August 24, 2019

Archives for February 24, 2014

Colorado Supreme Court: Announcement Sheet, 2/24/2014

On Monday, February 24, 2014, the Colorado Supreme Court issued two published opinions.

LePage v. People

Nowak v. Southers

The 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Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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: In Consolidated Bankruptcy Appeal, One Case is Moot, Court Lacks Jurisdiction to Hear Other

The Tenth Circuit Court of Appeals published its opinion in Gordon v. Bank of America and Pahs v. Kiehl on Thursday, February 20, 2014.

After Pahs filed his appeal with this court, he and the Chapter 13 trustee agreed that Pahs would continue to make the payments required by the Chapter 13 plan while this appeal was pending. When Pahs failed to make those payments, one of his creditors moved for the dismissal of Pahs’ bankruptcy. After no one objected to the motion, the bankruptcy court granted it, dismissing Pahs’ bankruptcy. In light of that dismissal, the Tenth Circuit held it could no longer grant Pahs any relief and his appeal was therefore moot.

Regarding the Gordons’ appeal, The Tenth Circuit held it had no jurisdiction because it was not taken from a final appealable decision and the parties had not invoked any mechanism that might permit an interlocutory appeal.

Although the district court’s decision required the Gordons to use the model Chapter 13 plan without modification, they would be free to revise the substantive portion of their plan. And the bankruptcy court will have to give creditors notice of the new amended plan, permit time for any objections, and then conduct another confirmation hearing. All of which is to say, the district court remanded the Gordons’ case to the bankruptcy court for significant further proceedings. This did not constitute a final appealable decision, and the Tenth Circuit lacked jurisdiction to hear the appeal.

The Pahs’ appeal was DISMISSED as moot.

The Gordons’ appeal was DISMISSED for lack of jurisdiction.

Tenth Circuit: Unpublished Opinions, 2/21/2014

On Friday, February 21, 2014, the Tenth Circuit Court of Appeals issued no published opinions and four unpublished opinions.

United States v. Hudson

Farmer v. Banco Popular of North America

United States v. Brown

United States v. Velarde

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Save the Date—The 9th Annual Attorneys’ Night Out is Thursday, May 15

On Thursday, May 15, 2014, the Denver Bar Association Young Lawyers Division and The Legal Center for People with Disabilities and Older People will host the 9th Annual Attorneys’ Night Out at the Blake Street Tavern. The event will take place from 5:30 pm to 9 pm.

All members of the community are welcome to enjoy drinks and appetizers while benefiting The Legal Center. Tickets are $25 ahead of time or $35 at the door, and each attendee receives admission to the event, a drink ticket, and delicious appetizers. Click here to purchase tickets online.

For information on sponsorship activities for the Attorneys’ Night Out, contact Julie Busby, Director of Development for The Legal Center, at (303) 862-3507

Tenth Circuit: In Divorce Case, Husband’s Pension Trust Did Not Qualify as Employee Benefit Plan Under ERISA; GAL Entitled to Quasi-Judicial Immunity on Wiretapping Claims

The Tenth Circuit Court of Appeals published its opinion in Dahl v. Dahl on Thursday, February 20, 2014.

Dr. Charles Dahl and Ms. Kim Dahl were divorced on July 20, 2010. After the divorce, Ms. Dahl filed suit in the United States District Court for the District of Utah, alleging federal-law and state law claims (1) that Dr. Dahl improperly administered the pension trust of his medical practice to deny her funds and an accounting and (2) that her telephone conversations with the Dahls’ minor children were unlawfully monitored, recorded, and disclosed by Dr. Dahl, his attorney, and the children’s guardian ad litem (GAL) in the divorce proceedings. The district court dismissed the federal-law pension claims for lack of subject-matter jurisdiction and granted summary judgment against Ms. Dahl on the federal-law wiretapping claims. It then declined to exercise jurisdiction on the state-law claims. Ms. Dahl appealed.

