July 18, 2019

Archives for December 9, 2014

Colorado Court of Appeals: Abuse of Discretion for Trial Court to Deny Correction of Minor Error

The Colorado Court of Appeals issued its opinion in Reisbeck, LLC v. Levis on Thursday, December 4, 2014.

Quiet Title—CRCP 60(a).

Plaintiffs Reisbeck, LLCand Robert Jersin are the record owners of real property in Adams County (property). Reisbeck owns an undivided 85% interest and Jersin owns an undivided 15% interest in the property.

In 1947, defendant Arthur Levis obtained a right-of-way across the property for a “rail spur.” However, no rail spur was ever constructed on the property. To clear the record encumbrance, Reisbeck’s counsel commenced an action under CRCP 105 to quiet title to the property in Reisbeck and Jersin against any claims of Levis and all unknown persons claiming any interest in the property. Jersin was joined as an involuntary party plaintiff.

Defendants were served by publication, and no answers or responsive pleadings were filed. Reisbeck’s counsel moved for entry of default. The judgment form submitted named “Reisbeck, LLC” as plaintiff. However, Reisbeck, LLC does not exist; its proper name is Reisbeck Subdivision, LLC. The district court granted the motion and entered default judgment in plaintiffs’ favor. Following entry of judgment, Reisbeck’s counsel discovered the name error. He filed a motion under CRCP 60(a), seeking relief and asking the court to amend the judgment and correct the name. The court denied the request.

On appeal, plaintiffs argued it was an abuse of discretion to deny the request for relief. The Court of Appeals agreed. CRCP 60(a) is a safety valve allowing the district court to correct, at any time, an honestly mistaken judgment that does not represent the understanding and expectations of the court and the parties. Here, there was nothing in the record indicating that the error by counsel was anything other than an honest mistake. The corrected judgment would represent the parties’ expectation in pursuing the quiet title action and the court’s intention in issuing the judgment. No different or additional liability would be imposed on any existing defendant and no party previously not named would need to be added. The district court’s order was reversed and the case was remanded to amend the judgment.

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

Colorado Court of Appeals: Default Judgment Improper Sanction for Nonappearance at Trial Where Attorney Present

The Colorado Court of Appeals issued its opinion in People in Interest of K.J.B. on Thursday, December 4, 2014.

Dependency and Neglect—Right to a Jury Trial—Appearance by Counsel but not Defendant.

The Park County Department of Human Services (department) took the subject child into protective custody, placed the child with her father, and filed a petition in dependency and neglect. Mother denied the allegations in the petition and requested a trial to the court. Shortly thereafter, mother filed two written demands for a jury trial. The court denied mother’s requests.

Until that point in the proceedings, mother had participated by telephone; however, she was ordered to personally appear for the adjudicatory trial. She failed to appear, but her counsel appeared on her behalf. The department requested that a default judgment be entered against mother for failing to personally appear. Without hearing evidence, the court sustained the department’s allegations under multiple provisions of CRS §19-3-102(1) and adjudicated the child dependent and neglected by default judgment. It also adopted a treatment plan for mother. Mother appealed the adjudicatory order.

Nonappearance at trial does not constitute a failure “to plead or otherwise defend,” and is not a reason on which entry of a default can be predicated. The court could have received evidence in mother’s absence and then rendered judgment. Because the trial court did not state the legal authority it relied on to enter default judgment against mother for failing to appear, the Court of Appeals inferred that the judgment was entered as a sanction against mother. Although the court has contempt powers under CRCP 107, the rule does not authorize default judgment as a sanction for contempt. The Court therefore held that the trial court exceeded its authority in entering the default judgment. The order was reversed and the case was remanded for a trial.

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

Tenth Circuit: Politically Active Organization Entitled to Media Exemption from Campaign Disclosure Requirements

The Tenth Circuit Court of Appeals issued its opinion in Citizens United v. Gessler on October 27, 2014, and reissued it as a published opinion on Wednesday, November 12, 2014.

