December 17, 2018

Archives for August 20, 2014

The Law Firm Throwdown Wants You to Sweat for Charity

12014-SE-Law-Firm-ThrowdownA new kind of legal challenge is launching this fall! Sweat Equity is stirring up some healthy competition among attorneys in Colorado with the debut of The Law Firm Throwdown.

Any firm in the state can sign up to be a part of this energizing challenge to increase fitness levels while raising money for charity.

The challenge will begin in early October, and each participating firm starts by throwing $250 into the “Winner’s Pot.” Your employees will track their physical activity for six weeks using the Sweat Equity website and mobile app, ending just before Thanksgiving . Participants with FitBits can also link those accounts to upload their data. Scores are determined by daily steps and time and intensity of workouts. Leaders among the law firms are based on a point-by-person average so that firms of any size can compete equally.

Along with a kick-off webinar for participants, Sweat Equity will provide communication, tips and tech support throughout the challenge. Incentives are also offered – for instance, one team will win “Most Improved,” and receive a special, separate amount to give to charity at the end.

Live leaderboards allow firms to check in on their status throughout the six weeks. The winning group then gets to choose which charity they want to donate their portion of the “Winner’s Pot” to. This challenge offers a unique twist in that if the winning team earns 80% of the overall points, they get 80% of the pot to donate. So, even if a firm doesn’t win but gathers 20% of the points, they will receive 20% of the pot to donate as well.

Once the winning firm is announced, there will also be an event to honor them with a trophy and check for charity. Sweat Equity sends out press releases about the challenge and winner.

Instead of just writing a check to charity, join the Law Firm Throwdown to build group morale, drum up healthy competition, and motivate your employees to move as well. With so many amazing organizations – such as Metro Volunteer Lawyers and the Legal Aid Foundation – in need of donations, we encourage you to sign up your firm today! Contact Sara Epstein at 303-503-4756 or sarap@teamsweatequity.com.

Colorado Court of Appeals: Substantial Compliance with Notice Provisions Sufficient for Hospital to Enforce Lien

The Colorado Court of Appeals issued its opinion in Wainscott v. Centura Health Corporation on Thursday, August 14, 2014.

Auto Accident—Hospital Lien Statute—Notice—Substantial Compliance—Colorado Consumer Protection Act—Fraudulent Concealment.

Donald Wainscott was injured in an auto accident caused by third parties (tortfeasors). He received treatment at St. Anthony Central Hospital, which is managed and operated by Centura Health Corporation. To secure payment of these medical expenses, Centura asserted a statutory hospital lien against any settlement or judgment that Donald Wainscott might receive as a result of the accident. The trial court declared that Centura’s failure to strictly comply with the hospital lien statute rendered its lien unenforceable.

On appeal, Centura argued that it substantially complied with the hospital lien statute and that the trial court erred in finding the lien was unenforceable. Because minor filing and notice deficiencies should not invalidate an otherwise valid hospital lien, substantial compliance may be sufficient to satisfy the filing and notice provisions of Colorado’s hospital lien statute. A lienholder substantially complies when it satisfies the statute’s purposes through timely actual notice of the lien to those against whom the lienholder attempts to enforce the lien. Because Centura did identify and serve the tortfeasors’ insurer and Donald Wainscott, Centura substantially complied with the hospital lien statute and the trial court erred in finding the lien was not enforceable.

On cross-appeal, the Wainscotts contended that the district court erroneously dismissed their Colorado Consumer Protection Act (CCPA) and fraudulent concealment claims under CRCP 12(b)(5) for failure to state a claim on which relief can be granted. The basis of the Wainscotts’ CCPA claim was an injury resulting from Centura’s failure to bill Medicare. However, during the period of time in question, Centura was required to refrain from billing Medicare and to seek payment from the tortfeasors’ liability insurer. Thereafter, it had the option of billing Medicare. Centura’s failure to advise the Wainscotts that it was obeying the law did not constitute a deceptive or unfair trade practice. Further, Centura did not have a duty to disclose that it planned to pursue payment from the tortfeasors or their insurer.Accordingly, the district court properly dismissed the CCPA and fraudulent concealment claims.

