June 27, 2019

Tenth Circuit: Opinions, 4/29/11

The Tenth Circuit on Friday issued two published opinions and nine unpublished opinions.


In United States v. Harrell, the Court affirmed the district court’s decision. In eminent domain proceedings, Petitioners claimed they were the “prevailing party,” as defined by the Equal Access to Justice Act (EAJA). The district court disagreed even though Petitioners were awarded $3.8 million, and denied their request for $2 million in attorney fees. The Court agreed with the district court by reviewing the issue under the necessary strict construction of the EAJA; the statute must be strictly construed when considering “under what circumstances Congress was willing to require the government to pay the attorney’s fees of other parties” under the “mathematical prevailing party standard” set out in the EAJA. The Court held that the district court’s “$3.8 million judgment in favor of appellants was closer to the highest valuation testified to by the government’s expert, $186,500, than to the highest valuation testified to by [Petitioners]’ expert, $33 million, and that [Petitioners] therefore were not the prevailing party” entitled to attorney fees.

In Efagene v. Holder, Jr., the Court reversed the Board of Immigration Appeals’ (BIA) decision. Petitioner, a citizen of Nigeria, has been a lawful United States resident since 1991. In 2005, Petitioner pleaded guilty to misdemeanor sexual conduct-no consent and was sentenced to 364 days’ imprisonment, and ordered to register as a sex offender for the next ten years. In 2007, Petitioner failed to meet a registration deadline and was arrested. He pleaded guilty to a misdemeanor failure-to-register offense, and was sentenced to thirty days’ imprisonment and a $100 fine. He now petitions for review of a final order of removal issued by the BIA, arguing that “the BIA erred in concluding that the Colorado misdemeanor offense of failure to register as a sex offender constitutes a crime involving moral turpitude under the Immigration and Nationality Act.” The Court agreed, refusing to find Petitioner’s failure to register as a sex offender as a crime involving moral turpitude. “Colorado’s own courts have described the sex offender registry statute at issue here as regulatory in nature. . . . While there is no question a sex offense itself often involves serious harm to the victim and constitutes a depraved act, an individual can be convicted of failure to register if he, for example, changes residences and notifies law enforcement six rather than five business days later.” Failure to register within the appropriate time does not rise to the level of moral turpitude, but rather is a violation of a regulatory requirement designed to aid law enforcement.


Henshaw v. Wayne County

Johnson v. Kansas Parole Board

United States v. Thompson

United States v. Chacon

United States v. Garcia-Ruiz

United States v. Roe

United State v. Lockhart

United States v. Smith

Novell, Inc. v. Vigilant Ins. Co.

Colorado Court of Appeals: District Possessed the Power to Condemn an Absolute Fee Interest in Land, Including Mineral, Oil, and Gas Interests

The Colorado Court of Appeals issued its opinion in Steamboat Lake Water and Sanitation District v. Halvorson on January 6, 2011.

Eminent Domain—Condemnation—Appeal—Bond—Defeasible Fee Interest—Remainder Interest—Attorney Fees.

Respondents Vance and Sharon Halvorson challenged the trial court’s order granting title to the Steamboat Lake Water and Sanitation District (District) pursuant to its eminent domain powers. The order was affirmed.

The Halvorsons owned certain real property, located within the District’s boundaries and known as Lot 78. The trial court granted title to the District pursuant to its eminent domain powers, and described the title as an absolute fee “free of all rights of reversion or reversionary interests, including but not limited to the possibility of reverter and rights of entry for conditions broken.”

The District argued that the Halvorsons’ appeal should be dismissed because they accepted the benefits of the judgment by withdrawing the $90,000 bond. A party is prohibited from both accepting the benefits of a judgment and prosecuting an appeal, but not when the adjudication of that appeal would not put in issue the party’s right to the entirety of the benefit he has accepted. Here, the withdrawal of the bond precluded the Halvorsons from challenging the title description’s failure to exclude gas, oil, and mineral interests. However, they were permitted to appeal whether the interest passed was a defeasible or absolute fee.

The Halvorsons argued that the court’s description of the title is erroneous because the District was empowered only to condemn a defeasible fee interest that excluded mineral, oil, and gas interests. The Halvorsons contended that they still own a remainder interest in their land, which consists of the mineral, oil, and gas interests, and either a reversionary interest or a right of entry for condition broken if the District ever abandons the property or attempts to sell it to a private party. The District possessed the power to condemn an absolute fee interest in land. Because the District explicitly sought, and paid for, an absolute fee interest in Lot 78, the trial court did not err in so describing the District’s title.

The Halvorsons also argued that the court erred in refusing to award attorney fees pursuant to CRS § 38-1-122. However, the District was authorized by law to acquire the property, and the Halvorsons did not prove that the award equaled or exceeded 130 percent of the condemnor’s last written offer to purchase the property or interest. The order was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on January 6, 2011, can be found here.

Colorado Court of Appeals: Summary Judgment Appropriate for Eminent Domain Proceeding; No Genuine Dispute over Value

The Colorado Court of Appeals issued its opinion in City of Steamboat Springs v. Johnson on August 6, 2010.

