November 15, 2018

Archives for September 2013

Colorado Court of Appeals: Lien Against Judge’s Personal Property Correctly Deemed Spurious and Thus Invalid

The Colorado Court of Appeals issued its opinion in Egelhoff v. Taylor on Thursday, September 26, 2013.

Spurious Liens and Documents—Administrative Remedies—Subject Matter Jurisdiction.

Defendant Lesley Joe Taylor appealed the judgment declaring invalid his putative lien against the property of plaintiff Martin Foster Egelhoff. The judgment was affirmed.

Taylor filed a document purporting to be a lien with the Denver County Clerk and Recorder, asserting that Egelhoff owed him $500 million and that this debt was secured by Egelhoff’s real and personal property. The lien was found to be invalid pursuant to CRS § 38-35-204 and CRCP 105.1.

On appeal, Taylor asserted that the court erred in concluding that his lien was spurious and, thus, invalid. Taylor did not provide a transcript of the hearing. Therefore, it is presumed that the court’s ruling declaring the lien invalid is supported by the record. Further, neither the documents Taylor sent to the district court nor his arguments on appeal provided any legal or factual support for the validity of the lien. Accordingly, the district court did not err in finding the lien spurious and thus invalid.

Taylor also contended that Egelhoff failed to exhaust his administrative remedies before challenging the liens as spurious under CRS § 38-35-204 and, therefore, the court lacked subject matter jurisdiction. Egelhoff had no available administrative remedies to exhaust. The proper procedure for removing a spurious lien is to file a petition in a court seeking an order to show cause under CRS § 38-35-204, as Egelhoff did here. In addition, both Taylor and Egelhoff proceeded in this action as private parties, not state agencies. Therefore, the doctrine of exhaustion of administrative remedies was inapplicable.

Summary and full case available here.

Colorado Court of Appeals: Defendant’s Medical Use of Marijuana Violated Terms of His Deferred Judgment

The Colorado Court of Appeals issued its opinion in People v. Wilburn on Thursday, September 26, 2013.

Deferred Judgment—Revocation—Medical Marijuana—Prescription—Affirmative Defense.

The People appealed the trial court’s order finding that defendant did not violate the conditions of his deferred judgment. The order was disapproved.

The probation department filed a complaint to revoke defendant’s deferred judgment, alleging in part that defendant had violated the condition that he not use or possess any narcotic, dangerous, or abusable substance without a prescription. The trial court found that defendant had not violated the conditions of his deferred judgment and dismissed the revocation complaint. The court essentially determined that defendant had established an affirmative defense to the revocation because he satisfied conditions of the Colorado Constitution pertaining to medical marijuana.

On appeal, the People contended that the trial court erred by concluding that defendant established an affirmative defense to revocation of the deferred judgment. Although the Colorado Constitution sets forth an affirmative defense to criminal prosecution based on the medical use of marijuana, it does not provide a defense to an administrative proceeding such as the revocation here. Because defendant violated his plea agreement by not possessing a prescription for medical marijuana, the People could seek revocation of his deferred judgment. Although the court erred in dismissing the revocation complaint, however, it does not follow that the court lacked subject matter jurisdiction to make its decision. Hence, its order was not a nullity, and the trial court’s ruling was disapproved.

Summary and full case available here.

Colorado Court of Appeals: Counterclaims Asserted in Original Answer to Complaint and Need Not be Reasserted in Response to Amended Complaint

The Colorado Court of Appeals issued its opinion in Mullins v. Medical Lien Management, Inc. on Thursday, September 26, 2013.

Car Accident—Settlement—Lien—Counterclaim—Evidence—Testimony—Hearsay—Admission—Lay Witness.

Plaintiff Jerry Mullins appealed the trial court’s judgment in favor of defendant Medical Lien Management Inc. (MLM). The judgment was affirmed.

