CLE Legal Connection http://cbaclelegalconnection.com/?p=37558 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/WboBYy_ig5A/ Case Law 10th Circuit Tenth Circuit: Unpublished Opinions, 8/18/2017 On Friday, August 18, 2017, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion. Mon, 21 Aug 2017 15:04:51 Z http://cbaclelegalconnection.com/2017/08/tenth-circuit-unpublished-opinions-8182017/#respond Susan Hoyt <div class="pf-content"><p>On Friday, August 18, 2017, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.</p> <p><a href="http://www.ca10.uscourts.gov/opinions/17/17-1177.pdf" target="_blank" rel="noopener"><em>Brooks v. Archuleta</em></a></p> <p>Case summaries are not provided for unpublished opinions. However, some published opinions are <a href="http://cbaclelegalconnection.com/tag/10th-circuit/">summarized and provided by Legal Connection</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/WboBYy_ig5A" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/08/tenth-circuit-unpublished-opinions-8182017/feed/ 0 http://cbaclelegalconnection.com/2017/08/tenth-circuit-unpublished-opinions-8182017/ 2017-08-21 15:04 +00:00 2017-08-21 09:04 -06:00 http://cbaclelegalconnection.com/?p=37556 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/ecueVWBMaZQ/ Case Law class action Colorado Court of Appeals litigation oil and gas law Colorado Court of Appeals: Class Did Not Cease to Exist When Settlement Entered The Colorado Court of Appeals issued its opinion in <em>EnCana Oil &#038; Gas (USA), Inc. v. Miller</em> on Thursday, August 10, 2017. Fri, 18 Aug 2017 15:05:47 Z http://cbaclelegalconnection.com/2017/08/colorado-court-appeals-class-not-cease-exist-settlement-entered/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <em><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/16CA1979-PD.pdf" target="_blank" rel="noopener">EnCana Oil &amp; Gas (USA), Inc. v. Miller</a></em> on Thursday, August 10, 2017.</p> <blockquote><p><em>Class Action Settlement—Arbitration Provision—C.R.C.P. 23—Survival of the Class.</em></p> <p>A certified class of Colorado oil and gas royalty owners (the Class) and EnCana Oil &amp; Gas (USA), Inc. (EnCana) litigated, beginning in 2005, EnCana’s alleged underpayment of royalties on natural gas it produced. In 2008, EnCana and the Class entered into a settlement agreement that detailed payment of funds to settle past claims, established the methodology EnCana would use for future royalty payments, and included an arbitration clause. The district court’s final judgment approved and incorporated the settlement agreement, dismissed the 2005 case with prejudice, and reserved jurisdiction to enforce the agreement. In 2016, oil and gas royalty owners (Owners), purporting to act on behalf of the Class, filed a demand for arbitration alleging EnCana had underpaid royalties owed to Class members in violation of the settlement agreement. EnCana filed a new case in district court asserting that (1) the class ceased to exist when the 2005 case was dismissed with prejudice in 2008, and (2) the 2008 settlement agreement did not authorize arbitration on a class-wide basis. The district court found that the class had not ceased to exist and the claims should be resolved in class-wide arbitration, and entered summary judgment against EnCana.</p> <p>On appeal, EnCana contended that the district court erred in finding that the Class continued after the case was dismissed. The court of appeals determined that the Class survived the 2008 dismissal because (1) compliance with the settlement agreement became part of the dismissal order, so the district court retains jurisdiction to give effect to the agreement; and (2) the agreement continues for the lives of the leases or royalty agreements covered by the settlement agreement and expressly burdens and benefits successors and assigns of the parties.</p> <p>EnCana also claimed that the district court failed to satisfy C.R.C.P. 23. The district court did not err in declining to engage in further Rule 23 analysis after the 2008 dismissal and judgment approving the settlement agreement.</p> <p>The court next rejected EnCana’s contention that Class counsel failed to provide sufficient notice of the arbitration demand.</p> <p>EnCana then argued it was error to determine that the settlement agreement contained a contractual basis to conclude that EnCana and the Class agreed to class arbitration. EnCana asserted that because the arbitration clause is silent on class arbitration, the district court should have presumed that the parties agreed to bilateral arbitration only. The settlement agreement explicitly names all members of a certified class as a party to the agreement, frames the disputes in class- or subclass-wide terms, and provides relief on a class- or subclass-wide basis. The arbitration clause’s context thus demonstrates an agreement to class rather than bilateral arbitration. Further, to conclude that the settlement agreement evidenced that the parties contemplated engaging in approximately 5,850 individual arbitrations to resolve future disputes rather than a single class arbitration would be absurd.</p> <p>The judgment was affirmed.