richard Marden Davis Award. Each year, the Richard Marden Davis Award is given out to a Denver lawyer under the age of 40 who combines excellence as a lawyer with civic, cultural, educational, and charitable leadership.

The Davis Award was established in 1992 by the Denver Bar Foundation, Davis Graham & Stubbs, and the Davis family, in order to recognize successful and community-minded young attorneys in private and public practice, and to inspire new members of the Denver legal community. Past recipients include former governor Bill Ritter, Colorado Court of Appeals judge Richard Gabriel, and Colorado Supreme Court Justice Monica Marquez. The 2012 recipient of the Davis Award was Franz Hardy of Gordon & Rees.

Nomination forms for the Davis Award are available on the Davis Graham & Stubbs website, or click here to download the form. Nominations are due September 1 and should be returned to Margee Fawley at DGS. For more information, contact Margee Fawley at (303) 892-7528 or

Colorado Court of Appeals: ALJ Misinterpreted Burden of Proof and Should Have Evaluated Risk Factors Introduced by Defense

The Colorado Court of Appeals issued its opinion in Town of Castle Rock v. Industrial Claim Appeals Office on Wednesday, July 3, 2013.

Workers’ Compensation—Presumption of Compensability in CRS § 8-41-209.

The Town of Castle Rock and its insurer (collectively, Town) appealed the judgment of the Industrial Claim Appeals Office (Panel) affirming the ruling of an administrative law judge (ALJ). The order was set aside and the case was remanded with directions.

Claimant had worked as a firefighter, engineer, and paramedic for the Town of Castle Rock since November 2000. He grew up in Albuquerque, New Mexico, and served as a firefighter there before moving to Colorado. During his off hours, claimant worked in construction—and sometimes outdoors—framing and building decks.

In 2011, claimant was diagnosed with malignant melanoma on his right outer calf. He underwent three surgeries to remove the growth and subsequently was released to work full duty. He appears to be cancer free.

Claimant sought both medical benefits and temporary total disability (TTD) benefits under CRS § 8-41-209. The parties stipulated that CRS § 8-41-209’s presumption of compensability applied. The only issue at the hearing was whether the Town had overcome the presumption.

The ALJ ruled that to overcome the presumption, a specific non-work-related cause of the cancer had to be established. The Town’s expert opined that claimant’s various other exposures and risk factors placed him at far greater risk of developing melanoma than his activities as a firefighter. The ALJ ruled that the opinion testimony was insufficient to overcome the presumption. The ALJ noted the statute required showing “by a preponderance of the medical evidence that such condition or impairment did not occur on the job.” The ALJ interpreted this to mean an employer must show that “a claimant’s cancer comes from a specific cause not occurring on the job.” The introduction of other risk factors was not enough. The Panel affirmed the ALJ’s ruling.

The Town and its insurer, CIRSA, argued that the ALJ misinterpreted the statute. Collectively, they asserted that the ALJ should have considered the evidence of risk factors it introduced to determine whether the presumption was overcome. The Court of Appeals agreed.

The statute provides that an otherwise compensable cancer “[s]hall not be deemed to result from the firefighter’s employment if the firefighter’s employer or insurer shows by a preponderance of the medical evidence that such condition or impairment did not occur on the job.” The Court held that evidence of risk factors can be sufficient to overcome the presumption under this language and that it was error to require the Town to prove that the cause of claimant’s cancer arose outside work. The standard applied by the ALJ is nearly insurmountable because the cause of most cancers cannot be determined. Such a standard would amount to a strict liability statute mandating that every firefighter who develops one of the prescribed cancers is entitled to workers’ compensation coverage.

The Court held that an employer may overcome the statutory presumption of compensability with specific risk evidence demonstrating that a particular firefighter’s cancer probably was caused by a source outside work. The case was remanded to the Panel to remand to the ALJ to review the evidence under the standard articulated by the Court.

Summary and full case available here.

Colorado Court of Appeals: Military Allowances for Food and Housing Appropriately Included in Temporary Child Support Calculations

The Colorado Court of Appeals issued its opinion in In re Parental Responsibilities of L.K.Y. on Wednesday, July 3, 2013.

Temporary Child Support.

In this action to determine parental responsibilities for L.K.Y. and J.R.Y., who are the children of Angela Francis Young and Karen Elizabeth Peabody, Peabody appealed from the order for temporary child support. The order was affirmed.

The parties entered into a domestic partnership in California in 2005 and are the parents of twins born in 2006. The parties moved to Colorado with their children in 2008. In 2011, a California court dissolved the parties’ domestic partnership, and Peabody petitioned the Colorado district court to allocate parental responsibilities. Young moved for temporary child support.

