March 22, 2019

Archives for February 2015

DBA Award Winners Announced; Chuck Turner Receives DBA Award of Merit

The Denver Bar Association announced the winners of its 2015 DBA Awards on February 24, 2015. Award recipients will be recognized at the annual DBA Awards Ceremony on July 9, 2015 at the Ralph Carr Justice Center.

chuck turner 300Charles C. “Chuck” Turner will receive the Award of Merit, the DBA’s highest honor, for his outstanding leadership of the DBA and CBA. The Award of Merit recognizes outstanding service and contributions to the DBA and the legal profession, rendered to improve the administration of justice.

The Honorable Ruben Hernandez, magistrate judge at the Denver Probate Court, will receive the Judicial Excellence Award. This award is given to members of the judiciary who exemplify outstanding service or make exceptional contributions to the improvement of the justice system.

Gillian McKean BidgoodGillian M. Bidgood has been selected to receive the DBA Young Lawyer of the Year Award. This award is given to a DBA member and attorney who is 37 or under or has been in practice less than three years. Ms. Bidgood is a shareholder in the Denver office of Polsinelli PC who practices employment defense. Ms. Bidgood is a contributing author to CBA-CLE’s Practitioner’s Guide to Colorado Employment Law.

MCHUGH_FORMAL_use_logoJohn M. McHugh will receive the Volunteer Lawyer of the Year Award. The Volunteer Lawyer of the Year Award is given annually to a DBA member who has performed extraordinary voluntary legal or community service. Mr. McHugh is an associate at Reilly Pozner LLP, where he practices complex civil and commercial litigation. Mr. McHugh is active with the Colorado GLBT Bar Association, and serves on that organization’s board of directors and membership committee.

Doug Wilhelm, 8th Grade history teacher at Hamilton Middle School in Denver Public Schools, will receive the Education in the Legal System Award. This award honors educators or schools that exhibit outstanding participation in legal and civics education. Mr. Wilhelm received the 9News 9Teachers Who Care award in November 2010 for his outstanding classroom work.

The Denver Bar Association Court Mediation Services Program will receive the Projects and Programs Award. This award acknowledges the immense efforts of programs that provide legal education, outreach, pro bono services or fundraising.

Congratulations to all the award recipients!

Colorado Court of Appeals: Announcement Sheet, 2/26/2015

On Thursday, February 26, 2015, the Colorado Court of Appeals issued eight published opinions and 24 unpublished opinions.

People v. Wilder

People v. Casillas

People v. Glover

People v. Thomas

People in Interest of E.G.

First National Bank of Durango v. Lyons

Ranch O, LLC v. Colorado Cattlemen’s Agricultural Land Trust

Monell v. Cherokee River, Inc.

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, 2/26/2015

On Thursday, February 26, 2015, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Conkleton v. Raemisch

United States v. Johnson

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

The Future of Law (Part Seven): The Law Gets Faster, Goes Micro, and Eats at a Communal Table

rhodesHarvard professor Clayton M. Christensen coined the phrase disruptive innovation in the late ’90s.

The theory of disruptive innovation . . . explains the phenomenon by which an innovation transforms an existing market or sector by introducing simplicity, convenience, accessibility, and affordability where complication and high cost are the status quo. Initially, a disruptive innovation is formed in a niche market that may appear unattractive or inconsequential to industry incumbents, but eventually the new product or idea completely redefines the industry.

Until recently, the legal profession and the law remained mostly aloof from the impact of innovative disruption, moving instead at an analog pace of change driven by reasoned discourse and scholarly input. Think of the usual pace of legislation, appellate review, uniform laws, and legal restatements. But life in the slow lane is ending.

  • The analog pace of changes in the law is already breaking down. Legal practice developments are already moving at the digital pace of disruptive innovation. Changes to the law itself will soon follow suit.

Disruptive innovation doesn’t wait for reasoned discourse. It moves fast and impulsively, riding on trends fueled by democratized access to information. Disruptive change in the law will create new modes of change that simply will not wait for the historical pace of precedent and consensus.