The Tenth Circuit affirmed the district court’s dismissal of Ms. Dahl’s pension claims under ERISA on the ground that the pension trust did not qualify as an employee benefit plan under ERISA, although the dismissal should have been on the merits rather than for lack of jurisdiction. Ms. Dahl did not show that the pension trust qualified as an employee benefit plan under ERISA. Given that ruling, the court also held that the court properly declined to exercise jurisdiction over the related state-law claims.

The court also affirmed the district court’s summary judgment for the GAL because he was entitled to quasi-judicial immunity for his actions. The claim against the GAL (Mr. Peterson) rested on his use of the recording of a conversation between Ms. Dahl and her child C.D. on October 12, 2009. He used the recording twice: first, when he played part of it during an interview with C.D.; and second, when he discussed it during his verbal report to the court. Because the court directed the GAL to meet with the children and report on how they were responding to the change in Ms. Dahl’s visitation privileges, both uses were within the functions that generally warrant immunity for guardians ad litem. Because Mr. Peterson used the recording in furtherance of his GAL duties and in response to the court’s order to report on the well-being of the children, he was entitled to quasi-judicial immunity on the federal wiretapping claim.

The court also affirmed the summary judgment on the federal wiretapping claim against Dr. Dahl based on the monitoring of a telephone call on October 12, 2009, because at that time it was objectively reasonable for Dr. Dahl to rely on a court order that had authorized monitoring. The federal wiretap statute makes it unlawful to intentionally intercept any wire, oral, or electronic communication or to intentionally use or disclose the contents of any communications known to be illegally obtained. The statute, however, provides an exception when one party to the communication has given prior consent to the interception, and recognizes a defense for good-faith reliance on a court order. The Tenth Circuit held that it was objectively reasonable for Dr. Dahl to believe that the monitoring of the October 12 conversation was authorized by the court’s previous order.

But the court remanded for further proceedings on the alleged monitoring of calls after November 3, 2009, because there was a genuine dispute of fact about whether such monitoring occurred.

In sum, the judgment of the district court on the ERISA claims was AFFIRMED, except that the court instructed the district court to dismiss the claims on the merits with prejudice.

The district court’s decision not to exercise supplemental jurisdiction over the state-law pension claims was AFFIRMED.

The grant of summary judgment to Mr. Peterson on the federal wiretapping claims was AFFIRMED.

The summary judgment to Dr. Dahl and Ms. Blakelock on the federal wiretapping claims based on the October 12, 2009, telephone monitoring was AFFIRMED.

The court REMANDED to the district court for further consideration of Ms. Dahl’s claims against Dr. Dahl and Ms. Blakelock based on alleged monitoring of telephone conversations after November 3, 2009, and for further consideration of whether to exercise its discretion not to assume jurisdiction over the state-law wiretapping claims.


Tenth Circuit: Good-Faith Exception to Exclusionary Rule Applied to Search of Defendant’s Home and Waiver of His Miranda Rights Was Valid

The Tenth Circuit Court of Appeals published its opinion in United States v. Augustine on Wednesday, February 19, 2014.

Defendant Dennis Augustine was convicted on two counts of conspiracy to distribute methamphetamine. Prior to trial, he filed two separate motions to suppress evidence. The first motion was to quash a warrant to search Defendant’s residence and to suppress evidence found in that search which led directly to his arrest. The second motion was to suppress Defendant’s statements to law enforcement officials after his arrest. The district court denied both motions. It denied the motion to quash and suppress evidence found in the search of Defendant’s residence by applying the good-faith exception to the exclusionary rule. The district court denied the motion to suppress Defendant’s statements based on its factual findings regarding the circumstances of Defendant’s interrogation. After the subsequent trial, the jury found Defendant guilty on both counts of conspiracy.