This interpleader action stems from settlement proceeds recovered by Mullins due to a car accident. Mullins’s law firm, Darrell S. Elliott, P.C. (DSE), withheld a portion of the settlement pursuant to the fee agreement. However, MLM claimed to hold a medical lien of $17,081.10 on the settlement funds, which represented charges for care provided to Mullins by SpineOne P.C., as a result of injuries sustained by Mullins in the car accident.

Mullins asserted that the trial court erred in ruling in favor of MLM on its counterclaims because MLM had abandoned its counterclaims when it failed to reassert them in its answer to Mullins’s amended complaint. MLM had asserted counterclaims in its original Answer and continued to pursue those counterclaims during the case. Therefore, MLM did not waived its right to pursue them, and the trial court did not err in permitting MLM to litigate its counterclaims, even though it did not reassert them in responding to Mullins’s Amended Complaint.

Mullins also asserted that the trial court abused its discretion by admitting evidence and testimony presented by MLM because MLM failed to provide notice of the evidence to Mullins before trial. MLM’s first fourteen trial exhibits were identical to the exhibits MLM had attached to its summary judgment motion. The remaining exhibits were documents Mullins had given to MLM as part of the parties’ initial discovery disclosures. Accordingly, Mullins was familiar with the content of the trial exhibits, and their late disclosure could not have caused Mullins surprise that would have required their exclusion. Further, Mullins had notice of the witness’s identity because an affidavit in support of MLM’s motion for summary judgment contained statements from the witness similar to his testimony. Thus, the trial court did not abuse its discretion by allowing MLM’s witness to testify.

Mullins further argued that the trial court abused its discretion by allowing MLM’s witness to testify as a lay witness about the reasonableness and necessity of SpineOne’s medical bills. The witness’s conclusions, however, did not involve a process of reasoning that could not be reached by an ordinary citizen without specialized training or experience. Therefore, the trial court did not err in allowing this witness to testify about his lay opinion.

Finally, Mullins’s argument that the trial court abused its discretion by admitting numerous exhibits that contained hearsay failed because all three documents constituted admissions by a party opponent. The trial court’s judgment was affirmed.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 9/26/13

On Thursday, September 26, 2013, the Tenth Circuit Court of Appeals issued no published opinions and two unpublished opinions.

United States v. Suarez-Garcia

United States v. Gonzalez-Lince

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

Ted Atlass: Master of Tax Issues in Trust and Estate Law

Estate planning and tax law are inextricably intertwined, and no one knows this better than Ted Atlass. He has been practicing trust and estate law and tax law since 1975, when he was admitted to the bar in Colorado. Through the years, he has become known as a national expert on the intersection of tax law and estate planning.

Tax law is complicated, and there are many exceptions to general rules. For example, although there are general rules that apply to transactions between unrelated parties, there are several exceptions to these rules for related parties. Related parties can be family members of the whole or half blood, individuals and corporations in which individuals own more than 50 percent of stock, two corporations that are members of the same group, fiduciary and grantor of the same trust, two fiduciaries of trusts established by the same grantor, and more. There is no one better than Ted Atlass to explain some of these complex transactions between such related parties to which exceptions to the IRS’s general rules apply.

Another area where tax law and estate planning intersect is immediate pre-mortem estate planning. Appreciated assets that will receive a stepped up basis may remain in the estate, while passive activity loss assets may be disposed of. Income could be accelerated during the decedent’s lifetime so that the taxes that will be paid will be deductible for estate tax purposes. Business interests could be restructured to benefit the estate.

These and many other topics related to tax law in estate planning will be discussed at a half-day CLE program on October 10, “Practical Income Tax Issues in Everyday Estate Planning and Administration,” presented by Ted Atlass. Click the links below to register, or call (303) 860-0608.

CLE Program: Ted Atlass on Practical Income Tax Issues in Everyday Estate Planning and Administration

This CLE presentation will take place on October 10, 2013, in the CLE Large Classroom. Click here to register for the live program and click here to register for the live webcast.

Can’t make the live program? Click here to order the homestudy.

