August 19, 2019

Archives for December 11, 2013

Surviving a Personal Apocalypse — Part 1: The Four Horsemen

rhodesThe world was supposed to end last year about this time. False alarm. The Mayan calendar came and went, and we never got a chance to meet….

The Four Horsemen: Conquest, War, Famine, Death. The original End Times Bad Asses – darkness, destruction, and death on steroids. If it’s catastrophic, they bring it: plague, war, famine, storm, earthquake, flood, fire, raging wild animals, and a whole lot more. It’s the Public Apocalypse: the worldwide bad day to end all bad days. We’re all invited, and there’s no “regrets” option on the RSVP card.

There’s a lot of Apocalypse fascination these days – so much, that some Jungian theorists think we might have one just because so many people are envisioning it. We’ll activate the apocalyptic archetype that’s lodged in the collective unconscious and bring on our own end just because we’re infatuated with it. Thanks a lot, Hollywood.

What gets even more play is what happens next. We know how the Apocalypse ends: the total destruction of everything. Okay, got that. But then what? What will life be like when EVERYTHING is in ruins?

Nasty, brutish, and short, apparently – judging from the books, movies, and TV shows.

But don’t worry, this isn’t a series about the Public Apocalypse. It’s about how we live after a Private Apocalypse – after our personal lives are so completely unraveled, it feels like the Four Horsemen trampled through our living room.

The list of private catastrophes starts out like the public one – health problems, natural disasters – but also includes things like job loss, business failures, and relationship breakups. Sometimes it’s a career meltdown, when we find ourselves awash in angry seas, clinging to a job life raft with a hole in it, realizing we got all the way out here for the sake of a paycheck we thought we couldn’t afford to live without.

This is apocalypse on a micro level – myapocalypse.com. It’s private and personal, but no less catastrophic. All is changed in the twinkling of an eye. All our boundaries and structures and beliefs have been breached. We’ve been shot past the point of no return, rocketed to the shocking end of the story we thought would run on forever, but we were wrong.

We’re not in Kansas anymore, we’re living in the land of This Was Never Supposed to Happen. There are no bearings, no context, no familiar ANYTHING, nothing but the chaos in our heads, swirling with infinite possibilities, all of them dreadful.

You know I’m not exaggerating if you’ve been there.

Theoretically, we could make big changes in our lives without the help of all that. We could, but we usually don’t. It usually takes a crash and burn to get our attention.

It takes the Four Horsemen.

To be continued.

Kevin Rhodes is a lawyer in private practice and a registered mentor with the Colorado Supreme Court’s CAMP program. He offers career coaching for lawyers and 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 Supreme Court: Defendant Need Not be Expressly Charged with Responsibility Over Child to Occupy Position of Trust

The Colorado Court of Appeals issued its opinion in People v. Roggow on Monday, December 9, 2013.

Criminal Acts Against Children—Status as to Child—Position of Trust.

The Supreme Court considered whether there was sufficient evidence for the jury to convict a defendant of sexual assault on a child by one in a position of trust, in violation of CRS § 18-3-405.3, where the defendant was not expressly charged with a particular duty or responsibility over the child at the time of the unlawful act. The Court held that for the purposes of § 18-3-405.3, a defendant need not be expressly charged with a particular duty or responsibility over the child at the time of the unlawful act to occupy a position of trust. Rather, a defendant may occupy a position of trust with respect to the victim where an existing relationship or other conduct or circumstances establishes that the defendant is entrusted with special access to the child victim.

The Court ruled that the evidence was sufficient for a jury to conclude that defendant was in a position of trust with respect to the victim at the time of the unlawful acts. Therefore, the holding of the court of appeals was reversed and the case was remanded with directions to reinstate the conviction.

Summary and full case available here.

Colorado Supreme Court: Under Totality of Circumstances, Police Conduct in Custodial Interrogation Was Not Coercive

The Colorado Supreme Court issued its opinion in People v. Zadran on Monday, December 9, 2013.

CAR 4.1 Interlocutory Appeal in Criminal Case—Suppression of Defendant’s Statements as Involuntary.

The Supreme Court held that, in a suppression hearing, when a defendant makes a prima facie evidentiary showing of involuntariness, the prosecution bears the burden, by a preponderance of the evidence, of establishing that the statements were voluntary under the totality of the circumstances. Coercive physical or psychological conduct by the government renders an otherwise voluntary statement involuntary if the conduct plays a significant role in inducing the statement.

Applying the totality of the circumstances standard to defendant’s statements in this case, the Supreme Court held that defendant’s statements were voluntary and there was no coercive police conduct. The trial court’s suppression order was reversed.

Summary and full case available here.

Colorado Supreme Court: During Custodial Interrogation, Defendant Improperly Coerced to Testify by Threats of Deportation

The Colorado Supreme Court issued its opinion in People v. Ramadon on Monday, December 9, 2013.