  • These law changes will first follow the new practice models serving legal niche markets, where “simplicity, convenience, accessibility, and affordability” are essential. (i.e., they will be “micro-law” in nature. We looked at the micro trend in this post last summer.)
  • This new way of creating and changing applicable law will go mostly unnoticed to “industry incumbents” at first, because the changes will be narrowly focused on the particular needs of emerging niche markets, which will make them “unattractive or inconsequential.”
  • In time, however, this way of creating and changing the law will gain wider usage and impact.

Other practice innovations already in place have disruptive potential as well. Consider, for example, ediscovery and due diligence. These practices began as digital versions of their former analog practices, and mostly retain that character, but possibly not for long.

  • These digital innovations could easily morph from their case-specific beginnings into more widely accessible databases of searchable information.
  • If so, they will change the overall fact-specific context of dispute resolution and transactional law.
  • And if they do that, new standards of pleading and disclosure will arise, and will require new rules and procedures to guide their use.

And finally:

  • This new way of changing the law will likely arise from an informal collaborative process which will further — by a quantum leap — the goal of bringing more “simplicity, convenience, accessibility, and affordability” to dispute resolution and commercial transactions.

In this regard, think of disruptive innovation as a sort of communal table process for changing the law. You’ve noticed the community tables springing up in restaurant and coffee shops. They’re more than a new style of seating arrangements: they’re changing the dining/drinking industry and the dining out experience. (For a wonderful analysis, see Alone Together: The Return of Communal Restaurant Tables.)

These developments will create some fascinating new bedfellows. Next time we’ll look at one such pair: commercial law and legal ethics.

Kevin Rhodes’ Legal Connection blog posts for the past three years have been collected into an ebook which is currently available as a promotional free download from Smashwords, Barnes & Noble, iTunes, and Scribd, and for a nominal price from Amazon. For those who prefer to do their reading in hard copy, the collection will soon be available in that format (details to follow).

Governor Hickenlooper Signs First Bills of 2015 Legislative Session

On Wednesday, February 25, 2015, Governor Hickenlooper signed three bills into law. These three bills are the first bills of the 2015 legislative session to be approved by the governor. The three bills are

  • HJR 15-1006Concerning Approval of Water Project Revolving Fund Eligibility Lists Administered by the Colorado Water Resources and Power Development Authority. By Rep. Edward Vigil and Sen. Jerry Sonnenberg. The joint resolution adopts additions to the Drinking Project Eligibility List.
  • SB 15-035Concerning the Enactment of Colorado Revised Statutes 2014 as the Positive and Statutory Law of the State of Colorado. By Sen. Michael Johnston and Rep. Elena Kagan. The bill enacts the 2014 Colorado Revised Statutes.
  • SB 15-098Concerning the Codification of Certain Phrases Previously Included in Appropriation Clauses. By Sen. Pat Steadman and Rep. Dave Young. The bill attempts to omit superfluous language in appropriation clauses by codifying language.

Stay tuned for more information about Governor Hickenlooper’s 2015 legislative decisions.

Tenth Circuit: Unpublished Opinions, 2/25/2015

On Wednesday, February 25, 2015, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Chapman v. Wyoming Department of Corrections

United States v. Scott

United States v. Springer

Velasquez v. Faulk

Tadlock v. Marshall County HMA, LLC

Grayson v. McCollum

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

 

In Memoriam: Billie Castle

Billie_CastleBillie Castle, Grand Junction trust and estate attorney and former author and speaker for CBA-CLE, died on February 22, 2015, at St. Mary’s Hospital in Grand Junction. Billie was respected and admired by colleagues and clients alike. She was a solo practitioner at the Law Office of Billie M. Castle, where she offered estate planning, disability planning, Medicaid, will probates, and preparation of wills and trusts.