Colorado Court of Appeals: Announcement Sheet, 9/26/13

On Thursday, September 26, 2013, the Colorado Court of Appeals issued four published opinions and 37 unpublished opinions.

Mullins v. Medical Lien Management

People v. Wilburn

Idaho Pacific Lumber Co. v. Celestial Land Co. Ltd.

Egelhoff v. Taylor

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.

Tenth Circuit: Unpublished Opinions, 9/25/13

On Wednesday, September 25, 2013, the Tenth Circuit Court of Appeals issued no published opinions and four unpublished opinions.

United States v. Summers

Castro v. Kondaur Capital Corporation

United States v. Navarro

Olson v. City of Golden

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

The 2013 Colorado Lawyer Satisfaction And Salary Survey — Part 3: The Ethics of Unhappiness

rhodes(Click here for Law Week Colorado’s summary of the 2013 Lawyer Salary & Satisfaction Survey.)

Okay, so lots of lawyers are stressed and unhappy. Who cares?

If you believe what you read, apparently not lawyers.

Scholarly articles about lawyer (un)happiness often begin with something like “The law is essential to society, and law is a prestigious profession.” Once they’ve gotten that out of the way, they go on to lower the boom:  “But our research shows that the profession shoots its wounded and eats its young.” Ouch. And then they point out that lawyers themselves don’t seem to mind as long as they’re well paid. Ouch again.

We might wonder whether the Colorado survey results are saying the same thing. We are well paid, the respondents said, and at least we’re happy about that, even though two-thirds of us wouldn’t recommend our jobs to someone else.

Is trading stress and unhappiness for money just the deal you get when you’re a lawyer? Maybe so: it’s no secret that both leverage-based law firm economics and six-figure law school loans rely on lawyers’ willingness to make that trade.

Is it worth it? Not everybody thinks so. Lawyers have opted out in various ways, and there are reform movements in law schools and bar associations trying to shake up those deal terms as well. Plus, there are relief structures in place for individuals who aren’t dealing so well with their deal – such as the Colorado Lawyer Assistance Program.

All that is heartening, but self-help, reform initiatives, and relief programs all rely on a willingness to admit a problem and a commitment to change things. Trouble is – again, if you believe the research – the profession seems to have a systemic case of d-e-n-i-a-l. Plus, there are legal barriers that support a “deal with it” and “don’t ask don’t tell” professional culture around the topic of lawyer unhappiness. For example, a 2008 University of Louisville law review article entitled Law Students And Lawyers With Mental Health And Substance Abuse Problems: Protecting The Public And The Individual extensively digests all of the laws, rules, and other reasons why it can be illegal, unethical, or impolitic to ask too many questions about someone’s state of mind or behavior.

Then who cares? If lawyers don’t care, then maybe clients do. And if clients don’t, maybe they ought to. Consider, for example, the ethics of unhappiness. The syllogism goes something like this:

  • Clients are entitled to competence, communication, timeliness, and sound judgment from their lawyers. If we lawyers don’t deliver those things, we’re unethical. Period.
  • Lawyers are more prone to depression, substance abuse, anxiety disorders, and suicidal thoughts than our non-lawyer clients.
  • Conditions like that impair competence, communication, timeliness, and sound judgment.
  • Take those things out of the lawyer-client relationship, and things don’t bode well for either the client or the lawyer.

No, not every unhappy lawyer is an ethically impaired lawyer, but some might be, and any time a new survey reports high rates of lawyer job dissatisfaction, you have to wonder if it also signals the existence of levels of ethical risk as well.

Maybe the money’s good, but it doesn’t buy happiness… or guarantee ethical conduct.

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 Solo and Small Firm Section and the Job Search and Career Transitions Support Group. You can email Kevin at kevin@rhodeslaw.com.

Mark D. Thompson Appointed Chief Judge of Fifth Judicial District Upon Retirement of R. Thomas Moorhead

On Tuesday, September 24, 2013, Chief Justice Michael Bender appointed Mark D. Thompson as the Chief Judge of the Fifth Judicial District. Judge Thompson will replace Hon. R. Thomas Moorhead, who will retire effective December 1, 2013.

