August 20, 2019

Archives for September 2015

Colorado Court of Appeals: Subrogated Insurers Held Right to Pursue Claims On Behalf of Insureds

The Colorado Court of Appeals issued its opinion in American Family Mutual Insurance Co. v. American National Property & Casualty Co. on Thursday, September 24, 2015.

Inverse Condemnation—Motion for Limited Discovery.

Plaintiffs are 25 insurance companies (collectively, carriers). On March 22, 2012, the Colorado State Forest Service initiated a prescribed burn on land owned by Denver Water. On March 26, high winds carried embers from the burn onto land located outside the prescribed burn’s perimeter. What became known as the Lower North Fork Fire ignited and spread rapidly, resulting in loss of life and significant property damage.

This subrogation lawsuit followed and, with 25 insurance companies, the pleadings are “voluminous.” The carriers relied on inverse condemnation claims against the Colorado Department of Public Safety (Department) and the Denver Water Board (Denver Water).

The Department moved to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. To respond, the carriers moved to conduct limited discovery. The district court denied the motions to conduct discovery, granted the motions to dismiss, and certified the order for purposes of appeal. As to the motions to dismiss, the court found that the carriers had failed to allege a public purpose for the taking of their insureds’ properties.

The Court of Appeals first rejected the Department’s argument that the carriers had not established standing. The insureds had a right to pursue inverse condemnation claims and the carriers stood in their shoes by virtue of the alleged subrogation relationships.

The Court next addressed the carriers’ argument that the district court erred in dismissing the claims because they did plead a public purpose. To prove an inverse condemnation claim under the Colorado Constitution, a property owner must show (1) that there has been a taking or damaging of a property interest; (2) for a public purpose; (3) without just compensation; (4) by a governmental or public entity that has the power of eminent domain, but which has refuse to exercise that power. The finding of a public purpose requires inquiring into whether the condemnation’s essential purpose is to obtain a public benefit. None of the carriers’ allegations explained how the alleged taking of their insureds’ private property furthered the purposes for which the prescribed burn was initiated, and there were no allegations that the taking itself was accomplished for a public purpose. Therefore, the carriers failed to allege, and could not allege, a public purpose for the taking of their insureds’ properties.

The Court also held that the district court did not err in denying the carriers’ motion to conduct discovery to respond to the motions to dismiss. In denying the motion, the district court cited CRCP 16(b)(1), which states that, except as provided in CRCP 26(d), discovery may commence 42 days after the case is at issue, and this case was “not close to being at issue . . .” Moreover, the purpose of a CRCP 12(b)(5) is to test the legal sufficiency of a claim that, by definition, does not involve factual matters outside the pleadings. The Court agreed with the district court’s reasoning and found no abuse of discretion. The order and judgment were affirmed.

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

Colorado Court of Appeals: Foreign Judgment Must Comport with United States Law Prior to Enforcement

The Colorado Court of Appeals issued its opinion in In re Marriage of Lohman on Thursday, September 24, 2015.

Dissolution of Marriage—Foreign Judgment—Personal Jurisdiction—Uniform Interstate Family Support Act—Due Process—Support Order.

Husband and wife (a native of England) married in Colorado in 1997. Their child was born the following year. Wife moved back to England with the child in 2008 after the parties’ separation. Husband remained in Colorado. Wife petitioned for divorce in England and served husband in Colorado. Husband did not respond or participate in the English court, which entered judgment against husband for £638,000 (approximately $1,010,911). Wife then filed a notice of registration of foreign support order with the Grand County District Court, which sustained the notice of registration and ordered enforcement of the English judgment.

On appeal, husband contended that for purposes of enforcement by a Colorado court, the English court lacked personal jurisdiction over him and, therefore, the English judgment cannot constitutionally be recognized. Pursuant to the Uniform Interstate Family Support Act, the district court was required to determine not only whether the English court had personal jurisdiction over husband under the laws of England, but also whether enforcement of the English court’s order by a U.S. court was permissible under the Due Process Clause of the U.S. Constitution. Accordingly, the district court was required to adjudicate whether husband had sufficient minimum contacts with England to render constitutional (under U.S. law) the assertion of jurisdiction over him by the English court. Because the district court did not do so, its orders were reversed.

