June 16, 2019

Archives for January 8, 2015

Colorado Court of Appeals Warns of Spam Emails

On Thursday, January 8, 2015, the Colorado Court of Appeals posted a warning on its website regarding spam emails. An email that appears to be from a law firm is circulating, saying the Colorado Court of Appeals requires your appearance at a pretrial hearing on illegal software use. The email is a scam, and you may delete it if you receive it. The court of appeals does not have pretrial hearings, and it does not serve notice by emails from law firms.

Colorado Court of Appeals: Defendant Had Right to Be Present at Competency Hearing but Was Not Prejudiced by Absence

The Colorado Court of Appeals issued its opinion in People v. Wingfield on Wednesday, December 31, 2014.

Attempted Escape—Competency Hearing—Due Process—Waiver—Choice-of-Evils Defense.

Wingfield shared a cell with two other inmates at the Arapahoe County Jail. The three men were caught by the guards digging a trench around the perimeter of the window in an attempt to escape. The guards found a crutch that had a flattened end, metal bars, a portion of a metal drain or grate, and a shank. Wingfield was convicted of possession of contraband. The court adjudicated him a habitual offender and sentenced him to eighteen years in the custody of the Department of Corrections.

The Court of Appeals agreed with Wingfield that the trial court improperly allowed his defense counsel to waive his right to presence at the competency hearing. However, Wingfield failed to show how his presence would have been useful to his defense. Therefore, the trial court did not violate his constitutional rights by holding the competency hearing in his absence.

Further, the trial court did not abuse its discretion or violate Wingfield’s due process rights by denying his request for a second competency examination. First, Wingfield never made an offer of proof about what evidence could be presented to establish his incompetence. Second, the trial court had ample opportunity to observe Wingfield’s actions and general demeanor throughout trial to determine his compentency.

Wingfield also contended that the trial court erred when it denied his choice-of-evils defense. He argued that because his cellmates threatened to kill him if he did not assist in their escape attempt, he was justified in assisting them. The trial court found that, although Wingfield faced an imminent threat, he had viable alternatives to going along with the escape. Therefore, the trial court did not err in denying the defense. The judgment was affirmed.

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

Colorado Court of Appeals: Other Act Evidence Improperly Admitted; Error Not Harmless

The Colorado Court of Appeals issued its opinion in People v. Delsordo on Wednesday, December 31, 2014.

Arson—Other Act Evidence.

Delsordo called police to report a fire at her house. A fire investigation concluded that the fire had originated at the dryer exhaust vent from an outside application of heat. Delsordo stated that she had been smoking outside that night, and that she had used the cigarette to ignite a piece of wood beneath the dryer vent. A jury convicted her of first-degree arson and reckless endangerment, and the court sentenced her to twelve years in prison and five years of mandatory parole.

On appeal, Delsordo contended that the district court abused its discretion in admitting other act evidence—specifically, Delsordo’s previous false reports of sexual assault. Delsordo’s prior acts of false reporting had no connection with the charged offenses. The lack of similarity supports the conclusion that the prior act evidence has no relevance independent of the inference that Delsordo is the type of person who lies to get attention. Thus, the evidence should not have been admitted. Because the evidence against Delsordo was not overwhelming and the prosecution relied heavily on the other act evidence in argument, a reasonable probability existed that the trial court’s error contributed to Delsordo’s conviction. Thus, the error was not harmless. The judgment was reversed and the case was remanded for a new trial.

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

Colorado Court of Appeals: Suppression Motion Under Immigration Reform and Control Act Would Not Have Altered Verdict

The Colorado Court of Appeals issued its opinion in People v. Vicente-Sontay on Wednesday, December 31, 2014.

Immigration—Ineffective Assistance of Counsel—Plea—Voluntary—Interpreter.

Defendant, an undocumented noncitizen of the United States, completed a federal I–9 employment-eligibility verification form and began work for a company in Greeley (employer). On his verification form, he used a Social Security card and Missouri identification card, claiming to be a U.S. citizen named Marco Antonio Perez. During a routine audit, an agent from the Department of Homeland Security confirmed an outstanding Florida warrant for tax fraud against Perez and notified the Greeley police of this warrant. Believing that they were arresting Perez, the police arrested defendant. Defendant then admitted his real name to the police and the fact that he had purchased a fraudulent Social Security card and Missouri identification card for $150. He pleaded guilty to criminal impersonation.

