July 21, 2018

Archives for October 2013

Curing the Collywobbles — Part 2: How Strong is Your Reality Distortion Field?

rhodesA common source of collywobbles is the “Who are you trying to kid?!” accusation. It comes from that mean and sneaky part of human nature that’s always trying to shame us back into line, and it’s shockingly effective because it just might be true: we might really be delusional or a fraud to think we can pull off something new and different.

If we’re facing that issue, we’re in good company. Eric Ries, author of The Lean Start Up, said this in a blog post entitled The Visionary’s Lament:

We all know that great companies are headed by great visionaries, right? And don’t some people just have a natural talent for seeing the world the way it might be, and convincing the people around them to believe in it as if it was real?

This talent is called the reality distortion field. It’s an essential attribute of great startup founders. The only problem is that it’s also an attribute of crazy people, sociopaths, and serial killers. The challenge, for people who want to work with and for startups, is learning to tell the difference. Are you following a visionary to a brilliant new future? Or a crazy person off a cliff?

Steve Jobs’ Apple colleagues coined the term “reality distortion field” to explain his ability to convince himself and everyone else to believe whatever he wanted. A sense of reality was putty in his hands: he distorted it, shaped it to his vision of what was possible, so that people created what he wanted and bought what he was selling.

Jobs’ legendary RDF was lampooned in Dilbert, and has been otherwise debunked, but it’s hard to argue with his results, which ultimately is how we judge these things. As the Bud Light commercial says: “It’s only weird if it doesn’t work.”

Accusations of insanity and arrogance come with the visionary territory. Expect them. Expect them to give you the collywobbles. But then be prepared to move on anyway. Radical departures from status quo are unreasonable and crazy, by definition. We need faith and hope – both of which have their own unreasonable and crazy downsides – to stay with them.

Former Colorado Episcopal Bishop Bill Frey once said: “Hope means hearing the music of the future; faith means dancing to it now.” Yes, by all means let’s dance to the music of our inspired visions, but let’s also remember what Nietzsche said: “Those who were seen dancing were thought to be insane by those who could not hear the music.”

How do we stay engaged when we’re dancing to music others can’t hear? We can start by conceding the issues raised by that mean and sneaky accusation:

Am I just making all this up? Yes, I am.
Am I crazy? Yes, I am.
Is there anything to be afraid of? Yes, plenty.
Am I going to do it anyway? Yes, I am.
Now can we get on with it?

To be continued.

Kevin Rhodes is a lawyer in private practice who coaches and mentors other lawyers to 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.

Colorado Court of Appeals: Bankruptcy Court Order Effectively Precludes Determination of “Successor Entity” for Unemployment Insurance Purposes

The Colorado Court of Appeals issued its opinion in Ouray Sportswear, LLC v. Industrial Claim Appeals Office on Thursday, October 24, 2013.

Unemployment Insurance—Bankruptcy—Successor Entity.

Petitioner Ouray Sportswear, LLC (employer) sought review of a final order of the Industrial Claim Appeals Office (Panel). The order was set aside.

In April 2007, Ski Country Imports, Inc. and Ouray Sportswear Wyoming, Inc. (collectively, debtor) filed for bankruptcy. As part of the bankruptcy proceeding, employer, through a related entity called Jalex Holdings, LLC (Jalex), purchased substantially all of debtor’s assets. In May 2007, the U.S. Bankruptcy Court for the District of Colorado issued an order approving Jalex’s purchase of debtor’s assets. The order expressly provided that the purchase was free and clear of any and all liens, claims, charges, and encumbrances.

In June 2012, a deputy for the Colorado Department of Labor and Employment (Department) issued a liability determination concluding that debtor’s entire unemployment insurance account (which included the unpaid premiums) would transfer to employer because employer was a successor entity to debtor under CRS § 8-76-104(1)(a). The hearing officer affirmed the deputy’ ruling, and the Panel affirmed a hearing officer’s decision that employer is a “successor” entity for unemployment taxation purposes under § 8-76-104(1)(a), because it purchased substantially all of the assets of two businesses.

Employer contended that the Panel erred in affirming the hearing officer’s determination that it is a successor entity under § 8-76-104(1)(a). The bankruptcy court’s order effectively precluded the Department and the Panel from treating employer as a statutory successor entity. Therefore, the Panel’s order holding that employer is a successor entity to debtor under § 8-76-104(l)(a) conflicts with, and is therefore preempted by, the bankruptcy court’s prior order issued pursuant to 11 USC § 363(f). Consequently the Panel’s order was set aside.