CAR 4.1 Interlocutory Appeal in Criminal Case—Suppression of Defendant’s Statements as Involuntary.

The Supreme Court held that, in a suppression hearing, when a defendant makes a prima facie evidentiary showing of involuntariness, the prosecution bears the burden, by a preponderance of the evidence, of establishing that the statements were voluntary under the totality of the circumstances. Coercive physical or psychological conduct by the government renders an otherwise voluntary statement involuntary if the conduct plays a significant role in inducing the statement.

In this case, the trial court considered the voluntariness of defendant’s statements under the totality of the circumstances and concluded they were involuntary after the forty-two-minute mark of the interview. The Supreme Court held that the record supported the trial court’s finding that police conduct during the custodial interrogation played a significant role in inducing incriminatory statements defendant made starting at minute fifty-four. Therefore, defendant’s statements must be suppressed after minute fifty-four. The suppression order was affirmed in part and reversed in part, and the case was returned to the trial court for further proceedings.

Summary and full case available here.

Colorado Court of Appeals: Property Valuation Commissioner Need Not Be Held to Judge’s Standard of Appearance of Impropriety

The Colorado Court of Appeals issued its opinion in Regional Transportation District v. 750 West 48th Ave LLC on Thursday, December 5, 2013.

Eminent Domain—Just Compensation—Evidentiary and Instructional Rulings—Commissioner Standards.

In April 2011, Regional Transportation District (RTD) filed a petition in condemnation and acquired from Landowner approximately 1.6 acres for RTD’s FasTracks Gold Line light rail project. It was agreed that RTD would take possession in exchange for a deposit of $1.8 million. The only issue at trial was determining the amount owed to Landowner for the condemned property. Landowner elected to have a commission trial, and the trial court appointed a commission of three freeholders to determine the property’s reasonable market value. RTD appealed pretrial and instructional rulings by the trial court and certain evidentiary rulings of the commission.

RTD contended the trial court erred in not disqualifying Kittie Hook, a real estate broker with Cassidy Turley, as a commissioner because it did not employ the “appearance of impropriety” disqualification standard applicable to judges. The court denied the request. CRS § 13-1-105(1) requires disqualification if the court determines that any of the proposed commissioners is not impartial. The trial court held that the applicable standard was not an “appearance of partiality,” but whether the commissioner was in fact interested and partial. The Court of Appeals agreed, concluding that the plain language of the statute required RTD to demonstrate that Hook was interested and partial. Because no such showing was made, it was not an abuse of discretion to not disqualify Hook.

RTD also argued that trial court erred by instructing the commission not to consider evidence concerning amenities at the property leased by Landowner’s lessee after condemnation. The Court found no abuse of discretion. The trial court’s instruction on the relevancy of evidence constituted a legal issue. Because CRS § 38-1-105(1) requires the trial court to instruct the commission on the applicable law, the court properly instructed the commission how to determine the reasonable value of the property.

RTD argued that the commission erred in reversing the trial court’s motion in limine ruling to admit an expert witness’s testimony as to the average value of industrial properties under the income approach. The Court disagreed. The Court held that the commissioners can modify the court’s determination of a motion in limine after hearing further evidence, and that the commission’s ruling was not an abuse of discretion.

Landowner requested attorney fees in defending the appeal. A landowner is entitled to recover its attorney fees where the award by the commission equals or exceeds 130% of the last written offer given to the property owner before the filing of the condemnation action. That was the case here, so the trial court awarded Landowner attorney fees. CAR 39.5 provides for an award of appellate attorney fees when there is a legal basis for such an award. Landowner therefore was entitled to appellate attorney fees and remanded for a determination of the amount. The judgment otherwise was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Home Rule Municipality May Regulate Its Own City Charter Without Legislative Intervention

The Colorado Court of Appeals issued its opinion in McCarville v. City of Colorado Springs on Thursday, December 5, 2013.

Home Rule Charter Amendment Process.

Roger McCarville filed with the City of Colorado Springs (City) a letter demanding to petition the City’s electors to amend its charter. He attached a draft of his charter amendment that addressed several municipal issues. McCarville also announced his refusal to participate in the procedures applicable to citizen initiatives outlined by the City’s ordinances, contending they did not apply to amending the charter. Nonetheless, the City clerk followed the City ordinance and scheduled his draft initiative for a public meeting with the City’s Initiative Review Committee.

Instead of participating, McCarville filed an action in the district court requesting the court to declare that the City’s ordinances related to citizen-initiated charter amendments conflict with the Colorado Constitution and related statutes. The City moved for summary judgment on the ground that its process for initiated charter amendments is consistent with the applicable constitutional and statutory provisions. The motion was granted.

