August 19, 2019

Archives for May 2016

Bills Regarding County of Residence for Judicial Nominees, Veterans’ Property Tax Exemptions, and More Signed

On Thursday, May 26, and Friday, May 27, 2016, the governor signed five bills into law. To date, the governor has signed 204 bills this legislative session. The bills signed last week include a bill modifying the definition of “disabled veteran” as it relates to the property tax exemption, a bill encouraging judicial nominating commissions to give preference to licensed attorneys who reside in the county where the vacancy is to occur, and more. Last week’s bills are summarized here.

  • HB 16-1462 – Concerning a Modification to the Provisions Enacted in House Bill 11-1155 to Authorize Combining the Full-Time Equivalent Employment of the Lieutenant Governor and the State Chief Operating Officer, by Rep. Dickey Lee Hullinghorst and Sens. Lucia Guzman & Cheri Jahn. The bill allows the Lieutenant Governor to serve as the state’s Chief Operating Officer (COO) through the end of the current term of office, January 10, 2019.
  • HB 16-1289 – Concerning Incentives for Local Education Providers to Encourage High School Students to Successfully Complete Career Development Course Work, by Reps. Crisanta Duran & Daneya Esgar and Sens. Larry Crowder & Leroy Garcia. The bill creates the Career Development Success Pilot Program, which is designed to provide financial incentives for participating districts and charter schools to encourage high school students to enroll in and successfully complete qualified industry-certificate programs, internship or preapprenticeship programs, and advanced placement courses.
  • HB 16-1444 – Concerning the Definition of a “Qualifying Disabled Veteran” as it Relates to a Property Tax Exemption for Such Individuals, by Reps. Su Ryden & Terri Carver and Sens. Andy Kefalas & Larry Crowder. The bill expands the definition of “Qualifying Disabled Veteran” for the Colorado property tax exemption to include veterans with a full medical retirement.
  • SB 16-134 – Concerning Professional Licensing for Military Veterans in Certain Professions, by Sens. Rollie Heath & Leroy Garcia and Reps. Jessie Danielson & Daniel Kagan. The bill requires that a military veteran’s service experience be considered toward commercial driver’s license qualifications, and the Department of Revenue must consider a military veteran’s training, education, or experience during the CDL licensing process, and may provide credit toward a CDL for those qualifications.
  • SB 16-153 – Concerning Nominees for County Court Judges, by Sen. Larry Crowder and Rep. Jim Wilson. The bill encourages judicial nominating commissions to give preference for judicial vacancies to licensed attorneys who reside within the county in which the vacancy occurs.

For a complete list of Governor Hickenlooper’s 2016 legislative decisions, click here.

Application Period Open for Washington County Court Vacancy

On Friday, May 27, 2016, the Colorado State Judicial Branch announced a vacancy on the Washington County Court, created by the appointment of Hon. Carl S. McGuire, III, to the district court bench. The vacancy will occur on July 1, 2016.

Applications are now being accepted for the vacancy. Eligible applicants must be qualified electors of Washington County at the time of investiture and must have graduated from high school or attained the equivalent. Application forms are available from the State Judicial website or from Justice Gabriel, the ex officio chair of the Thirteenth Judicial District Nominating Commission. Application forms must be received no later than 4 p.m. on July 6, 2016, and anyone wishing to nominate another must do so no later than 4 p.m. on June 29, 2016.

For more information about the vacancy, click here.

Tenth Circuit: Officers’ Theft During Warrant Execution Does Not Justify Blanket Suppression of Evidence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Webster on Tuesday, January 5, 2016.