The district court’s dismissal of the Wainscotts’ CCPA and fraudulent concealment claims was affirmed. The summary judgment as to the Wainscotts’ declaratory action to determine the validity of Centura’s hospital lien was reversed. The case was remanded for further proceedings to determine whether the amount of Centura’s asserted lien represents “reasonable and necessary charges” under CRS § 38-27-101.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Constitutional Right to Counsel Applies at All Critical Stages of Criminal Proceeding

The Colorado Court of Appeals issued its opinion in People v. Fritts on Thursday, August 14, 2014.

Sexual Assault—Child—Sentence—Consecutive—Right to Counsel—Crim.P. 35(a).

Defendant was charged with sixteen counts of sexual assault-related offenses based on allegations that he molested his minor stepdaughter. In 2000, in exchange for dismissal of the remainder of the charges, defendant pleaded guilty to two counts of sexual assault on a child by one in a position of trust. Defendant was sentenced to two concurrent sentences of twenty years to life. Defendant later filed a Crim.P. 35(a) motion to correct an illegal sentence. After a hearing, the court sentenced defendant to two consecutive sentences of ten years to life.

On appeal, defendant argued that the post-conviction court erred in holding that a defendant has no constitutional or statutory right to appointed counsel at a resentencing hearing occasioned by a successful Crim.P. 35(a) motion. Here, although defendant had a right to appointed counsel because the motion involved resentencing and the court erred in ruling otherwise, the error was harmless beyond a reasonable doubt because defendant was represented by privately retained counsel at the resentencing hearing.

Defendant also argued that the consecutive sentences imposed by the post-conviction court on resentencing were unconstitutional and illegal. However, the aggregate sentence imposed on resentencing was not harsher than defendant’s original sentence. Further, the record supports the court’s finding that two factually distinct offenses occurred. Therefore, the post-conviction court did not abuse its discretion by imposing consecutive sentences, and the consecutive sentences imposed on resentencing did not deprive defendant of due process of law. In addition, defendant’s rights against double jeopardy were not violated. The sentences were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Newly Discovered Evidence of Actual Innocence Tolls Time Period for Filing Habeas Claims

The Tenth Circuit Court of Appeals issued its opinion in Doe v. Jones on Tuesday, August 12, 2014.

John Doe, a federal prisoner, was convicted of first-degree murder in Oklahoma and sentenced to life without parole. He was separately convicted in federal court of bank robbery, which took place in connection with the Oklahoma murder. His direct appeal to the murder conviction was unsuccessful and he did not appeal further or file a habeas petition in federal court. While serving the federal life sentence in Texas, he was convicted of murdering a fellow inmate and sentenced to death.

Following the imposition of the death sentence, Doe contends that new evidence came to light that established his actual innocence for the Oklahoma murder and federal robbery. He filed a petition for post-conviction relief in state court and the instant § 2254 petition in federal court two days before the expiration of the one-year statute of limitations for habeas petitions. He also filed a motion to stay the federal § 2254 petition pending outcome of the state court case. He raised the actual innocence claim both as a new constitutional claim and a “gateway” to introduce time-barred constitutional claims such as ineffective assistance of counsel and suppression of exculpatory evidence. The district court judge, adopting the recommendations of a magistrate, dismissed the § 2254 petition without prejudice. It also denied his motion to alter and amend judgment and his request for a certificate of appealability.

The Tenth Circuit reviewed prisoners’ requirements to exhaust all state remedies in light of the Supreme Court’s ruling in Rhines v. Weber, 544 U.S. 269 (2005). The Tenth Circuit discussed that before Rhines and before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, there was no time limit for filing federal habeas petitions and there was no need for prisoners to raise all claims in state court prior to filing in federal court. However, Rhines and the AEDPA limited these filings and required habeas petitions to be filed within one year of the date the judgment became final. Circuit case law suggested that petitioners nearing the end of the one-year limitations period should file their state court claims and also file § 2254 petitions in the federal district court, asking the district court to stay the proceeding until resolution of the state court claims in order to preserve their federal remedies. Based on a 2010 Tenth Circuit opinion, the magistrate in this case determined that the limitations period would be tolled by the actual innocence claim so a stay was not warranted. During the pendency of this appeal, the Supreme Court decided that a credible showing of actual innocence provides an outright equitable exception to AEDPA’s statute of limitations. Therefore, the petitioner in this case does not have a legitimate concern that his federal claims will be time-barred.

The district court’s dismissal was affirmed.

Tenth Circuit: Unpublished Opinions, 8/19/2014

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

United States v. Torres-Sanchez

United States v. Deiter

Burgess v. Daniels

Burgess v. Daniels

United States v. Valdovinos

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