August 26, 2019

Archives for November 12, 2015

The Culture of Law (Part 14): Where Culture is Trending, Continued

rhodesContinuing with Iain McGilchrist’s predictions about current cultural trends:

The world as a whole would become more virtualized, and our experience of it would be increasingly through meta-representations of one kind or another; fewer people would find themselves doing work involving contact with the real, “lived” world, rather than with plans, strategies, paperwork, management and bureaucratic procedures. In fact, more and more work would come to be overtaken by the meta-process of documenting or justifying what one was doing or supposed to be doing — at the expense of the real job in the living world.

Technology would flourish, . . . but it would be accompanied by a vast expansion of bureaucracy, systems of abstraction and control.

[C]onsiderations of quantity might come actually to replace considerations of quality altogether, and without the majority of people being aware that anything had happened.

[C]onsciousness changes its nature in work geared to technological production . . . which means the development of a system that permits things to be reproduced endlessly, and enforces submergence of the individual in a large organization or production line; “measurability,” in other words the insistence on quantification not qualification; “componentiality,” that is to say reality reduced to self-contained units, so that everything is analyzable into constituent components, and everything can be taken apart and put together again in terms of these components. . . .

The impersonal would come to replace the personal. There would be a focus on material things at the expense of the living.

[I]individualities would be ironed out and identification would be by categories: socioeconomic groups, races, sexes, and so on, which would also feel themselves to be implicitly or explicitly in competition with, and resentful of, on another. Paranoia and lack of trust would come to be the pervading stance within society both between individuals and such groups, and would be the stance of government towards its people.

Panoptical control would become an end in itself, and constant CCTV monitoring, interception of private information and communication, the norm.

Measures such as a DNA database would be introduced.

[P]eople of all kinds would attach an unusual importance to being in control. Accidents and illnesses, since they are beyond our control, would therefore be particularly threatening and would, where possible, be blamed on others.

According to the left hemisphere view, death is the ultimate challenge to its sense of control, and, on the contrary robs life of meaning. It would therefore have to become a taboo, while, at the same time sex, the power of which the right hemisphere realizes is based on the implicit, would become explicit and omnipresent.

There would be a preoccupation, which might even reach to be an obsession, with certainty and security.

There would be a complete failure of common sense, since it is intuitive and relies on both [brain] hemispheres working together.

Anger and aggressive behavior would become more evident in our social interactions.

One would expect a loss of insight, coupled with an unwillingness to take responsibility, and this would reinforce the left hemisphere’s tendency to a perhaps dangerously unwarranted optimism.

We could expect a rise in the determination to carry out procedures by rote, and perhaps an increasing efficiency at doing so, without this necessarily being accompanied by an understanding of what they mean.

More next time, plus commentary and wrap-up.

Kevin Rhodes’s new book is Running For My Life: When Impossible is the Only Option. This is from the publisher: “Running For My Life is for life athletes: people who live with fire and focus. Athletes, entrepreneurs, executives, artists… whatever our sphere, we take life’s extreme challenges head on. We need a strong inner game to do that. This book guides us to the core source of our greatest power: personal ethos, that inner life that makes us uniquely who we are and defines what we will do, impossible or not.” Click here or on the book cover for further information.

Colorado Court of Appeals: Reservation of Rights in 1950 Deed Conveyance Preserved Mineral Interests

The Colorado Court of Appeals issued its opinion in Owens v. Tergeson on Thursday, November 5, 2015.

Mineral Rights—Summary Judgment.

Plaintiffs and defendants both asserted they were the rightful owners of certain mineral interests located in four adjacent tracts of land (Tracts A–D) in Weld County. The claims revolved around an interpretation of two warranty deeds dated November 25, 1950 (1950 Deeds). One deed conveyed Tract A; the other conveyed Tracts B–D. The disagreement was whether the language in the 1950 Deeds reserved all oil, gas, and other mineral interests in the land to the original grantors or fully conveyed those interests to the deeds’ grantees. Plaintiffs argued that as successors-in-interest to the deeds’ grantors, they were the rightful owners of the mineral rights reserved in the deeds. Defendants, as successors-in-interest to the grantees, argued they owned the mineral rights.

Defendants also asserted that a 1973 quiet title action (1973 Action) and a subsequent conveyance also gave them ownership in at least some of the disputed mineral rights. Plaintiffs argued that the 1973 Action was void because they were not named as parties and their predecessors-in-interest were not properly served. On cross-motions for summary judgment, the district court ruled in favor of plaintiffs, and the Court of Appeals affirmed.

The Court noted that the clear modern rule that a reservation of mineral interests referenced only in a deed’s habendum clause is effective despite the absence of a similar restriction in the deed’s granting clause. In other words, the deed is read as a whole. The 1950 Deeds both contained clear reservation of mineral interests contained only in the habendum clauses. The Court found it clear that the parties intended the mineral rights to be reserved to the grantors.