Kansas City police officers became suspicious that Ricky Webster was manufacturing and distributing crack cocaine out of his residence and obtained a no-knock search warrant. The Kansas City officers executed the warrant, with a five-minute lead on their entry by three members of the Selective Crime Occurrence Reduction Enforcement (SCORE) unit, special officers whose role was to enter and secure residences prior to the execution of search warrants. The police officers discovered more than 100 grams of crack cocaine, drug paraphernalia, a small amount of marijuana, and numerous pills during the search. They also found eighteen firearms, two of which were located in close proximity to drugs. Webster was indicted on numerous charges, and he pleaded guilty to a conspiracy count and possession of a firearm in furtherance of a drug trafficking crime and agreed to a sentence of 180 months in exchange for the government agreeing to forego filing for a sentence enhancement on Webster’s prior felony drug conviction, which would have required a mandatory minimum 20-year sentence.

Prior to accepting the plea agreement, Webster informed the court he had recently become aware that his wife had filed a complaint with the Kansas City police, claiming that the SCORE officers had stolen several items of personal property during the search, including a Flip camcorder, a Playstation, an iPhone, and $100 in cash. Webster asked for a continuance so he could discuss the theft with his attorney and reconsider the plea. Webster’s trial counsel informed the court that he believed it was against Webster’s best interest to withdraw the plea, but he nevertheless filed a motion to withdraw the plea after the court granted the continuance. At the next sentencing hearing, the district court denied Webster’s motion to withdraw the plea and sentenced him to 180 months pursuant to his plea agreement. Webster filed a pro se notice of appeal, which the Tenth Circuit dismissed as untimely.

The next day, the Kansas City Police Department and the FBI conducted a sting that caught several members of the SCORE unit stealing personal property during execution of a search warrant. The Flip and Playstation were subsequently discovered at the house of one of the SCORE unit members. Three officers were charged with conspiring to steal property from Webster’s wife and others, and all three pleaded guilty. Based on the indictments, Webster filed a pro se § 2255 petition to vacate his convictions, arguing his trial counsel was constitutionally ineffective for failing to file a motion to suppress all evidence seized during the search of his house.

The district court held that the SCORE officers’ theft amounted to flagrant disregard of the scope of the warrant and found that the egregious conduct justified a blanket suppression of all evidence seized during the search. The district court found that defense counsel’s failure to investigate the claims of theft or file a motion to suppress was unreasonable, and therefore Webster was prejudiced by his counsel’s deficient conduct. The district court vacated the judgment entered pursuant to the plea agreement and denied the government’s subsequent motion to reconsider. Webster then filed a motion to suppress all evidence obtained in the search in the reinstated criminal case, which the district court granted. The government appealed the grant of habeas relief and grant of the motion to suppress.

The Tenth Circuit first considered the motion to suppress, reasoning that the grant of habeas relief was contingent on its success. The Tenth Circuit examined precedent requiring blanket suppression pursuant to the exclusionary rule, specifically addressing the cases on which the district court relied in issuing its order. The Tenth Circuit noted that blanket suppression is an extreme remedy only appropriate in the rarest circumstances, and distinguished its prior cases allowing blanket suppression. Here, the district court made specific findings that the police officers were unaware of the SCORE officers’ conduct, whereas in other cases there was a conspiracy among all involved officers. Further, in prior cases, the officers took vast amounts of property in blatant disregard of the scope of the warrant, whereas here the SCORE officers took only a few high-value items. The Tenth Circuit implied that blanket suppression is only justified when officers take numerous items outside the scope of the warrant, rather than when members of the team executing the warrant commit crimes.

Addressing Webster’s argument that blanket suppression was necessary in deterrence, the Tenth Circuit found that there could be no greater deterrent than criminal prosecution. The Tenth Circuit declined to address the habeas petition, since its reversal of suppression negated the basis for the petition.

The Tenth Circuit reversed the district court.

Tenth Circuit: Without Seizure of Defendant, Excessive Force Claims Cannot Stand

The Tenth Circuit Court of Appeals issued its opinion in Jones v. Norton on Tuesday, December 29, 2015.