Citizens United is a nonprofit corporation engaged in independent political and religious activity. Since 2004 it has produced and released 24 films on political and religious topics, including Rocky Mountain Heist, which discussed political candidates by name and was set to release just before the 2014 mid-term election. Because the film unambiguously referred to Colorado elected officials by name, it comes under some of Colorado’s election laws regarding “electioneering communications” and “independent expenditures.” In April 2014, Citizens United sought a ruling from the Secretary of State that Rocky Mountain Heist and related advertising would not qualify as “electioneering communications” or “expenditures” under Colorado law. In support of its motion, it cited a similar exemption from the Federal Election Commission under the Federal Election Campaign Act’s disclosure and expenditure rules, which are similar to Colorado’s. The FEC determined Citizen United was entitled to the press exemption. The Secretary denied its request, finding that the film and advertising did not fall under Colorado’s exemption for print media and Citizens United is not a broadcast facility. The Secretary’s order concluded that Rocky Mountain Heist would be an electioneering communication not entitled to any exemption.

After the Secretary denied its motion, Citizens United brought suit against the Colorado Secretary of State in the U.S. District Court for the District of Colorado, alleging Colorado’s reporting and disclosure requirements violate the First Amendment. It sought a preliminary injunction against enforcing the provisions that do not apply to exempted media, which the district court denied, finding that Citizens United’s facial and as-applied challenges were not likely to succeed on the merits. Citizens United appealed.

The Tenth Circuit agreed with Citizens United’s as-applied challenge to Colorado’s campaign disclosure requirements, finding that under an exact scrutiny standard, the First Amendment required the Secretary to treat Citizens United the same as the exempt media. The Tenth Circuit questioned the Secretary’s assertion that journalism seeks to inform the public in a transparent, balanced, and accountable manner, noting that “our nation’s founding and history are replete with examples of highly partisan newspapers, and many observers would say that some modern media continue the tradition.” The Tenth Circuit similarly disposed of the Secretary’s argument that the media should be distinguished from “single-shot speakers,” finding instead that Citizens United was well-established for these purposes so disclosure of its financial backers was unnecessary. The Tenth Circuit found Citizens United entitled to a media exemption from disclosure and expenditure requirements under Colorado law.

The Tenth Circuit did not find that the exemption extended to advertisements for Rocky Mountain Heist, which mention candidates and express support for or opposition to candidates. These politically charged ads require disclosure of financial supporters so the general public can make an informed decision about the legitimacy of the advertisements.

The district court’s denial of the preliminary injunction was reversed, and the case was remanded with instructions to issue the preliminary injunction. Judge Phillips dissented.

Tenth Circuit: Rehearing Denied in Securities Fraud Case

The Tenth Circuit Court of Appeals reissued its opinion in United Food & Commercial Workers Local 880 Pension Fund v. Chesapeake Energy Corp. on Wednesday, November 12, 2014. Appellants requested panel rehearing and rehearing en banc, which was denied. However, the panel sua sponte made one small amendment on page 18 of the original opinion. The Legal Connection summary of the original opinion is available here.

Tenth Circuit: Unpublished Opinions, 12/9/2014

On Tuesday, December 9, 2014, the Tenth Circuit Court of Appeals issued four published opinions and six unpublished opinions.

United States v. Pirpich

United States v. McSherry

Stanley v. McMillian

Rea v. Trani

United States v. McClung

Pinson v. Berkebile

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



Frederick Skillern: Real Estate Case Law — Condemnation, Eminent Domain

Editor’s note: This is Part 3 of a series of posts in which Denver-area real estate attorney Frederick Skillern provides summaries of case law pertinent to real estate practitioners (click here for previous posts). These updates originally appeared as materials for the 32nd Annual Real Estate Symposium in July 2014.

frederick-b-skillernBy Frederick Skillern

Regional Transportation District v. 750 West 48th Ave, LLC
Colorado Court of Appeals, December 5, 2013
2013 COA 168
Qualification of eminent domain commissioner; partiality.