Judge Moorhead has been the Chief Judge since 2010. He was appointed to the Fifth Judicial District Court bench in 2002, and prior to that he was the Eagle County Attorney. He was the town attorney for the Town of Vail from 1993 to 2001, and also spent a great deal of his career in Ohio. He received his J.D. from Salmon P. Chase College of Law in 1975.

Judge Thompson was appointed to the Fifth Judicial District Court bench in 2010. He is a graduate of the University of Denver School of Law, and was partner at a Denver firm before moving to the mountains and joining the Breckenridge firm of French, West & Brown, where he became partner in 1999.

For more information about the appointments, click here.

Tenth Circuit: Defendant Entitled to Reduction in Sentence Under USSG § 3E1.1(b)

The Tenth Circuit Court of Appeals published its opinion in United States v. Haggerty  on Tuesday, September 24, 2013.

Tyre S. Haggerty pled guilty to one count of possession with intent to distribute a controlled substance and one count of possession of a firearm by a previously convicted felon. He appealed his seventy-two-month sentence, claiming it was procedurally unreasonable because the district court failed to consider the criteria in United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) § 3E1.1(b) for a one-level reduction for acceptance of responsibility. The government supported the appeal. Both parties sought reversal and remand with directions for the district court to grant the reduction based on its consideration of § 3E1.1(b) and its commentary.

At the sentencing hearing, the district court denied the motion for a one-level reduction under U.S.S.G. § 3E1.1(b). As grounds for denying the reduction, the court explained it believed that what the Sentencing Commission had in mind for acceptance of responsibility was a true and sincere acceptance of responsibility, not simply the fact that a defendant was willing to plead guilty. The motion to grant the one-level decrease was based entirely on the fact that the defendant agreed to plead guilty, permitting the Government to avoid preparing for trial and permitting it and the court to allocate resources more efficiently. The district court did not think that saving the Government the task of preparing for trial was a benefit that was entitled to any weight.

The issue in this appeal was whether denial of the one-level reduction under § 3E1.1(b), which affected calculation of the Guidelines range, resulted in a procedurally unreasonable sentence. § 3E1.1(b), on which both parties relied, states:

If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.

U.S.S.G. § 3E1.1(b) (emphasis added).

The Tenth Circuit agreed with the parties on appeal that the sentencing judge’s personal view that one should not be rewarded with a lesser sentence for pleading guilty was an impermissible reason for denying a § 3E1.1(b) reduction and constituted an abuse of discretion resulting in a procedurally unreasonable sentence.

REVERSED and REMANDED for resentencing.

Colorado Supreme Court: Several Crimes Perpetrated Over 24 Hour Period Not Considered Same Criminal Episode

The Colorado Supreme Court issued its opinion in Marquez v. People on Monday, September 23, 2013.

Concurrent and Consecutive Sentencing—CRS §§ 18-1.3-406 and 18-1-408(2).

Defendant sought review of the court of appeals’ judgment affirming the district court’s imposition of consecutive forty-eight-year sentences for two crime-of-violence convictions. After finding that both crimes of violence arose out of the same incident, the district court concluded that it was statutorily required to order defendant’s two crime-of-violence sentences to be served consecutively. The court of appeals affirmed.

The Supreme Court reversed the court of appeals’ judgment and remanded the case with directions to return the matter to the district court for resentencing. The Court held that the phrase “arising out of the same incident,” as it appears in CRS § 18-1.3-406, is a reference to, and has the same meaning as, the phrase “arising from the same criminal episode” in CRS § 18-1-408(2). Further, record established that the crimes of violence of which defendant was convicted were not “based on the same act or series of acts arising from the same criminal episode.”

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 9/24/13

On Tuesday, September 24, 2013, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Sudduth v. Raemisch

United States v. Miller

Ellis v. Dowling

Webster v. Jones

Nunn v. Kastner

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