August 25, 2019

Archives for January 27, 2015

Denise D. Hoffman Recognized with 2014 Davis Award

Denise-HoffmanDenise D. Hoffman was honored on Thursday, January 22, 2015 with the 2014 Richard Marden Davis Award at a dinner in her honor. The award recognizes her outstanding service to the legal community, along with her civic and charitable leadership.

“It is truly an honor to receive such a prestigious award,” said Ms. Hoffman. “To be among such a highly regarded class of past winners is a humbling experience.”

The Davis Award is presented annually “to a Denver lawyer who is 40 years old or younger and combines excellence as a lawyer with civic, cultural, educational, and charitable leadership.” The award was created in memory of Richard Marden Davis, one of the founders of Davis Graham & Stubbs LLP, who devoted himself tirelessly to the profession and the community. Each honoree “best exemplifies the character and promise of Richard Davis at that stage in his career.” Ms. Hoffman follows a long line of past winners who have continued to serve the Denver legal community, including last year’s honoree, Shannon Stevenson.

Ms. Hoffman is the Managing Partner at Hoffman Crews Nies Waggener & Foster LLP. She holds an LL.M. in Taxation from New York University School of Law and represents both individual and organizational clients in all aspects of tax planning, and controversy resolution. She is primarily focused on tax exempt organizations, estate and business succession planning, and business formation and dispositions. She works closely with a variety of clients, including entrepreneurs, corporate executives, professional athletes, investment bankers, real estate developers, family offices, and philanthropists to help them identify their objectives and provide creative and pragmatic solutions designed to meet their specific goals.

In January 2012, inspired by her work with her nonprofit clients and her service on the Colorado Garden Foundation and Family Tree boards of directors, Ms. Hoffman knew she was ready to make a more direct impact. Her dream: to form a nonprofit organization that could serve as a vehicle to propel deserving young people towards success via increased opportunities for higher education. By June 2012 Ms. Hoffman founded CHOICE Education Foundation, a § 501(c)(3) nonprofit. CHOICE works to empower students from low-income households who have a dream of pursuing higher education and are dedicated to using that education to make meaningful contributions to their communities. CHOICE awards a full-ride scholarship on an annual basis to a Colorado public high school senior to attend a Colorado public college, university, or vocational school. CHOICE currently supports three college students who are in attendance at Colorado State University, Metropolitan State University of Denver, and the University of Northern Colorado.

“Ms. Hoffman is a talented and committed lawyer and community leader who has exhibited an uncanny creativity in her approach to the practice of law,” said Chris Richardson, Managing Partner at DGS. “I continue to be impressed by the selection committee’s ability to honor excellent lawyers who are also truly outstanding civic and community leaders.”

HB 15-1010: Creating Presumption of Notification to Beneficiaries by Trustee

On January 7, 2015, Reps. Tracy Kraft-Tharp and Dan Nordberg and Sen. Cheri Jahn introduced HB 15-1010 — Concerning a Presumption that a Trustee has Notified a Beneficiary when the Trustee has Adopted a Beneficiary Notification Procedure, and, in Connection Therewith, Clarifying that a Trustee May Deliver Information to Beneficiaries Electronically. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law requires a trustee to keep beneficiaries of a trust informed about the status of the trust. The bill creates a presumption that a beneficiary has received information or a statement of account when the trustee has procedures in place requiring the mailing or delivery of information or a statement of account to a beneficiary. The presumption applies to electronic notifications if the beneficiary has agreed to receive such electronic delivery or access and to a beneficiary’s receipt of a final account or statement.

The bill was assigned to the House Business Affairs and Labor Committee. The bill passed through the committee unamended and also survived Second and Third Reading in the House with no amendments.

HB 15-1021: Continuing “Rule of Seven” Modifications to Colorado Revised Statutes

On January 7, 2015, Rep. Yeulin Willett and Sen. Michael Merrifield introduced HB 15-1021 — Concerning Statutorily Established Time Periods that are Multiples of Seven Days. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill changes time periods in certain court proceedings to 7-day periods or periods that are multiples of 7 days to avoid actions being due on weekends. Similar changes to 7-day periods or periods that are multiples of 7 days were made to the Colorado Revised Statutes in 2012, pursuant to Senate Bill 12-175; in 2013, pursuant to House Bill 13-1126; and in 2014, pursuant to House Bill 14-1347.

The bill was assigned to the House Judiciary Committee, where it passed unamended. It also passed Second and Third Reading in the House with no amendments.

HB 15-1034: Adding a District Court Judge in the Twelfth Judicial District

On January 7, 2015, Rep. Edward Vigil and Sen. Larry Crowder introduced HB 15-1034 — Concerning an Increase in the Number of District Court Judges in the Twelfth Judicial District. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Effective July 1, 2015, the bill increases the number of district court judges in the twelfth judicial district from 3 to 4.

The bill was assigned to the House Judiciary and Appropriations Committees. The bill has passed out of the Judiciary Committee unamended and was referred to Appropriations.