Utah Highway Patrol Officer Swenson was involved in a high-speed chase with a vehicle, which eventually ran off the road in a remote desert area of the Ute Tribe’s Uncompahgre Reservation. Two tribal males exited the vehicle, the driver and passenger Todd R. Murray, and ran in opposite directions. Swenson pursued the driver and eventually arrested him. Three nearby officers, off-duty City of Vernal Police Detective Vance Norton, Utah Highway Patrol Trooper Craig Young, and Uintah County Sheriff’s Deputy Anthoney Byron, responded to the chase and began searching the desert for Murray. The search ended when Murray sustained a gunshot wound to the head.

Plaintiffs, Murray’s parents, contended that Detective Norton shot Murray, but Detective Norton countered that Murray shot himself. Norton testified that as he crested a hill, he saw Murray and ordered him to the ground. Murray started running toward Norton and fired a shot that landed near his feet, so Norton fired two shots at Murray from about 140 yards away. Norton retreated back up the hill and tried to call dispatch. He testified that as he was calling, Murray put the gun to his head and fired, crumpling to the ground immediately. Deputy Byron and Trooper Young testified that they heard noise and saw Norton standing on the top of a hill. They also said they saw Murray walking and swinging his arms, but were not sure if he was carrying a gun. Byron and Young testified that they were about 200 yards from Murray and 400-500 yards from Norton. They reached Norton and descended the hill together to where Murray lay, bleeding from a gunshot wound to the head. They pushed Murray on his side and handcuffed him but made no effort to perform first aid.

Murray was transported to a hospital, where he was pronounced dead. Deputy Byron accompanied the ambulance to the hospital and was joined there by two other officers. The three proceeded to engage in what they called “evidence collection”: taking photographs of Murray’s body, gathering his clothing in bags, and putting bags over his hands. They also ordered blood drawn, which was done by the hospital staff. Deputy Byron placed his index finger in both the entrance and exit wounds on Murray’s head. Experts later testified that this was highly unusual and potentially harmful to the investigation. Even defense experts opined there was no reason for the removal of clothing, turning of the body, and contaminating the wounds.

Murray’s body was taken to a mortuary, where the police ordered the collection of more blood. The apprentice who performed the blood draw did so via a jagged cut on Murray’s neck. Plaintiffs contend this was done as a threatening message. Murray’s body was next taken to the Utah State Office of the Medical Examiner where Dr. Leis performed an examination. Dr. Leis did not perform a full autopsy, despite a request to do so by FBI Agent Ashdown. Dr. Leis concluded that Murray died of a self-inflicted gunshot wound to the head, and further concluded that the gun was close to the skin when it discharged.

Plaintiffs strongly disagreed with Norton’s testimony. They believe that Norton shot Murray at close range, “execution style,” and then planted a gun near him. Plaintiffs pointed out that although Murray was right handed, the entrance wound was on the left side of his head. Plaintiffs also pointed to many instances of destruction of evidence, including that no forensic tests were conducted on the weapon attributed to Murray, nor that of Norton; no tests were conducted to examine whether gunshot residue was present on Murray’s hands or clothing; no evidence was collected regarding whether there was any splash back from the shot onto Murray’s hands or clothing; and the gun, clothing, and other evidence were destroyed before being examined.

Plaintiffs filed a civil suit in Utah state court, which included numerous claims. The State of Utah, no longer a party, removed the case to federal court. The district court entered several rulings, including granting summary judgment to the mortuary on Plaintiffs’ claims of intentional infliction of emotional distress; ruling that the United States’ treaty with the Ute Tribe did not recognize a private right of action against municipalities or individuals enforceable through § 1983; granting summary judgment to all individual and municipal defendants; dismissing the state tort claims; dismissing plaintiffs’ motion for partial summary judgment as moot; and denying all of plaintiffs’ requests for sanctions. Plaintiffs appealed.

