August 23, 2019

Archives for November 2015

Changes to 10th Circuit Local Rules and Federal Rules of Appellate Procedure Posted

The Tenth Circuit Court of Appeals has posted changes to its local rules and the Federal Rules of Appellate Procedure, which will take effect January 1, 2016. The changes to the Tenth Circuit Local Rules are outlined in a memo, which is available here. A redline of the changes to the Federal Rules of Appellate Procedure, including the corresponding Tenth Circuit Local Rules, is available here.

The Federal Rules of Civil Procedure are also changing, effective December 1, 2015. The most significant change in the new Rules is that the scope of discovery is changing, as outlined below:

Rule 26.   Duty to Disclose; General Provisions Governing Discovery

(b)    Discovery Scope and Limits.

(1)    Scope in General.  Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.  Information within this scope of discovery need not be admissible in evidence to be discoverable.— including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

A redline of the proposed changes to the Federal Rules of Civil Procedure is available here.

Tenth Circuit: Unpublished Opinions, 11/27/2015

On Friday, November 27, 2015, the Tenth Circuit Court of Appeals issued 2 published opinions and 11 unpublished opinions.

United States v. Yanez-Rodriguez

Graham v. Teller County, Colorado

Daves v. Wilson

United States v. Bojorquez-Villalobos

Fogg v. Colvin

United States v. Owens

Cink v. Grant County, Oklahoma

McClaflin v. Burd

United States v. Bell

Turner v. Falk

Canal Insurance Co. v. Montello, Inc.

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

Tenth Circuit: Unpublished Opinions, 11/25/2015

On Wednesday, November 25, 2015, the Tenth Circuit Court of Appeals issued 1 published opinion and 7 unpublished opinions.

Duncan v. Hickenlooper

Jemaneh v. University of Wyoming

Kannaday v. Ball

Rowley v. ADP Detective Morant

Tiedeman v. Church of Jesus Christ of Latter Day Saints

United States v. Wells Fargo Home Mortgage

United States v. Falcon-Sanchez

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

Happy Thanksgiving from CLE in Colorado

happy-thanksgiving

Happy Thanksgiving from all of us at CLE in Colorado. In honor of the holidays, we will close at 2 p.m. on Wednesday, November 25 and will be closed on Thursday and Friday, November 26 and 27, all day. You can still order homestudies and books or register for programs online on our website, http://cle.cobar.org.

Have a great Thanksgiving!

Colorado Supreme Court: Complicitor Liability Not Limited to Crimes Containing Culpable Mental State

The Colorado Supreme Court issued its opinion in People v. Childress on Monday, November 23, 2015.

Complicity—Mental State Requirement of Complicitor Liability—Applicability of Complicitor Liability to Strict Liability Offenses.

The People petitioned for review of the court of appeals’ judgment vacating defendant’s conviction of vehicular assault while operating a motor vehicle under the influence of alcohol or drugs. Although it was undisputed that defendant was not driving the vehicle in question, the jury was instructed that he could be found guilty as a complicitor. The court of appeals concluded that because vehicular assault while under the influence is designated a strict liability offense, it requires no culpable mental state on the part of the driver. It further found that the Supreme Court had previously held complicitor liability inapplicable to crimes lacking a culpable mental state requirement.

The Supreme Court reversed the judgment of the court of appeals. The Court reconsidered and clarified the reach and requirements of complicitor liability in this jurisdiction and determined that, as clarified, complicitor liability can extend to strict liability offenses. It remanded the matter to the court of appeals with directions to address any other of defendant’s assignments of error possibly impacting his conviction of vehicular assault.

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

Colorado Supreme Court: School Board’s Finding of Fact Must Be Warranted by Hearing Officer’s Findings

The Colorado Supreme Court issued its opinion in Ritzert v. Board of Education of the Academy School District No. 20 on Monday, November 23, 2015.

Teacher Employment, Compensation, and Dismissal Act—Procedure for Dismissal—Insubordination.

