December 11, 2018

Archives for April 2, 2018

Colorado Court of Appeals: District Courts Must Exercise Reasonable Discretion in Determining the Person for Substituted Service

The Colorado Court of Appeals issued its opinion in Minshall v. Johnston on Thursday, March 22, 2018.

C.R.C.P. 4(f)Substituted ServiceDefault Judgment.

The Minshalls filed a complaint against Johnston. Johnston was not personally served with process; instead, the court permitted substitute service under C.R.C.P. 4(f) on the registered agent of Aries Staffing LLC (Aries), a corporation of which Johnston was a co-owner and shareholder. The district court entered a default judgment against Johnston when he failed to respond to the complaint. Six months after he claimed he learned of the default judgment, Johnston moved pro se to set it aside, arguing that he was not properly served with process. The district court denied the motion.

On appeal, Johnston argued that the judgment against him is void for lack of jurisdiction. He contended that the Minshalls did not exercise due diligence in attempting to serve Johnston personally, which was a necessary condition precedent to serving him by substituted service. It was undisputed that the Minshalls complied with the procedural requirements of Rule 4(f) by filing an affidavit from the process server detailing his numerous unsuccessful attempts to serve Johnston. They also documented numerous other ways they tried to locate and serve Johnston. The record supports the district court’s finding that the Minshalls met the due diligence requirement of the rule.

Johnston also argued that substituted service on Aries’ registered agent, Incorp Services, Inc., was not reasonably calculated to give him actual notice of the suit. The court of appeals found no authority supporting the proposition that service on a registered agent of a corporation is sufficient, by itself, to effectuate valid service on a “co-owner” of a corporation. Here, there was no indication in the record of a separate relationship between Incorp and Johnston or other facts that would support the required finding under Rule 4(f).

The order was vacated. The case was remanded for a determination as to whether service on Incorp under Rule 4(f) was reasonably calculated to give actual notice to Johnston.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Prior Public Use Doctrine Precludes Condemnation that would Eliminate Public Use

The Colorado Court of Appeals issued its opinion in CAW Equities, L.L.C. v. City of Greenwood Village  on Thursday, March 22, 2018.

Eminent DomainPrivate CondemnationPrior Public Use DoctrineColorado Constitution Article XVI, Section 7.

CAW Equities, L.L.C. (CAW) sought private condemnation of a public equestrian and pedestrian trail (public trail) that bisects two of its adjacent properties to construct a ditch from the Highline Canal to the southern end of its properties. The City of Greenwood Village (City) owned the public trail from a plat dedication and separate dedication for equestrian and pedestrian use. The City moved to dismiss under CRCP 12(b)(1).The district court denied the petition and awarded the City attorney fees and costs.

On appeal, CAW argued that the district court erred in holding that CAW lacked the authority to condemn the public trail. The Court of Appeals agreed with the district court, finding that the legislature, through the eminent domain statutes, may regulate Colo. Const. art. XVI, section 7 (Section 7) so long as it does not unnecessarily limit or curtail the constitutional right.

CAW also argued that Section 7 is self-executing and cannot be limited or curtailed by the eminent domain statutes. The Court concluded that while Section 7 may be self-executing, well-settled law recognizes the legislature’s ability to regulate private condemnation, and the eminent domain statutes properly regulate the exercise of this right under Section 7.

CAW alternatively argued that even if the eminent domain statutes apply, its proposed plan does not violate them. It claimed that Section 7 does not require it to show a ditch is necessary, and that it provides an absolute right to condemn. The Court did not decide whether CAW must prove the ditch is necessary to access its water rights to be able to condemn the ditch because the land CAW sought to condemn was already in public use as a public trail. The Court decided, as a matter of first impression, that the prior public use doctrine applies to private condemnation proceedings under Section 7. Though Section 7 grants general authority to condemn public property for a right-of-way to access water, it does not expressly grant the authority to extinguish an existing public use on such property; it merely grants express authority to a right-of-way if that right-of-way does not extinguish the public use. Further, the right to condemn an entire tract of public land in public use is not a necessary implication of the general right to privately condemn a right-of-way for a ditch. Here, there were other ways of transporting the water without interfering with the public trail. Where a private condemnor can obtain a right-of-way without extinguishing the existing public use, the condemnation power does not necessarily imply such a power. The district court was correct in finding that CAW failed to (1) allege express authority for its right to condemn all of the public trail; (2) prove that the right to condemn property already in public use was a necessary implication of its private condemnation right; and (3) prove that some public exigency existed to justify the necessity of condemning the public trail.