The Tenth Circuit divided the plaintiffs’ claims into six groups: (1) § 1983 claims for unlawful seizure, excessive force, and failure to intervene in the violation of constitutional rights; (2) § 1983 claim for violation of rights under the Ute Treaty; (3) § 1985 claim for conspiracy to violate civil rights; (4) state law tort claims for intentional infliction of emotional distress, wrongful death, and assault and battery; (5) spoliation sanctions; and (6) taxation of costs. The Tenth Circuit addressed the first group of claims first.

The district court granted summary judgment to defendants on the § 1983 claims for unlawful seizure, excessive force, and failure to intervene. On de novo review, the Tenth Circuit affirmed. The Tenth Circuit first found that the officers had reasonable suspicion to pursue Murray, but that no seizure had occurred because Murray had run from the officers. Although plaintiffs alleged he paused momentarily when exiting the car, the Tenth Circuit reviewed the videotape and perceived no pause. Without a pause, there was not a seizure as a matter of law. Plaintiffs also argued there was a seizure in the moments before Murray was shot, when Norton ordered him to stop, but again the Tenth Circuit disagreed, finding instead that the evidence illustrated that Murray was charging toward Norton and never submitted to authority. Finally, plaintiffs contended that Norton seized Murray when he shot him at point-blank range. However, the Tenth Circuit found that the evidence tended to show that Norton was at least 100 yards away from Murray when the gun discharged, so the only person who could have shot him at point-blank range was himself. Without a seizure, there could be no Fourth Amendment violation and therefore no individual liability for defendants. The Tenth Circuit similarly disposed of the plaintiffs’ claim of excessive force in violation of the Fourteenth Amendment’s Due Process Clause. The Tenth Circuit found that it was reasonable for Norton to return fire after Murray shot at him, and as for the officers brandishing their weapons after Murray sustained his head wound, he was unconscious and would not have been aware of the weapons. The Tenth Circuit found nothing about the way the officers handled Murray shocked the conscience or was arbitrary.

The Tenth Circuit next addressed plaintiffs’ Ute Treaty claims. The district court dismissed plaintiffs’ Ute Treaty claims because the treaty does not confer the right for plaintiffs to assert § 1983 claims against individuals, but rather provides a mechanism within the treaty itself for claims against the United States. The Tenth Circuit evaluated the treaty’s “bad men” clause and affirmed the district court’s ruling.

Turning to the plaintiffs’ § 1985 conspiracy claims, the Tenth Circuit again affirmed. The district court granted summary judgment to defendants on both of plaintiffs’ claims, finding no showing of specific invidious discriminatory animus. Although the officers were likely aware of Murray’s race, they did not pursue him because of his race but rather because of the car chase.

The Tenth Circuit turned next to plaintiffs’ state law claims. Plaintiffs asserted intentional infliction of emotional distress claims against the funeral home employee and asserted claims of wrongful death against Norton. The Tenth Circuit noted that plaintiffs who are absent during the commission of the act underlying the emotional distress claims must prove that the person performing the act did so with the intent to injure plaintiffs. Because plaintiffs were not present when the funeral home employee made the incision on Murray’s neck, plaintiffs’ claims failed because they could not show the employee intended to harm plaintiffs. After the district court dismissed plaintiffs’ emotional distress claims, it declined to retain jurisdiction over plaintiffs’ wrongful death claims and dismissed them without prejudice. The Tenth Circuit found no evidence that the district court abused its discretion in declining to retain jurisdiction.

