May 21, 2019

Archives for March 2, 2015

Frederick Skillern: Real Estate Case Law — Judgments and Fraudulent Transfer

Editor’s note: This is Part 13 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

Shigo, LLC v. Hocker
Colorado Court of Appeals, February 27, 2014
2014 COA 16

Execution upon water rights; homestead; water rights appurtenant to land.

A creditor obtains a judgment against Hocker for $4.4 million, and seeks to levy and execute upon Hocker’s shares in the Highland Ditch Company. Hocker owns an undivided 50 percent interest in two and three-quarter shares of Highland stock. The Highland shares represent Hocker’s right to use water that runs through a mutually owned ditch, a branch of which leads to a pond on the 35-acre farm that Hocker owns with her husband. Hocker files a claim under the homestead exemption, asserting that the shares, which represent water rights appurtenant to her farm, could not be levied. The court denies Hocker’s claim of exemption, and Hocker appeals.

The district court found that the homestead exemption “does not apply to water stock certificates.” The appeals court holds that the homestead exemption for a “farm” includes not just the farm’s soil, but also the water rights appurtenant to the land.

Shares of stock in a mutual ditch company represent water rights. However, because the record is not clear as to whether the water rights represented by the Highland shares are necessary to the use and enjoyment of the farm, the case was reversed and remanded to the trial court for further findings on that issue.

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, 3/2/2015

On Monday, March 2, 2015, the Colorado Supreme Court issued one published opinion.

Figueroa v. Speers

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, 3/2/2015

On Monday, March 2, 2015, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

United States v. James

Pippin v. Elbert County, Colorado

United States v. Scott

United States v. Vasquez

McCauley v. Board of County Commissioners for Bernalillo County

Hoeck v. Timme

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: United States v. Black Did Not Change Tenth Circuit Precedent

The Tenth Circuit Court of Appeals issued its opinion in United States v. Garcia-Ramirez on Wednesday, February 18, 2015.

Marcos Garcia-Ramirez entered into a plea agreement that included an appeal waiver, pleading guilty to one count of illegal reentry into the United States and receiving a 19-month sentence. Despite the appeal waiver, Garcia-Ramirez challenged his sentence as “unreasonable,” arguing simply that the court should exercise its discretion to bypass any decision on whether to enforce an appeal waiver pursuant to United States v. Black, 773 F.3d 1113, 1115 n.2 (10th Cir. 2014).

The Tenth Circuit noted that Garcia-Ramirez’s argument is based on a misreading of BlackBlack did not change the Tenth Circuit’s judicial jurisprudence but merely addressed a matter of judicial economy in deciding cases. United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004), continues to be binding precedent regarding enforceability of appeal waivers, and since Garcia-Ramirez failed to cite even a single Hahn factor, his appeal failed and the motion to enforce was granted.

Tenth Circuit: Bifurcation of Position Does Not Defeat Comparison for Employment Discrimination Claims

The Tenth Circuit Court of Appeals issued its opinion in Riser v. QEP Energy on Tuesday, January 27, 2015.

Kathy Riser, who was 50 years old in 2013, began working for Questar Exploration and Production Co. in 1997. In 2003, she became an Administrative Services Representative II, where she managed a fleet of 250 vehicles, performed facilities management duties, and managed construction projects in several states. She was the only Questar employee performing fleet management and facilities management duties. In 2010, QEP was spun off from Questar and became a separate entity. Based on the title of Ms. Riser’s job and not her actual duties, she was classified under the new employee classification system as a Grade 5 employee making $22.78 per hour or $47,382 annualized. Twice Ms. Riser requested that her title and salary be changed to reflect her actual duties, but her supervisor, Mr. Beach, would not respond.

In May 2011, QEP created a new position, “Fleet Administrator,” and had Ms. Riser craft a job description for the position based on her fleet management duties. The position was classified as a Grade 7 position with an annual salary of $62,000. QEP hired Matthew Chinn, a 39-year-old man, as Fleet Administrator in June 2011. Ms. Riser trained Mr. Chinn in fleet management duties until her termination in September 2011. QEP stated that Mr. Chinn took over Ms. Riser’s fleet management duties as well as other duties; however, Ms. Riser stated that she was in the process of implementing the new programs when Mr. Chinn was hired.

In August 2011, QEP began discussing creating a new “Facilities Manager” position and spoke with Jason Bryant, a 30-year-old man, about the position. QEP stated they were receiving complaints about Ms. Riser’s work overseeing a North Dakota construction project, but none of these complaints were conveyed to her during the time period and she continued to receive favorable reviews. QEP terminated Ms. Riser on September 8, 2011, stating her termination was due to her poor performance on the North Dakota construction project. She had not received any warning or been placed on suspension prior to her termination. QEP then hired Mr. Bryant as the facilities manager, classified as a Grade 7 employee and making $66,000 annually.

Ms. Riser brought suit against QEP in federal district court in Utah alleging: (1) pay discrimination under the EPA, Title VII, and ADEA; (2) failure to promote under Title VII and the ADEA; and (3) discriminatory discharge under Title VII and the ADEA. The district court granted summary judgment to QEP on all claims. Ms. Riser appealed the summary judgment on all but her failure to promote claim.

The Tenth Circuit found Ms. Riser’s claims to be precisely the sort of factual disputes that preclude summary judgment. On her EPA claims, the district court held that Ms. Riser had not established that her job was “substantially equal” to either Mr. Chinn’s or Mr. Bryant’s job, and also that even if she could establish a prima facie claim of discrimination, the pay scale was based on a gender-neutral system. The Tenth Circuit disagreed on both points, finding “the fact that a female employee performed additional duties beyond a male comparator does not defeat the employee’s prima facie case under the EPA.” The Tenth Circuit noted that QEP’s argument that Ms. Riser had no comparator was especially disingenuous, since her position was bifurcated to create the two jobs which were then given to younger men at a higher rate of pay. The Tenth Circuit similarly disposed of QEP’s argument that its pay scale was gender-neutral, as Ms. Riser’s pay was not based on her actual duties but rather those duties typically performed by people with her title. The Tenth Circuit likewise found merit to Ms. Riser’s Title VII and ADEA claims, since they had a lower burden of proof.

The Tenth Circuit affirmed the district court’s grant of summary judgment on Ms. Riser’s discriminatory discharge claims, finding these were not adequately briefed. In her opening argument, Ms. Riser did not argue that she satisfied her prima facie case, only that one existed. The Tenth Circuit concluded this argument was waived.

The district court’s summary judgment was affirmed in part, reversed in part, and remanded.

Tenth Circuit: Unpublished Opinions, 2/27/2015

On Friday, February 27, 2015, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Goudeau v. Dowling

United States v. Olivas-Lasos

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