Husband also contended that the district court erred in determining that the portion of the English judgment awarding wife £423,000 to purchase a home constituted support rather than a transfer or award of property. The court’s finding that the English judgment represented a support order, rather than a property equalization payment, was not clearly erroneous and may not be overturned.

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

Colorado Court of Appeals: Promissory Note Void When Issued in Exchange for Leniency in Criminal Trial

The Colorado Court of Appeals issued its opinion in Rademacher v. Becker on Thursday, September 24, 2015.

Settlement Agreement—Promissory Note— Criminal Action—Void Against Public Policy.

Defendant and plaintiff were involved in a 10-year extramarital relationship. During a confrontation, defendant’s wife threw coffee on plaintiff and kicked over the chair she was sitting in. Wife was criminally charged with assault. After negotiating with plaintiff, defendant entered into a settlement wherein plaintiff agreed not to pursue any claims against wife or defendant and to ask the district attorney’s office to offer wife a deferred sentence. In exchange for these promises, defendant executed a $300,000 promissory note payable to plaintiff. At the same meeting where the settlement agreement was signed, plaintiff signed a letter to the district attorney indicating her desire that wife be offered a deferred sentence. Plaintiff later filed suit to enforce the note, and the jury found in favor of plaintiff. Defendant appealed.

An agreement in which money or other valuable consideration is paid in exchange for a crime victim’s efforts to obtain leniency in connection with a criminal charge is void as against Colorado public policy. Here, counsel for both plaintiff and defendant acknowledged that part of the consideration for the settlement payment was the settlement of the pending criminal matter. Because at least part of the consideration for execution of the settlement agreement and promissory note was given in an attempt to hinder or stifle the plenary prosecution against wife, the entire agreement and promissory note are void. The judgment was reversed and the case was remanded to the trial court to dismiss the action.

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

Tenth Circuit: Double Jeopardy Does Not Apply Although Inconsistent Verdicts Raise Collateral Estoppel Issues

The Tenth Circuit Court of Appeals issued its opinion in Owens v. Trammell on Tuesday, July 7, 2015.

Kenyon Owens, Joe Sanders, and Brandi Lindsey were involved in a plan to rob two brothers, Jesus and Javier Carranza. The brothers followed Lindsey home after her shift at a strip club, and Sanders demanded money from the men. They turned and ran, and Sanders shot them. Owens removed Jesus’ wallet and keys as he lay wounded, then Sanders shot Javier again, killing him, and took his wallet. Owens was charged with four counts — first degree felony murder of Javier with the predicate felony as robbery of Javier, shooting with intent to kill of Jesus, robbery of Javier with a dangerous weapon (the predicate felony for the felony murder charge), and robbery of Jesus with a dangerous weapon. The jury, after exchanging notes with the judge evidencing its confusion about the charges, convicted Owens of murder of Javier but acquitted him of the predicate felony robbery charge. He was convicted also on the charge of robbery of Jesus but acquitted on the charge of shooting Javier.

On Owens’ first appeal, the Oklahoma Court of Criminal Appeals (OCCA) addressed two sufficiency arguments: first, that the evidence presented at trial could not sustain the murder conviction or Jesus robbery conviction, and second, that the evidence must have been insufficient to convict him of felony murder because he was acquitted on the predicate felony. As to the first argument, the OCCA did not hesitate to conclude that the evidence was sufficient to support both convictions. The OCCA interpreted the second argument as a claim that the verdict was logically inconsistent, and, citing Supreme Court precedent, found that the logical inconsistency in the verdicts did not impugn the validity of the murder conviction, but relying on the jury’s notes ruled that it was far from clear that the jury chose to render an inconsistent verdict. The OCCA reversed and remanded, finding the cumulative effect of the open ended jury instruction and the judge’s failure to adequately respond to jury questions raised a substantial possibility that the jury may have convicted Owens based on a crime that was not charged, i.e., basing the felony murder on the robbery of Jesus instead of Javier.