Plaintiffs sought sanctions in the form of default judgment and adverse inferences against all defendants for spoliation of evidence, including (1) Murray’s testimony, because the officers failed to administer first aid; (2) the .380 caliber firearm attributed to Murray; (3) Norton’s .40 caliber weapon; and (4) any trace evidence that could have been recovered from the scene, Murray’s body and clothes, or Norton’s body, clothes, or vehicle on the day of the shooting. Plaintiffs believe this evidence would have tended to show that Norton shot Murray, and asked the court to find that defendants acted in bad faith by destroying or allowing the destruction of the evidence. With respect to Murray’s life, the district court found the medical testimony that Murray’s wound was not survivable to be persuasive, and the Tenth Circuit found no reason to disturb the district court’s ruling. As to the .380 caliber weapon, the destruction of the weapon was outside defendants’ control since it was destroyed by the FBI. Although the Tenth Circuit agreed that Norton’s weapon was not examined for evidence, it found no prejudice to defendants from this failure because Norton admitted firing his weapon. The plaintiffs also requested spoliation sanctions regarding the evidence on Murray’s body and clothes, the scene of the shooting, and Norton. The Tenth Circuit found that the plaintiffs’ strongest case was against Deputy Byron, who stuck his fingers in the holes in plaintiffs’ head, removed Murray’s clothes which were later lost, and tampered with Murray’s body, all before the medical examiner was present. The Tenth Circuit found Byron’s conduct disturbing, sloppy, and unorthodox, but did not find that the district court abused its discretion by denying sanctions.

Finally, the plaintiffs sought review of the district court’s taxation of costs against them. The Tenth Circuit noted that the district court never ruled on the costs issue; a clerk entered costs based on a magistrate judge’s memorandum. Plaintiffs had 14 days in which to object to the magistrate’s decision and failed to do so. The Tenth Circuit found it lacked jurisdiction over the issue.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Unpublished Opinions, 5/27/2016

On Friday, May 27, 2016, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Gomes-Olivas

United States v. Silicani

United States v. Meacham

Wille v. Davis

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

Colorado Court of Appeals: Evidence Insufficient to Support Involuntary Administration of Medication

The Colorado Court of Appeals issued its opinion in People in Interest of R.K.L. on Thursday, May 19, 2016.

Involuntary Administration of Medication—Due Process—Clear and Convincing Evidence.

On request of the People, R.K.L., a/k/a A.J.J., was found to be mentally ill and a danger to others and gravely disabled, and was certified to Colorado Mental Health Institute at Fort Logan for short-term treatment for a period not to exceed three months. The probate court also authorized involuntary administration for 11 requested antipsychotic medications. Before the expiration of that order, the People filed a notice extending the certification for treatment for an additional three months and a motion to extend the involuntary medication order. The probate court, following a hearing, extended the certification for short-term treatment and granted the motion for continued involuntary administration authority for the requested medications.

A.J.J. appealed both orders. He conceded that the People had established by clear and convincing evidence that he has a mental illness and that he has not voluntarily accepted treatment. He argued that the court erred in finding that the People proved by clear and convincing evidence that he is a danger to others or gravely disabled. The Court of Appeals held that the probate court’s finding that A.J.J. is a danger to others was supported by evidence in the record. Alternatively, the Court found sufficient evidence in the record to support the probate court’s findings by clear and convincing evidence that A.J.J was gravely disabled as a result of his mental illness. Sufficient evidence supports the probate court’s orders upholding the certification and extended certification of A.J.J. for short-term treatment.

To involuntarily administer antipsychotic medication without violating a patient’s due process rights, all four elements set forth in People v. Medina, 705 P.2d 961, 973 (Colo. 1985), must be proven by clear and convincing evidence. The Court found that the evidence did not support the probate court’s findings as to two of these elements regarding involuntary administration of 10 of the medications, but the evidence was sufficient to support the administration of one medication. The Court agreed with A.J.J. that the evidence did not support the court’s findings that (1) the People had established by clear and convincing evidence that there was no less intrusive alternative than administering the 10 antipsychotics and (2) A.J.J.’s need for treatment with the 10 antipsychotic medications overrode his bona fide and legitimate interest in refusing this treatment.

The orders were reversed to the extent that they authorized involuntary administration of 10 antipsychotics and affirmed in all other respects.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Co-Owners of Ranch Validly Contracted to Allow Restrictions on Property Rights

The Colorado Court of Appeals issued its opinion in Reishus v. Bullmasters, LLC on Thursday, May 19, 2016.

Tenancy in Common—Declaratory Judgment—Covenant—Runs with the Land.

