August 25, 2019

Archives for April 27, 2015

Frederick Skillern: Real Estate Case Law — Titles and Title Insurance (5)

Editor’s note: This is Part 20 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

US Bank, N.A. v. Stewart Title Guaranty Company
Civil Action No. 13-cv-00117-PAB-KLM
United States District Court For the District Of Colorado
2014 U.S. Dist. LEXIS 36876 (March 20, 2014)

Because Colorado’s appellate courts tend to not “select for publication” any number of interesting cases involving title insurance, I make a note here of a summary judgment order of Judge Brimmer in the federal district court in Denver. There is an allegation in a case brought by homeowner X that a deed of trust recorded by Wells Fargo securing a loan to Y was not a valid lien, as a recorded quit claim deed from X to Y was forged. X first sues Wells Fargo – by this time the loan has been assigned to U.S, Bank. The court discusses whether there is a duty to defend U.S. Bank’s insured title in a lawsuit before U.S. Bank is added to the litigation – the original title claim was made by Wells Fargo. The court reasons “no,” based on a thorough review of the policy language. Paragraph 4(a) of the Conditions and Stipulations states that Stewart Title’s obligation extends only to “the defense of an insured.”

It also reviews a claim that the insurer had a duty to initiate action to clear title to U.S. Bank’s lien prior to the date that U.S. Bank was served in the underlying litigation. The court surveys the cases on whether the insurer “may” or “must” take an affirmative action when it is notified that an insured may have a title issue. The court agrees that under these facts, no such duty was triggered until U.S. Bank – the real party in interest – was named in the suit. Although a title insurer may take action to clear an insured’s title, any duty is subject to the Conditions and Stipulations in the policy. “These policy provisions do not support U.S. Bank’s assertion that the policy creates a duty to defend the title independent of the insurer’s duty to defend the insured. If anything, these provisions reinforce the interpretation of the policy that Stewart Title’s duties are defined in relationship to the insured. The policy’s stated purpose is “a contract of indemnity against actual monetary loss or damage sustained or incurred by the insured” and Paragraph 7(c) states that Stewart Title will only pay “those costs, attorneys’ fees and expenses incurred in accordance with Section 4 of these Conditions and Stipulations.” (Emphasis added).

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.

Barrister’s Benefit Ball 2015 — A Journey Through Fire and Ice

The 27th Annual Barrister’s Benefit Ball, benefiting Metro Volunteer Lawyers, was held on Saturday, April 25, 2015, at the Marriott City Center. Guests enjoyed cocktails, dinner, face painting, and dancing in support of MVL.

This year’s theme was Fire and Ice.


MVL Executive Director Dianne Van Voorhees poses with Nathan Lucero during the cocktail hour.


John Albertson, Patrick Flaherty (CBA/DBA Executive Director), and Janet Drake (incoming DBA president and BBB planning committee member) take a picture break during the cocktail hour.


The face painting was a fun diversion.


Guests enjoy camaraderie during the cocktail hour.


Dinner is served.


Colorado Supreme Court Chief Justice Nancy Rice busted a move on the dance floor.


The night was a success! If you missed the Barrister’s Benefit Ball, you can still donate to Metro Volunteer Lawyers here.

Colorado Supreme Court: Announcement Sheet, 4/27/2015

On Monday, April 27, 2015, the Colorado Supreme Court issued one published opinion.

People v. Diaz

The summary of 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 Court of Appeals: Employment is a Thing of Value for Identity Theft Purposes

The Colorado Court of Appeals issued its opinion in People v. Campos on Thursday, April 23, 2015.

Employment—Identify Theft—Evidence—Impeachment—Credibility.

A police investigator discovered that defendant, an employee of ABM Janitorial Services, had been receiving paychecks under the name “S.A.” for approximately four years using S.A.’s social security number. Defendant was charged with identity theft, criminal impersonation, and two counts of forgery related to her hiring paperwork. The jury convicted defendant of identity theft and criminal impersonation but acquitted her of the two forgery counts.