On appeal, McCarville argued that the Colorado Constitution permits only the General Assembly to legislate on charter amendments and that the City’s ordinances conflict with CRS § 31-2-210. The City responded that it may enact ordinances addressing the charter amendment process because: (1) this is a matter of local concern; or (2) this is a matter of mixed state and local concern, and its ordinances do not conflict with the statute.

The Court construed Colo. Const. art. XX, § 6 and art. V, § 1(9) to authorize a home rule municipality to enact legislation related to charter amendments. Thus, even if this matter were of statewide concern, the City may regulate charter amendments as long as the City’s legislation does not conflict with the state’s. If there is no conflict between the state statute and City ordinances, then they both may coexist within the City, regardless of whether the legislation concerns a matter of local, state, or mixed concern. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Remand to Trial Court to Determine if Sentence Disproportionate to Severity of Defendant’s Crimes

The Colorado Court of Appeals issued its opinion in People v. Hargrove on Thursday, December 5, 2013.

Habitual Criminal Statute—Abbreviated Proportionality Review—Gross Disproportionality—Extended Proportionality Review.

The People appealed the trial court’s determination that a forty-eight-year prison sentence under the habitual criminal statute would be grossly disproportionate to defendant’s crimes. The order was reversed and the case was remanded.

The People charged defendant with felony escape after his parole officer could not locate him when the battery on the GPS monitor on his ankle bracelet had not been charged. The People also charged defendant with four habitual criminal counts based on his previous felony convictions for sexual assault—force, criminal impersonation, failing to register as a sex offender, and possession of a schedule II controlled substance. The jury found defendant guilty of escape, and the trial court imposed a sentence of twelve years in prison.

The People contended that the trial court erred by concluding that a forty-eight-year prison sentence under the habitual criminal statute would be grossly disproportionate to defendant’s crimes. The People also contended that, even if the trial court’s abbreviated proportionality review raised an inference of gross disproportionality, the trial court was required, but failed, to conduct an extended proportionality review. Because the Court of Appeals could not determine whether a forty-eight-year prison sentence gave rise to an inference of gross disproportionality based on the record, it reversed the order and remanded the case to the trial court for further factual development of the record as to three of defendant’s four previous felony convictions.

The trial court was directed to conduct an abbreviated proportionality review after further factual development. If that abbreviated proportionality review gives rise to an inference of gross disproportionality, the trial court must conduct an extended proportionality review. If the abbreviated proportionality review does not give rise to an inference of gross disproportionality, the trial court must sentence defendant to forty-eight years in prison under the habitual criminal statute.

Summary and full case available here.

Colorado Court of Appeals: Tort Claims in Breach of Contract Action Barred by Economic Loss Rule

The Colorado Court of Appeals issued its opinion in Van Rees, Sr. v. Unleaded Software, Inc. on Thursday, December 5, 2013.

Negligence—Fraud—Fraudulent Concealment—Constructive Fraud—Negligent Misrepresentation—Colorado Consumer Protection Act—Civil Theft—Contract—Economic Loss Rule—Duty of Care.

Plaintiff John Van Rees, Sr. appealed the trial court’s dismissal of his claims against defendant Unleaded Software, Inc. (Unleaded). The judgment was affirmed.

Van Rees and Unleaded executed three contracts wherein Unleaded agreed to design and build a website, perform “search engine optimization” (SEO) services for the website, and host the website on a dedicated server. Van Rees brought this action due to the lack of work performed. Unleaded moved to dismiss the seven tort claims—all the claims except the three breach-of-contract claims—as barred by the “economic loss rule,” which the court granted.

Van Rees contended that the trial court erred in dismissing his claims without sufficient written analysis. A trial court, however, need not make findings of fact and conclusions of law when it dismisses a complaint for failure to state a claim under CRCP 12(b)(5).

Van Rees argued that the trial court erred in dismissing his claims of fraud, fraudulent concealment, constructive fraud, and negligent misrepresentation because he alleged duties independent of the three contracts. Here, all alleged misrepresentations related directly to contractual duties. Because Van Rees failed to allege any independent duty on which to base his tort claims, the trial court did not err in dismissing those four claims.

Van Rees also contended that the trial court erred when it dismissed his negligence claim. Van Rees, however, failed to allege that Unleaded owed him a duty of care independent of its contractual duties.

Van Rees further argued that the trial court erred in dismissing his claim under the Colorado Consumer Protection Act (CCPA). This dispute pertains to a private contract between two sophisticated business entities, and Van Rees does not allege any harm or potential harm to identifiable segments of the public. Therefore, Van Rees failed to allege sufficient facts to support a CCPA claim.

