April 19, 2019

Archives for August 20, 2015

Tenth Circuit: Unpublished Opinions, 8/20/2015

On Thursday, August 20, 2015, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Martinez v. Gonzales

Case summaries are not provided for unpublished opinions.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

Running Past Our Limits 2015 (Part 2): Moving on Purpose

rhodesMeet John Pepper, my new role model:

My walking companion, John Pepper, was diagnosed with Parkinson’s disease, a movement disorder, over two decades ago. He first started getting symptoms nearly fifty years ago. But unless you are a perceptive and well-trained observer, you would never know it. Pepper moves too quickly for a Parkinson’s patient. He doesn’t appear to have the classic symptoms: no shuffling gait, no visible tremor when he pauses or when he moves; he does not appear especially rigid, and seems able to initiate new movements fairly quickly; he has a good sense of balance. He even swings his arms when he walks. He shows none of the slowed movements that are the hallmark of Parkinson’s. He hasn’t been on anti-Parkinson’s medication for nine years, since he was sixty-eight years old, yet appears to walk perfectly normally.

In fact, when he gets going at his normal speed, I can’t keep up with him. He’s now going on seventy-seven and has had this illness, which is defined as an incurable, chronic, progressive neurodegenerative disorder, since his thirties. But instead of degenerating, John Pepper has been able to reverse the major symptoms, the ones that Parkinson’s patients dread most, those that lead to immobility. He’s done so with an exercise program he devised and with a special kind of concentration.

From The Brain’s Way of Healing, by Norman Doidge, M.D.

John Pepper’s and my movement challenges are remarkably similar, plus we have three key things in common: an “incurable, chronic, progressive neurodegenerative disorder,” an “exercise program he devised” and “a special kind of concentration.” His issue is Parkinson’s. Mine is MS. His exercise program is walking. Mine is running on what a friend calls “an elliptical machine on steroids.” As for concentration,” the key to John Pepper’s walking is that he does it consciously. Same with me.

Most people walk unconsciously; that’s why they can also chew gum, talk, and text at the same time. Not so for John Pepper: his mind has to stay on the job; if he gets distracted, his symptoms come back. It’s the same for me. I’ve been getting gait-training rehab this year, and developed a mantra I chant to myself when I walk: “wide stance, bend your knees, pick up your feet….” If I leave it for a single step, my right foot immediately drags. I stumble, or hear the sole of my shoe scuff against the pavement. I’ve lost concentration. Pause. Take a breath. Regain focus. Take the next step.

John Pepper has a couple decades of practice on me; he can walk and talk at the same time. I’m not there yet. When I first started my new walking practice, my wife sometimes came with me. We’d hold hands and talk. Now I mostly go alone, or if she comes with me, we don’t hold hands and we don’t talk. I need to concentrate.

I wonder if I could learn to run the same way. Elite marathoners churn out 180 steps per minute. For a 2:10:00 marathon, that’s 23,400 steps. That’s a lot of focus, a lot of mantras chanted. But it may not be as far-fetched as it sounds, because of a third thing John Pepper and I have in common: a fascinating bit of brain functioning that backs up what we’re doing.

We’ll talk about that next time.

This year’s fourth annual Running Past Our Limits series is an abbreviated version of a longer series I posted on my personal blog earlier this year. You can go there to get the whole thing if you like!

Finalists Selected for San Miguel County Court Vacancy

On Wednesday, August 19, 2015, the Colorado State Judicial Branch announced the selection of three nominees to fill a vacancy on the San Miguel County Court, effective immediately. The three nominees are Jennifer S. Fox, Sean K. Murphy, and Susanne J. Ross, all of Telluride. Jennifer Fox a solo practitioner at the Law Office of Jennifer Fox, where she practices in many areas including licensing, landlord/tenant, contracts, criminal defense, and litigation. Sean Murphy is the owner of Arroyo Gallery and Wine Bar in Telluride and formerly practiced tax law in New York. Susanne Ross is a solo practitioner in Telluride, where she practices in the areas of immigration, including permanent residency, waivers, visas, and citizenship; DUI law; and criminal defense.

Under the Colorado Constitution, the governor has 15 days from August 19 in which to select one of the nominees for appointment. Comments regarding any of the nominees may be submitted to the governor at gov_judicialappointments@state.co.us. For more information about the nominees and the vacancy, click here.

Colorado Court of Appeals: Short-Term Rentals Not Prohibited as Commercial Use Under Association Covenants

The Colorado Court of Appeals issued its opinion in Houston v. Wilson Mesa Ranch Homeowners Association, Inc. on Thursday, August 13, 2015.

Restrictive Covenants—Meaning of “Residential” and “Commercial.”

Wilson Mesa Ranch is a subdivision subject to protective covenants enforced by the Wilson Mesa Ranch Homeowners Association’s board of trustees. The covenants provide that all tracts are residential and should not be occupied or used for commercial or business purposes.

Houston began renting out his single-family residence in that subdivision for short-term vacation rentals. The board then adopted an amendment prohibiting Association members from renting out their properties for periods of fewer than thirty days without board approval. Each violation was subject to a $500 fine. Houston challenged the amendment, and the board responded that short-term rentals were a commercial use already prohibited under the covenants. Houston took two new reservations, and the board fined him $500 for each violation. Houston filed this declaratory judgment action. The district court entered judgment in favor of Houston.

The Court of Appeals noted that it was undisputed that the covenants did not expressly prohibit short-term rentals. With no Colorado case law for guidance, the Court looked to the plain meaning of the covenant and cases from other jurisdictions. The Court agreed with other jurisdictions that have held that mere temporary or short-term use of a residence does not preclude that use from being residential. It also held that even if it were to find ambiguity in this phrase, it would be required to adopt the construction of “residential” that favors the free and unrestricted use of Houston’s property. The Court also agreed with other jurisdictions that short-term vacation rentals are not barred by the commercial use prohibition.

The Association argued that the district court erred in finding that the amendment was arbitrary and therefore unenforceable. The Court held that it was unenforceable because the board did not have the authority to adopt a procedure to enforce a nonexistent covenant provision. The judgment was affirmed.

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

Colorado Court of Appeals: No Error in Denial of Presentence Confinement Credit for Nonresidential Corrections Program

The Colorado Court of Appeals issued its opinion in People v. Pimble on Thursday, August 13, 2015.

Sentence—Presentence Confinement Credit—Nonresidential Community Corrections Program.

Defendant pleaded guilty to possession with intent to distribute a schedule II controlled substance and attempted first-degree aggravated motor vehicle theft. The court initially sentenced her to twelve years in community corrections and later reduced this sentence to six years. Her community corrections placement was subsequently terminated. The court then resentenced defendant to six years in the custody of the Department of Corrections (DOC) and granted defendant credit for time served. However, the court did not give credit for her time served in the nonresidential program.

On appeal, defendant contended that she was entitled to presentence confinement credit (PSCC) for time spent in a nonresidential community corrections program, and the court erred by refusing to amend the mittimus to include this as time served. A defendant resentenced to DOC custody is entitled to PSCC for any time served in a residential community corrections facility. However, a defendant must be confined to receive PSCC. Because defendant was not confined in the nonresidential program, she was not entitled to PSCC for this period of time. The order was affirmed.

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

Tenth Circuit: Unpublished Opinions, 8/19/2015

On Wednesday, August 19, 2015, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Losee v. Morrell

LNV Corp. v. Hook

Hook v. United States

Peoples v. Falk

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