The Court also affirmed the City’s award of its attorney fees and costs.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Civil Service Commission Must Defer to Hearing Officer’s Findings of Fact

The Colorado Court of Appeals issued its opinion in Johnson v. City & County of Denver on Thursday, March 22, 2018.

Police Officer DisciplineUse of ForceStandard of Review in Disciplinary Appeals.

Johnson, a Denver police officer, worked off-duty at a nightclub in downtown Denver. One night Brandon and his friends left the nightclub and began arguing with Johnson about Johnson’s earlier interaction with one of their friends. Johnson moved the group under a High Activity Location Observation (HALO) camera, which video-recorded their interactions (no audio was recorded). The video revealed that everyone in the group was visibly intoxicated. Eventually only Brandon and another man remained. Johnson then told Brandon he was going to detox and to turn around to be handcuffed. Brandon profanely told Johnson not to touch him. Johnson then suddenly moved toward Brandon and shoved him with both hands near the neck. Brandon fell backward onto some stairs and was handcuffed.

Brandon filed a disciplinary complaint against Johnson. The Chief of Police determined that Johnson had violated Denver Police Department Rules and Regulations RR-306 (inappropriate force) and suspended him for 30 days without pay. The Manager of Safety (MOS) approved the discipline imposed. Johnson appealed to a civil service commission hearing officer. The hearing officer reversed the suspension because (1) the MOS had erroneously applied the deadly force rather than the non-deadly force standard to Johnson’s conduct, and (2) the MOS had failed to present sufficient evidence to create a reasonable inference that finding a violation of RR-306 was correct.

The City appealed to the Civil Service Commission (Commission). The Commission reversed the hearing officer. The district court affirmed the Commission.

On appeal, Johnson contended that the Commission abused its discretion when it made its own findings of fact from a video recording of events at issue and rejected contrary facts found by the hearing officer. The “video exception” was created in a prior Commission case and is described as “statements an officer makes in direct contradiction to objectively verifiable facts in an otherwise authenticated video of the scene are not entitled to a presumption of truth.” Both the Denver City Charter’s and the Denver Civil Service Commission Rules’ standards of review govern the Commission’s review of the MOS’s order and the hearing officer’s findings, and they require the Commission to defer to the hearing officer’s findings of fact. They do not address a video exception, which is beyond the Commission’s authority to make. The video exception is contrary to law and invalid, and both the Commission and district court erred in relying on it to reverse the hearing officer’s decision.

The Court of Appeals further held that the Denver Police Department’s use of force policy articulates a single standard for reviewing an officer’s use of force and that separate standards do not exist for deadly and non-deadly force. Accordingly, the Commission correctly determined that the hearing officer erred in her application of the use of force standard.

Despite finding that the Commission erred in relying on the video exception to reverse the hearing officer’s decision, the Commission nevertheless reached the right result because (1) the hearing officer erroneously concluded that separate standards existed for deadly and non-deadly force, and (2) the hearing officer did not properly defer to the MOS’s findings as required by the clearly erroneous standard of review applicable to hearing officers and as set forth in the Commission’s rules. The hearing officer erred in substituting her own findings for those of the MOS.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/30/2018

On Friday, March 30, 2018, the Tenth Circuit Court of Appeals issued three published opinions and three unpublished opinions.

Lester v. Lofstedt

Doe v. Hutchinson

Milam v. Pafford EMS

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