Adams Ranch is a property owned by tenants in common. Plaintiffs are some of the owners who are the appointed managers of the ranch; they brought a declaratory judgment action after defendants (other owners) objected to an amendment to an ownership agreement restricting hunting rights at the ranch.

The parties stipulated to the following relevant facts. In 1983, the owner of Adams Ranch conveyed it to 11 individuals as tenants in common. Only two of the original grantees still have ownership interests and are among the plaintiffs. The original ownership agreement stated it could be “amended or deleted by a simple majority of the individual owners at any time.” In 2007, more than a majority of the then co-owners signed an “Amended and Restated Adams Ranch Ownership Agreement” (2007 Amended Agreement). The 2007 Amended Agreement superseded the original ownership agreement and expressly states that it runs with the land and is binding on all owners, their legal representatives, heirs, successors, and assigns. It can be amended “at any time by written and recorded instrument signed by the then record Owners of at least 7/12ths of the Ownership Interests.”

In 2011, an amendment limiting hunting days per fraction of ownership was adopted by 7/12ths of the ownership interests. Defendants disputed the validity of the hunting limitation, asserting that it improperly restricted their possessory and use rights as tenants in common, which cannot be restricted without their consent. The district court held that the hunting restriction was validly adopted and binding on all owners.

On appeal, defendants first argued that one group of co-owners in a tenancy in common cannot limit the possessory rights of other co-owners without their unanimous consent. The Court of Appeals agreed with defendants that each tenant in a tenancy in common is entitled to equal use and possession of the property. However, it also found that tenants in common can contract otherwise and that there is no necessity of unanimous consent where co-owners contract such entitlement in the ownership agreements. The Court concluded that the co-owners of the ranch validly contracted to allow restrictions on their possessory rights and to allow those restrictions if approved by 7/12ths of the ownership interests.

Defendants also argued that the 2007 Amended Agreement was not a real covenant binding on the parties and their successors in interest. The Court disagreed, noting the explicit language in the 2007 Amended Agreement stating that it bound successors and ran with the land.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Error in ALJ’s Finding of Claimant’s Attempt to Circumvent Burden of Proof

The Colorado Court of Appeals issued its opinion in Feliciano v. Industrial Claim Appeals Office on Thursday, May 19, 2016.

Workers’ Compensation—Reopening Claim—DIME—Maximum Medical Improvement.

Claimant sustained an injury, underwent treatment, and was placed at maximum medical improvement (MMI) by her authorized treating provider (ATP). Claimant requested a division-sponsored independent medical examination (DIME) to challenge the ATP’s MMI finding. The DIME physician agreed with the ATP’s MMI date and recommendation for treatment, and he rated claimant’s impairment. Claimant’s employer and its insurer filed a final admission of liability (FAL) based on the DIME.

Claimant did not object to the FAL but instead petitioned to reopen her claim less than two weeks after the FAL was filed and while her claim was still open. The administrative law judge (ALJ) denied and dismissed her petition, noting that the proper procedure would have been to challenge the DIME. The Industrial Claim Appeals Office affirmed and claimant appealed.

On appeal, claimant argued that the ALJ improperly disregarded her counsel’s arguments that she was not challenging the MMI finding and that the ALJ’s findings were not supported by substantial evidence. To reopen a claim, a claimant must show error, mistake, or change in condition. The reopening of a claim is within the sound discretion of the ALJ and may only be reversed for fraud or clear abuse of discretion. The ALJ found that claimant was filing to reopen a claim that wasn’t closed to avoid the higher burden of proof required to overcome a DIME. Claimant’s counsel admitted at oral argument that the petition to reopen was a “strategic” move taken because counsel did not believe claimant could overcome the DIME. The record supports the ALJ’s determination that claimant improperly used the reopening process to challenge the DIME.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 5/26/2016

On Thursday, May 26, 2016, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

United States v. Betances

United States v. Warren

Gillings v. Banvelos

Benavidez v. Colvin

LaLiberte v. United States Probation

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

Colorado Court of Appeals: Statute Permitting Will Reformation Based on Extrinsic Evidence of Intent Is Not Rule of Construction

The Colorado Court of Appeals issued its opinion in In re Estate of Ramstetter on Thursday, May 19, 2016.