On remand, Owens moved to dismiss the murder charge based on a Double Jeopardy violation. The trial court denied the motion, and Owens was again convicted of felony murder. Owens appealed to the OCCA, again contending that his second trial on the murder charge violated the Double Jeopardy Clause and relying on two main arguments. First, Owens argued that because greater and lesser included offenses are the “same offense” for jeopardy purposes, the acquittal on the lesser robbery charge terminated jeopardy not only as to that charge but also to the greater felony murder charge. Second, Owens argued the retrial was barred by collateral estoppel, contending the jury’s acquittal on the Javier robbery charge necessarily determined an issue of ultimate fact. The OCCA rejected both arguments, finding that although jeopardy was terminated for the robbery charge it continued for the felony murder charge, and finding that collateral estoppel could not apply because it was impossible to know what the jury intended in acquitting Owens of the Javier robbery charge while convicting him of felony murder.

Owens then filed a federal habeas petition, reasserting his double jeopardy claims. The district court denied the petition and a COA, but the Tenth Circuit granted the COA, specifically requesting the parties to address whether the prosecution for felony murder in the second trial, despite the acquittal of the underlying felony robbery charge, violate any aspect of the Double Jeopardy Clause. The Tenth Circuit appointed new counsel for Owens.

Owens made three arguments as to why the OCCA’s denial of his claim was an unreasonable application of Supreme Court precedent: (1) the OCCA failed to undertake the proper Powell analysis in determining whether the verdicts from the first trial were inconsistent; (2) the OCCA unreasonably extended the Supreme Court’s collateral estoppel analysis to his case, and (3) the OCCA unreasonably relied on the principle of continuing jeopardy and short-circuited the collateral estoppel analysis. The Tenth Circuit addressed each argument in turn, giving deference to the provisions of AEDPA.

The Tenth Circuit first addressed Owens’ argument that the OCCA erred in determining that the verdicts in the first trial were “truly inconsistent” and thus erred in relying on that inconsistency to reject his collateral estoppel argument. The Tenth Circuit noted that it had appointed Owens new counsel for this appeal, and counsel’s argument was well-reasoned and compelling, but it had not been raised below and was therefore waived. The Tenth Circuit nonetheless rejected Owens’ argument, finding that resolving Owens’ argument would require inquiries into the jury’s deliberations, and the court would not undertake such an inquiry. Because the law was not clearly established regarding how to determine whether a verdict is “truly inconsistent,” the Tenth Circuit deferred to AEDPA’s “generous rules of deference” and rejected the argument. The Tenth Circuit noted that if this were a direct review the outcome might be different for Owens on this claim.

The Tenth Circuit next addressed Owens’ argument that the OCCA erred in its application of Ashe‘s collateral estoppel principles to his case. The Tenth Circuit agreed with the State that the OCCA did not rely on Ashe in its collateral estoppel analysis but rather based its decision entirely on Powell. The Tenth Circuit found that the Powell truly inconsistent test could defeat the preclusive effect of the acquittal, and rejected Owens’ argument.

Finally, the Tenth Circuit considered Owens’ claim that he was not subject to continuing jeopardy on the felony murder charge. The Tenth Circuit again rejected his arguments, finding that Owens misunderstood the ruling of the OCCA.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Unpublished Opinions, 9/29/2015

On Tuesday, September 29, 2015, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Ordaz

Canfield v. Douglas County

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


Colorado Court of Appeals: Momentary Eye Contact Sufficient to Support Bail Bond Violation Charge

The Colorado Court of Appeals issued its opinion in People v. Serra on Thursday, September 28, 2015.

Bail Bond Conditions— Protective Order—Harassment—Evidence—Contact—Character—Prosecutorial Misconduct.

Serra was the elected district attorney for the Seventh Judicial District when he was arrested and charged with unlawful sexual contact and extortion. The victim in this case, who had worked for Serra at the district attorney’s office for several years before his arrest, was also a named victim in the sexual contact case. Serra was released on a bail bond pending trial. A condition of the bond was that he have no contact with the victim. Several months before the date of the preliminary hearing in the unlawful sexual contact case, Serra encountered the victim at a department store. Based on that encounter, he was charged and convicted of violation of his bail bond conditions, violation of a protective order, and harassment.

On appeal, Serra argued that the evidence was insufficient to support his convictions. The evidence that Serra happened upon the victim, stared at her for 10 to 15 seconds, and made a facial expression supported his convictions for violation of bond conditions and violation of a protection order. The evidence was insufficient, however, to support his conviction for harassment because there was no evidence that he followed the victim. Therefore, the harassment conviction was vacated.