HB 15-1064: Clarifying Who May Access a Decedent’s Safe Deposit Box

On January 7, 2015, Rep. Dan Nordberg and Sen. Chris Holbert introduced HB 15-1064 — Concerning Access to the Safe Deposit Box of a Decedent, and, in Connection Therewith, Limiting the Obligations of Custodians who Access the Box. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill clarifies who has access to the safe deposit box of a decedent. A custodian of a safe deposit box is not deemed to have acquired knowledge, either actual or constructive, pertaining to the value of any of the contents of the box delivered to a person as a consequence of the custodian’s examination and delivery of such contents.

The bill was assigned to the House Judiciary Committee.

HB 15-1071: Attorney-Client Privilege Vests in Surviving Entity Post-Merger

On January 9, 2015, Rep. Jon Keyser and Sen. Owen Hill introduced HB 15-1071 — Concerning Clarification That, Following a Merger of Entities, the Surviving Entity is Entitled to Control the Premerger Attorney-Client Privileges of a Constituent Entity. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Existing law specifies that when entities merge, all of the privileges of each of the merging entities vest as a matter of law in the surviving entity. The bill clarifies that the attorney-client privilege is among the privileges that vest in the surviving entity.

The bill was assigned to the House Business Affairs and Labor Committee. It passed committee reading unamended and was referred to the House Committee of the Whole, where it also passed Second and Third Reading unamended.

Tenth Circuit: Unpublished Opinions, 1/27/2015

On Tuesday, January 27, 2015, the Tenth Circuit Court of Appeals issued four published opinions and four unpublished opinions.

United States v. Valle-Rodriguez

United States v. Perez-Estrada

Tadlock v. Foxx

United States v. Zaavedra

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

 

Frederick Skillern: Real Estate Case Law — Contracts, Purchase and Sale, Transactions (5)

Editor’s note: This is Part 8 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.

By Frederick B. Skillernfrederick-b-skillern

In the Interest of Delluomo v. Cedarblade
Colorado Court of Appeals, April 10, 2014
2014 COA 43

Revocable living trust; breach of fiduciary duty; undue influence; no attorney fees under breach of trust exception to American Rule.

Delluomo created a revocable living trust and included all of his assets, including title to his real property. He named two beneficiaries, his niece, Cedarblade, and his nephew, Corcoran. Cedarblade uses undue influence (according to the jury) on her uncle and gets him to convey title to Delluomo and herself in joint tenancy. Corcoran objects, and ultimately a conservator is appointed for Delluomo, who brings suit to set aside the property conveyance. The case is tried to a jury, which finds that Cedarblade breached a fiduciary duty. The court set aside the conveyance and granted Cedarblade’s directed verdict on damages. The court did, however, allow the jury to award attorney fees for prosecuting the litigation, as an exception to the American rule allows fees in actions for breach of trust.

The court of appeals reverses that ruling, drawing a distinction between a garden variety breach of fiduciary duty and the kind of breach of trust in which a court has allowed recovery of attorney fees. The lead case is Buder v. Sartore, 774 P.2d 1383, 1390-91 (Colo. 1989), where a custodian of a minor’s account mismanaged funds by investing the funds in penny stocks. The court here notes that Colorado courts have denied recovery of litigation fees “when the circumstances do not involve a type of fund, type of wrong, or type of wrongdoer” at issue in Buder. In other words, Cedarblade did not manage funds for her brother or serve as his trustee; she was a beneficiary, and only controlled funds after her wrongful act. A mere existence of a fiduciary duty is enough; the breach of trust exception calls for control of funds for another, and egregious conduct of some kind. A breach of trust, the court notes, is but one species of breach of fiduciary duty. It is a “failure by the trustee to comply with any duty that the trustee owes, as trustee, to the beneficiaries.” Restatement (Third) of Trusts § 93. This panel notes that our supreme court has “expressly cautioned against liberally construing exceptions to the American rule on attorney fees, because that is “a function better addressed by the legislative than the judicial branch of government.”

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, 1/26/2015

On Monday, January 26, 2015, the Colorado Supreme Court issued one published opinion.

In re Hagan v. Farmers Insurance Exchange

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.

Colorado Supreme Court: Trial Court Abused Discretion by Allowing Change of Venue

The Colorado Supreme Court issued its opinion in In re Hagan v. Farmers Insurance Exchange; In re Ewald v. Farmers Insurance Exchange; In re Mayfield v. Farmers Insurance Exchange on Monday, January 26, 2015.

Change of Venue.

In these original proceedings under CAR 21, plaintiffs sought extraordinary relief from the trial courts’ orders granting a change of venue. The Supreme Court issued rules to show cause why those orders should not be vacated and venue transferred back to Boulder County District Court and consolidates its ruling here.

The Court held that the trial courts abused their discretion when they granted a change of venue in each of these cases. First, Boulder County District Court is a proper venue for all three cases; under CRCP 98(c)(1), plaintiffs were allowed to file their complaints in the county of their choice because defendant is a nonresident. Second, the trial courts granted the motions without the requisite evidentiary support. The affidavits that defendant submitted improperly focus on convenience to plaintiffs and do not satisfy the standard set forth in Sampson v. District Court, 197 Colo. 158, 160, 590 P.2d 958, 959 (1979). Consequently, the Court made the rules absolute and directed the transferee courts to return the cases to Boulder County District Court.

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

Tenth Circuit: Unpublished Opinions, 1/26/2015

On Monday, January 26, 2015, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Rivers v. State of Colorado

Boyce v. Berkebile

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