Summary and full case available here.

Colorado Court of Appeals: Petition for Interlocutory Review Granted in Construction Defect Case

The Colorado Court of Appeals issued its opinion in Triple Crown at Observatory Village Association, Inc. v. Village Homes of Colorado, Inc. on Thursday, October 24, 2013.

Construction Defect—Interlocutory Review—Arbitration Provision Enforcement.

In this construction-defect action, plaintiff Triple Crown at Observatory Village Association, Inc. (Association) petitioned for interlocutory review of the district court’s order granting defendants’ motion to enforce an arbitration provision in the Association’s declaration. The petition was granted.

Defendants created the Association to manage, maintain, and repair certain properties. Defendant Village Homes of Colorado, Inc. recorded a Declaration of Covenants, Conditions, and Restrictions under the Colorado Common Interest Ownership Act. Article 14 of the Declaration established a dispute resolution procedure for claims arising from the design or construction of the improvements and structures on the property. It required arbitration of such claims if good faith negotiation and mediation efforts were unsuccessful. Disputes arose regarding defendants’ responsibility for construction defects, and the Association sought to revoke Article 14. The Association appeared to have received the requisite votes and recorded an amendment to the declaration and filed this action.

Defendants moved to enforce the arbitration provision, arguing that the revocation was ineffective because the Association did not obtain the written consent from 67% percent of its members within the sixty-day time period required under the Colorado Revised Nonprofit Corporation Act. The district court granted defendants’ motion. The Association then filed an unopposed motion for certification of the order pursuant to CAR 4.2. The district court granted the motion and certified three issues for appeal. The Association then filed the present CAR 4.2 petition for interlocutory review.

The Court of Appeals may grant such an appeal when (1) immediate review may promote a more orderly disposition or establish a final disposition of the litigation; (2) the order from which an appeal is sought involves a controlling question of law; and (3) that question is unresolved. The Court concluded that immediate review could promote a more orderly disposition of the litigation. If it did not grant review, the parties might arbitrate all the issues and then the Association could appeal the order compelling arbitration. Also, the questions certified present unresolved questions of law, none of which has been addressed by the Colorado Supreme Court or Court of Appeals. Finally, the district court’s order compelling arbitration involved a controlling question of law. Accordingly, the petition was granted.

Summary and full case available here.

Colorado Court of Appeals: Erroneous Legal Standard Applied in Determining that Apartment Building was Estate Asset and Not Partnership Asset

The Colorado Court of Appeals issued its opinion in In re Estate of Grosboll on Thursday, October 24, 2013.

Probate—Estate—Partnership—Real Property—Statute of Frauds.

In this probate matter concerning the consolidated estates of Jeanette Elizabeth Grosboll and Ashley Nelson Grosboll (collectively, decedents), Jo Ann C. Grosboll, decedents’ daughter, appealed the district court’s order finding that the sales proceeds of Loma Vista Apartments (Loma Vista) were an estate asset rather than an asset of Grosboll Manor, L.L.L.P. (partnership), a limited partnership formed between decedents and Jo Ann. The orders were reversed and the case was remanded.

In 2004, decedents and Jo Ann entered into a limited liability limited partnership by executing a written partnership agreement. When decedents died, Loma Vista was titled in their individual names. Robert Grosboll’s surviving sons contended that Loma Vista was an estate asset because it was titled in decedents’ names, and they were entitled to the sale proceeds of Loma Vista as the residuary beneficiaries of decedents’ estate. Jo Ann contended that, according to the terms of the written partnership agreement and the intention of the partners, Loma Vista was a partnership asset and she was entitled to it as the remaining partner.