In this case, the Supreme Court considered whether a school board’s decision to dismiss a non-probationary teacher for insubordination, despite a hearing officer’s recommendation that the teacher be retained, was arbitrary, capricious, or legally impermissible under the Teacher Employment, Compensation, and Dismissal Act of 1990. When a teacher faces charges of insubordination, the hearing officer and school board must consider whether the teacher has intentionally refused to obey a “reasonable order.” The Court held that whether a school district’s order is reasonable is a finding of ultimate fact within the discretion of the governing school board. Still, that finding must be fully warranted by the hearing officer’s findings of evidentiary fact. This requires a school board to assess reasonableness on a case-by-case basis after consideration of all facts found by the hearing officer. The Court concluded that the school board in this case failed to adequately assess the reasonableness of the school district’s order, and therefore its decision to dismiss the teacher for insubordination was arbitrary and capricious. The Court reversed the court of appeals’ judgment and remanded the case to the school board to reinstate the teacher.

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

Colorado Supreme Court: Warrantless Seizure of Laptop Computer Satisfied Plain View Exception

The Colorado Supreme Court issued its opinion in People v. Swietlicki on Monday, November 23, 2015.

Warrantless Seizures—Plain View Exception—Fellow Officer Rule.

In this interlocutory appeal, the Supreme Court reversed the trial court’s order  suppressing evidence found on defendant’s laptop computer after police seized the laptop without a warrant. The Court held that the warrantless seizure was justified under the plain view exception to the warrant requirement. In so holding, the Court clarified that the “immediately apparent” requirement of the plain view exception demands only that the seizing officer have probable cause to associate the item with criminal activity without conducting a further search. The Court also determined that the fellow officer rule applies to probable cause determinations in the context of plain view seizures.

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

Tenth Circuit: Unpublished Opinions, 11/24/2015

On Tuesday, November 24, 2015, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

United States v. Cunningham

United States v. Wilson

United States v. Ailsworth

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

CJD 11-02, Pilot Project Rules, Repealed and Reenacted by Colorado Supreme Court

On Monday, November 23, 2015, the Colorado Supreme Court issued repealed and amended Chief Justice Directive 11-02, “Adopting Pilot Rules for Certain District Court Civil Cases.” The amendments affect cases filed between January 1, 2012, and June 30, 2015. For all cases filed on or after July 1, 2015, the Colorado Rules of Civil Procedure have been amended to included provisions of the pilot project rules.

For the amended version of CJD 11-02, click here. For all of the Colorado Supreme Court’s Chief Justice Directives, click here.

Colorado Court of Appeals: No Requirement that Complaint be “Well Pleaded” Before Entry of Default

The Colorado Court of Appeals issued its consolidated opinion in Dickinson v. G4S Secure Solutions (USA) Inc. and Dickinson v. Lincoln Building Corporation on Thursday, November 19, 2015.

Premises Liability—Entry of Default—Comparative Negligence and Pro Rata Liability.

This is a consolidated appeal in a premises liability case brought by Charlene Dickinson against Lincoln Building Corporation (LBC); Wells Fargo Bank National Association (Wells Fargo); and G4S Secure Solutions (USA), Inc. (G4S). Dickinson sought damages for shoulder injuries sustained when she attempted to open a door leading to her workplace that allegedly was locked or malfunctioning.

LBC and Wells Fargo admitted they were served but failed to enter an appearance or file an answer. The district court entered default against them, and they filed a joint motion to set it aside, which the court denied. On appeal, LBC and Wells Fargo argued the default should have been set aside because it was entered in violation of their right to due process of the law and it was not well pleaded. The Court of Appeals disagreed. LBC and Wells Fargo were properly served with the complaint and summons, and they failed to enter an appearance or file an answer until almost a year later, well after the court had entered default. As to the argument that the trial court had to first find that the complaint was “well-pleaded,” the Court could find absolutely no support for any such requirement.

LBC and Wells Fargo also argued that they should have been permitted to present evidence of Dickenson’s comparative negligence and G4S’s pro rata liability at the damages hearing after entry of default. The Court disagreed, finding that the default constituted an admission of liability that precluded them from thereafter presenting evidence of others’ comparative fault. The damages hearing was only to determine the amount of damages owed and any discussion of liability underlying that award is prohibited.