The only question for a trial to a panel of three commissioners is, in most cases, the value of property taken by the government. Three commissioners were appointed by the court, including a Cassidy Turley broker, Ms. Hook. The commissioners were approved after a 90-minute voir dire hearing in the district court. Six months later, but before trial, RTD challenged the partiality of Ms. Hook, on the basis that two other brokers in her firm had testified on value issues in a separate but similar RTD eminent domain case. The question raised here is whether the standard of review on the disqualification motion is based on the standard applicable to a judge, or a juror. The eminent domain statute, C.R.S. § 38-1-105(1), instructs the trial court to disqualify a proposed commissioner who is “not disinterested and impartial.” Under C.R.C.P. 97 and Colorado Code of Judicial Conduct Rule 1.2, by contrast, judges may be disqualified if they “appear” partial. In the latter case, courts have held that the test for appearance of partiality of a judge is whether a reasonable person, knowing all the relevant facts, would doubt the judge’s impartiality.

Applying the plain language of the eminent domain statute, the court agrees with the trial court and affirms. The applicable standard for disqualifying commissioners is not “an appearance of partiality,” a standard applicable to sitting judges, but whether the commissioner was “in fact interested and partial.” The court holds that Hook’s professional relationship with two fellow employees who had testified against RTD did not make her interested or partial.

The court comments on the special role of a condemnation commissioner: “The court relies on their experience and knowledge of the law of real estate to make the appropriate determination of just compensation. Because commissioners are supposed to bring expertise to valuation proceedings . . . they could not do so if the very knowledge and experience that made their views desirable also disqualified them.”

Frederick B. Skillern, Esq., is a director and shareholder with Montgomery Little & Soran, P.C., practicing in real estate and related litigation and appeals. He serves as an expert witness in cases dealing with real estate, professional responsibility and attorney fees, and acts as a mediator and arbitrator in real estate cases. Before joining Montgomery Little in 2003, Fred was in private practice in Denver for 6 years with Carpenter & Klatskin and for 10 years with Isaacson Rosenbaum. He served as a district judge for Colorado’s Eighteenth Judicial District from 2000 through 2002. Fred is a graduate of Dartmouth College, and received his law degree at the University of Colorado in 1976, in another day and time in which the legal job market was simply awful.

Colorado Supreme Court: Announcement Sheet, 12/8/2014

On Monday, December 8, 2014, the Colorado Supreme Court issued three published opinions.

Chapman, M.D. v. Harner

Nickerson v. Network Solutions, LLC

SDI, Inc. v. Pivotal Parker Commercial, LLC

Summaries of 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.

Colorado Court of Appeals: Speedy Trial Act Implicated when Charges Filed, Dropped, Then Filed Again

The Colorado Court of Appeals issued its opinion in People v. Nelson on Thursday, December 4, 2014.

Rental Vehicle—Speedy Trial—Jury Instructions—Affirmative Defense—Consent—Mistake of Fact.

Defendant rented a vehicle from Mesa Motors, Inc. (Mesa). After using the vehicle for about two months, defendant told Mesa’s owner he wanted to buy the vehicle and agreed to pay any accrued rental charges up to the date of purchase; however, defendant did not pay the purchase price or the unpaid rental charges. Mesa’s owner went to the address defendant had provided him and discovered that defendant no longer lived there. He reported the vehicle stolen and left a message with defendant to that effect, at which point defendant surrendered the vehicle. A jury found defendant guilty of aggravated motor vehicle theft.

On appeal, defendant contended that his statutory right to a speedy trial was violated. The prosecutor dismissed the original charges against defendant and later refiled them. The district court found, with record support, that the prosecutor had not dismissed the charges and refiled them to avoid the statutory six-month deadline. Because defendant’s trial began within six months after he pleaded not guilty to the refiled charges, there was no violation of his statutory right to a speedy trial.

Defendant also contended that his right to a speedy trial under both the U.S. and Colorado Constitutions was violated. The period during which defendant originally faced the charges must be included in considering his constitutional speedy trial claim. Adding the period from the initial filing of the charges to the dismissal of the charges (229 days) to the period from the refiling of the charges to the beginning of trial (189 days) equals more than one year, a presumptively prejudicial length of time. However, because defendant failed to establish any significant prejudice by the delay, he was not denied his constitutional right to a speedy trial.