Finally, Van Rees contended that the trial court erred in dismissing his civil theft claim. Van Rees’s civil theft claim fails, however, because it arises out of the alleged breaches of contract, and nothing in the complaint could be construed to establish an independent legal duty.

Summary and full case available here.

Colorado Court of Appeals: Health Savings Account Not Exempt From Garnishment

The Colorado Court of Appeals issued its opinion in Commercial Research LLC v. Roup on Thursday, December 5, 2013.

Garnishment—Health Savings Account—Retirement Plan—Exemption.

Gary S. Roup appealed the trial court’s order denying his claim of garnishment exemption in favor of Commercial Research, LLC (creditor). The order was affirmed.

Creditor obtained an assignment of a default judgment that had been entered against Roup in a Texas court. Creditor then filed the judgment in Colorado and began collection proceedings against Roup’s assets, including $3,729 held in a health savings account (HSA).

On appeal, Roup contended that his HSA is a “retirement plan” and therefore exempt from garnishment under CRS § 13-54-102(1)(s). An HSA is not intended to replace income lost as a result of retirement; it is intended to cover medical costs incurred at any point during an individual’s lifetime. Therefore an HSA is not a “retirement plan” and is not exempt from garnishment.

Summary and full case available here.

Tenth Circuit: Debt to Former Spouse That Arose In Connection with a Separation Agreement Nondischargeable in Bankruptcy

The Tenth Circuit Court of Appeals published its opinion in Taylor v. Taylor on Monday, December 9, 2013.

As part of Eloisa and Matthew Taylor’s divorce, a Virginia circuit court ordered Matthew to pay $2,500 per month to Eloisa as spousal support. The payments were to continue until the remarriage of Eloisa and the final decree also stated that the spousal support obligation was governed by Va. Code § 20-109. Four years later, Matthew moved to terminate spousal support in the Virginia circuit court, arguing that Eloisa had been living with a man for the past two years and that the two were in a marriage-like relationship. Matthew claimed that Eloisa’s cohabitation should result in the termination of his spousal support obligation under the divorce decree pursuant to Va. Code § 20-109. The Virginia circuit court agreed with Matthew and retroactively terminated his spousal support obligation. The court ordered Eloisa to repay $40,660.59 in overpaid spousal support payments, plus $10,000.00 for Matthew’s attorney fees incurred in prosecuting the motion for termination. Accordingly, the Virginia circuit court entered a judgment against Eloisa for $50,660.59.

Eloisa filed for bankruptcy under Chapter 7. Matthew filed a complaint objecting to the dischargeability of the $50,660.59 judgment, alleging that the overpayment debt was not dischargeable under 11 U.S.C. § 523(a)(15) as it constituted a debt to a former spouse incurred by the debtor “in connection with a separation agreement.” He also argued that the overpayment debt constituted a “domestic support obligation” under 11 U.S.C. § 523(a)(5).

On appeal, the BAP affirmed the bankruptcy court’s ruling that the overpayment debt was not a “domestic support obligation” under § 523(a)(5), as well as the bankruptcy court’s ruling that the overpayment debt did qualify for an exception from discharge under § 523(a)(15). Finally, the BAP ruled that neither it nor the bankruptcy court had authority to award attorney fees under the Marital Settlement Agreement’s (MSA) fee-shifting agreement.

Eloisa appealed the bankruptcy court’s summary judgment ruling that the overpayment debt is nondischargeable under § 523(a)(15); Matthew cross-appealed the bankruptcy court’s dismissal of his § 523(a)(5) claim and the BAP’s ruling on attorney fees.

The Tenth Circuit first analyzed the plain language of 11 U.S.C. § 523(a)(5) and held that to qualify as a “domestic support obligation” under that section, the debt must be in the nature of support to the creditor-spouse. As this was not the case here, the court affirmed the bankruptcy court ruling on that basis.

Next, the court analyzed whether the debt to Matthew was nevertheless nondischargeable under § 523(a)(15). Pursuant to § 523(a)(15)’s plain and unambiguous language, the overpayment debt qualified as a nondischargeable debt: the debt arose as a result of a judgment against a spouse, Eloisa, in favor of her former spouse, Matthew, by the Virginia circuit court “in connection with a separation agreement [or] divorce decree.”

The court affirmed the bankruptcy court’s rulings and the BAP’s ruling that Matthew is not entitled to attorney fees under the MSA.

Tenth Circuit: Unpublished Opinions, 12/10/13

On Tuesday, December 10, 2013, the Tenth Circuit Court of Appeals issued one published opinion and nine unpublished opinions.

Gash v. Client Services

Banks v. Astrue

Pinson v. Berkebile

United States v. Norwood

United States v. Tiller

King v. Midland Credit Management

Lee v. Cozza-Rhodes

Schell v. Vaughn

Steadfast Ins. Co. v. Agricultural Ins. Co.

Case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.