Following a hearing, a district court magistrate awarded temporary child support and denied Peabody’s petition for review. On appeal, Peabody argued it was error to include Young’s military allowances for housing and food, as well as part of Young’s income, for purposes of calculating temporary child support. Peabody’s petition was to deduct the allowances as additional factors that diminish the children’s basic needs under CRS § 14-10-115(11)(b). The Court of Appeals disagreed.

CRS § 14-10-115(5)(a)(I)(X) includes in “gross income”: “[e]xpense reimbursements or in-kind payments received by a parent in the course of employment . . . if they are significant and reduce personal living expenses.” Young, who is serving in the U.S. Army, lived off base and received housing and food allowances in addition to her salary. The allowances were included in calculating Young’s gross income over Peabody’s objection.

The Court found no error. The allowances, as admitted by Peabody, reduced Young’s personal living expenses and therefore were part of Young’s gross income under the plain language of the statute. Peabody argued that the allowances should have been deducted from the parties’ basic child support obligation as resources of the children; however, the Court noted that the allowances were paid to Young as part of her salary to spend as she chooses. The order was affirmed.

Summary and full case available here.

Tenth Circuit: Grant and Denial of Summary Judgment in § 1983 Action Affirmed

The Tenth Circuit Court of Appeals published its opinion in Fancher v. Barrientos on Friday, July 12, 2013.

Defendant Johnny Barrientos, a deputy of the Doña Ana County Sheriff’s Department, appealed the district court’s denial of his motion for summary judgment in a 28 U.S.C. § 1983 action brought by Lucia Fancher, individually and on behalf of the estate of her son, Nick Dominguez. Fancher alleged Barrientos used excessive force in violation of the Fourth Amendment when he shot Dominguez seven times following a confrontation in Mesquite, New Mexico. Dominguez died as a result of one or more gunshot wounds. Barrientos asserted he was entitled to qualified immunity because his use of deadly force was objectively reasonable and did not violate clearly established law. The district court granted Barrientos’s motion for summary judgment to the extent Fancher’s claim arose from the firing of the initial shot, but denied the motion to the extent the claim arose from the firing of the subsequent six shots.

On appeal, Barrientos made three arguments. First, he asserted the district court erred in analyzing the second through seventh shots separately from the first shot. Next, he argued the district court did not sufficiently consider the risks posed to third parties in analyzing the reasonableness of shots two through seven.

The Tenth Circuit held it lacked jurisdiction to consider the first two arguments. The court has jurisdiction to review all final decisions of the district courts of the United States. Ordinarily, an order denying summary judgment is not a “final decision.” The denial of qualified immunity to a public official is immediately appealable under the collateral order doctrine to the extent it involves abstract issues of law. Barrientos’s argument amounted to nothing more than a request for review of the factual conclusions of the district court, a task which exceeded the scope of the Tenth Circuit’s jurisdiction on interlocutory review of the denial of qualified immunity.

Third, Barrientos argued the law was not clearly established that his actions violated the Fourth Amendment. The Tenth Circuit was not persuaded. Under the circumstances of the case, the Court had no trouble concluding Barrientos lacked probable cause to believe Dominguez posed a threat of serious harm to Barrientos or others at the time he fired shots two through seven. The Tenth Circuit further had no trouble concluding a reasonable officer in Barrientos’s position would have known that firing shots two through seven was unlawful.

Thus, the Tenth Circuit affirmed the denial of summary judgment by the district court.

Tenth Circuit: Dismissal for Failure to State a § 11 Securities Act Claim Affirmed

The Tenth Circuit Court of Appeals published its opinion in Slater v. A.G. Edwards & Sons, Inc. on Tuesday, July 9, 2013.

Thornburg Mortgage, Inc. was an originator and purchaser of home loans and was affected by the 2007-2009 financial crisis. Cut off from its usual sources of financing, Thornburg attempted to raise new capital through a series of stock offerings in 2007 and early 2008. But as the mortgage market continued to sour, Thornburg’s problems mounted and the value of its stock declined. Investors in those offerings then brought a class action suit against Thornburg’s underwriters, alleging violations of § 11 of the Securities Act based on omissions and misrepresentations in the offering documents. The district court dismissed the claims against the underwriters on the grounds that there were no omissions or misrepresentations in the offering documents and, even if there were, they were not material.

Liability under § 11 of the Securities Act only attaches for “omissions of facts that are required as part of a registration statement or those necessary to make the statement not misleading.” The Tenth Circuit held the complained of statements were not misleading so there was no need to consider whether they were material. The court also held that Thornburg had no duty to disclose other items so their omission did not provide a basis for liability. The court affirmed the dismissal of all plaintiffs’ claims.