Billie wrote a chapter, “Medicaid: Use of Trusts in Medicaid Planning,” in the Colorado Elder Law Handbook from 2004 to 2007, and she co-authored the “Trusts in Long-Term Care and Disability Planning” chapter in the Colorado Estate Planning Handbook (Orange Book Handbook) from 2006 to 2009. She was also faculty at the Colorado Estate Planning Retreat from 2004 to 2007. She was a CBA member and a former chair of the CBA Elder Law Section. She was certified by the National Elder Law Foundation as a Certified Elder Law Attorney, and wrote numerous articles on estate planning, Medicaid, and trusts.

Billie was a native of Colorado’s western slope and a strong supporter of Colorado Mesa University, where she received her undergraduate degree, summa cum laude. She received her law degree, magna cum laude, from Willamette University in Oregon, where she was ranked second in her class. She served on the Willamette Law Review and clerked for the Marion County District Attorney’s Office while in law school.

A memorial service will be held on Thursday, February 26 in Grand Junction. Tributes to and memories of Billie can be left on this webpage. To donate in Billie’s memory to her charity of choice, Colorado Mesa University Foundation, click here.

Application Period Open for Two Fourth Judicial District Court Openings

On Monday, February 23, 2015, the Colorado State Judicial Branch announced two forthcoming vacancies on the bench of the Fourth Judicial District Court. Hon. Thomas Kennedy will retire and Hon. Barney Iuppa will resign, both effective July 1, 2015.

Judge Thomas Kennedy was appointed to the district court bench in 1999. He presides over a mixed docket, including domestic, civil, criminal, and juvenile matters. Prior to his appointment, he was an attorney in private practice, emphasizing civil and criminal litigation. He is on the board of directors for the El Paso County Bar Foundation and is the board chair for the Pikes Peak YMCA. He received both his undergraduate degree and law degree (with honors) from the University of Colorado.

Judge Barney Iuppa was appointed to the district court bench in 2008. Prior to that, he was an El Paso County Court judge since 1995. He has also worked as a public defender, an elected district attorney, and as an attorney in private practice. He is on the board of directors for the Multiple Sclerosis Alliance of Southern Colorado, and is a former president of that organization. He earned his law degree from the University of Denver.

Eligible applicants for the vacancies must be qualified electors of the Fourth Judicial District and must have been admitted to practice law in Colorado for five years. Application forms are available from Justice Allison Eid, the ex officio chair of the Fourth Judicial District Nominating Commission, and also from the Colorado State Judicial Branch website. Applications are due no later than 4 p.m. on April 22, 2015. Anyone wishing to nominate another person must submit the nomination no later than 4 p.m. on April 15, 2015.

For more information about the vacancies and for contact information for members of the Fourth Judicial District Nominating Commission, click here.

Tenth Circuit: Unpublished Opinion, 2/24/2015

On Tuesday, February 24, 2015, the Tenth Circuit Court of Appeals issued two published opinions and eight unpublished opinions.

United States v. Marquez

Longoria v. Falk

Allen v. Raemisch

United States v. Hines

United States v. Bell

United States v. Neal

Tatom v. Res-Care, Inc.

deWilliams v. Garcia

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

Frederick Skillern: Real Estate Case Law — Foreclosure, Debtor-Creditor, Receivers, Lender Liability

Editor’s note: This is Part 12 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 B. Skillern

Colorado Community Bank v. Hoffman
Colorado Court of Appeals, November 7, 2013
2013 COA 146

Receiver; order for sale certified as final judgment; C.R.C.P. 54(b); deadline to appeal; abuse of process; civil conspiracy.

This action arises from the judicial dissolution of certain companies in the course of a receivership proceeding. The companies were formed to develop golf courses. The bank sought appointment of a receiver when the companies defaulted on development loans. Certain individuals intervened and joined in the motion for appointment of a receiver. The companies asserted counterclaims for abuse of process and civil conspiracy.

