August 18, 2019

Archives for September 30, 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.