Tenth Circuit: Knowing and Voluntary Waiver of Right to Appeal Enforced

The Tenth Circuit Court of Appeals published its opinion in United States v. Tanner on Friday, July 12, 2013.

Robert Clifton Tanner was charged with four counts of mail fraud. He entered into a plea agreement with the United States pursuant to F.R.Crim.P. 11(c)(1)(C) in which he agreed to plead guilty to one count of mail fraud for which he would receive a stipulated sentence of 30 months’ imprisonment. The district court accepted Tanner’s guilty plea and sentenced him to the agreed 30 months’ imprisonment. As part of his plea agreement, Tanner waived his right to appeal unless the punishment imposed was greater than the parties had agreed. Despite this waiver and the imposition of the agreed sentence, Tanner brought this appeal claiming his sentence was illegal.

In considering the totality of the circumstances, either the express language of the plea agreement, if sufficiently clear, detailed, and comprehensive, or the probing inquiry of a proper Rule 11 colloquy could be enough to conclude the waiver was knowing and voluntary. Here, the plea agreement and the abbreviated Rule 11 colloquy, taken together, demonstrated Tanner’s waiver to have been knowingly and voluntarily made. The court found this to be so despite the trial court’s failure to specifically mention the appellate waiver in its Rule 11 colloquy.

The government’s motion to enforce the waiver was granted and the appeal was dismissed.

Tenth Circuit: Unpublished Opinions, 7/12/13

On Friday, July 12, 2013, the Tenth Circuit Court of Appeals issued four published opinions and one unpublished opinion.

United States v. Johnson

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

Running Past Our Limits Update (Part 1)

rhodesLast summer I wrote a series on lessons learned from marathon training. I’m occasionally asked for an update. Here it is, a year later.

You can read the whole story in the archives, but briefly, I started training a couple years ago as a way to deal with what I thought was an unfinished injury rehab issue. I didn’t intend to become a marathoner; I was having trouble walking, running was impossible, and I’d tried pretty much everything else, so one day I got the idea of using the elliptical machines at Bally’s to reprogram my body into moving again.

After a discouraging start, I eventually ran a marathon on the machine. My times quickly got faster and faster, and before long I was into elite-level training and turning in world class marathon times. No, I wasn’t actually running, I was using an elliptical machine, but still… a marathon at 4:37 minutes per mile is booking it!

In the meantime, my new rehab theory wasn’t proving out. The faster and further I ran, the less I could walk. It made no sense: on the machine I could do the impossible; in real life I could barely do what’s possible for most people. I sought solace at the keyboard, and wrote that first Running Past Our Limits series, which ended this way:

You’ve long since figured out that this series of blog posts isn’t about running marathons on the elliptical machine. Instead, it’s about running past our limits, whatever they are. It’s about doing things we know are impossible. Apparently we can live in two realities at once. In one, there is no possible way we can do the thing we want. In the other reality, we can, and the first reality’s negative opinion doesn’t count. The first time we do it, we’re stunned and astonished, and so is everyone else. The second time, it’s just routine. What used to be impossible has now become the new normal.

What’s the new normal you’d like to create for yourself? Like I said back at the start, if all of us could tap into this idea of doing the impossible, we and our lives and our world would change, maybe overnight.

Sounds good, but the trouble was, my world definitely was not changing overnight. My first new normal goal was simply to walk again. It was joined by a second: to run a real marathon in world class speed. The second goal was happening on the elliptical machine; the first wasn’t happening at all.

With encouragement from family, I began four months of bouncing from one medical specialist to another. Four MRI’s, two EMG’s, an endoscopy, a spinal tap, and a few dozen vials of blood later, the “impossible” I was up against suddenly took on a whole new meaning.

To be continued.

Kevin Rhodes is a lawyer in private practice who’s on a mission to help people love their work and their lives. He leads workshops for a variety of audiences, including the CBA’s Job Search and Career Transitions Support Group. You can email Kevin at

Jeffrey R. Pilkington Named New District Court Judge for First Judicial District

Governor Hickenlooper’s office announced Friday that Jeffrey R. Pilkington will become the new district court judge in the First Judicial District upon the retirement of Hon. Jane A. Tidball, effective July 31, 2013. He will preside over criminal and civil cases.