Defendant further argued that the court erred in denying his two jury instructions on purported affirmative defenses: consent and mistake of fact. Though consent and mistake of fact can be affirmative defenses (depending on the elements of the charged crime), they were not affirmative defenses in this case because defendant denied committing the crime. Therefore, although defendant was free to argue that the evidence of consent and mistake of fact showed that he had not deceived the victim, he was not entitled to separate instructions on those defenses characterizing them as affirmative defenses, which the prosecution was required to disprove beyond a reasonable doubt. The judgment was affirmed.

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

Colorado Court of Appeals: SOLSA Encompasses Single Subject of Sex Offender Supervision and is Constitutional

The Colorado Court of Appeals issued its opinion in People v. Montgomery on Thursday, December 4, 2014.

Colorado Sex Offender Lifetime Supervision Act of 1998—Colorado Constitution—Subject Matter—Clear Express Requirement.

Montgomery pleaded guilty in three related criminal cases involving the sexual assault of three children. He was convicted of one count of sexual assault on a child and two counts of sexual assault on a child in a position of trust–pattern of abuse. The trial court sentenced Montgomery under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA) to two consecutive sixteen-years-to-life terms and one consecutive six-years-to-life term, denying Montgomery’s motion for post-conviction relief filed under Crim.P. 35(a).

On appeal, Montgomery argued that his sentence was illegal because SOLSA violates Article V, § 21 of the Colorado Constitution. SOLSA’s single-subject matter is the lifetime treatment and supervision of persons who commit sex offenses. Its goal is to rehabilitate sex offenders while mitigating the dangers they pose to the public when released from incarceration. The matters of sentencing, parole, and probation are properly connected because they are all means of accomplishing SOLSA’s single objective of lifetime supervision of convicted sex offenders. Therefore, SOLSA contains only one subject and, for that reason, does not violate the single-subject requirement. SOLSA is not unconstitutional merely because the terms “sentencing,” “parole,” and “probation” are not mentioned in its title. Accordingly, SOLSA does not violate the clear expression requirement of the Colorado Constitution, and the judgment was affirmed.

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

Tenth Circuit: State Could Not Enjoin Operation of Casino on Non-tribal Land Under IGRA

The Tenth Circuit Court of Appeals issued its opinion in State of Oklahoma v. Hobia on Monday, November 10, 2014.

Tiger Hobia is the Town King of the Kialegee Indian Tribe, a federally-recognized tribe organized under § 3 of the Oklahoma Indian Welfare Act. The Tribe does not have any land, but it sought to build a casino in Broken Arrow, Oklahoma, on land owned by two sisters who are members of the Muskogee Creek Nation. The State of Oklahoma filed an action against Hobia and other tribal officials, as well as a federally-chartered corporation related to the tribe and a related
Oklahoma limited liability company, alleging they were attempting to construct and operate a Class III gaming facility on non-Indian lands in violation of the Indian Gaming Regulatory Act (IGRA) and a state-tribal gaming compact. Defendants moved to dismiss the complaint, but the district court denied their motion. The district court subsequently granted a preliminary injunction against defendants, prohibiting them from constructing or operating a Class III gaming facility on the property at issue. Defendants appealed.

The Tenth Circuit analyzed the case in light of the Supreme Court’s recent decision in Michigan v. Bay Mills Indian Community, 134 S.Ct. 2024 (2014). The Court held in Bay Mills that Indian gaming conducted on non-Indian lands could not be enjoined under the IGRA, although the state had other options for regulating operations at the casino. Based on the holding in Bay Mills, the Tenth Circuit examined the property on which the casino was to be established and found it was not tribal land — indeed, the tribe had no land of its own. The Tenth Circuit reversed the district court decision enjoining defendants from building or operating the casino and remanded with instructions for the district court to dismiss the state’s case with prejudice.

Tenth Circuit: Unpublished Opinions, 12/8/2014

On Monday, December 8, 2014, the Tenth Circuit Court of Appeals issued three published opinions and five unpublished opinions.

Gordon v. Sullivan

In re Brooke Capital Corp.: Citizens Bank & Trust Co. v. Security First Insurance Holdings, LLC

Harvey v. Missouri Department of Corrections

United States v. Sauzameda-Mendoza

Al-Kazaz v. Unitherm Food Systems

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