On appeal, defendant contended that the evidence at trial was insufficient to convict her of identity theft. Because employment is a “thing of value” within the meaning of the identity theft statute, the evidence that defendant used S.A.’s personal identifying information to obtain employment at ABM was sufficient to sustain the conviction.

Defendant also contended that the trial court abused its discretion in restricting defense counsel’s recross-examination of Juan Martinez, an ABM manager, about whether he (1) had a valid social security number, and (2) was required to give ABM a social security number when he went to work there. The record shows that the trial court was well within its discretion to conclude that these two questions were repetitive of the areas already covered and were only marginally relevant. Further, precluding responses to the two questions did not excessively limit the defense’s ability to cross-examine Martinez, nor did the questions relate to Martinez’s bias, prejudice, or motive for testifying. Therefore, the court’s ruling was not an abuse of discretion and did not violate defendant’s rights under the Confrontation Clause. The judgment was affirmed.

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

Colorado Court of Appeals: Exculpatory Clause Applicable Even Though Only Owners’ Association Named

The Colorado Court of Appeals issued its opinion in McShane v. Stirling Ranch Property Owners Association, Inc. on Thursday, April 27, 2015.

Real Property—Declaration of Covenants—Property Owners Association—Exculpatory Clause—Breach of Fiduciary Duty.

Plaintiffs purchased a lot in Stirling Ranch on which to construct a residential home. The lot was subject to the Second Amended and Restated Declaration of Covenants, Conditions, Restrictions and Easements for Stirling Ranch, P.U.D. (Declaration). Under the Declaration, each lot owner in the Stirling Ranch community is a member of the Stirling Ranch Property Owners Association, Inc. (POA). The POA is governed by an Executive Board, and the Board appoints and removes members of the POA’s Design Review Board (DRB). Although the DRB approved plaintiffs’ initial designs, it did so mistakenly based on representations by plaintiffs’ architect. After plaintiffs began construction on the initial designs, they were ordered to stop work and submit redesigned plans to conform to the Design Guidelines. Plaintiff later filed this action against the POA, claiming damages for the redesign of their home. The trial court found in favor of the POA.

On appeal, plaintiffs asserted that the court erred in concluding that the exculpatory clauses barred their claims against the POA for declaratory judgment/equitable estoppel and negligence. The Court of Appeals disagreed. The Declaration and the Design Guidelines include provisions limiting the DRB’s liability, one of which states that the DRB and the Board are components of the POA and have no separate identity. Therefore, the exculpatory clauses are applicable even though plaintiffs only named the POA as a defendant. Additionally, the exculpatory clauses are valid because they do not implicate a public duty, do not involve an essential service, were fairly entered into, and plainly express the intent to release the DRB from liability.

The Court also rejected plaintiffs’ argument that the trial court erred in concluding that the POA did not breach its fiduciary duty. The record contains sufficient evidence as to why the POA and the DRB rejected plaintiffs’ redesign plans. The record also supports the court’s conclusion that these reasons for rejecting the redesign plans were consistent with the Design Guidelines’ goals. The judgment was affirmed.

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

Tenth Circuit: Panel Rehearing Granted to Limited Extent but Rehearing En Banc Denied

The Tenth Circuit Court of Appeals issued its revised opinion in Fulghum v. Embarq Corporation on Monday, April 27, 2015. The Tenth Circuit granted panel rehearing to a limited extent and issued a revised opinion. The opinion was circulated to all judges and none requested a poll, so en banc rehearing was denied. The Legal Connection summary of the original opinion is available here.

Tenth Circuit: Unpublished Opinions, 4/27/2015

On Monday, April 27, 2015, the Tenth Circuit Court of Appeals issued one published opinion and no unpublished opinion.

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

Budget Bill and Appropriations Bills Signed by Governor Hickenlooper

On Friday, April 24, 2015, Governor Hickenlooper signed eight bills into law, including the 2015-2016 fiscal year Long Appropriations Bill. To date, the governor has signed 146 bills into law this legislative session. The bills signed Friday are summarized here.