Mr. Pilkington is currently a partner at Davis Graham & Stubbs, where he handles complex litigation, including products liability, personal injury, environmental torts, and other claims. He joined Davis Graham & Stubbs in 1989, and has been a partner since 1995. He received his undergraduate degree from Drake University in 1985, summa cum laude, and his law degree, with honors, from Columbia Law School. He has been listed in The Best Lawyers in America and Colorado Super Lawyers, and has earned the highest AV rating from Martindale-Hubbell. He is also a member of the 2013 Product Liability 360 Advisory Board.


Colorado Court of Appeals: Action to Establish Paternity Must Be Brought Prior to Child’s 18th Birthday

The Colorado Court of Appeals issued its opinion in In re Parental Responsibilities of I.M. on Wednesday, July 3, 2013.

Paternity—Statute of Limitations.

In this paternity action, Rebecca A. McKenzie (mother) appealed the order granting judgment on the pleadings in favor of Mark A. Russo (Russo), which held that her action to determine the existence of a father–child relationship with I.M. was barred by the statute of limitations. The order was affirmed.

I.M. was born on October 2, 1992. Russo and mother were not married. On March 11, 2011, mother, as next friend, sought to establish paternity under CRS § 19-4-105(1)(d). Russo responded that because I.M. was over age 18, mother’s action was barred by the statute of limitations under CRS § 19-4-108. The trial court granted Russo’s motion for judgment on the pleadings because the action was barred by the statute of limitations. Mother appealed.

Mother argued that the trial court should have considered CRS § 19-4-107(1) and (2), which allow her to bring an action “at any time.” The Court of Appeals disagreed. The Court held that CRS § 19-4-107(1) is inapplicable because the prerequisite allegation that Russo and mother were married or attempted to marry was not made. CRS § 19-4-107(2) allows an action to be brought at any time for the purpose of determining the existence of the father–child relationship presumed under CRS § 19-4-105(1)(d). However, CRS § 19-4-108 requires such an action be brought before a child’s 18th birthday.

The Court denied Russo’s request for an award of appellate attorney fees under CRS §§ 13-17-102(4) and 19-4-117. The order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Trial Court May Not Require Prima Facie Showing of Proof Prior to Commencing Discovery

The Colorado Court of Appeals issued its opinion in Strudley v. Antero Resources Corp. on Wednesday, July 3, 2013.

Toxic-Tort Case—Modified Case Management Order—Prima Facie Evidence—Discovery.

In this toxic-tort case, plaintiffs William G. Strudley and Beth E. Strudley, individually and as the parents and guardians of William Strudley and Charles Strudley, appealed the trial court’s orders requiring them to present prima facie evidence to support their claims before the initiation of full discovery, and dismissing their claims with prejudice for not meeting this burden. The orders were reversed and the case was remanded with directions.

The Strudleys sued defendants, Antero Resources Corporation and three other companies, claiming negligence, negligence per se, nuisance, strict liability, and trespass related to physical and property injuries allegedly caused by the companies’ natural gas drilling operations with proximity to their home.

The Strudleys asserted that the trial court erred by entering a modified case management order, which required the Strudleys to present prima facie evidence to support their claims before full discovery could commence, because such orders are not permitted as a matter of Colorado law. A trial court may not require a showing of a prima facie case before allowing discovery on matters central to a plaintiff’s claims. Here, although the initial disclosures provided the Strudleys with some information related to their claims, the disclosed information was insufficient to enable them to respond fully to the modified case management order. The modified case management order, therefore, interfered with the full truth-seeking purpose of discovery regarding Strudleys’ claims. Thus, the trial court erred as a matter of law when it entered the modified case management order.

Summary and full case available here.

Tenth Circuit: Qualified Immunity Summary Judgment in 42 U.S.C. § 1983 Claims Reluctantly Affirmed

The Tenth Circuit Court of Appeals published its opinion in Rojas v. Anderson on Tuesday, July 9, 2013.

Plaintiff Oliver Rojas appealed the district court’s order granting summary judgment to Defendants on his 42 U.S.C. § 1983 claims. Plaintiff filed a complaint under § 1983 against Defendants asserting claims of unlawful seizure and excessive force. The district court granted summary judgment to Defendants based on qualified immunity, concluding Officer Anderson had probable cause to arrest Plaintiff and, in light of the exigent circumstances surrounding the event, his warrantless entry into Plaintiff’s home was therefore justified. The district court also concluded that Defendants’ act of dropping Plaintiff did not violate the Fourth Amendment.

The Tenth Circuit agreed that the Defendants were entitled to qualified immunity as the Plaintiff failed to show that the defendant’s actions violated a constitutional or statutory right and that this right was clearly established at the time of the conduct at issue. The court pointed out that it may have reached an entirely different result but was forced to affirm because of the lack of proper argument and failure to provide supporting authority below or on appeal on the Plaintiff’s behalf.