July 16, 2019

Archives for 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.

Colorado Court of Appeals: In Prescriptive Easement Case, Mere Silence is Not Proof of Permissive Use

The Colorado Court of Appeals issued its opinion in LR Smith Investments, LLC v. Butler on Thursday, December 18, 2014.

Prescriptive Easement—Quiet Title—Permissive Use.

In this prescriptive easement case, LR Smith Investments, LLC (Smith) claimed prescriptive easements for ingress and egress across two roads owned by Butler. The roads cross a ranch owned by Butler northwest of Craig in Moffat County. The trial court found that Smith and its predecessors continuously, openly, and notoriously used the roads from the mid-1950s until late 2011, when Butler dug ditches preventing access to the roads and thereby precipitated this litigation.

The trial court held that Butler did not meet her burden to overcome the presumption of adversity, and that Smith had satisfied the elements for prescriptive easements to use the roads. The court quieted title to Smith’s nonexclusive right to use the roads for ranching and agricultural purposes, to access the Smith property for hunting and guiding purposes, and for all other similar uses.

On appeal, Butler argued that the court erred in finding that Smith’s use of the road was not permissive, which would defeat Smith’s prescriptive easement claim. The trial court found that Smith’s use of the property was open and notorious for a period in excess of eighteen years. Moreover, the court’s finding that there was no agreement, explicit or implied, between the parties that established that Smith’s use of the roads was permissive was supported by the record. Mere acquiescence or silence is not proof of permissive use. Therefore, Butler did not overcome the presumption of adversity. The judgment was affirmed.

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

Colorado Court of Appeals: DNA Test Unlikely to Prove Defendant’s Factual Innocence


DNA Evidence—Testing—Due Process—Destruction of Evidence.

This appeal stemmed from defendant’s 1988 conviction for kidnapping and sexual assault. On direct appeal, it was determined that the trial court had not abused its discretion in denying defendant’s request for DNA testing because “defendant was seen committing the offense by a police officer and was identified by the victim,” making “the utility of DNA testing . . . speculative at best.” Defendant thereafter filed a Crim.P. 35(c) motion requesting post-conviction testing of DNA. The prosecution conducted DNA testing on the victim’s underwear and did not find any traces of semen and saliva. Defendant then requested his own DNA testing, but the evidence had been destroyed.

On appeal, defendant requested a remedy for the negligent destruction of the underwear. However, defendant was not entitled to testing of the underwear under CRS § 18-1-413 in the first instance because he failed to establish by a preponderance of the evidence that favorable results of DNA testing would demonstrate his actual innocence. Therefore, the trial court did not err and defendant was not entitled to relief under CRS § 18-1-414(2)(b). The trial court’s determination that the destruction of the evidence did not violate defendant’s due process rights was affirmed.

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

Tenth Circuit: Unpublished Opinions, 12/19/2014

On Friday, December 19, 2014, the Tenth Circuit Court of Appeals issued one published opinion and 11 unpublished opinions.

United States v. Rodriguez

United States v. Chavez

United States v. Brownlee

Foster v. Watts

Brown v. Metropolitan Tulsa Transit Authority

Rackley v. Blevins

United States v. Tucker

United States v. Martin

Wilson v. Colvin

Castillo-Hernandez v. Holder

Scott v. Carlson

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

Start the New Year Right with the DBA Health Fair

Many of us make New Year’s Resolutions to lose weight and get healthy. The DBA Health Fair can help you reach your goals.  On January 8, 2015, from 7 a.m. to 1 p.m., the DBA Fit to Practice Task Force will host the Second Annual DBA Health Fair at the CBA/DBA offices. For only $10 ($20 for non-members), you’ll earn one ethics credit and learn how to better manage stress within your practice, receive a biometric screening with cholesterol, glucose and body composition tests, have an opportunity to review your results with a physician, receive a breathing test, consult with other health professionals, and take advantage of healthy food and drinks and a free chair massage. The CLE will run from 11 a.m. to noon.

To register for the health fair and ethics CLE, click here or email lunches@cobar.org. Don’t miss this opportunity to start the new year on a healthy note!

Michael James Rourke Appointed District Attorney of 19th Judicial District

On Thursday, December 18, 2014, Governor Hickenlooper’s office announced his appointment of Michael James Rourke as the District Attorney for the Nineteenth Judicial District. Rourke will fill a vacancy created by the resignation of Kenneth R. Buck, effective January 2, 2015. Buck was elected to the 4th Congressional District and will be sworn in to Congress in January.