On appeal, the Tenth Circuit considered the denial of both motions, starting with the motion relating to the search of Defendant’s residence. Under the good-faith exception to the exclusionary rule, if a warrant is not supported by probable cause, the evidence seized pursuant to the warrant need not be suppressed if the executing officer acted with an objective good-faith belief that the warrant was properly issued by a neutral magistrate. Good faith may exist when a minimal nexus between the place to be searched and the suspected criminal activity is established. In this case, the court disagreed with Defendant that the affidavit was so lacking in indicia of probable cause and was so devoid of factual support as to prevent application of the good-faith exception to the exclusionary rule. Indeed, the affidavit readily satisfied the minimal nexus requirement. The Tenth Circuit held that the affidavit described circumstances that would warrant a person of reasonable caution in the belief that drugs, drug records, or drug paraphernalia would be found in Defendant’s residence and established a minimal nexus between Defendant’s residence and the drug-related items being sought in the warrant. Since a minimal nexus existed, the good-faith exception to the exclusionary rule was properly applied by the district court.

The court then turned to Defendant’s appeal of the denial of his motion to suppress his statements to law enforcement officers. Defendant’s argument on this point was based on the claim that his waiver of his Miranda rights was not knowingly, intentionally, and voluntarily made. Defendant claimed on appeal that his ability to properly waive his Miranda rights was impaired because he was under the influence of controlled substances during the interview, despite having explicitly told the officers during the interview he was not currently under the influence of drugs or alcohol. Defendant also claimed he was further impaired by his need for his prescription drugs. Defendant thus argued his illicit drug use combined with his need for his prescription drugs rendered his waiver of his Miranda rights invalid.

Based on the totality of the circumstances, and after considering a video recording of Defendant’s interrogation and the testimonies of the interrogating officers, the district court found that Defendant appeared sober in the recording of the interview and that any alleged presence of drugs in Defendant’s system did not render Defendant unaware of the nature of his rights and the consequences of his decision to speak with the police. The district court also found that while defendant may have been more comfortable with his medication, the absence of his medication did not cause Defendant to proceed involuntarily or in ignorance of the consequences of his actions and statements. The district court therefore denied Defendant’s motion to suppress.

Nothing in the record persuaded the Tenth Circuit that the district court’s factual finding that Defendant was in control of his faculties and his conduct throughout the interview was clearly erroneous. After reviewing the video recording of the interview and other materials in the record, the court agreed with the district court’s determination that Defendant was not so impaired that his waiver of his Miranda rights was invalid.


Tenth Circuit: UPS Employee Failed to Show Stated Reason for Termination–Dishonesty–Was Pretext for Retaliation

The Tenth Circuit Court of Appeals published its opinion in Macon v. United Parcel Service on Wednesday, February 19, 2014.

Jeff Macon was employed by the United Parcel Service and suffered two work-related injuries. The injuries were covered by workers’ compensation. Prior to his second injury, he was disciplined and terminated for improperly signing for a customer’s next-day air delivery. The termination was later reduced to a suspension. After several suspensions and grievances, Bacon was eventually terminated for dishonesty.

Bacon filed this action in federal district court alleging UPS terminated his employment because of his work related injury. He argued that UPS’s stated reason for his termination—dishonesty—was merely a pretext for retaliation. UPS moved for summary judgment arguing Macon failed to show the necessary causal connection between his 2007 and 2008 WC claims and his 2009 termination. The district court agreed and Macon appealed.

To establish a claim for a retaliatory discharge under Kansas law, a plaintiff must show: (1) a claim for worker’s compensation benefits or an injury that might support a future worker’s compensation claim; (2) the employer knew of the claim or injury; (3) the employer discharged the plaintiff; and (4) a causal connection between the claim (or injury) and the discharge. The relevant inquiry is not whether the employer’s proffered reasons were wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon those beliefs.

The Tenth Circuit reviewed the documents Macon cited, but none raised a genuine and material issue of fact sufficient to allow a reasonable jury to find pretext. Macon did not explain how any retaliatory motive on the part of his supervisors could be imputed to UPS when the final decision to terminate him was made by a grievance panel. Nor did he allege the grievance panel was biased, had a retaliatory motive, or merely rubber-stamped his supervisor’s decision to terminate him. The discipline imposed after the settlement of his workers’ compensation claim did not raise a triable issue of pretext.

Macon also argued a jury could determine his discharge for dishonesty was pretextual because the record showed he was not dishonest. Macon claimed he was not dishonest, merely inadequately trained. But he was not entitled to a determination of whether he was dishonest; rather, he was entitled only to a determination of whether the terminating grievance panel could reasonably have thought so.