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/ecueVWBMaZQ" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/08/colorado-court-appeals-class-not-cease-exist-settlement-entered/feed/ 0 http://cbaclelegalconnection.com/2017/08/colorado-court-appeals-class-not-cease-exist-settlement-entered/ 2017-08-18 15:05 +00:00 2017-08-18 09:05 -06:00 http://cbaclelegalconnection.com/?p=37554 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/GCNKz3tcm54/ Case Law Colorado Court of Appeals disability law incompetent legal disability litigation sexual assault Colorado Court of Appeals: “Legal Disability” Means Inability to Bring Lawsuit Due to Some Policy of Law The Colorado Court of Appeals issued its opinion in <em>T.D. v. Wiseman</em> on Thursday, August 10, 2017. Fri, 18 Aug 2017 14:54:12 Z http://cbaclelegalconnection.com/2017/08/colorado-court-appeals-legal-disability-means-inability-bring-lawsuit-due-policy-law/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <em><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/16CA1274-PD.pdf" target="_blank" rel="noopener">T.D. v. Wiseman</a></em> on Thursday, August 10, 2017.</p> <blockquote><p><em>“Legal Disability” for Tolling Statute of Limitations—C.R.S. § 13-80-103.7(3.5)(a).</em></p> <p>T.D.’s complaint alleged she had endured 10 years of sexual and physical abuse from defendant, her former stepfather. She alleged that she was 7 years old when the abuse began and that it continued until about 1990, when she was in high school. She alleged that the abuse caused her to become dependent on drugs and alcohol, and she suffered from post-traumatic stress disorder, psychological disorders, self-mutilation, eating disorders, depression, and a cycle of abusive relationships.</p> <p>In August 2005, T.D. disclosed defendant’s alleged abuse to the doctors who had been treating her. She attempted suicide in 2012. Thereafter she was able to maintain sobriety. T.D. filed a lawsuit in 2015 asserting assault, battery, sexual assault and battery, extreme and outrageous conduct, and false imprisonment. Defendant filed a motion for summary judgment, asserting that T.D.’s claims had accrued in 2005 when she disclosed the alleged abuse to her doctors. Consequently, her claims were time-barred by the six-year statute of limitations in C.R.S. § 13-80-103.7(1). T.D. argued that the record contained genuine issues of material fact concerning whether she had been a “person under disability” until 2012 because of her addictions and psychiatric disorder, so the statute would have been tolled until her disability was lifted. The trial court granted the motion for summary judgment, finding no genuine issues of material fact in the record about when her claims accrued or whether the statute of limitations barred those claims.</p> <p>The court of appeals determined that the issue of when the claim accrued was not properly before it, and assumed it accrued at the latest in 2005. The court then considered whether there was a factual dispute about whether the applicable statute of limitations was tolled because T.D. was a “person under disability.” Under C.R.S. 13-80-103.75(3.5)(a), a “person under disability” is a person who is (1) a minor under 18 (2) “declared mentally incompetent”; (3) “under other legal disability and who does not have a legal guardian”; or (4) “in a special relationship with the perpetrator of the assault” and “psychologically or emotionally unable to acknowledge the assault or offense and the resulting harm.” T.D. was 43 when the trial court granted the summary judgment motion, so she was not a minor from 2005 to 2011, when the statute of limitations was running. The record did not contain disputed facts about whether she was mentally incompetent during the years during which the statute of limitations ran. The court concluded that “legal disability” denotes an inability to bring a lawsuit based on a “policy of the law.” No facts in the record indicated that T.D. lacked the power to timely bring her suit. Lastly, while a familial relationship can constitute a “special relationship,” T.D. did not demonstrate that she was “psychologically or emotionally unable to acknowledge the assault or offense and the resulting harm.”</p> <p>The judgment was affirmed.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/GCNKz3tcm54" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/08/colorado-court-appeals-legal-disability-means-inability-bring-lawsuit-due-policy-law/feed/ 0 http://cbaclelegalconnection.com/2017/08/colorado-court-appeals-legal-disability-means-inability-bring-lawsuit-due-policy-law/ 2017-08-18 14:54 +00:00 2017-08-18 08:54 -06:00 http://cbaclelegalconnection.com/?p=37552 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/MJqb-CgdpTo/ Case Law appellate law Colorado Court of Appeals criminal law Department of Corrections mandamus Colorado Court of Appeals: Petition for Mandamus Relief Should Have Been Transferred to Executive Director The Colorado Court of Appeals issued its opinion in <em>Gandy v. Raemisch</em> on Thursday, August 10, 2017. Fri, 18 Aug 2017 14:49:33 Z http://cbaclelegalconnection.com/2017/08/colorado-court-appeals-petition-mandamus-relief-transferred-executive-director/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <em><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/16CA1267-PD.pdf" target="_blank" rel="noopener">Gandy v. Raemisch</a></em> on Thursday, August 10, 2017.