Dickenson argued that the trial court erred in rejecting a tendered negligence per se instruction as to G4S. The Court affirmed, finding that the tendered instruction did not apply to G4S, a security company, but to the manufacturer of the door’s locking mechanism. Moreover, even if it did apply, no evidence was presented that the code section regarding the door’s locking mechanism was intended to protect against injuries stemming from attempting to open a locked exit door. The judgments and orders were affirmed.

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

Colorado Court of Appeals: Trial Court Lacks Discretion to Vary Downward from Mandatory Minimum Sentence

The Colorado Court of Appeals issued its opinion in People v. Rice on Thursday, November 19, 2015.

Distribution of Controlled Substance—Possession With Intent to Distribute—Conspiracy to Distribute—Presumptive Sentencing Range—Mitigating Circumstances.

Rice was charged with distribution of a controlled substance, possession with intent to distribute, and conspiracy to distribute based on Rice’s selling cocaine and discovery of nearly 5 ounces of cocaine hidden in Rice’s car pursuant to arrest and search warrants. Rice pleaded guilty to distribution of a schedule II controlled substance pursuant to CRS § 18-18-405(1), (2)(a)(I), and (3)(a)(I).

On appeal, Rice contended that the sentencing court incorrectly interpreted CRS § 18-18-405(3)(a)(I) to preclude a sentence of less than four years based on extraordinary mitigating circumstances pursuant to CRS § 18-1.3-401(6). CRS 18-1.3-401(1)(a)(V)(A) mandates that the presumptive sentencing range for a class 3 felony is four to twelve years in the Department of Corrections (DOC) with a mandatory five-year period of parole. CRS 18-18-405(3)(a) is a sentencing enhancement statute that requires a mandatory minimum sentence, which in this case was 4 to 16 years in the custody of the DOC. Accordingly, the trial court did not have discretion to impose a sentence below the minimum sentence under CRS § 18-1.3-401(6). Rice’s sentence was affirmed.

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

Colorado Court of Appeals: Jury Instructions on Implied Warranty of Suitability Insufficient

The Colorado Court of Appeals issued its consolidated opinion in Rogers v. Forest City Stapleton, Inc. and Rogers v. Forest City Stapleton, Inc. on Thursday, November 19, 2015.

Implied Warranty of Suitability—Developer—Homeowner—Vacant Lot—Nuisance—Sanctions—Discovery Violation.

Defendants (collectively, Forest City) served as the master developer for the redevelopment of the old Stapleton International Airport. Forest City sold the vacant residential lot at issue here to a homebuilder, with which plaintiff Rogers contracted to build a home. Rogers paid the builder an extra fee to include a basement that could later be finished. After learning that his lot was not suitable for a home with a basement that could be finished, Rogers brought claims for breach of implied warranty, nuisance, and negligent misrepresentation.

On appeal, Forest City argued that the trial court erred by instructing the jury that it could find that an implied warranty runs from a developer to a homeowner under the circumstances of this case. An implied warranty of suitability exists between a developer of a vacant lot and the owner of a home on that lot who is not the first purchaser if (1) the developer improves the lot for a particular purpose, and (2) all subsequent purchasers rely on the developer’s skill or expertise in improving the lot for that particular purpose. Here, the trial court did not adequately instruct the jury on this law. Consequently, the judgment was reversed and the case was remanded for a new trial on the implied warranty claim.

Forest City also argued that the trial court erred in denying its motion for judgment notwithstanding the verdict on Rogers’s nuisance claim, arguing that there was insufficient evidence to support the nuisance verdict as a matter of law. Because the jury was instructed that Forest City placing RABC in the roads was a necessary element of the nuisance claim, and the record reveals no evidence that Forest City placed RABC, or anything else, in the roads in Stapleton, the evidence was insufficient to support the jury’s nuisance verdict. The trial court therefore erred by denying Forest City judgment notwithstanding the verdict on that claim pursuant to CRCP 59(e)(1).

Rogers argued that the trial court erred in the amount of sanctions awarded to Rogers and against Forest City’s counsel for the late disclosure of discovery documents. Because the trial court found that (1) the late disclosed documents were of “slight use” to Rogers, (2) Forest City’s counsel acted with “candor and professionalism,” and (3) the violation was an unintentional “oversight,” the trial court acted within its broad discretion by awarding only $10,000 of the $90,000 that Rogers requested.

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