The court granted a motion by the receiver for the companies to sell the golf courses to an entity controlled by the intervening individuals. The district court certified the sale orders as final under C.R.C.P. 54(b) to allow an appeal. The sale orders disposed of an “entire claim for relief” for purposes of C.R.C.P. 54(b) certification. Is a sale order in the course of a receivership action an “entire claim”? It can be, reasons the court. It states that prior cases have suggested that orders concerning property ownership can properly be certified. In Corporon v. Safeway Stores, Inc., 708 P.2d 1385 (Colo. App. 1985), the court held that “a quiet title claim is separable from slander and defamation claims, and therefore, properly certifiable under C.R.C.P. 54(b).” Because defendants did not appeal this order within forty-five days of the certification, but rather waited until the counterclaims had been resolved, the court of appeals lacked jurisdiction over this issue and that portion of the appeal was dismissed.

The court affirms the summary judgment order dismissing the abuse of process and civil conspiracy claims. Although the evidence might have proved that the interveners had an ulterior motive in bringing the receivership action, it did not establish the requisite improper use of process element. The rule was recently stated in Sterenbuch v. Goss, 266 P.3d 428 (Colo. App. 2011):

If the action is confined to its regular and legitimate function in relation to the cause of action stated in the complaint there is no abuse, even if the plaintiff had an ulterior motive in bringing the action or if he knowingly brought suit upon an unfounded claim.

The court agrees with the trial court that the claims failed this test. Because the companies’ conspiracy claims were based on the alleged underlying wrong of abuse of process, this claim also failed.

 

Armed Forces Bank v. Hicks
Colorado Court of Appeals, June 5, 2014
2014 COA 74

Guarantor; waiver of anti-deficiency rights; C.R.S. 38-38-106(6); good faith bid at foreclosure sale.

The bank makes a $6 million loan to a closely held, single asset company to build a condominium project in Glenwood Springs. The loan is personally guaranteed by Mr. and Mrs. Hicks, the principals of the company. After the loan goes into default in 2009, the bank agrees to several loan extensions, after which the company remained in default for failure to make certain payments and failure to obtain planning department approval of a condominium plat. After a trip by the company through bankruptcy court, the bank forecloses. At the foreclosure sale, the bank bids $3.7 million, leaving a $6 million deficiency, after all interest, costs and the like are added to the final tab. The bank files a civil action to collect the deficiency against Hicks. The Hicks attempt to assert defenses based on failure to make a bid based on a good faith estimate of fair market value, and alleging that the bank violated its duty of good faith and fair dealing by refusing to approve the plat ten months after the borrowers’ default. In effect, they argue that the bank failed to mitigate its damages by not allowing the plat to be recorded, even if the borrowers were in default, because the property would be more valuable at that point and the receiver would be able to lease the property, generating income to apply to the loan balance.

The court of appeals affirms the trial court’s grant of summary judgment in favor of the bank, holding that the guaranty contained a specific, and very broad, waiver of any right to challenge the bank’s bid at the foreclosure sale based on a “one action or antideficiency law.” In a case of first impression, the court holds that the statutory duty of a creditor under C.R.S. § 38-38-106(6) to bid its good faith estimate of fair market value may be waived, and that such an agreement is not void for violation of public policy. The court contrasts this statute, which has no provision barring a contractual waiver of its terms, with C.R.S. § 38-38-703, which explicitly prohibits agreements to waive, inter alia, the right of cure and redemption. The court notes that there is still a common law duty to make a good faith bid, under Chew v. Acacia Mutual Life, 165 Colo. 43, 437 P.2d 339 (1968) (bid not made in good faith on the basis of what the security could reasonably be expected to produce on sale at its fair market price), but the guaranty signed by Mr. and Mrs. Hicks included a waiver of “any defenses given to guarantors in law or in equity” except for payment of the indebtedness.

It will be interesting to see if the Supreme Court wants to take a look at this.

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.

Tenth Circuit: Acquittal on Drug Trafficking Charges Does Not Preclude Immigration Removal

The Tenth Circuit Court of Appeals issued its opinion in Mena-Flores v. Holder on Friday, January 23, 2015.