  • SB 15-234FY 2015-16 Long Appropriations Bill, by Sen. Kent Lambert and Rep. Millie Hamner. The bill sets the state budget for the 2015-16 fiscal year. A summary of some of the budget items is available here.
  • HB 15-1266 – Concerning the Information Technology Budget Request Process, by Rep. Bob Rankin and Sen. Kent Lambert. The bill modifies the procedure for IT budget requests from state agencies and institutes of higher education.
  • HB 15-1149 – Concerning the Respondent Parents’ Counsel, and, in Connection Therewith, Making and Reducing Appropriations, by Rep. Millie Hamner and Sen. Kent Lambert. The bill pushes the start date for the judicial department’s development of an Office of Respondent Parents’ Counsel to July 1, 2016, and creates a nine-member governing commission for that office.
  • HB 15-1269 – Concerning the Transfer of Persons Who Cannot Be Safely Confined in their Current Facility Between a Department of Corrections Facility and a Facility Operated by the Department of Human Services, by Reps. Beth McCann & Joann Ginal and Sen. Kevin Grantham. The bill clarifies procedures for the transfer of inmates from a DOC facility to a DHS facility, and specifies that DHS may not transfer non-offenders to the DOC.
  • HB 15-1295 – Concerning Inspections Conducted by Institutes of Higher Education, by Reps. Jovan Melton & Kevin Priola and Sen. Chris Holbert. The bill enlarges the scope of work that may be overseen by building departments at institutes of higher education.
  • HB 15-1042 – Concerning Requiring Presentence Reports to Include a Statement Concerning a Defendant’s Eligibility for Release from Incarceration, by Rep. Mike Foote and Sen. John Cooke. The bill requires that presentence reports prepared for inmates sentenced for felonies occurring after July 1, 2004, include a statement about how long the defendant is expected to be incarcerated.
  • HB 15-1072 – Concerning Harassment Through an Interactive Electronic Medium, by Rep. Rhonda Fields and Sen. Linda Newell. The bill modifies the existing harassment statute to include harassment through electronic media.
  • HB 15-1204 – Concerning the Creation of a Distillery Pub License, by Rep. Dan Pabon and Sen. Andy Kerr. The bill creates a new liquor license for spiritous distilleries so that they may operate a pub that serves alcoholic beverages on the premises.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.

Colorado Court of Appeals: Noncooperation Defense Waived When Not Pleaded with Requisite Specificity

The Colorado Court of Appeals issued its opinion in Soicher v. State Farm Mutual Automobile Insurance Co. on Thursday, April 23, 2015.

Insurance—Non-Cooperation Defense—Jury Instructions—Unreasonable Denial—Unreasonable Delay.

In 2009, Manueke, who was uninsured, rear-ended another car, which in turn collided with Soicher’s vehicle. Soicher suffered a concussion in the accident, exacerbating a prior mild traumatic brain injury. At the time, Soicher had a motor vehicle insurance policy with State Farm that provided her $250,000 in uninsured motorist (UM) coverage. Seven months after Soicher filed a claim with State Farm, the insurer closed Soicher’s claim file due to Soicher’s noncooperation. Soicher later filed this action. At trial, State Farm failed to specifically plead the defense of noncooperation, but the court allowed State Farm to proceed on that defense. A jury found in State Farm’s favor.

On appeal, Soicher contended that the trial court erred in entering judgment based on State Farm’s noncooperation defense. State Farm did not plead the issue of noncooperation with the requisite specificity, and the parties did not try the issue by express or implied consent. Thus, State Farm waived the issue, and the trial court erred in entering judgment for State Farm based on that defense.

Soicher also contended that the trial court erred in refusing to instruct the jury that State Farm could be held liable, pursuant to CRS §§ 10-3-1115 to -1116, for its unreasonable denial, as opposed to its alleged unreasonable delay, in processing Soicher’s claim. State Farm did not reject Soicher’s application for benefits. To the contrary, it conceded coverage but disputed the amount that was to be paid. Accordingly, this case did not involve the unreasonable denial of Soicher’s claim.