Rourke has been at the Nineteenth Judicial District Attorney’s office since November 2007. In 2010, he received the Robert R. Gallagher, Jr. Prosecutor of the Year Award. Currently, he is the assistant district attorney in the Nineteenth Judicial District, where he manages operations and the budget of the office. Previously, he served as Chief Deputy District Attorney, and has also been an interim district attorney. Prior to his work at the Weld County District Attorney’s office, Rourke was a deputy district attorney in the Eighteenth Judicial District.

For more information about the appointment, click here.

Colorado Court of Appeals: Announcement Sheet, 12/18/2014

On Thursday, December 18, 2014, the Colorado Court of Appeals issued four published opinions and 35 unpublished opinions.

People v. Young

LR Smith Investments LLC v. Butler

Southern Colorado Orthopaedic Clinic Sports Medicine & Arthritis Surgeons, P.C. v. Weinstein, M.D.

Nixon v. City & County of Denver 

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.

Tenth Circuit: Unpublished Opinions, 12/18/2014

On Thursday, December 18, 2014, the Tenth Circuit Court of Appeals issued no published opinion and seven unpublished opinions.

Karsten v. Camacho, P.A.

Singer v. Steidley

United States v. Troy A. Bong

United States v. Morain

United States v. Truby

United States v. Mendoza-Haro

Fleck v. Commissioner of Internal Revenue

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

Saving Ourselves From Ourselves (Part Four): Following Your Heart

“We are the Borg. You will be assimilated.
Lower your shields and surrender your ships.
We will add your biological and technological distinctiveness to our own.
Your culture will adapt to serve us.
Resistance is futile.”

rhodesThe “Legal Borg” is responsible for the cognitive brain damage and psychological distress we learned about in the Killing Them Softly series. The Borg also damages another organ we rarely associate with cognition: the human heart.

Stephen Harrod Buhner, author, international lecturer, master herbalist, nutritionist, and all-around out-of-the-box thinker, describes the heart’s role in cognition as follows:

While modern science generally insists that the heart is only a muscular pump, it is also true that there are more than forty thousand sensory neurons in the heart, the same kind of neurons that are found in the brain.

Each individual section of the brain contains thousands to millions of neurons, several billion when all added together. Significantly, certain crucial subcortical centers of the brain contain the same number of neurons as the heart. The heart possesses its own nervous system and, in essence, actually is a specialized brain that processes specific types of information. The heart is tightly interwoven into the neuro-physiology of the brain, interconnected with the amygdala, thalamus, and cortex. These three brain centers are primarily concerned with (1) emotional memories and processing; (2) sensory experience; and (3) problem-solving, reasoning, and learning.

What this means is that our experience of the world is routed first through our heart, which “thinks” about the experience and then sends the data to the brain for further processing. When the heart receives information back from the brain about how to respond, the brain analyzes it and decides whether the actions the brain wants to take are going to be effective. There is a neural dialogue between heart and brain, and in essence the two decide together what to do. While the brain can and does do a great many things with the information it receives, the heart can override it, directing and controlling behavior if it decides to do so.

Over the past twenty years, researchers in an emerging specialty, neurocardiology, have discovered that the heart really is a specialized brain in its own right. It can feel, sense, learn, and remember.

As the heart senses the world outside us, it generates emotions in response to the type of information or the meaning embedded within the information that we are receiving.

Many of the emotional experiences that flow through the heart are stored as memories within the heart, much as memories are stored in the brain. The heart literally learns from the emotional experiences it has and begins to act in certain ways on the basis of what it learns. It begins producing hormones and creating different beating patterns depending on what experiences flow through it and what it decides about those experiences.

Buhner observes that the modern world has lost touch with the heart’s way of learning and decision-making, and concludes by saying, “There is a reason that heart disease is the number one killer of people in the Western world.”

The Borg is wrong: resistance is not futile. We saw last time that some lawyers have escaped assimilation by entering a new law culture outside of the Borg’s influence. We don’t all have to follow their path — there are others — but all paths away from assimilation take courage, allowing our hearts to “override” our brains, “directing and controlling [our] behavior.”

I wish you courage this New Year.

Thanks for reading, and see you next year!

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on exiting the law practice appeared in an article in the August 2014 issue of The Colorado Lawyer. His free ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures in leaving the law, and the lessons he learned about personal growth and transformation, which are the foundation of much of what he writes about here.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the book title to sample and download it from the distributor’s webpage. It’s also available on from Barnes & Noble, iTunes, Amazon, and Scribd. The collection includes Forewords from Debra Austin, author of the Killing Them Softly law journal article which has been featured here, and from Ron Sandgrund, author of The Colorado Lawyer article mentioned above.

You can email Kevin at kevin@rhodeslaw.com.