Serra argued that the trial court erred in defining the term “contact” for the jury and that it incorrectly defined the term. The term “contact,” as used in CRS §§ 18-8-212 and 18-6-803.5, has a commonly accepted and understood meaning. Thus, a further clarifying definition was not required to inform the jury of the governing law. However, the court’s definition of “contact” did not state the plain and ordinary meaning of the term. In light of the minimal amount of evidence establishing the element of contact, this error was not harmless. Therefore, Serra’s convictions for violation of bond conditions and violation of a protection order were reversed.

Serra also argued that the trial court erred in admitting evidence of the victim’s character for truthfulness. Because defense counsel’s cross-examination of the victim did not amount to an attack on her character for truthfulness, testimony that she was a truthful person was inadmissible. On remand, the trial court should not admit evidence that the victim is truthful unless her character for truthfulness is attacked first.

Serra contended that evidence of his bad character was improperly admitted. The witnesses’ testimony about their experiences with Serra’s smirk constituted “other acts” evidence. It was relevant here because it established that Serra used a smirk to communicate. If the testimony is offered as evidence on retrial, the trial court likewise must evaluate it for admissibility under CRE 404(b).

Finally, Serra contended that some of the statements the prosecutor made in closing were improper. On remand, the prosecutor should only refer to facts admitted in evidence and must not use the words “lie,” “BS,” “deceit,” or similar terms to refer to Serra’s testimony or defense counsel’s argument.

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

Colorado Court of Appeals: Ex-Girlfriend Lacked Actual and Apparent Authority to Consent to Search

The Colorado Court of Appeals issued its opinion in People v. Morehead on Thursday, September 25, 2015.

Warrantless Search—Consent—Actual and Apparent Authority.

After defendant kicked his girlfriend, N.H., out of his house, she gave consent for the police to search defendant’s residence. Without a warrant, the police searched a portion of defendant’s residence and found illegal gambling machines and padlocked doors. A second search was conducted pursuant to a warrant, and that search revealed incriminating evidence that defendant was involved in dealing methamphetamine and illegal gambling. He was found guilty of possession of methamphetamine, possession of methamphetamine with intent to distribute, and seven gambling charges.

On appeal, defendant contended that the trial court erred in determining that N.H. had authority to consent to the warrantless search of his house. At the relevant time, N.H. was given access to the house to move her possessions out. Thus, N.H. did not enjoy “mutual use and joint access or control” of the residence “for most purposes.” Accordingly, the People failed to prove that N.H. had actual authority to consent to the search of the common areas of defendant’s house. Further, the objection by defendant’s son to N.H.’s entry, combined with the strong appearance that she was moving out and had limited access to at least one critical entrance to the residence, should have alerted the police to inquire further into whether N.H. had authority to enter. Thus, she also did not have apparent authority to consent to the search, and the warrantless search of defendant’s house violated the Fourth Amendment. Because it could not be determined whether defendant’s conviction was surely unattributable to the illegal search, the trial court’s suppression order and defendant’s conviction were reversed, and the case was remanded for further proceedings.

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

Colorado Court of Appeals: Officer’s Observation of Used Marijuana Pipe Sufficient to Provide Probable Cause for Search of Car

The Colorado Court of Appeals issued its opinion in People v. Verigan on Thursday, September 25, 2015.

Warrantless Search of a Vehicle—Probable Cause—Motion to Suppress Evidence—Miranda Warning—Voluntary Statements.

After Verigan’s vehicle was pulled over for a routine traffic stop, in which Verigan was a passenger in the front seat, officers found methamphetamine and drug paraphernalia in the vehicle. She was found guilty of possession of two grams or less of a controlled substance and possession of drug paraphernalia.

On appeal, Verigan argued that the evidence obtained from the search of her vehicle should have been suppressed because Officer Mitchell’s observation of a used marijuana pipe and an unlabeled pill bottle, without more, did not give the officers probable cause to search the vehicle. The officer’s observation of a used marijuana pipe containing a burned substance that the officer could reasonably infer to be marijuana supported a reasonable belief that the vehicle could have contained marijuana, an illegal drug at the time of the search in 2011. Therefore, there was probable cause for the search of Verigan’s car, and the trial court properly denied her motion to suppress the evidence discovered during that search.

