February 18, 2019

Archives for February 2019

Colorado Court of Appeals: All Prospective Guardians Must Undergo Statutory Vetting Process Prior to Appointment

The Colorado Court of Appeals issued its opinion in In re Interest of Arguello on Thursday, February 7, 2019.

Adult Guardianship—Court Visitor—Judicial Appointment of Permanent Guardian—Conflict—Visitor’s Report

Arguello is an adult resident of Pueblo who suffers from dementia, developmental disability, and mental health illness. The court appointed Baslick as emergency guardian when medical decisions needed to be made and family was unavailable. Baslick works for Colorado Bluesky Enterprises, Inc. (Bluesky), which provides Arguello with case management services. Soon after Baslick’s appointment, several individuals petitioned the court to be appointed permanent guardian.

The court appointed a court visitor to prepare a visitor’s report concerning all prospective guardians. The first visitor’s report did not recommend Baslick because of her employment with Bluesky and the existence of a potential conflict of interest under C.R.S. § 15-13-310(4), which precludes a long-term care provider from also serving as a guardian. After several hearings and finding no suitable guardian from among the petitioners, the court sua sponte appointed the Arc of Pueblo (ARC) as the permanent guardian. Bluesky and Baslick moved for reconsideration, and the district court denied the motion.

On appeal, Bluesky argued that it is not a long-term care provider under the statute and the court erred in applying the statutory prohibition to Baslick. Here, while Bluesky may not fall “squarely” within the definition of a long-term care provider, the facts demonstrate a potential conflict of interest between Bluesky and Baslick that rendered her unsuitable as a guardian for Arguello. Bluesky provides substantial assistance to Arguello in the form of case management services. As guardian, Baslick would be able to recommend increased funding for Arguello and thereby generate revenues for Bluesky. She would also have oversight of Bluesky’s case management services and could be hesitant, as a Bluesky employee, to question Bluesky’s actions. Accordingly, the district court’s conclusion is supported by the record, and the court acted within its discretion in finding that Arguello’s best interests would not be served by appointing Baslick.

Bluesky next contended that the court violated the statutory mandate in C.R.S. § 15-14-305(1) by appointing ARC without first appointing a visitor and receiving a report. The court is required to appoint a visitor for every petition for guardianship filed, and all prospective guardians must undergo the statutory vetting process set forth in C.R.S. §§ 15-14-304 and -305 before appointment may occur. The trial court erred in sua sponte appointing a guardian who did not go through this process.

The order appointing ARC as guardian for Arguello was reversed, and the case was remanded to appoint a visitor and follow the statutory procedure to appoint a guardian for Arguello. The order was otherwise affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Bringing Malpractice Claim to Reduce Liability for Attorney Fees is Not Abuse of Process

The Colorado Court of Appeals issued its opinion in Parks v. Edward Dale Parrish, LLC on Thursday, February 7, 2019.

Torts—Malpractice—Abuse of Process—Breach of Fiduciary Duty—Attorney Fees—Expert Witness

Parrish and Edward Dale Parrish LLC (defendants) represented plaintiff in two cases, a partition case and a dissolution case, against plaintiff’s former, long-term girlfriend. Plaintiff was not satisfied with the results. After he failed to pay Parrish for his legal services, Parrish filed a notice of attorney’s lien in the partition case. In response, plaintiff filed this case against defendants, alleging that they provided negligent representation and breached their fiduciary duty to him in both cases. Defendants counterclaimed for breach of contract (seeking an award of fees incurred in previously representing plaintiff) and abuse of process (based on plaintiff bringing this case).

At the close of plaintiff’s evidence, defendants moved for directed verdicts on all of his claims. The district court concluded that the breach of fiduciary duty claim was duplicative of the negligence claim and dismissed that claim. Plaintiff moved for a directed verdict on the counterclaims, which the court denied. The jury returned verdicts for defendants on all claims and counterclaims. The court also awarded defendants costs for their expert witness. Plaintiff moved for judgment notwithstanding the verdict (JNOV). This motion was deemed denied when the district court did not timely act on it. 

