July 22, 2019

Archives for December 23, 2014

Colorado Court of Appeals: Procedural Errors in District Court Review Required Reversal

The Colorado Court of Appeals issued its opinion in Nixon v. City & County of Denver on Thursday, December 18, 2014.

Police Officer—Employment—Discharge—Commission of a Deceptive Act—Administrative Agency.

Respondents, the City and County of Denver (City) and its Manager of Safety, discharged Nixon, a former police officer with the Denver Police Department, for his involvement in an incident involving the arrest of citizens outside a Denver restaurant. Nixon was discharged for violating departmental rule RR-112.2 (Commission of a Deceptive Act) in connection with his report of the arrest incident. After Nixon submitted his report, the City discovered that the events had been captured on a video surveillance camera. The Manager of Safety discharged Nixon in part because of perceived discrepancies between his report and the video footage. The district court upheld the Civil Service Commission’s (Commission) decision to discharge him

In a CRCP 106(a)(4) proceeding such as this, the appellate court’s review is limited to determining whether the Commission exceeded its jurisdiction or abused its discretion. Here, the Commission erred by (1) holding that it was bound by the hearing panel’s findings of facts, and (2) failing to make ultimate conclusions of factas to whether Nixon “willfully, intentionally, or knowingly commit[ted] a materially deceptive act, including, but not limited to, verbally departing from the truth, making a false report, or intentionally omitting information,” as provided in RR-112.2. Therefore, the Commission committed an error of law. Further, the district court erred by making its own findings in lieu of remanding the case to the Commission. Accordingly, the district court’s order was reversed and the case was remanded to the Commission for reconsideration of its decision regarding Nixon.

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

Colorado Court of Appeals: Reasonableness Implied Term in All Contracts for Attorney Fees

The Colorado Court of Appeals issued its opinion in Southern Colorado Orthopaedic Clinic Sports Medicine & Arthritis Surgeons, P.C. v. Weinstein, M.D. on Thursday, December 18, 2014.

Attorney Fees—Employment Agreement—Fee-Shifting Provision—Reasonableness.

In this litigation between a professional corporation and Dr. David M. Weinstein, the professional corporation alleged that the doctor had breached his employment agreement with the professional corporation. Dr. Weinstein filed counterclaims.

This appeal involves a fee-shifting provision in an employment agreement. The provision stated that the prevailing party in any action to enforce the agreement “shall be entitled to recover . . . all attorney fees [and] costs.” The trial court held that neither the professional corporation nor the doctor had prevailed at trial; it then declined the professional corporation’s request for attorney fees and costs under the provision. The appellate court reversed, holding that the professional corporation did prevail at trial. The trial court thereafter ordered Dr. Weinstein to pay a portion of the professional corporation’s attorney fees.

On appeal, the professional corporation contended that the trial court erred by not awarding it all of its attorney fees and costs. As a matter of public policy, reasonableness is an implied term in every contract for attorney fees, and trial courts must consider whether the requested attorney fees and costs are reasonable even if the contract does not mention reasonableness. Therefore, the trial court did not err when it determined reasonableness in awarding fees. Further, the trial court did not abuse its discretion when it reduced the award of attorney fees based on all the relevant reasonableness factors set forth in Colo. RPC 1.5(a), including the professional corporation’s success at trial. The case was remanded to the trial court for a determination of attorney fees to award Dr. Weinstein as the prevailing party in this appeal.

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

Colorado Supreme Court: Announcement Sheet, 12/22/2014

On Monday,  December 22, 2014, the Colorado Supreme Court issued one published opinion.

Widefield Water & Sanitation Dist. & City of Fountain v. Witte, Division Engineer for Water Division 2

The summary for this case is 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: Unpublished Opinions, 12/22/2014

On Monday, December 22, 2014, the Tenth Circuit Court of Appeals issued eight published opinions and five unpublished opinions.

United States v. Grose

Davison v. Colvin

Gowadia v. Sterns

Trustees of the Eighth District Electrical Pension Fund v. Wasatch Front Electrical & Construction, LLC

United States v. Kieffer

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