The case was remanded for entry of judgment for Soicher and against State Farm on her breach of insurance contract claim in the amount of $125,000 plus pre-judgment interest, and entry of judgment for State Farm and against Soicher on its breach of the duty of good faith and fair dealing and violations of CRS §§ 10-3-1115 and -1116 claims.

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

Colorado Court of Appeals: Ineffective Assistance Claims Improperly Asserted in Crim. P. 33 Motion

The Colorado Court of Appeals issued its opinion in People v. Lopez on Thursday, April 23, 2015.

Assault—Menacing—Obstructing a Peace Officer—Jury Instruction—Attempt—Ineffective Assistance of Counsel—Crim.P. 33.

Defendant assaulted his wife and broke her clavicle. A uniformed officer found defendant outside the hospital. When the officer attempted to speak to him about his wife’s injuries, defendant became aggressive and threatening toward the officer. A jury convicted defendant of second-degree assault causing serious bodily injury, menacing by the use of a deadly weapon, and obstructing a peace officer.

On appeal, defendant contended that the evidence was insufficient to establish that he committed the crime of menacing against the police officer. Evidence showed that defendant made a threat and that he placed or attempted to place the first officer in fear of imminent serious bodily injury by telling her he had a knife and approaching her in an aggressive manner. This was sufficient to support a conviction for misdemeanor and felony menacing.

Defendant contended that the record did not contain sufficient evidence to support the conviction for obstructing a peace officer because the officer had not arrested nor intended to arrest defendant at the time. The obstructing statute is not limited to officers making arrests, and there was sufficient evidence that defendant’s conduct violated the obstructing statute even though the first officer did not arrest him.

Defendant also argued that the trial court erred when it instructed the jury on criminal attempt, even though the prosecution had not charged defendant with attempt. Because defendant was charged with menacing, and menacing includes the element of attempt, the court did not err in instructing the jury on the definition of attempt.

Defendant argued that the trial court erred when it denied his motion for a new trial because his trial counsel had been ineffective. Because defendant raised this as a Crim.P. 33 motion instead of a Crim.P. 35(c) motion, the trial court’s decision to deny defendant’s Crim.P. 33 motion without a hearing was reviewed for an abuse of discretion. The Court of Appeals found that the trial court’s rulings were not manifestly arbitrary, unreasonable, or unfair because defendant failed to prove prejudice based on any alleged errors. The judgment was affirmed.

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

Colorado Court of Appeals: Evidence of Defendant’s Gang Membership Admissible to Show Motive

The Colorado Court of Appeals issued its opinion in People v. Clark on Thursday, April 23, 2015.

Murder—Evidence—Gang Membership—Collateral—Fifth Amendment Privilege—Prior Consistent Statement—Jury Instruction—Complicity—Juror Misconduct.

After getting into an altercation at a club on New Year’s Eve, defendant and Daniel Harris fired gunshots aimed at an oversized limousine, which left Darrent Williams, a member of the Denver Broncos football team, dead; two additional people wounded; and fourteen others uninjured but shaken. A jury found defendant guilty of one count of murder (extreme indifference), one count of murder (after deliberation), sixteen counts of attempted first-degree murder, two counts of second-degree assault, sixteen counts of violent crime, and one count of possession of a weapon by a previous offender.

On appeal, defendant argued that the court erred by admitting evidence and testimony regarding his gang membership, as well as expert testimony about gang origin, structure, psychology, hierarchy, and presence in Denver. Because defendant’s gang affiliation had motivated him to participate in the shooting, this evidence was admissible to show motive.

Defendant asserted that the trial court abused its discretion by precluding certain lines of inquiry during his cross-examination of three witnesses. It was not an abuse of discretion to prohibit cross-examination of the factual details underlying other incidents because this information was collateral and inadmissible. Further, defense counsel had already established that the witnesses had been dishonest in the past.

