August 21, 2019

Archives for May 29, 2014

Enlightenment Made Simple (Part Two): Evolution’s Case for Enlightenment

rhodesWe wouldn’t want enlightenment if we couldn’t have it. All those things we called “enlightenment” last time – less stress, more peace, more freedom and autonomy, more meaning, satisfaction, fulfillment, purpose – are there for the taking.

At least, evolutionary neurology thinks so. I found that out recently when I tackled a stack of books on the subject. The books weren’t exactly a beach read; they went back to the library mostly unread, but not before leaving me with two astounding bits of awareness.

First, creation evolves. That’s a fact – not a desire or aspiration, not a random shot in the dark, not a maybe or a guess, but a fact. Every created thing is encoded with an irrepressible urge for growth, change, improvement, progress.

Second, evolution is efficient. It doesn’t waste itself on what isn’t going to happen. It plays its hand carefully, places bets where the odds are good. No, it’s not infallible, but its batting average is enviable.

Put those two ideas together, and that’s why enlightenment is possible for all of us, not just for people who can sit in the lotus position. “Life, liberty, and the pursuit of happiness” aren’t just political ideals, they’re an evolutionary impulse evident in the wide world and embedded in the human soul. That dynamic isn’t only in us, but in everything we create – personally, professionally, artistically, and otherwise. We were born this way, and we endow everything we create with the same energy.

Which is why we’re going to see more Star Wars movies.

You’ve heard the quote, “’Whatever the mind can conceive and believe, it can achieve.” Napoleon Hill said that in his 1937 self-help classic Think and Grow Rich. I confess – that’s another book that went back to the library mostly unread. Maybe the book isn’t my cup of tea, but the quote is neurologically defensible: if our brains have evolved to the place where they can hold big ideas about how wonderful our lives can be, then they’re probably ready to take on the project.

We quickly dismiss our big ideas as pipedreams. We might want to rethink our practice, suspend our skepticism, and entertain those ideas instead. The notion that they might become reality isn’t just positive thinking, it’s a possibility supported by evolutionary neurology. Maybe we can’t get all the way to the top of the mountain just by thinking positively, but we can make a start, knowing the odds of getting there are probably better than we think.

If enlightenment is so possible, then why don’t we just grab it? Ah, not so fast, Grasshopper! Probably we don’t leap into the arms of bliss because we know it’s going to cost us. We talked a little about that last time. We’ll talk more about it next.

To be continued.

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. He has also been in and out of the practice more times than anyone can count, and his reflections on that topic will appear in an upcoming article in The Colorado Lawyer. He also plans to publish a book on that topic later this year. He’s a certified mentor with the Colorado Attorney Mentoring Program, offers career and performance coaching, and leads workshops for a variety of audiences, including University of Denver Law School, the CBA’s Solo and Small Firm Section, and the CBA’s Job Search and Career Transitions Support Group. You can email Kevin at

Colorado Supreme Court: Dog, Not Property, Should Be Under Control of Owner for Exemption from Liability for Dog Bite

The Colorado Supreme Court issued its opinion in Robinson v. Legro on Tuesday, May 27, 2014.

Civil Actions Against Dog Owners—Working Dog Exemption—Statutory Interpretation.

The Supreme Court interpreted for the first time the phrase “on the property of or under the control of the dog’s owner” within the working dog exemption of Colorado’s civil dog bite statute, CRS § 13-21-124(5)(f). The Court held that the working dog exemption applies when a bite occurs on the dog owner’s property or when the dog is working under the control of the dog owner. Therefore, the court of appeals erred in interpreting CRS § 13-21-124(5)(f) to mean that the property, rather than the dog, must be under the dog owner’s control for purposes of exemption from strict liability. Although the court of appeals erred in interpreting the statute, it correctly reversed the district court’s summary judgment order as to respondents’ claim under the dog bite statute. Accordingly, the judgment was affirmed.

Summary and full case available here.

Colorado Supreme Court: Defendant’s Statements to Deputy were Voluntary and Need Not Be Suppressed

The Colorado Supreme Court issued its opinion in People v. McIntyre on Tuesday, May 27, 2014.