Verigan further argued that the trial court erred by denying her motion to suppress the statements she made to police at the scene and later at the station. Based on the totality of the circumstances, a reasonable person in Verigan’s situation would have had reason to believe that her freedom of action had been curtailed to the degree associated with a formal arrest and that she was in custody for Miranda purposes even though she had not been given a Miranda warning. Accordingly, the trial court erred by failing to suppress the statements she made to the officers before the Miranda advisement was given. However, because all of the improperly admitted statements that Verigan made in the pre-advisement interrogation were voluntary, and she repeated those statements in her properly admitted post-advisement statement, the improper admission of the pre-advisement statements was harmless beyond a reasonable doubt. The judgment was affirmed.

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

Tenth Circuit: Unpublished Opinions, 9/28/2015

On Monday, September 28, 2015, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Schlecht v. Lockheed Martin Corp.

United States v. Richardson

Casillas-Casillas v. Lynch

Vigil v. Colvin

Carrillo v. Zupan

Reid v. United States

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

Help Restore Flood-Damaged Areas Along Poudre River

The American Bar Association, Colorado Bar Association, and Boulder County Bar Association are joining Wildlands Restoration Volunteers on Sunday, October 25, 2015, to repair the Skin Gulch area along the Poudre River near Fort Collins. Skin Gulch was devastated by the High Park fire in 2012, and was again damaged by the massive floods of September 2013.

Attorneys and their friends and families aged 12 and older are welcome to join the restoration efforts for all or a part of the day on Sunday, October 25 from 9 a.m. to 4 p.m. Breakfast will be served at 8 a.m. and lunch will be provided. If you are interested in participating, please send an email with your name and cell phone number to Ann Rhodes at Directions will be provided upon RSVP.

Tenth Circuit: Unpublished Opinions, 9/25/2015

On Friday, September 25, 2015, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Williams v. Henderson

Realty International Associates, Inc. v. Capital Fund Securities

Kim v. Obama

United States v. Whittaker

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

Learn to Negotiate Effectively – Gain the Edge!®

Everyone negotiates. If you are a lawyer – regardless of your practice area – your ability to negotiate effectively may be one of the most critical skills you possess.

Like any skill we possess, our negotiation techniques will grow and develop as we feed them. Our upcoming Gain the Edge!® Negotiation Strategies for Lawyers seminar with Marty Latz will help lawyers hone their skills and become more effective negotiators. The video clip above shows you just one of Marty’s tips for handling negotiations successfully.

As Marty explained to us “There’s basically a right way to negotiate, and there’s a wrong way to negotiate.” While most of us tend to wing it while negotiating, Marty will share decades of proven expert research to help you sharpen your negotiating skills by navigating away from an instinctive or intuitive mindset towards a more strategic method.

This program has something for everyone. “Everybody benefits. Negotiation is truly a life skill,” as Marty says. Whether you are a litigator, family lawyer, or real estate practitioner, negotiations come into your practice. Perhaps you are trying to close a business deal, encountering discovery disputes, trying to solve a taxation issue, or negotiating your office lease. Whatever it is that you do, this program will provide you tips for negotiating in any professional legal environment. By attending, you’ll gain tools to negotiate more successfully with all of the people you encounter: your bosses, co-workers, employees, clients, and other lawyers.

We hope you’ll join us and Marty for Gain the Edge! ® Negotiation Strategies for Lawyers. You can learn more about the topics Marty will cover by viewing the program brochure. As a bonus, each attendee will receive a copy of Marty’s book, Gain the Edge! Negotiating to Get What You Want. To reserve your spot now, click here to register online or call (303) 860-0608.

Then mark your calendar and come prepared to improve your skills and have fun at the same time. Marty’s other seminar attendees have told him that they “not only find [the information] useful, practical, and interesting but they also really enjoy themselves.”

We hope you’ll enjoy it too!

CLE Program: Gain the Edge! ® Negotiation Strategies for Lawyers

This CLE presentation will take place Friday, October 2, 2015 at the CLE offices. All class attendees will receive a copy of Marty Latz’s book, Gain the Edge! Negotiating to Get What You Want. Live program only – click here to register.

Editor’s Note: A version of this post originally appeared on the blog of the Legal Education Society of Alberta on July 28, 2015. Reprinted with permission.