Defendant asserted that the trial court erred in its handling of two witnesses who refused to answer questions based on the Fifth Amendment’s privilege against self-incrimination. It was not an abuse of discretion for the trial court to grant Bragg’s (Harris’s brother) motion to quash the subpoena to testify before subjecting him to questioning in front of the jury. Additionally, it was not error for the court to sustain Harris’s invocation of the Fifth Amendment privilege because it was at least possible that his response could have incriminated him.

Defendant contended that the trial court abused its discretion by admitting the entire videotaped interview of Harris as a prior consistent statement. Because the court gave defense counsel extensive leeway to attack Harris’s credibility with respect to his testimony in this case and his prior interactions with police officers, admission of the entire video was necessary to give the jury the full picture of what he had said to the police.

Defendant additionally argued that the prosecution violated his due process rights because it knowingly used Harris’s false evidence to obtain his conviction, and the prosecution improperly argued inconsistent factual theories. However, there is no evidence of perjury in the record, and the trial court did not err by allowing the prosecution to present alternative legal theories in this single trial involving this single defendant.

Defendant asserted that certain jurors’ actions occurring during trial constituted juror misconduct. The affidavit tendered by defendant contained hearsay evidence that two jurors had conducted experiments on their own to weigh some of the evidence, and that an alternate juror who was removed from the case had communications with a deliberating juror about the case. Although the affidavit was based on hearsay, the trial court erred by not considering the allegations set forth in the affidavit when it denied defendant’s motion for a new trial without a hearing. Therefore, the case was remanded for an evidentiary hearing on the issue of juror misconduct.

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

Tenth Circuit: Strict Liability Offense Does Not Qualify as Crime of Violence for Sentencing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wray on Tuesday, January 27, 2015.

Reginald Gerome Wray pleaded guilty to being a felon in possession of a firearm and was sentenced to 77 months’ imprisonment and three years’ supervised release. On appeal, Mr. Wray disputed that his prior conviction for “sexual assault – 10 years age difference” constitutes a crime of violence to increase his base sentencing level. Mr. Wray argued that under the U.S. Supreme Court’s decision in Begay v. United States, 553 U.S. 137 (2008), his prior conviction should not count as a crime of violence for sentencing purposes.

The Tenth Circuit analyzed U.S.S.G. § 4B1.2 and its application note. The circuit addressed whether Mr. Wray’s offense qualified as a “forcible sex offense” under the language of the application note or if it was conduct that presented a serious risk of potential injury under the residual clause, § 4B1.2(a)(2).

The Tenth Circuit employed a categorical approach in determining whether Mr. Wray’s prior offense was a crime of violence. Analyzing Supreme Court precedent in Begay and Sykes, the Tenth Circuit found that Begay applied to strict liability or negligence crimes, while the Sykes analysis of whether the conduct was purposeful, violent, or aggressive defined the level of risk. Turning to Mr. Wray’s offense, the Tenth Circuit first addressed the government’s argument that all statutory rape offenses are necessarily forcible because minors are not legally able to consent and rejected it. Applying the reasoning of the Fourth Circuit in a similar matter, the Tenth Circuit found that not all sex offenses where there is no legal consent are forcible, and that the absence of legal consent does not preclude the possibility of actual consent. The Tenth Circuit further found that Colorado statutes specifically contemplate non-forcible sex offenses, and Mr. Wray’s offense was not categorically forcible.

Next, the Tenth Circuit evaluated whether Mr. Wray’s offense fell within the residual clause and found that it did not. Following Begay, the Tenth Circuit found that the elements of Mr. Wray’s offense indicated it was a strict liability crime, since the offender need not have knowledge of the victim’s age in order to be culpable. The Tenth Circuit found that because the crime at issue was a strict liability offense, it fell within the Begay exception and did not qualify as a crime of violence.

The case was remanded for resentencing.