Suppression of Statements—Voluntariness and Coercion.

In this interlocutory appeal, the People sought review of the trial court’s order suppressing inculpatory statements made by defendant. The trial court found that defendant did not voluntarily make the statements. The Supreme Court disagreed, holding that, when considering the totality of the circumstances, the police did not improperly coerce defendant into making the statements and defendant instead spoke voluntarily. Accordingly, the Court reversed the trial court’s suppression order and remanded the case to the trial court.

Summary and full case available here.

Colorado Court of Appeals: Potential Father Entitled Appointed Counsel in Termination of Parental Rights Hearing

The Colorado Court of Appeals issued its opinion in In re Petition of R.A.M. on Thursday, May 22, 2014.

Parental Rights—Termination—Due Process—Right to Counsel.

Mother filed a petition to relinquish her parental rights to the child and named father as the only potential father of the child. With her petition for relinquishment, mother also filed a petition to terminate father’s parental rights. Father was served the petition, summons, and notice to terminate in jail. Father responded to the petition by indicating that he did not wish to relinquish his rights. The court proceeded to hearing without advising father of his rights or considering his request for counsel, and began the hearing without father’s presence. After considering the matter, the court found by clear and convincing evidence that father was the child’s parent. The court agreed with the adoption agency’s interpretation of the relinquishment statute and found that the law required that father be able to assume legal and physical custody of the child “at the time of the hearing.” Because father was incarcerated and thus unable to assume legal and physical custody of the child that day, the court granted the petition and terminated father’s rights.

On appeal, father contended that the trial court violated his due process rights when it failed to appoint counsel for him at the termination hearing. The Court of Appeals agreed. First, father sufficiently expressed his desire for the assistance of counsel. Also, father had an important interest, the state’s interest was not weak, and the risk of error in this case was extremely high. Before the hearing, neither the petition to terminate his rights, nor the notice to terminate his rights or the summons advised father of the allegation to be proven at the hearing: that he cannot personally assume legal and physical custody of the child, taking into account the child’s age, needs, and individual circumstances. Therefore, taking into consideration all of these factors, father had a due process right to counsel. The court’s order denying father’s CRCP 60(b)(3) motion was reversed, the judgment terminating his parent–child legal relationship was vacated, and the case was remanded.

Summary and full case available here.

Colorado Court of Appeals: No Error in Delay Between Request and Delivery of Records

The Colorado Court of Appeals issued its opinion in Madrigal v. City of Aurora on Thursday, May 22, 2014.

Colorado Criminal Justice Records Act.

In July 2011, an Aurora Police Department (APD) officer shot and killed plaintiffs’ husband and father, Juan Contreras, in a parking lot. Pursuant to the Colorado Criminal Justice Records Act (CCJRA), plaintiffs requested from the City of Aurora (City) various records pertaining to this incident. The City initially denied inspection of the records and failed to respond to plaintiffs’ subsequent request for a written statement of the grounds for the denial. On plaintiffs’ application, the district court issued an order directing the City to show cause why it should not permit inspection. The City ultimately disclosed almost all of the records requested. The court determined that the City did not abuse its discretion either in delaying release of the records disclosed or in denying release of the records not disclosed until after the conclusion of the criminal investigation.

On appeal, plaintiffs contended that the district court erred in determining that the City did not abuse its discretion in handling their records request. The City (or, more precisely, the official custodian of the records) did not abuse its discretion in delaying the release of the records for ten months, pending the completion of the criminal investigation into Contreras’s death. Furthermore, the plain language of the statute did not authorize the district court to order the custodian to pay court costs, attorney fees, or penalties. Therefore, the court did not err in denying plaintiffs request for sanctions.

Summary and full case available here.

Tenth Circuit: Prejudgment Interest Only Appropriate Under Nebraska Law if No Dispute as to Amount Due or Right to Recover

The Tenth Circuit Court of Appeals issued its opinion in Digital Ally, Inc. v. Z3 Technology, LLC on Friday, May 16, 2014.