On appeal, plaintiff first contended that the district court erred in denying his motion for directed verdict and motion for JNOV on defendants’ abuse of process counterclaim. Bringing a malpractice case to obtain a result that such an action is designed to achieve doesn’t constitute an improper use of process, regardless of the motive. Here, the district court erred in reasoning that the jury could find an abuse of process if it found merely that defendants didn’t provide negligent representation. Given the lack of evidence of any improper use of process, the district court should have granted plaintiff’s motion for a directed verdict or motion for JNOV on the abuse of process counterclaim.

Plaintiff next contended that the district court erred in dismissing as duplicative his breach of fiduciary duty claim relating to the partition case. Where the professional negligence claim and breach of fiduciary duty claim arise from the same material facts and the allegations pertain to an attorney’s exercise of professional judgment, the breach of fiduciary duty claim should be dismissed as duplicative.  Here, plaintiff alleged that Parrish breached his fiduciary duty by entering into a stipulation without his consent. The same allegation underlies in part the negligence claim and implicates Parrish’s exercise of professional judgment. Therefore, the district court did not err in dismissing the breach of fiduciary duty claim.

Plaintiff also contended that the district court erred in denying his motion for a directed verdict on defendants’ breach of contract counterclaim. Defendants claimed that plaintiff breached a contract by failing to pay them attorney fees. Plaintiff argued that defendants had to prove the reasonableness of the fees they sought through expert testimony, and because defendants didn’t present any such testimony, the claim necessarily fails. When breach of contract damages are unpaid attorney fees, laypersons can determine the reasonableness of fees without an expert’s help. Here, Parrish testified about the services rendered, the reasonableness of the time spent on the services, and the fees charged for the services, and the jury considered the bills to plaintiff. Thus, the jury had sufficient evidence to assess the reasonableness of the claimed fees.

The judgment in favor of defendants on the abuse of process counterclaim was vacated. The judgment was affirmed in all other respects. The case was remanded for the district court to enter judgment in plaintiff’s favor on the abuse of process counterclaim and to amend the judgment as to damages accordingly.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 2/14/2019

On Thursday, February 14, 2019, the Colorado Court of Appeals issued no published opinion and 35 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, 2/14/2019

On Thursday, February 14, 2019, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Foster

Brown v. Allbaugh

Johnson v. Raemisch

Arthur v. Moorehead

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

Working With Passion

Hmmm… love… passion… Happy Valentine’s Day!

Now back to work.

Is there really such a thing as loving your work/working with passion? Yes.

What does it mean, to work with passion? I don’t have a good definition, but you know when you’ve got it. 

And it certainly isn’t what ManagementSpeak calls “engagement.”

Google “work engagement,” and you get a truly stunning number and variety of results, many of which are monotonously unoriginal and insultingly obvious, and some of which are just plain scary. Consider this article from “OSH WIKI,” sponsored by the EU version of OSHA[1]:

Work engagement is defined as positive behaviour or a positive state of mind at work that leads to positive work-related outcomes. Employees with high levels of work engagement are energetic and dedicated to their work and immersed to their work.

We’ll ignore the redundancy and wayward preposition for a moment and notice all the strong adjectives: positive, energetic, dedicated, immersed. No issues there. Wikipedia adds a few more:

Work engagement is the ‘harnessing of organization member’s selves to their work roles: in engagement, people employ and express themselves physically, cognitively, emotionally and mentally during role performances. Three aspects of work motivation are cognitive, emotional and physical engagement.’[2]

Okay, got it:  when you’re engaged at work, you’re “physically, cognitively, emotionally and mentally” all there. Hard to argue with that. But then you also need to be “harnessed” to your “work role,” with the ultimate objectives of “role performance” and “work-related outcomes.”