The parties agreed that, based on the Court’s interpretation of the 1950 Deeds, the 1973 Action only affected Tract A. The district court held the 1973 Action void because of inadequate service of process on plaintiffs’ predecessors-in-interests. They were served only by publication based on assertions that their address was unknown notwithstanding the 1950 Deeds listing the address as “Tulsa, Oklahoma” and a 1960 oil and gas lease (1960 Lease) also of public record listing a specific street address in Tulsa. The district court voided the 1973 Action judgment for failure to use due diligence in searching for an address and withholding pertinent information when moving for service by publication. The Court agreed with the district court’s analysis. It rejected an argument by defendants that they only had to demonstrate there was no address in Colorado for the defendants in the 1973 Action. The judgment was affirmed.

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

Colorado Court of Appeals: Domestic Relations Court Lost Jurisdiction Five Years After Case Ended

The Colorado Court of Appeals issued its opinion in Fritsche v. Fritsche Thoreson on Thursday, November 5, 2015.

Divorce—Modification of Decree—Statute of Limitations—Fraud, Theft and Conversion.

Husband and wife divorced in April 2007. In January 2013, wife allegedly disclosed, for the first time, income of $69,399 that she had earned in 2011 from an employment-related lawsuit. In July 3013, wife filed sworn financial statements that allegedly disclosed, for the first time, a pension from IBM in the amount of $111,575.94. In November 2013, husband filed a motion to modify the final decree. The court did not rule on the motion within the 63-day period, as required by CRCP 59(j), and therefore it was deemed denied in January 2014. In June 2014, husband filed a motion for relief from judgment under CRCP 60(a) and (b), which was denied as untimely. Husband then filed an equitable action in district court, asserting fraud, theft, and conversion claims against wife. Wife moved to dismiss, and the district court granted the motion.

The Court of Appeals first held that a party to the original domestic relations proceedings may file an independent equitable action in district court related to the domestic relations court proceedings aft the expiration of that five-year period. The Court then affirmed the district court’s conclusion that husband failed to state a claim upon which relief could be granted. Relief pursuant to an independent equitable action is available in cases of unusual and exceptional circumstances, including fraud. However, a party challenging a judgment previously entered in a domestic relations case by “seeking relief through an independent equitable action based on fraud must establish extrinsic fraud as opposed to mere intrinsic fraud.” Husband’s claims of perjury and failure to disclose are forms of intrinsic fraud, and therefore do not warrant relief through an independent action, and his claims of theft and conversion do not present unusual or exceptional circumstances. The Court denied wife’s request for attorney fees, holding that husband’s claims were not frivolous or lacking substantial justification.

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

Colorado Court of Appeals: TABOR Does Not Apply to Aspen’s Grocery Bag Waste Reduction Fee

The Colorado Court of Appeals issued its opinion in Colorado Union of Taxpayers Foundation v. City of Aspen on Thursday, November 5, 2015.

Summary Judgment—TABOR—Waste Reduction Fee—Tax Versus Fee.

In 2011, the City of Aspen adopted an ordinance prohibiting grocers from providing customers with disposable plastic bags and requiring grocers to charge customers a waste reduction fee of $.20 for each disposable paper bag provided. For the first year, grocers were permitted to retain 25% of each fee collected up to $1,000 per month. Thereafter, grocers were permitted to retain no more than $100 per month. The remaining fees were deposited into the City’s Waste Reduction and Recycling Account. In August 2012, the Colorado Union of Taxpayers Foundation (Foundation) sued the City, alleging that the enactment of the ordinance without first obtaining voter approval violated TABOR. After a hearing on cross-motions for summary judgment, the district court concluded that the ordinance was neither subject to nor unconstitutional under TABOR.

On appeal, the Foundation argued that the trial court erred in finding that the ordinance created a fee rather than a tax and therefore was not subject to TABOR. The Court of Appeals disagreed. The primary purpose of the ordinance was to reduce waste, and the majority of the funds raised from the fee went to providing reusable bags to residents and visitors. The rest of the funds were used to finance particular services related to the reduction of trash and waste, and to fund education about those matters. The fees do not revert to the general fund but stay in an account to fund the foregoing. To date, there had been no surplus revenues from the funds.

There is a presumption that the court should choose an interpretation of TABOR that would create the greatest restraint on the growth of government. That presumption applies where multiple interpretations of TABOR are equally supported by the text. Here, the Court found that the text of the ordinance did not equally support the Foundation’s interpretation of the fee as a tax. Therefore, the presumption did not apply. The judgment was affirmed.

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

Colorado Court of Appeals: Announcement Sheet, 11/12/2015

On Thursday, November 12, 2015, the Colorado Court of Appeals issued no published opinion and 18 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.