As a matter of first impression, the Court of Appeals considered whether real property owned individually by one who enters into a partnership may become a partnership asset without a written conveyance sufficient to satisfy the statute of frauds. A written conveyance from a partner to the partnership is not required because the General Assembly has enacted legislation specifically allowing real property titled in an individual partner’s name to be deemed an asset of the partnership, and because the trust relationship between partners provides adequate protection against fraud in oral agreements making a partner’s real property a partnership asset. Thus, the intention of the partners determines whether such real property is a partnership asset, but a written conveyance is a factor for a court to consider in evaluating that intent. Here, the district court, relying on the statute of frauds, found that because decedents did not execute a deed transferring their individual interest in Loma Vista to the partnership, it was not a partnership asset. Because the trial court applied an erroneous legal standard, the trial court’s order was reversed and the case was remanded for further findings of fact and conclusions of law consistent with this opinion.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 10/29/13

On Tuesday, October 29, 2013, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

United States v. Calvin

Bhomengo v. Hospital Shared Services

United States v. Ocampo-Gutierrez

Fogle v. Elliott

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

Hon. Christine Carney to Resign from Larimer County Court; Nominating Commission Seeking Applications

On Friday, October 25, 2013, the Colorado State Judicial Branch announced an opening on the Larimer County Court bench, effective December 31, 2013. The vacancy will be created by the resignation of Hon. Christine A. Carney.

Judge Carney was appointed to the Larimer County Court in 1998, after approximately 17 years of practicing law. She received her undergraduate degree from Michigan State University and her J.D. from the University of Colorado. She is currently the Presiding Judge for the Larimer County Court. She hears civil cases with a jurisdictional limit of $15,000 and criminal cases involving traffic matters and misdemeanors.

Applicants for the vacancy must be qualified electors of Larimer County and must have been admitted to practice law in Colorado for five years. Application forms may be obtained from the ex officio chair of the nominating commission, Justice Gregory Hobbs, or may be downloaded from the State Judicial website. The original signed application and an identical PDF must be filed with the ex officio chair no later than 4 p.m. on November 18. Anyone wishing to nominate another person for the vacancy must submit the nomination no later than 4 p.m. on November 12. The nominating commission will meet on December 6, 2013, to select nominees.

Contact information for members of the nominating commission may be found on the State Judicial website.

Colorado Supreme Court: Legislature Intended Traditional Permissive Definition for Word “May” in Juvenile Offender Statute

The Colorado Supreme Court issued its opinion in A.S. v. People on Monday, October 28, 2013.

Statutory Construction—“May” Versus “Shall”—Juvenile Justice—Aggravated Juvenile Offender—CRS §19-2-601—Suspended Sentence of Commitment to Department of Human Services—Probation.

The Supreme Court held that CRS §19-2-601(5)(a)(I)(A) grants a court discretion, in sentencing an aggravated juvenile offender, to suspend a commitment to the Department of Human Services on a condition of successful completion of probation for an offense that would not constitute a class 1 or class 2 felony if committed by an adult. The Court reversed the court of appeals’ decision, concluding that the Colorado Legislature used the term “may” in §19-2-601(5)(a)(I)(A) according to the term’s traditional, permissive meaning.

Summary and full case available here.

Colorado Court of Appeals: Defendant Charged Twice with Leaving Scene of Accident Subjected to Double Jeopardy

The Colorado Court of Appeals issued its opinion in People v. Medrano-Bustamante on Thursday, October 24, 2013.

Driving Under the Influence—Vehicle Homicide—Vehicular Assault—Leaving the Scene of an Accident—Lesser Included Offense—Testimony—Opinion Evidence—Expert Testimony—Hearsay.

Defendant appealed the judgment of conviction entered on jury verdicts involving multiple charges. The judgment and sentence were affirmed in part and vacated in part, and the case was remanded.

Defendant, Jose Medrano-Frias (Frias), and 15-year-old A.S. were involved in a single-car accident that injured Frias and resulted in the death of A.S. Defendant was charged with driving under the influence (DUI), vehicular homicide–DUI, vehicular assault–DUI, and two counts of leaving the scene of an accident. At trial, the identity of the driver was contested—defendant argued that A.S. was driving at the time of the accident. The jury convicted defendant as charged.

Defendant contended that the convictions based on two counts of leaving the scene of an accident, one for Frias and one for A.S., were multiplicitous. Because the unit of prosecution is the number of accident scenes and not the number of victims, defendant’s two convictions for leaving the scene of a single accident violate his right to be free from double jeopardy.

The Court of Appeals therefore ruled that the two convictions related to leaving the scene of an accident—one involving serious bodily injury and the other involving death—should be merged into one, and thus remanded to the trial court on this issue. The Court then vacated the imposed sentence regarding conviction for leaving the scene of an accident involving serious bodily injury.

The Court ordered that the mittimus be corrected based on its rulings. The judgment regarding all other issues in this case was affirmed.

Summary and full case available here.