Um, no thanks. I’m pretty sure I’m busy that night. The robots can handle it while I’m out.

Thus far, we only have descriptions of what it’s like when you are engaged.  But how do you get there in the first place? That would seem to be where “passion” comes in. But where does that come from? Maybe we’ll find some clues in an article with a catchy title:  Is Your Colleague A Zombie Worker?

They walk among us, dead-eyed, with heavy tread. They are the colleague sagging at the coffee machine, the project manager staring out of the window. Meet the zombie workforce: an army of employees who’re failing to find inspiration at work.

There are more of these ‘working dead’ than you might imagine. According to a recent study by Aon Hewitt, less than one-quarter of the world’s employees are classified as ‘highly’ engaged in their jobs, while only 39% admit to being ‘moderately’ so.

This leaves an awful lot of the 5 million people Aon surveyed ‘unengaged’, which the more gruesome-minded of us might take to mean ‘haunting office corridors like reanimated corpses’ where once they might have been valuable staff members, full of life and great ideas.

We all know people like that. We might be that ourselves:  according to the research, look left and look right, and two of you don’t have a pulse. The working dead can’t find the “inspiration at work” they need. Hence no passion.

How do we wake the dead?

I met the world of working dead lawyers right after the Great Recession of 2007-2008. In a stroke of exquisitely bad timing, I left my law practice to start a new venture at the start of 2007. The project bombed, and I was at loose ends. I attended a bar association career change/job search meeting where we did one of those speed-dating things where you meet everybody. It was an eye-opener. Here were all these amazing people — bright, personable, articulate, with wide interests and a desire to serve — but they didn’t see themselves that way. Instead, they saw themselves as victims, helpless, hopeless.

I raced home and sketched out a workshop to help them discover who they really were. I’d never done a workshop like that before, but the ideas poured in, and I wrote them down in a white heat. A couple hours later, I fired off a proposal to the bar association. Weeks later I got an email:  “How’d you like to do your program over lunch next Tuesday? We’ll provide the pizza.” They put a blurb in a monthly newsletter, and 40 people showed up. I’ll never forget standing in front and looking into 40 pairs of empty eyes. The lights were on but nobody was home — or in some cases, the lights weren’t even on, and apparently hadn’t been for a long time.

The workshop morphed into a traveling Continuing Legal Education road show. The promoter called it “Beyond Burnout: Find Your Passion in the Law,” but then quickly added “Or Out of the Law.” Best intentions aside, most attendees wanted out. Of the hundreds of heartfelt evaluations I collected, the following was by far in the minority:

I knew I was fairly happy in my career, but I took this CLE because it sounded more interesting than the traditional practice area CLEs. In working through the exercises, I met some amazing people and realized just how truly blessed I am to be currently working in a job that I love. This workshop got me excited to build my business to an even bigger level — it reignited the passion!

“Reignited” meant the writer had the passion, and knew it. I said earlier you know it if you’ve got it. Next time, we’ll talk about what that feels like — kinda like falling in love, actually.

[1] In its defense, OSH is in the business of making sure workers are engaged at leaqst enough not tyo hurt themselves or others — a pretty low standard when it comes to passion. Here’s its mission:  “OSHwiki has been developed by EU-OSHA, to enable the sharing of occupational safety and health (OSH) knowledge, information and best practices, in order to support government, industry and employee organisations in ensuring safety and health at the workplace.”

[2] Quoting a 1990 Academy of Management Journal article.

If you like Kevin Rhodes’s posts, you might enjoy his new Iconoclast.blog, which focuses on several themes that have appeared in this blog over the years, such as how belief creates culture and culture creates behavior, and why growth and change are difficult but doable. You can also follow Iconoclast.blog on Facebook.

Colorado Court of Appeals: BAA Did Not Err in Determining Contiguous Parcel was “Vacant Land”

The Colorado Court of Appeals issued its opinion in Martin Trust v. Board of County Commissioners on Thursday, February 7, 2019.