Digital Ally, Inc. contracted with Z3 Technology regarding the manufacture of circuit board modules. Digital and Z3 entered into two contracts, the 2008 contract and the 2009 contract. Both contracts were signed by Robert Haler, then-Executive Vice President of Engineering and Production for Digital, and both provided that they would be governed by Nebraska law. The 2008 contract contained provisions that Z3 would design, manufacture, and deliver to Digital 1,000 modules containing the Texas Instruments DM355 computer chip in exchange for payment of $155,000 from Digital. After receiving the modules, Digital determined that they were defective and paid Z3 only $140,000. Ultimately, a jury concluded that both parties breached the contract – Digital by withholding payment and Z3 by producing defective modules. The jury awarded $15,000 to Z3 for breach of payment obligations and $30,000 to Digital for the defective products.

The 2009 contract was more complex and set forth various payment and production schedules. Both parties began by complying with the terms of the contract, but in April 2009, three months after the contract was signed, Digital sent Z3 a letter purporting to terminate the contract. The termination letter did not comply with contractual termination provisions, but Z3 nonetheless stopped design work. Digital filed a lawsuit in the Kansas district court, seeking a declaration that the contract was void because Executive Vice President Haler did not have authority to sign the contract based on Digital’s internal policy changes in December 2008. Z3 filed a counterclaim, alleging breach of contract by Digital for failing to fulfill its purchase obligations and also alleging breach of the 2008 contract for failure to pay the $15,000. The district court concluded that (1) Haler had at least apparent authority to sign the contract; (2) Z3‘s failure to perform on the contract was excused by Digital’s revocation; and (3) Digital breached the contract by its anticipatory repudiation. The district court concluded as a matter of law that Z3 was entitled to the remaining $175,000 in design fees and $270,000 in royalties. Z3 filed a motion requesting prejudgment interest on the three awards for breach of contract, which the district court denied. Digital appealed the district court’s ruling and Z3 cross-appealed.

Digital argued that (1) the 2009 contract was totally or partially unenforceable based on several unfulfilled conditions precedent; (2) the contract was not binding because Haler lacked authority to sign it; and (3) Z3 failed to substantially perform its own obligations under the contract. The Tenth Circuit evaluated each claim. As to the first claim, the Tenth Circuit noted that the nonoccurrence of any conditions precedent resulted from Digital’s revocation of the contract. As to the second claim, the Tenth Circuit found that Haler had at least apparent authority to complete the contract, and there was nothing to show that Z3 had knowledge of Digital’s internal policy changes, which were contrary to language in Digital’s bylaws allowing any vice president to execute contracts. For the final claim, the Tenth Circuit noted that it was Digital’s revocation that halted Z3‘s performance on the contract, and therefore there was no actionable breach by Z3.

In its cross-appeal, Z3 raised two main issues: (1) the district court erred by reading a contractual provision as an alternative contract in which Digital could either order 36,000 units or pay a royalty, and if the alternative contract theory was upheld, the district court erred by ordering payment of the lesser royalty provision instead of the cost of the units; and (2) the district court erred by denying Z3‘s request for prejudgment interest on the $15,000, $175,000, and $270,000 awards. The Tenth Circuit examined the contract provision in question and determined it was a “take-or-pay” provision, and case law supported awarding the lesser amount. As to Z3‘s second claim, the Tenth Circuit evaluated Nebraska contract law and determined that prejudgment interest is only appropriate where there is no dispute as to the amount due, the plaintiff’s right to recover, or both. Since there were disputes about the amount of payment due regarding the $15,000 and $270,000 awards, prejudgment interest was only appropriate on the $175,000 award.

The judgment of the district court was reversed and remanded for calculation of prejudgment interest on the $175,000 award, and affirmed as to all other disputes.

Tenth Circuit: Unpublished Opinions, 5/28/2014

On Wednesday, May 28, 2014, the Tenth Circuit Court of Appeals issued one published opinion and 10 unpublished opinions.

Joint Technology, Inc. v. Weaver

Hamilton v. Oklahoma City University

Hernandez v. Colvin

Johns v. McKune

Perez-Paredes v. Holder

United States v. Richards

Bowring v. Bonner

James v. Martin

United States v. Akers

United States v. Stang

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