</p> <blockquote><p><em>C.R.C.P. 106—Dismissal—Transfer of Canadian Prisoner to Canada to Serve Life Sentence—Mandamus Relief.</em></p> <p>Gandy is a Canadian citizen serving a habitual criminal life sentence in the custody of the Colorado Department of Corrections (DOC). Gandy applied numerous times to DOC to be transferred to serve the remainder of his sentence in the Canadian penal system. In 2016, the DOC prisons director (director) denied Gandy’s 2015 application in writing. The director stated that under DOC Administrative Regulation 550-05, Gandy would be eligible to reapply in two years. The director did not forward Gandy’s application to DOC’s executive director.</p> <p>Gandy filed a complaint in district court seeking mandamus relief under C.R.C.P. 106, requesting the court to direct DOC to “process and submit” his application for transfer to the U.S. Department of Justice and asking for nominal punitive damages for alleged violations of his constitutional rights. The court granted defendants’ motion to dismiss for failure to state a claim on which relief can be granted.</p> <p>On appeal, Gandy contended he was entitled to mandamus relief, arguing that he was entitled to final review of and decision on his transfer application by the executive director.  DOC’s transfer application process imposed a duty on the director to process Gandy’s application and then send it to the executive director for his final review and decision. Because this duty is clear, mandamus relief was appropriate.</p> <p>Gandy also argued that the two-year reapplication waiting period was improperly imposed. The Colorado Court of Appeals agreed, finding that DOC regulations do not require or provide for the imposition of a two-year waiting period before permitting an offender to reapply.</p> <p>Gandy further argued that the district court erred when it dismissed his constitutional claims for failure to state a claim because the regulation conflicts with federal treaties and thus violates the Supremacy Clause. However, the court found no conflict between DOC regulations and international treaties.</p> <p>Gandy next argued that defendants discriminated against him by refusing to process his transfer request due to his national origin. The court agreed with the district court that Gandy did not plead any facts supporting this allegation.</p> <p>The judgment dismissing Gandy’s constitutional claims was affirmed. The judgment dismissing the complaint seeking mandamus relief was reversed, and the case was remanded with directions to enter an order directing the director to forward the transfer application and recommendations to the executive director for final review and decision.</p></blockquote> <p><em>Summary available courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/MJqb-CgdpTo" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/08/colorado-court-appeals-petition-mandamus-relief-transferred-executive-director/feed/ 0 http://cbaclelegalconnection.com/2017/08/colorado-court-appeals-petition-mandamus-relief-transferred-executive-director/ 2017-08-18 14:49 +00:00 2017-08-18 08:49 -06:00 http://cbaclelegalconnection.com/?p=37550 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/hAcpEWlu9NA/ Case Law 10th Circuit Tenth Circuit: Unpublished Opinions, 8/17/2017 On Thursday, August 17, 2017, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions. Fri, 18 Aug 2017 14:32:19 Z http://cbaclelegalconnection.com/2017/08/tenth-circuit-unpublished-opinions-8172017/#respond Susan Hoyt <div class="pf-content"><p>On Thursday, August 17, 2017, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.</p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-5176.pdf" target="_blank" rel="noopener"><em>Aery v. Board of County Commissioners of Tulsa County</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-5176.pdf" target="_blank" rel="noopener"><em>Worthen v. United States</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/17/17-7026.pdf" target="_blank" rel="noopener"><em>McElhaney v. Bear</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-6091.pdf" target="_blank" rel="noopener"><em>United States v. Burtons</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-6091.pdf" target="_blank" rel="noopener"><em>Kirby, Jr. v. Roberts</em></a></p> <p>Case summaries are not provided for unpublished opinions. However, some published opinions are <a href="http://cbaclelegalconnection.com/tag/10th-circuit/">summarized and provided by Legal Connection</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/hAcpEWlu9NA" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/08/tenth-circuit-unpublished-opinions-8172017/feed/ 0 http://cbaclelegalconnection.com/2017/08/tenth-circuit-unpublished-opinions-8172017/ 2017-08-18 14:32 +00:00 2017-08-18 08:32 -06:00 http://cbaclelegalconnection.com/?p=37546 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/MciOdNAqDpY/ Job Satisfaction happiness inspiration job satisfaction job search law practice mental health But Isn’t Legal Work Essential? "The most common complaint expressed within the