On appeal, defendant contended that the post-conviction court erred in rejecting his three ineffective assistance of counsel claims. The Court of Appeals disagreed. First, a suppression motion under the Immigration Reform and Control Act of 1986 (IRCA), even if successful, would not have altered the verdict had defendant proceeded to trial. Further, defendant failed to show that he would not have pleaded guilty had counsel properly investigated and pursued a suppression motion under the IRCA. Second, the immigration consequences of defendant’s conviction were not succinct, clear, or explicit. As a result, plea counsel was only required to advise defendant that his pending criminal charges may have carried a risk of adverse immigration consequences, which counsel did. Third, because defendant’s eligibility for such relief was unclear, plea counsel properly advised him that his conviction might carry a risk of adverse immigration consequences. Finally, the post-conviction court did not err in rejecting defendant’s claim of ineffective assistance based on counsel’s not obtaining a K’iche interpreter for him. Defendant spoke sufficient Spanish to engage in meaningful communications with his plea counsel (with the aid of Spanish interpreters) and to navigate the judicial system. The order was affirmed.

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

Colorado Court of Appeals: Announcement Sheet, 1/8/2015

On Thursday, January 8, 2015, the Colorado Court of Appeals issued no published opinion and two unpublished opinions.

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, 1/8/2015

On Thursday, January 8, 2015, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Saveraid v. State Farm Insurance Co.

United States v. Hopson

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

Colorado Appellate Rules Amended in First Rule Change of 2015

On Wednesday, January 7, 2015, the Colorado Supreme Court announced Rule Change 2015(01), amending the Colorado Appellate Rules. Three rules were affected by this rule change: Rule 8, “Stay or Injunction Pending Appeal,” Rule 27, “Motions,” and Rule 33, “Prehearing Conference.”

The changes to Rule 8 are extensive, and include subdivision of various subparagraphs into further subparagraphs, many changes of procedural language, and changing “shall” to “must” in many instances. The changes to Rule 27 are similarly extensive, again adding subparagraphs and changing significant amounts of the language. Rule 33 was repealed in its entirety.

A redline of these changes is available here:

2015(01) redline

The Colorado Supreme Court adopted and proposed rule change page is available here.

Tenth Circuit: Liquidated Damages Provisions Allowable in Order to Protect Parties from Uncertainty, Difficulty, and Expense of Litigation

The Tenth Circuit Court of Appeals issued its opinion in Wahlcometroflex, Inc. v. Westar Energy, Inc. on Tuesday, December 2, 2014.

Westar is an electric company that owns several sources of electricity, including the Jeffrey Energy Center (JEC). Westar contracted with Wahlcometroflex (Wahlco) to manufacture and deliver equipment to JEC’s three units for a total purchase price of $6,229,185.50. In the contract, dates for the absolute latest delivery of the equipment were set forth, and a liquidated damages provision was included in the event Wahlco did not timely deliver the equipment assessing damages of 1.5 percent of the total contract price per week the equipment was late, not to exceed 10 percent of the total contract price. Wahlco was late delivering the equipment for all three units – for Unit 1, the equipment was 2 1/2 months late; for Unit 2, the equipment was 2 months late; and for Unit 3, the equipment was over 4 months late. Westar withheld $367,511.28 of the contract price from its payment to Wahlco pursuant to the liquidated damages provision.

Wahlco filed suit in Kansas federal district court to recover the withheld amount. Westar counterclaimed, seeking a declaratory judgment that it was entitled to retain or recover $622,918.55 pursuant to the liquidated damages provision and bringing a breach of contract claim for the same amount. After discovery, the parties filed cross-motions for summary judgment addressing whether Westar was required to prove actual delay in order to recover under the contract’s liquidated damages provision. The district court granted Westar’s motion for partial summary judgment, holding Westar did not need to show actual delay to recover liquidated damages under to the unambiguous language of the contract. The court entered final judgment in favor of Westar, and Wahlco appealed.

Wahlco contended on appeal that its contract with Westar required a showing of actual delay in order to trigger the liquidated damages provision. However, the plain language of the contract referenced only Wahlco’s delay in providing the material, not Westar’s delay in completion of the upgrades to the JEC. The Tenth Circuit noted that, despite Wahlco’s best efforts to create ambiguity in the contract, there was none, and the courts will not rewrite the terms of an unambiguous contract.

Wahlco next argued that, under Kansas law, a plaintiff must establish causation as an element of any breach of contract claim. Wahlco concedes that liquidated damages are allowable under Kansas law regardless of actual damages, but contends there still must be a causal connection between the breach of contract and the anticipated event for which the liquidated damages were intended to compensate. The Tenth Circuit construed Wahlco’s argument as another attempt to rewrite its contract with Westar, and found that the contract language amounted to a concession that Wahlco’s breach would cause damages to Westar in the form of delay to the project. The Tenth Circuit also noted that adopting Wahlco’s position would undermine the effectiveness of liquidated damages provisions, which are designed to allow parties to protect themselves against the difficulty, uncertainty, and expense involved with litigating damages in court.

Finally, Wahlco argued that allowing Westar to collect liquidated damages without proving actual damage would amount to an impermissible penalty. The Tenth Circuit disagreed. Under Kansas law, liquidated damages provisions are acceptable to compensate for actual or anticipated harm. Because the contract’s provisions expressly stated the anticipated harm that would come from Wahlco’s late delivery, and the contract specifically stated the liquidated damages were not a penalty, the Tenth Circuit found Wahlco was bound by the terms of the contract. Wahlco argued that the terms of the contract were unreasonable in light of the actual damages suffered by Westar, but made no showing that the contract’s terms were unreasonable at the time the parties entered into it.

