June 26, 2019

Archives for December 8, 2016

When Your Client’s Kid Needs Help: Juvenile Criminal Justice for Every Attorney

pow6qw4fks1i955Every lawyer has had the experience of their client asking questions about an area of law in which they don’t practice. A tax lawyer may field questions about her client’s DUI matter. An immigration attorney may receive a question from his client about preparing an estate plan. A domestic relations attorney may hear questions about her client’s business. Regardless of an attorney’s area of expertise, clients will ask legal questions and expect informed answers.

So what do you do when your client tells you his kid might be in trouble with the law? Because few matters are more important to a parent than the well-being of his or her child, knowing what to say and when to recommend that your client seek a juvenile defense attorney is vital.

From the legalization of marijuana in Colorado to the perils of social media, kids live in a different world than a generation ago. These days, it seems there are more and more ways for kids to find themselves in trouble with the law, not because of criminal intent, but because the children or their families do not understand what behavior the law criminalizes. The pitfalls kids face in the criminal system and school disciplinary settings can be extraordinary, and the consequences can be far-reaching—even lifelong.

In seeking to protect the client’s children from lifelong consequences, it is imperative and ethically required for an attorney to fully understand the laws applicable to the matter, or to find someone who specializes in juvenile law to provide guidance. The Criminal Code and Children’s Code are complex, and children are frequently treated differently than adults in regard to criminal matters.

On Monday, December 12, 2016, attorney Lara Marks Baker will deliver a one-hour breakfast presentation on guiding your client through juvenile criminal justice issues. This program is a great way to learn about what to do when your clients need help with their kids. Lara will highlight the federal and state laws which are frequently implicated in matters of juvenile justice, and when to signal a client that criminal or disciplinary matters may be forthcoming. Register by calling (303) 860-0608 or by clicking the links below.

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CLE Program: When Your Client’s Kid Needs Help

This CLE presentation will occur on December 12, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 8:30 a.m. to 9:30 a.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Colorado Court of Appeals: Exhaustion of Administrative Remedies Required but Dismissal With Prejudice was in Error

The Colorado Court of Appeals issued its opinion in Grant Brothers Ranch, LLC v. Antero Resources Piceance Corp. on Thursday, December 1, 2016.

Subject Matter Jurisdiction—Summary Judgment—Exhaustion of Administrative Remedies—Dismissal Without Prejudice.

Antero Resources Piceance Corporation (Antero), an oil and gas exploration and production company, received approval from the Colorado Oil and Gas Conservation Commission (the Commission) to establish a drilling and spacing unit to produce oil and gas. Antero wanted to produce oil and gas underlying Grant Brothers Ranch, LLC’s (Grant Brothers) property, which was within the unit, but Grant Brothers refused Antero’s offer to lease the minerals or participate in their production. Antero then requested that the Commission pool all nonconsenting interests in the unit and allow Antero to produce and sell the oil and gas of the nonconsenting owners. Following a hearing, the Commission granted the request. A year and a half later, to produce from a deeper formation, Antero sought to establish a new unit within the same lands. Again, Antero asked Grant Brothers to participate in their production, and Grant Brothers refused. Following objection by Grant Brothers and a hearing, the Commission granted this request and issued an order pooling all nonconsenting interests in the second unit. Pursuant to these pooling orders, Grant Brothers was entitled to receive its interest in the proceeds from the production and sale of oil and gas from wells in the units after the wells reached “payout.” Antero was required to furnish Grant Brothers monthly statements concerning its costs and proceeds.

Three years after the second order, Grant Brothers asked Antero for permission to audit its books and records regarding the wells. Antero refused, stating it had been sending Grant Brothers the required monthly statements.

Two years later, Grant Brothers sued Antero and Ursa Operating Company, LLC (which assumed operation of the wells in 2012) (Operators), requesting an equitable accounting and alleging the wells had reached payout, but Operators had not paid Grant Brothers. Operators filed a motion for summary judgment arguing that Grant Brothers had not exhausted its administrative remedies under the Oil and Gas Conservation Act (the Act) and therefore the district court lacked subject matter jurisdiction. The court agreed and dismissed the action with prejudice.