Probate—Extrinsic Evidence—Mutual Mistake.

Louise Ramstetter devised her ranch to her daughters, Jeanne, Marie, and Karol, “in equal shares to be held as joint tenants.” Louise died in 2009 and Marie and Karol, as personal representatives, began administering the estate. Three years later, Jeanne petitioned to remove Marie and Karol as personal representatives and for a declaratory judgment that she had severed the joint tenancy among the sisters, creating a tenancy in common as to her one-third of the ranch by deeding her interest to a trust she had created. Marie and Karol cross-petitioned to enforce a 2012 Agreement and Release in which they had agreed to convey 35 acres of the ranch to Jeanne and she had agreed to convey the remainder of the ranch to them, with all other claims being released. They also sought reformation of the will based on the failure of the attorney who drafted the will to have implemented Louise’s intent to keep ownership of the ranch within the family.

The trial court granted Jeanne’s motion for judgment on the pleadings, finding the will unambiguous. It accepted the parties’ position that application of CRS § 15-11-806, which allows a court to reform an unambiguous instrument “to conform the terms to the transferor’s intention” based on clear and convincing evidence that the “transferor’s intent and the terms of the governing instrument were affected by a mistake of fact or law,” was determined by CRS § 15-17-101(2), but concluded that CRS § 15-17-101(2) did not make CRS § 15-11-806 applicable because Louise had died before the latter section became effective. Moreover, it found that the reformation claim depended wholly on extrinsic evidence of Louise’s intent, and therefore dismissed it. The court found that the Agreement and Release was “invalid as a result of mutual mistake among the parties to it” and that Jeanne had severed the joint tenancy by the conveyance to her trust.

On appeal, Karol and Marie first argued that the trial court improperly dismissed their claim for reformation of Louise’s will. CRS § 15-11-806 amended the probate code to allow reformation of an unambiguous instrument. The Court of Appeals agreed with the trial court that CRS § 15-11-806 cannot be applied retroactively in this case, but on different grounds: The Court found that CRS § 15-17-101(2)(b), which would allow retroactive application of CRS § 15-11-806, does not apply here because CRS § 15-17-101(2)(a) applies only to governing instruments and therefore controls over the more general subsection (2)(b) and does not provide a basis for retroactively applying CRS § 15-11-806. Also, CRS § 15-17-101(2)(e) does not allow retroactive application of CRS § 15-11-806 because CRS § 15-11-806 is not a rule of construction and therefore 2(e) doesn’t apply. Because CRS § 15-17-101(2)(a) and (b) do not permit retroactive application, the trial court properly precluded Karol and Marie from attempting to reform Louise’s will using extrinsic evidence of her intent under CRS §15-11-806. Karol and Marie also argued that the court improperly invoked stare decisis when dismissing their reformation claim. Because the terms of the will were unambiguous, the court properly did not admit extrinsic evidence to establish a contrary intent to that expressed in her will.

Karol and Marie then argued that the trial court misapplied the mutual mistake doctrine and erred in declining to enforce the Agreement and Release because all the sisters were mutually mistaken that only a contract among them could sever the joint tenancy. The Court reviewed the trial court decision for clear error and found sufficient support in the record to uphold its conclusion that all three sisters held the same mistaken belief. The Court also rejected Karol and Marie’s arguments that other findings of the trial court were irreconcilably inconsistent with the finding of mutual mistake.

The orders dismissing the reformation claim and voiding the Agreement and Release for mutual mistake were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Choice of Law Provision Unambiguously Governs Contract

The Colorado Court of Appeals issued its opinion in Mountain States Adjustment v. Cooke on Thursday, May 19, 2016.