Taxation—Property Tax—Residential Property—Vacant Land.

The Martins bought two adjacent parcels of land in La Plata County. The east parcel (the residential parcel) contains the Martins’ home on a .62-acre lot, and the west parcel (the adjacent lot) is an unimproved .72-acre lot that adjoins the residential parcel’s western boundary. For tax year 2014, the Martin Family Partnership, LLLP (the partnership) held the title to the adjacent lot and the Martins held the title to the residential parcel as joint tenants. The partnership and the Martins thereafter transferred title to both parcels to the Martin Trust (the Trust), which held the titles for tax years 2015 to 2016.

The County Assessor classified the adjacent lot as vacant land for tax years 2014 to 2016, and the Trust sought to have it reclassified as residential. It appealed the Assessor’s decision to the Board of Equalization of La Plata County and the Board of County Commissioners of La Plata County (collectively, the Boards). The Boards denied both appeals. The Trust appealed those decisions to the Board of Assessment Appeals (BAA). The BAA upheld the County Assessor’s 2014 classification of the adjacent lot as vacant land, finding that the parcels were not under common ownership because they were separately titled and the owners were “separate and distinct legal entities.” For the 2015 to 2016 classifications, the BAA partially granted the Trust’s appeal, stating it was persuaded by the Trust’s claim that there would be a loss of views if a residence was constructed on the adjacent lot. But the BAA determined that only two-thirds of the adjacent lot was used as a unit in conjunction with the residential parcel for maintaining views from that parcel, and on that basis, it ordered that only the two-thirds portion of the adjacent lot be reclassified as residential.

On appeal, the Trust contended that the BAA erred when it concluded that the adjacent lot was vacant land for tax year 2014 and partly vacant land for tax years 2015 to 2016. Conversely, the Boards contended that the BAA erred when it reclassified the adjacent lot as residential land for tax years 2015 to 2016. The majority concluded that for two contiguous parcels of land to both qualify as “residential land” (1) one parcel must have a residence on it, (2) the other must have a man-made structure or water rights that are an integral part of the use of the residence on the neighboring parcel, and (3) the land must be used as a unit in conjunction with the residential improvements on the parcels. Further, the requirement that contiguous parcels be used as a unit does not include the “use” of vacant land by looking across it at objects beyond the land. Here, there is no evidence that there are any structures on the adjacent lot that are an integral part of the residence on the residential parcel. Therefore, the adjacent lot does not qualify as residential land.

The BAA’s order for tax year 2014 denying residential land designation regarding the adjacent lot was affirmed, and the order for tax years 2015 to 2016 granting such designation for the adjacent lot was reversed. The case was remanded for issuance of an order consistent with the majority’s opinion.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 2/13/2019

On Wednesday, February 13, 2019, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

United States v. Hall

Hedquist v. Patterson

Aguilar-Perez v. Sessions

Margheim v. Buck

Al-Pine v. Richerson

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

Colorado Court of Appeals: Trial Court Erred in Finding Outrageous Government Conduct and Dismissing Case

The Colorado Court of Appeals issued its opinion in People v. Burlingame on Thursday, February 7, 2019.

Attempting to Influence a Public Servant—False Reporting—Outrageous Governmental Conduct—Work Product Privilege.

Defendant alleged that she went out drinking one night with a coworker and then went with him to his home. She reported that later that evening the coworker’s roommate raped her.

DNA evidence conclusively showed that it could not have been the roommate who had sexual contact with defendant; rather, the coworker had had sexual contact with defendant. Two prosecutors, a prosecutor’s office investigator, and a police detective interviewed defendant about these results at her home. The interview was conducted in the presence of family members and friends and was recorded on video. During the interview, defendant became upset and told the investigators and prosecutors to leave, and they did. Prosecutors charged defendant with two counts of attempting to influence a public servant and one count of false reporting.