Gustavo Mena-Flores entered the United States illegally in 1990. In 2006, the Department of Homeland Security initiated removal proceedings. Mr. Mena-Flores admitted he was “undocumented,” but sought permanent residency based on his marriage to a U.S. citizen. The Department contended Mr. Mena-Flores was not eligible for residency due to criminal activity, stemming from an arrest of Mr. Mena-Flores on charges of drug trafficking.

Mr. Mena-Flores’ brother, Santiago, ran a drug trafficking organization. During his arrest and indictment, four witnesses identified Mr. Mena-Flores as involved in Santiago’s organization. Although Mr. Mena-Flores was eventually acquitted of all charges, the Department argued he should be denied residency due to “reason to believe” he could have been involved in the drug trade. The immigration judge granted Mr. Mena-Flores’ request for adjustment in status, but the Department appealed, and the BIA remanded to the immigration judge to consider all evidence of drug trafficking activity. On remand, the immigration judge denied Mr. Mena-Flores’ petition, finding there was reasonable, substantial, and probative evidence creating a reason to believe he had been involved in drug trafficking.

Mr. Mena-Flores appealed to the BIA, which upheld the immigration judge’s decision. He appealed the BIA’s decision to the Tenth Circuit. He then hired new counsel, who urged the BIA to reopen the case to consider new evidence. Mr. Mena-Flores argued his trial counsel was ineffective by failing to present the evidence earlier. The BIA denied the motions and Mr. Mena-Flores appealed.

Before addressing the merits of Mr. Mena-Flores’ appeals, the Tenth Circuit addressed the Department’s arguments that it lacked jurisdiction to hear the appeal. The Department argued 8 U.S.C. § 1252 barred review of (1) orders against aliens who are removable because of participation in drug trafficking, (2) orders involving discretionary relief, and (3) unexhausted arguments.

The Tenth Circuit extensively evaluated the term “removable” and determined that, although there was an inference Mr. Mena-Flores was involved in drug trafficking, he was not “removable” based on the drug trafficking because he was being removed for lack of documentation. The Department next argued that since adjustment in status involves a form of discretionary relief, the Tenth Circuit lacked jurisdiction. The jurisdictional bar in 8 U.S.C. § 1252(a)(2)(B)(i) does not apply to the nondiscretionary aspects of relief. Finally, the Department argued Mr. Mena-Flores had not exhausted his administrative remedies, but the Tenth Circuit disagreed.

Addressing the merits of the appeal, the Tenth Circuit evaluated whether the BIA’s conclusion that Mr. Mena-Flores’ participation in drug trafficking precluded permanent residency was supported by substantial evidence. The Tenth Circuit looked at the inferences that Mr. Mena-Flores participated in drug trafficking and noted that he bore the burden of proof to show he was not involved in the drug trade. The Tenth Circuit would uphold the BIA’s determination if the evidence was “reasonable, substantial and probative.”

The Tenth Circuit found no error in the BIA’s determination. Witness statements, a special agent’s affidavit, and Mr. Mena-Flores’ testimony all influenced the immigration judge’s decision that Mr. Mena-Flores was not eligible for an adjustment in status due to his participation in drug trafficking activity. Because Mr. Mena-Flores bore the burden of proof, the Tenth Circuit found no error in the BIA’s decision. The evidence presented by Mr. Mena-Flores that tended to show non-involvement did not outweigh the inference created by the government’s evidence.

Mr. Mena-Flores also appealed the BIA’s denial of his motion to reopen. Although he argued that he had presented new evidence to the BIA, the Tenth Circuit disagreed. Mr. Mena-Flores’ counsel’s discretionary and tactical decisions to include or exclude evidence did not constitute ineffective assistance.

The Tenth Circuit found that Mr. Mena-Flores failed to meet his burden of proof, and affirmed the BIA’s decisions.

Tenth Circuit: Unpublished Opinions, 2/23/2015

On Monday, February 23, 2015, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Tiscareno v. Frasier

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