The district court’s summary judgment was affirmed.

Tenth Circuit: Express or Implicit Dispute of Title Necessary to Trigger Quiet Title Act’s “Disputed Title” Requirement

The Tenth Circuit Court of Appeals issued its opinion in Kane County, Utah v. United States on Tuesday, December 2, 2014.

In April 2008, Kane County, Utah brought an action under the Quiet Title Act (QTA), 28 U.S.C. § 2409a, to quiet title to five roads in southern Utah. It later amended its complaint to cover 15 roads or road segments. The county asserted the rights-of-way pursuant to R.S. 2477, which reserved a right-of-way for construction of highways over public lands not reserved for public uses. R.S. 2477 was repealed by the Federal Land Policy and Management Act of 1977 (FLPMA)  but existing rights-of-way were preserved. The State of Utah intervened in the county’s action as co-plaintiff. After a 9-day bench trial, the district court issued two orders. In the first order, the district court held that it had subject matter jurisdiction under the QTA as to all 15 roads at issue. The second order made findings of fact and addressed the merits, finding that Kane County and Utah had proven R.S. 2477 rights-of-way on 12 of the 15 roads and setting proper widths for the rights-of-way. Both orders were challenged on appeal.

Kane County and Utah argued that the district court erred by finding that Public Water Reserve (PWR) 107 reserved two parcels of land from the operation of R.S. 2477. They also challenged the district court’s requirement of proof by clear and convincing evidence of the R.S. 2477 rights-of-way. The United States also appealed, claiming that the district court lacked jurisdiction over the county’s claims regarding several roads because of the absence of a disputed title to real property. The United States also contended the district court erred in setting widths for the rights-of-way on three of the roads.

The Tenth Circuit first examined the subject matter jurisdiction claims of the United States and amici. For a court to have jurisdiction over a QTA claim, the plaintiff must show that (1) the United States “claims an interest” in the property at issue, and (2) title to the property is “disputed.” The Tenth Circuit, as a matter of first impression, evaluated what requirements satisfy the QTA’s “disputed title” requirement. The Tenth Circuit rejected the Ninth Circuit’s “cloud on title” standard and instead held that, to satisfy the QTA’s “disputed title” element, the plaintiff must show that the United States has either expressly disputed title or taken action that implicitly disputes it. Actions that produce ambiguity are not enough to satisfy the disputed title element.

Turning its attention to the roads at issue, the Tenth Circuit found that the district court did not have jurisdiction over the Sand Dunes Road and the Hancock Road. These roads were omitted from a BLM map, but later the map was amended to show the roads. The district court ruled this created an ambiguity as to the legal status of the roads, but the Tenth Circuit found the ambiguity was insufficient to satisfy the QTA’s disputed title element and therefore the district court lacked jurisdiction. The Tenth Circuit also found the district court lacked jurisdiction as to the four cave roads. The district court’s treatment of the United States’ denial of allegations as sufficient to establish jurisdiction was in error.

Amici had argued the plaintiffs lacked R.S. 2477 jurisdiction over another road, the North Swag Road, because the QTA’s limitations period had expired. The Tenth Circuit found that the limitations period was not triggered because no adverse action had occurred.

The Tenth Circuit then turned its attention to the district court’s conclusion that PWR 107 had served to “reserve” two parcels of land across which Swallow Park Road runs from operation of R.S. 2477. The Tenth Circuit analyzed PWR 107, finding that it was intended to provide public access to certain water springs, and noted that it would be “nonsensical” to hold that the provision of public access to the springs expressly excluded the construction of roadways under R.S. 2477 on which the public could access the water springs. The Tenth Circuit reversed the district court’s determination that plaintiffs could not establish a right-of-way on the part of Swallow Park Road running through the two reserved parcels of land.

Finally, the United States argued that the district court erred by not designating right-of-way widths on three roadways on the uses established in 1977, and by improperly allowing room for improvements on the roadways. The Tenth Circuit agreed on both points. The district court was required to inquire as to the reasonable and necessary uses of the road, and expansions are only allowable when reasonable and necessary in light of pre-1977 uses of the roadways. Similarly, the district court exceeded its authority by allowing room for improvements. The Tenth Circuit likened this to putting the cart before the horse, finding instead that if the roadways needed improvements the land management agency must be consulted and allowed an opportunity to determine if the improvements are reasonable and necessary.

The judgment of the district court was affirmed in part, reversed in part, and remanded for further proceedings.

Tenth Circuit: Unpublished Opinions, 1/7/2015

On Wednesday, January 7, 2015, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Lee v. Maye

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