At a hearing, defendant argued that the videotape of the interview should be suppressed and the case should be dismissed because the government’s conduct was outrageous. Prosecutors repeatedly used the work product privilege to block evidence showing why they chose to videotape the interview or that might explain their decision making process in filing the charges. The trial court dismissed the case against defendant based on a finding of outrageous government conduct.

On appeal, the People asserted that the trial court erred in concluding that there was outrageous government conduct warranting dismissal of the charges against defendant. Outrageous governmental conduct is conduct that violates fundamental fairness and shocks the universal sense of justice. Here, the trial court concluded, without evidentiary support, that videotaping the defendant was improper. Further, the prosecutor’s proper use of the work product privilege cannot from the basis for a finding of outrageous conduct. In addition, the trial court found a violation of the Victim Rights Act without identifying the specific section violated, and the videotape shows that defendant was treated with respect and was not harassed or abused. While the government’s behavior might be considered poor judgment or even legal error, the trial court’s findings of fact do not support its conclusion that the government’s conduct was outrageous. Because the trial court’s findings of fact are not supported by the record, they were arbitrary and thus an abuse of discretion.

The order dismissing the case was reversed and the case was remanded with directions to reinstate the charges and to consider the motions still pending before it, including whether the interview should be suppressed because the totality of the circumstances surrounding it constituted psychological coercion.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defense Counsel’s Error in Declining to Object to Inapplicable Jury Instruction Amounted to Forfeiture

The Colorado Court of Appeals issued its opinion in People v. Ramirez on Thursday, February 7, 2019.

Criminal Law—Jury Instructions—Waiver—Forfeiture.

Defendant was convicted in one trial of charges stemming from four consolidated criminal cases. This case was remanded from the Supreme Court to reconsider the disposition of the conviction for first degree assault in light of People v. Rediger, 2018 CO 32.

On remand, Ramirez argued that the trial court’s jury instruction on deadly physical force, which related to the charges of first degree assault, second degree assault, and third degree assault, was improper. It was error for the court to instruct the jury on deadly physical force because defendant was not accused of causing death. By giving an inapplicable instruction and incorporating it into the elemental instruction for first, second, and third degree assault, the court would have caused the jury to have an incorrect understanding of the elements of those charges. The prior court of appeals’ division concluded that Ramirez had waived his contention of instructional error because his defense counsel stated he believed the instruction to be “a correct statement of the law,” and therefore declined to consider it. Defense counsel apparently lacked awareness of the error. Under these circumstances, the court could not conclude that counsel intentionally relinquished a known right on defendant’s behalf. Here, defense counsel’s error in declining to object to the jury instruction amounted to a forfeiture, not a waiver. The trial court committed plain error.

The conviction of first degree assault was reversed and the case was remanded for a new trial solely as to that charge. In all other respects, the judgment was affirmed.

Summary provided courtesy of  Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 2/12/2019

On Tuesday, February 12, 2019, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Nitka v. Nelnet

Stamps v. Miller

MEMC II v. Cannon Storage Systems

Fletcher v. Inmate Bank

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

Repetition of Phrasing

“REPETITION—far too often avoided—can be a powerful rhetorical device. It can bring order and balance to a sentence’s parts. And it can rivet a word to the reader’s frontal lobe with more impact than elegant variations ever could.”[1]

I. Types of Repetitive Phrases

If you thought repetition was only repeating the same point again, prepare yourself. Repetition is a class of rhetorical devices. Brigham Young University’s Silva Rhetoricae database describes an arsenal of rhetorical devices involving repetition.[2]

One class within this arsenal is repetition of letters, syllables, and sounds. You probably already know alliteration, which is repetition of the same sound at the beginning of words.[3] Is there a name for when you get so excited about alliteration that you work it in wherever you can? Thankfully, yes. In the X Games of Rhetoric, the event known as paroemion is “alliteration taken to an extreme” — think tongue twister (Peter Piper picked a peck . . . ).[4] A variation is repetition of word endings (running, biking, swimming).[5]