Eminent Domain—Greenbelt—Summary Judgment—Easement Appurtenant—Value.

Charles Johnson and Johnson Excavation, Inc. (collectively, Johnson) appealed the district court’s partial summary judgment on valuation issues regarding Johnson’s Lot 4 and Johnson’s interests in a greenbelt. The judgment was affirmed in part and reversed in part, and the case was remanded for further proceedings.

The City of Steamboat Springs (City) decided to construct a new highway on what once was greenbelt area. To do so, it obtained a judicial decree that it owned the greenbelts, condemned or acquired property owners’ appurtenant rights to restrict use of that area to anything but greenbelts, and acquired adjoining properties. The district court granted the City’s motion for partial summary judgment as to the value of most of Johnson’s interests, including Lot 4 and the greenbelt interests.

Johnson argued that summary judgment is unavailable in takings cases because property owners have a constitutional right to require that a jury determine the amount of compensation. However, the summary judgment rule, C.R.C.P. 56, plainly applies to eminent domain proceedings.

Here, there was no genuine dispute as to the value of Lot 4. Therefore, summary judgment was proper on this issue. Johnson’s greenbelt interests were an easement appurtenant to his Lot 4 property. The value of that lost interest depends not on the effect on the greenbelts themselves, but rather on the effect on Lot 4. Because the district court did not measure before and after values of Lot 4 but relied on appraisals of the greenbelts themselves, the case was remanded to determine the proper amount by which loss of the greenbelts diminished the value of Lot 4.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on July 22, 2010, can be found here.

Colorado Court of Appeals: Penalties for Government’s Undervaluing of Property in Eminent Domain Do Not Include Consideration of Prejudgment Interest

The Colorado Court of Appeals issued its opinion in City of Colorado Springs v. Andersen Mahon Enterprises, LLP on July 22, 2010.

Eminent Domain—Offer—Award—Attorney Fees—Prejudgment Interest—CRS § 38-1-122(1.5).

In this eminent domain proceeding, petitioner City of Colorado Springs (City) appealed the trial court’s order awarding attorney fees to respondent Andersen Mahon Enterprises, LLP. The order was reversed.

The City and Andersen Mahon were unsuccessful in negotiating just compensation for the taking of Anderson Mahon’s property, which was to be used by the City to widen a roadway. Andersen Mahon rejected the City’s final written offer of $1.2 million. On August 15, 2008, the City filed a Petition in Condemnation. On September 4, 2008, the City took possession and deposited into the court registry $1,024,000, a sum equal to its appraised value of the property. After the valuation trial in April 2009, a court-appointed board determined that the value of the property on September 4, 2008 was $1,542,294. This award was 28.5 percent higher than the City’s final written offer of $1.2. Andersen Mahon then moved for an award of attorney fees pursuant to CRS § 38-1-122(1.5). It argued that prejudgment interest should be added to the board’s valuation award in determining whether the City’s final written offer had been exceeded by 30 percent. The trial court agreed with Andersen Mahon and awarded attorney fees.

On appeal, the City argued that prejudgment interest is separate from the “award by the court,” within the meaning of CRS § 38-1-122(1.5). The Court of Appeals agreed. Under § 38-1-122(1.5), property owners are entitled to reimbursement for attorney fees they incur in challenging the governmental entity’s valuation of their condemned property if the court’s award exceeds the condemning entity’s last written offer by 30 percent. The phrase in this statute, “award by the court,” means only the property valuation award, and not the valuation award plus prejudgment interest. Because the award (not including prejudgment interest) did not exceed the 130 percent threshold of the last written offer by the City, Andersen Mahon was not entitled to attorney fees. Therefore, the award of attorney fees was reversed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on July 22, 2010, can be found here.

Legislation: Governor Signs Agricultural Eminent Domain Bill into Law

With his signature, Governor Bill Ritter enacted historic legislation that curbs the state’s right-of-way in “blighted” agricultural land eyed by developers for urban renewal.

Sponsored by House Deputy Majority Whip Randy Fischer (D-Fort Collins) and Sen. Morgan Carroll (D-Aurora), HB 10-1107 more narrowly construes when farmland may be considered “blight,” with the intended effect of limiting private developers’ ability to purchase inexpensive farming land seized under eminent domain —  and at taxpayer’s expense. The bill passed both legislative houses with wide bipartisan support before landing on the governor’s desk for his signature.

Rep. Fischer told the Colorado House Democrats blog:

When I travel to Denver on my way to the State Capitol, I pass by acre upon acre of verdant irrigated farmland. How can anyone confuse productive farm land with abandoned or derelict buildings and crime ridden streets that are characteristic of urban blight? I can’t and I don’t think most Colorado citizens can either. We need to recognize in statute what is common sense: Farm land is not urban blight.

Not only does the measure prevent fertile farmland from being condemned and open to redevelopment, but it also ensures that tax dollars intended to rehabilitate real urban blight — slums, ramshackle buildings, and other urban areas fallen into dangerous disrepair — accomplish just that.

(image source: Wikimedia Commons)