Summary Judgment—Debt Collection—Choice of Law Provision.

In August 2004, Cooke signed a note (Note) with Commercial Federal Bank (CFB) for a home equity loan. Cooke resided in Colorado and the home that was collateral for the Note (subject property) was in Colorado. CFB was headquartered in Nebraska and the Note stated that it was “governed by federal law, and to the extent applicable, the laws of Nebraska.”

CFB merged into Bank of the West, a California bank, in December 2005. Cooke’s  repayment terms under the Note didn’t change as a result nor was he asked to sign a new agreement. In April 2009, the company holding the first mortgage on the subject property commenced foreclosure proceedings. Bank of the West did not participate, but on June 19, 2009, Bank of the West sent a “30 Day Notice of Demand and Intent to Accelerate” letter to Cooke.

On February 14, 2014, Bank of the West assigned Cooke’s note to Mountain States Adjustment (MSA). On July 15, 2014, MSA filed this collection action against Cooke in Denver District Court. Cooke answered and alleged an affirmative defense that MSA’s claim was barred by the applicable statute of limitations.

In January 2015, MSA filed a motion for summary judgment alleging that Cooke admitted to being the signatory under the Note and that the facts were undisputed that he was in default. Cooke filed a cross-motion for summary judgment asserting that MSA’s claim was barred by the five-year statute of limitations set forth in Nebraska law. The district court decided that Colorado law and its six-year statute of limitations applied and entered summary judgment in MSA’s favor. The sole issue on appeal was whether it was error to hold that Colorado law applied.

The Court of Appeals found the choice of law terms in the Note were clear, express, and unambiguous. As a matter of law, Nebraska law governs the statute of limitations issue because the undisputed record shows both that Nebraska had a substantial relationship to the parties or the transaction and that there was a reasonable basis for the contracting parties’ choice of law. Because it was undisputed that MSA filed its complaint outside of the applicable Nebraska limitations period, MSA’s claim was barred and Cooke was entitled to entry of judgment in his favor.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Substantial Nexus Must Exist Between Confinement and Charge for PSCC

The Colorado Court of Appeals issued its opinion in People v. Fransua on Thursday, May 19, 2016.

Calculation of Presentence Confinement Credit.

On October 25, 2013, Fransua was arrested and charged with first degree criminal trespass of a dwelling, second degree burglary, third degree assault, and harassment (the 2013 charges). He was released on bond on December 5, 2013. On March 1, 2014, Fransua was arrested for violating his bond conditions and trespass (the 2014 charges).

Fransua ultimately pleaded guilty to attempted burglary in the 2013 case in exchange for dismissal of all the other 2013 and 2014 charges. On June 16, 2014, he was sentenced to five years in community corrections. He served this sentence until September 23, 2014, when he walked away from the community corrections facility. He was arrested on October 19, 2014. On November 10, 2014, he was resentenced to five years in the custody of the Department of Corrections.

At resentencing, the court stated Fransua was entitled to presentence confinement credit (PSCC) for time served only on the case that he was sentenced on. The court found this amounted to 162 days, declining to award credit for the 108 days served from March 1, 2014 to June 16, 2014.

On appeal, Fransua argued the failure to award credit him for the 108 days was error. The Court of Appeals stated that a defendant is entitled to PSCC if the period of confinement was attributable to the sentence imposed.        Applying this test, the Court found that Fransua’s confinement from March 1, 2014 to June 16, 2014 was on charges that were independent and distinct from the 2013 burglary charge and there was no substantial nexus between these charges and the sentence imposed. Therefore, the district court was correct in not giving him PSCC for that time.

Fransua also argued that the district court miscalculated the time for which he did receive credit. The Court agreed, finding that he should have been credited 164 days, not 162, because the district court failed to count the first days of his 2013 and second 2014 jail confinements.

The order was affirmed in part and reversed in part, and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.