On appeal, Grant Brothers argued that the district court improperly granted summary judgment because Grant Brothers was not required under the Act to exhaust its administrative remedies. The Colorado Court of Appeals noted that because the district court had not resolved a number of factual disputes and resolved Antero’s motion solely on the basis that the court lacked subject matter jurisdiction, the summary judgment motion was more properly characterized as a motion to dismiss for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1) and it therefore treated it as such.

The Act gives the Commission a broad grant of jurisdiction over operations for the production of oil and gas, including payment disputes, unless such dispute is one over interpretation of a payment contract, which would be resolved by a district court. In determining whether a court has subject matter jurisdiction where a party did not exhaust administrative remedies, courts examine whether (1) the claim was filed pursuant to the relevant statute, (2) the statute provides a remedy for the claim asserted, and (3) the legislature intended the statute to provide a “comprehensive scheme” addressing the issues underlying the claim.

First, Grant Brothers’ claim was one for payment of proceeds under C.R.S. §§ 34-60-116 and -118.5. Grant Brothers is entitled to receive payment only if and when payout occurs. Primary jurisdiction to make this determination rests with the Commission. Second, because there was no contract between the parties, Grant Brothers needed to first submit a written request for payment. If there is a payment dispute, Grant Brothers may request a hearing before the Commission, whose order would then be appealable to the courts. Third, the Act’s language and structure indicate that a proceeding before the Commission is the primary remedy for nonconsenting owners’ claims for the payment of proceeds when there is no contract between the parties. Grant Brothers was required to exhaust its administrative remedies and because it did not do so prior to filing suit in the district court, the court properly dismissed the action.

Grant Brothers also contended that the district court erred in dismissing its claim with prejudice solely on the basis that the court lacked subject matter jurisdiction. A dismissal under C.R.C.P. 12(b)(1) does not adjudicate the merits, but results from the court lacking the power to hear the claims asserted. Thus the dismissal is necessarily without prejudice.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Dram Shop Amendments Require Knowledge of Drinker’s Underage Status and Alcohol Consumption

The Colorado Court of Appeals issued its opinion in Przekurat v. Torres on Thursday, December 1, 2016.

Dram Shop Act—Intoxication—Knowledge—Evidence.

Sieck drove Przekurat home from a party in Przekurat’s car. Sieck, who was highly intoxicated at the time of the accident and was under 21 years old, drove at speeds in excess of 100 miles per hour before losing control of the car and colliding with an embankment. Przekurat sustained catastrophic injuries, including brain damage. Przekurat’s father sued the four hosts of the party, claiming they “knowingly provided [Sieck] a place to consume an alcoholic beverage” and thus were liable for his damages under the 2005 amendments to the Dram Shop Act. The trial court granted the hosts’ summary judgment motion.

On appeal, Przekurat argued that the district court erred when it held that C.R.S. § 12-47-801(4)(a)(I) of the Dram Shop Act requires actual knowledge of two separate elements: (1) that the defendant provided a place for the consumption of alcohol by a person under the age of 21, and (2) that the defendant knew that the person who consumed alcohol at that place was under age 21. The statutory requirement of “knowingly” applies to all of the elements of liability under the 2005 amendments. Therefore, the trial court correctly construed the 2005 amendments and also correctly determined that Przekurat failed to demonstrate a disputed issue of material fact regarding the hosts’ knowledge that Sieck was underage and was drinking at the party.

Przekurat next argued that the district court’s summary judgment must be reversed because he offered abundant evidence that the hosts knew that they were hosting an “open” party and providing a venue to underage guests, including Sieck, to drink indiscriminately. Although circumstantial evidence is admissible to prove knowledge under the statute, Przekurat did not offer any evidence, circumstantial or direct, that would permit a reasonable inference that any of the hosts knew Sieck, much less that they knew his age, or that Sieck appeared to be obviously underage.

Przekurat next argued that the district court erred in concluding that it did not have jurisdiction to rule on his motion for reconsideration of summary judgment in favor of the hosts. The Colorado Court of Appeals agreed that the district court erroneously denied the C.R.C.P. 59 motion for lack of jurisdiction, but the error does not require reversal or a remand.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 12/8/2016

On Thursday, December 8, 2016, the Colorado Court of Appeals issued no published opinion and 20 unpublished opinions.

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

Tenth Circuit: Unpublished Opinions, 12/7/2016

On Wednesday, December 7, 2016, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Jackson v. Hogan

United States v. Grigsby

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