Tenth Circuit: Immigration Petitioner Properly Denied Second Cancellation of Removal Relief

The Tenth Circuit Court of Appeals published its opinion in Velasco v. Holder on Tuesday, October 29, 2013.

Arturo Velasco petitioned for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal from an order of the immigration judge (IJ) that denied his application for cancellation of removal under § 240A of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1229b.

Velasco, a native and citizen of Mexico, entered the United States illegally in 1989. The government first commenced deportation proceedings against him in March 1997. He applied for suspension-of-deportation relief under former § 244(a) of the INA, was granted that relief, and was issued a lawful-permanent-resident card in September 1998.

In 2007 Velasco pleaded guilty to two counts of possession of a controlled substance, causing the Department of Homeland Security to initiate removal proceedings against him in 2009. He then applied for discretionary cancellation-of-removal relief for permanent residents under 8 U.S.C. § 1229b(a). The IJ denied relief; on appeal the BIA also denied relief, although on different grounds.

The Tenth Circuit denied Velasco’s petition for review. Because Velasco had been granted suspension of deportation during prior deportation proceedings, he was ineligible for cancellation of removal according to the plain language of § 1229b(c)(6).

Tenth Circuit: Unpublished Opinions, 10/28/13

On Monday, October 28, 2013, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Marquez v. Board of County Commissioners

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

JDF Forms Amended in Probate, Domestic, and Other Categories

The Colorado State Judicial Branch has released amended JDF forms in several categories, including appeals, domestic, criminal, probate, evictions, garnishments, and money cases. These amended forms have September and October 2013 revision dates.

Forms are available for download here in PDF format by clicking the links below. State Judicial’s forms page has forms in PDF, Word, and Word template.

APPEALS

  • JDF 126 – “Instructions for Filing a County Court Civil or Small Claims Appeal” (R10/13)

CRIMINAL

  • JDF 475 – “Order to Discontinue Sex Offender Registration” (R09/13)

DOMESTIC

  • JDF 98 – “Affidavit of Service” (R10/13)
  • JDF 1316 – “Order” (R09/13)
  • JDF 1701 – “Verified Pleading Affidavit for Grandparent Visitation” (R10/13)
  • JDF 1820M – “Worksheet A – Child Support Obligation: Sole Physical Care” (R09/13)
  • JDF 1821M – “Worksheet B – Child Support Obligation: Shared Physical Care” (R09/13)

EVICTIONS & FORECLOSURES

  • JDF 104 – “Motion for Entry of Judgment” (R10/13)

GARNISHMENTS & JUDGMENTS

  • JDF 138 – “Judgment Creditor Affidavit in Support of Foreign Judgment” (R10/13)

MONEY CASES

  • JDF 91 – “Motion for Entry of Judgment on Stipulation” (R10/13)
  • JDF 98 – “Affidavit of Service” (R10/13)
  • JDF 104 – “Motion for Entry of Judgment” (R10/13)
  • JDF 110 – “Instructions for County Court Civil Cases (Money Demand)” (R10/13)
  • JDF 600 – “District Court Civil Summons” (R10/13)
  • JDF 601 – “District Court Civil Cover Sheet” (R10/13)

PROBATE

  • JDF 731 – “Receipt and Release” (R09/13)
  • JDF 810 – “Court Visitor’s Report” (R09/13)

PROTECTION ORDERS

  • JDF 399 – “Permanent Civil Protection Order Issued Pursuant to § 13-14-106, C.R.S.” (R09/13)
  • JDF 440 – “Mandatory Protection Order” (R09/13)

Click here for all of State Judicial’s JDF forms.

Appointees to Nineteenth Judicial District Nominating Commission Announced

On Friday, October 25, 2013, Governor Hickenlooper announced appointments to several boards and commissions, including two appointees to the nominating commission for the Nineteenth Judicial District.

Each judicial district nominating commission consists of seven members, no more than four of whom can be from the same political party. In judicial districts with a population greater than 35,000 people, three of the members of the nominating commission must be admitted to practice law in Colorado.

Sylvia Martinez of Greeley was appointed to serve as a non-attorney and a Democrat. She will replace Joe Tennessen of Greeley, who resigned. Alberto Dominguez of Windsor was appointed as an attorney and a Republican. He will replace Henry Frey of Greeley.

For the full list of Governor Hickenlooper’s appointments, click here. For more information on judicial nominating commissions, click here.