February 22, 2019

Colorado Court of Appeals: Announcement Sheet, 2/21/2019

On Thursday, February 21, 2019, the Colorado Court of Appeals issued nine published opinions and 36 unpublished opinions.

People v. Cooper

People in Interest of D.C.

People v. Denhartog

Interest of Ray v. People

In re Estate of Yudkin

Wagner v. Planned Parenthood Foundation of America, Inc.

People v. Slaughter

People v. Melnick

Neppl v. Department of Revenue

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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




Colorado Supreme Court: DUI, Fourth Offense, is Class 4 Felony Therefore Defendant Entitled to Preliminary Hearing

The Colorado Supreme Court issued its opinion in In re People v. Tafoya on Tuesday, February 19, 2019.

Sentencing and Punishment—Criminal Law—Preliminary Hearings

In this original proceeding pursuant to C.A.R. 21, the supreme court reviewed the district court’s ruling denying petitioner a preliminary hearing when she was charged with Driving Under the Influence (DUI)—fourth or subsequent offense, a class 4 felony under C.R.S. § 42-4-1301(1)(a), and was being held in custody on that charge.

The court issued a rule to show cause and now makes the rule absolute. C.R.S. § 16-5-301(1)(b)(II) provides that a defendant who is accused of a class 4, 5, or 6 felony and is in custody for that offense “may demand and shall receive a preliminary hearing.” The legislature amended the DUI statute to provide that DUI is a class 4 felony if the violation occurred after three or more prior convictions arising out of separate and distinct criminal episodes. Here, the complaint and information accused petitioner of committing a class 4 felony and she was being held in custody on that charge. Accordingly, under the plain language of the statute, petitioner was entitled to a preliminary hearing, and the district court erred in denying her request for such a hearing.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 2/20/2019

On Wednesday, February 20, 2019, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

United States v. Soto-Cruz

United States v. Neely

United States v. Soto-Soto

Case summaries are not provided for unpublished opinions.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

Colorado Supreme Court: Announcement Sheet, 2/19/2019

On Tuesday, February 19, 2019, the Colorado Supreme Court issued two published opinions.

Well Augmentation Subdistrict of the Central Colorado Water Conservancy District and South Platte Well Users Association v. Centennial Water and Sanitation District

In re People v. Tafoya

Summaries of these cases are forthcoming.

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, 2/19/2019

On Tuesday, February 19, 2019, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Needham v. State of Utah

Brooks v. Hanson

Lynch v. Nelson

Osterhout v. Morgan

McGowan v. Wal-Mart Stores

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

Tenth Circuit: Unpublished Opinions, 2/15/2019

On Friday, February 15, 2019, the Tenth Circuit Court of Appeals issued three published opinions and three unpublished opinions.

Christ Center Divine Philosophy v. Elam

Flores-Argueta v. Whitaker

United States v. Campbell

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

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.

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.