Another class is repetition of words or phrases. One type repeats the same word or words at the beginning of phrases, sentences, or paragraphs (I have a dream . . . ;[6] We shall fight in France, we shall fight on the seas . . . [7]).[8] You can flip that strategy to repeat words at the end (a government of the people, by the people, for the people [9]).[10]

Searching for these unique “turns of phrases” is very difficult. Every now and then they pop out if you are looking for them: “Outlaw to outcast [repetition of prefixes] may be a step forward, but it does not achieve the full promise of liberty.”[11] Nonetheless, it is worth keeping an eye out for them to give yourself ideas.

II. Common Critiques

Any discussion of repetition of phrasing has at least two common criticisms. First, such repetition is showy and ornamental, or is more well-suited for oral than written communication. Second, such repetition is far too time consuming to work into a legal brief, especially given the small payoff. Both criticisms are true, sometimes.

Like any rhetorical device, repetition of phrasing becomes showy and ornamental when it draws the reader’s attention to it—“it” being your choice to repeat phrasing. Readers tend to notice a writing technique only when that technique does not fit; it stands out for one reason or another. In these cases, any technique can become showy, ornamental, and have little payoff. In fact, it probably hurts your brief by being distracting. Even if you get credit for being a wordsmith, your argument suffers as your reader admires you and not your position. But when used selectively and seamlessly, repetition of phrasing is a worthwhile technique.

III. Superfluous Phrases

Sometimes we inadvertently combine two terms that mean the same thing, yielding superfluous repetition: “absolutely certain,” “added bonus,” “difficult dilemma.” Some books list dozens of such commonly used phrases.[12] It’s unlikely any writer has the time to review these lists while proofreading a brief. But skimming these lists and keeping an eye out for such phrases is worthwhile.

IV. Use Repetitive Phrasing to Make a Point

Sometimes repetition is part of a larger technique. Here are some ways to weave repetition and paragraph structure together to make a powerful point.

Repeat a paragraph structure to emphasize a reappearing (and helpful) fact.

As he turned the first corner, he heard the radio announcement about I-70 closing due to bad weather. Tractor trailers were flipping. But the Plaintiff continued on anyway.

As he turned the second corner, he saw skid marks and two cars crashed into the guard rail. But the Plaintiff continued on anyway.

As he turned the third corner, he skidded and regained control just in time to barely avoid crashing into another car. But the Plaintiff continued on anyway.

And then he came to the corner where the accident occurred.

Here, the repeated phrase and its location emphasize a key fact for the defense: the Plaintiff repeatedly rejected signs to turn around and instead chose to continue into bad conditions. Unlike the tedious repetition of a particular fact, here the same fact keeps reappearing. The repetition of phrasing helps draw the reader’s attention to it.

Use repetition to establish a pattern and then break the pattern.

We often think of repetition as a way to draw the reader’s attention to what is being repeated. But you can use it for the opposite effect too—to draw attention to the only thing not being repeated.

Here is one way to make a point: “In every other training of 2018 the safety instructor identified a radio channel. The only time the instructor did not was the training that injured Firefighter Smith.” Here’s another way:

The Department’s Safety protocols revised in January require that before any live fire training the safety instructor (1) take all trainees through the building to identify all exits, (2) assign teams, and (3) identify the radio channel.

At the February live fire training, the safety instructor began by taking trainees throughout the building to identify all exits. Then the instructor assigned teams. And then the instructor identified the radio channel.

At the March live fire training, the safety instructor began by taking trainees through the building to identify all exits. Then the instructor assigned teams. And then the instructor identified the radio channel.

At the April live fire training, the safety instructor began by taking trainees through the building to identify all exits. Then the instructor assigned teams. And then, training started.

No one identified a radio channel.