Finally, Macon attempted to demonstrate pretext by providing evidence that he was treated differently from other similarly-situated employees who violated work rules of comparable seriousness. The problem with Macon’s approach was that it failed to give UPS credit for establishing grievance panels with independent authority to assess the propriety of discipline. Even assuming the difference in treatment between Macon and another employee resulted from their supervisor’s desire to terminate Macon in retaliation for his workers’ compensation claims, this improper motive could not be imputed to UPS when the independent grievance panel concluded there was adequate reason to terminate Macon for dishonesty. But, Macon simply did not argue—and nothing in the record suggested—the grievance panel was in any way complicit in or blind to the supervisor’s retaliatory motive.


Tenth Circuit: Debt for Principal Residence Arises out of Farming Operation if It is Directly and Substantially Connected to Activities Constituting a “Farming Operation” Within 11 U.S.C. § 101(21)

The Tenth Circuit Court of Appeals published its opinion in First National Bank of Durango v. Woods on Wednesday, February 19, 2014.

Debtors were a husband and wife who purchased farmland in Colorado on which to ran their hay-farming operation. Until they filed for bankruptcy, they accumulated various debts, some of which were related to their farming operation and others of which were not. One such debt was a $480,000 loan Debtors obtained from First National Bank. Approximately $284,000 of this loan was used to pay off a loan from another bank that was obtained to purchase Debtors’ farmland. The parties did not dispute that this portion of the debt “arose out of” a farming operation; nor did they dispute that the majority of the remaining loan proceeds—what we called the “construction loan”—were used to construct Debtors’ principal residence on the farmland.

It was the construction loan that was the primary focus. This was because Debtors petitioned for Chapter 12 relief as family farmers. From the outset of this case—and again on appeal—First National Bank maintained that, if the construction loan was excluded from the debt total because it did not “arise out of” a farming operation, less than fifty percent of Debtors’ aggregate noncontingent, liquidated debts “arose out of” a farming operation, which would preclude Debtors from qualifying as family farmers. And, if Debtors were not “family farmers,” they could not seek relief under Chapter 12.

The bankruptcy court concluded that the construction loan should be included in the debt total under § 101(18)(A) because it arose from farm operations. The BAP agreed with the bankruptcy court that the construction loan arose out of a farming operation. The Bank appealed.

Although First National Bank raised several issues on appeal, the Tenth Circuit only reached the first: whether Debtors were permitted to seek relief under Chapter 12 as “family farmers.” In deciding this issue, the court was presented with a question of first impression for the Tenth Circuit — namely, when does a debt “for” a principal residence “arise[] out of a farming operation”? See 11 U.S.C. § 101(18)(A).

The Tenth Circuit concluded that a debt so arises if it is directly and substantially connected to any of the activities constituting a “farming operation” within the meaning of 11 U.S.C. § 101(21). More specifically, when the debt at issue is loan debt, as here, the court concluded that an objective “direct-use” test serves as the optimal vehicle for discerning when the direct-and-substantial-connection standard is satisfied. That is, if the loan proceeds were used directly for or in a farming operation, the debt “arises out of” that farming operation. This was not the test applied by the bankruptcy court (or the BAP).

Because the court concluded that the bankruptcy court did not apply the proper legal standard and test in its analysis of Debtors’ eligibility for Chapter 12 relief, the Tenth Circuit VACATED the bankruptcy court’s judgment and REMANDED the case to the bankruptcy court for further proceedings.

Tenth Circuit: Unpublished Opinions, 2/20/2014

On Thursday, February 20, 2014, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

United States v. Urbano

Barrera v. Mid America Management

ACF 2006 Corp. v. Merritt

United States v. Herrera-Cruz

Barnett v. Franklin

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 2/19/14

On Wednesday, February 19, 2014, the Tenth Circuit Court of Appeals issued three published opinions and five unpublished opinions.

United States v. Nowlin

United States v. Coronado-Puente

Ambuehl v. Aegis Wholesale

Wildearth Guardians v. Bidegain

Burnett v. Leatherwood

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.