Combining repetitive language and structure can establish a pattern—here a routine or procedure. The repetition blends together, establishing a cadence for the reader. The break in that pattern draws attention to the only thing not repeated: a key fact. Here, the repetition both draws attention to a key fact and highlights how that fact is inconsistent with a trend.

V. Conclusion

Don’t dismiss repetition of phrasing as too showy or too difficult. Call upon this tool when you need to.

[1] Bruce Ross-Larson, Stunning Sentences: The Effective Writing Series 40 (1st ed. 1999).

[2] Silva Rhetoricae, Figures of Repetition, http://rhetoric.byu.edu/Figures/Groupings/of%20Repetition.htm (last visited Dec. 27, 2018).

[3] Silva Rhetoricae, Alliteration, http://rhetoric.byu.edu/Figures/A/alliteration.htm (last visited Dec. 27, 2018). Bruce Ross-Larson, supra note 1 at 42 (repetition of prefixes and suffixes).

[4] Silva Rhetoricae, Paroemion, http://rhetoric.byu.edu/Figures/P/paroemion.htm (last visited Dec. 27, 2018).

[5] Known as homoioteleuton or homoioptoton. Silva Rhetoricae, Homoioteleuton, http://rhetoric.byu.edu/Figures/H/homoioteleuton.htm (last visited Dec. 27, 2018); Silva Rhetoricae, Homoioptoton, http://rhetoric.byu.edu/Figures/H/homoioptoton.htm (last visited Dec. 27, 2018). See also Bruce Ross-Larson, supra note 1 at 42-44.

[6] Martin Luther King, Jr., “I Have a Dream” (August 28, 1963).

[7] Winston Churchill, “We Shall Fight on the Beaches” (June 4, 1940).

[8] Silva Rhetoricae, Anaphora, http://rhetoric.byu.edu/Figures/A/anaphora.htm (last visited Dec. 27, 2018).

[9] Abraham Lincoln, “Gettysburg Address” (November 19, 1863).

[10] Silva Rhetoricae, Epistrophe, http://rhetoric.byu.edu/Figures/E/epistrophe.htm (last visited Dec. 27, 2018).

[11] Obergefell v. Hodges, 135 S.Ct. 2584, 2600 (2015).

[12] Mark Nichol, 50 Redundant Phrases to Avoid, https://www.dailywritingtips.com/50-redundant-phrases-to-avoid/ (last visited Dec. 27, 2018). See also Bruce Ross-Larson, Edit Yourself: A Manual For Everyone Who Works With Words 1-6 (1996); Robert Harwell Fiske, The Dictionary of Concise Writing 47-396 (2d ed. 2006).

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

Colorado Supreme Court: Condominium Unit Owners Not Indispensable Parties Because Condominium Association Can Adequately Represent Owners’ Interests

The Colorado Supreme Court issued its opinion in In re Accetta v. Brooks Towers Residences Condominium Association on Monday, February 11, 2019.

Civil Procedure—Joinder—Declaratory Judgments—Colorado Common Interest Ownership Act

In this original proceeding pursuant to C.A.R. 21, the supreme court reviewed the district court’s order requiring plaintiff to join as indispensable parties the approximately 500 individual unit owners in the Brooks Tower Residences (Brooks Tower) rather than proceeding solely against his condominium association and its board members. Plaintiff sought, among other things, a declaratory judgment invalidating a provision of his condominium association’s declaration that provides for ownership interests to be allocated in the sole discretion of the declarant. The district court concluded that all of the Brooks Tower unit owners are indispensable parties and must be joined. The supreme court issued a rule to show cause why the district court’s ruling should not be vacated. The court concluded that the condominium association can adequately represent the interests of the absent unit owners for purposes of plaintiff’s declaratory judgment action. Therefore, plaintiff need not join those absent owners. The court made the rule to show cause absolute.

Summary provided courtesy of Colorado Lawyer.