legal profession is a lack of meaning or sense of fulfillment from work." The above quote is from an article published by the Lawyers Assistance Program of British Columbia. But how can anyone think their work in the law lacks meaning? I mean, the law is essential to the functioning of society, isn’t it? Yes, but apparently essential doesn’t count for much in the pursuit of meaning. Thu, 17 Aug 2017 15:26:39 Z http://cbaclelegalconnection.com/2017/08/isnt-legal-work-essential/#respond Kevin Rhodes <div class="pf-content"><p><a href="http://cbaclelegalconnection.com/2017/07/can-money-buy-happiness/photo-kevin-head-shot-thumbnail/" rel="attachment wp-att-37377"><img class="alignleft size-full wp-image-37377" src="http://cbaclelegalconnection.com/wp-content/uploads/2017/07/Photo-Kevin-Head-Shot-thumbnail.jpg" alt="" width="150" height="187" srcset="http://cbaclelegalconnection.com/wp-content/uploads/2017/07/Photo-Kevin-Head-Shot-thumbnail.jpg 150w, http://cbaclelegalconnection.com/wp-content/uploads/2017/07/Photo-Kevin-Head-Shot-thumbnail-120x150.jpg 120w" sizes="(max-width: 150px) 100vw, 150px" /></a></p> <p style="text-align: center;"><em>&#8220;The most common complaint expressed within the legal profession<br /> is a lack of meaning or sense of fulfillment from work.&#8221;</em></p> <p>The above quote is from an <a href="http://lapbc.com/nature-of-the-profession/meaning-values-and-the-practice-of-law-derek-lacroix-qc/">article</a> published by the Lawyers Assistance Program of British Columbia. But how can anyone think their work in the law lacks meaning? I mean, the law is essential to the functioning of society, isn’t it? Yes, but apparently essential doesn’t count for much in the pursuit of meaning.</p> <p>Andrew Russel, Dean and Professor in the College of Arts &amp; Sciences at SUNY Polytechnic Institute in Utica, New York, says this in his <em>Aeon Magazine</em> article, “<a href="https://aeon.co/essays/innovation-is-overvalued-maintenance-often-matters-more">Hail the Maintainers: Capitalism excels at innovation but is failing at maintenance, and for most lives it is maintenance that matters more</a>” (April 7, 2016):</p> <blockquote><p>Innovation is a dominant ideology of our era . . . As the pursuit of innovation has inspired technologists and capitalists, it has also provoked critics who suspect that the peddlers of innovation radically overvalue innovation. What happens <em>after</em> innovation, they argue, is more important. Maintenance and repair, the building of infrastructures, the mundane labour that goes into sustaining functioning and efficient infrastructures, simply has more impact on people’s daily lives than the vast majority of technological innovations.</p></blockquote> <p>Maybe so, but the maintainers themselves aren’t buying their own importance. This <a href="http://www.huffingtonpost.ca/2017/05/11/suicide-rates-by-job_n_16543360.html"><em>Huffington Post</em> article from May 11, 2017</a>, reported a study by Britain’s Office of National Statistics that found that workers in “maintainer” jobs — manual labor, construction, building trades, processing plants, factories, agriculture — had the highest rates of suicide in the U.K. <a href="http://www.cbsnews.com/news/these-jobs-have-the-highest-rate-of-suicide/">A 2016 Center for Disease Control and Prevention study</a> reported similar results in the U.S., with rates highest among lumberjacks, farmworkers, fishermen, carpenters, miners, electricians, construction trades, factory and production workers, and others who build, install, maintain, and repair things.</p> <p>Other noteworthy findings of both studies were that suicide rates were three times higher among men than women; the highest female suicide rate was among police, firefighters and corrections officers; the second highest female suicide rate was in the legal profession; and among the professions, lawyer suicides were in third place after doctors and dentists.</p> <p>The CDC study speculated that the principle causes behind these statistics include job-related isolation and demands, stressful work environments, and work-home imbalance, all of which are endemic in the legal profession. The British Columbia LAP piece quoted above states flatly that:</p> <blockquote><p>From a health perspective it is unhealthy to do meaningless, unchallenging, uncreative work, especially for those that are intelligent and well trained.</p></blockquote> <p>The article reports that a sense of meaningless is expressed differently by older vs. younger lawyers:</p> <blockquote><p>[A sense of meaningless about their work] is stated more directly by older practitioners as boredom, lack of job satisfaction, just getting through each day, turning out work without time to contemplate, turning out product for clients like a machine, and lack of connection to clients, which is often expressed as lack of client loyalty. Legal professionalism has been eroded by the need for volume, speed and uniformity of work product.</p> <p>The younger practitioners . . . ask, “What good am I doing?” They express a lack of control over work or life. They worry about the demands of clients, and that there is little opportunity for them to utilize creative thinking. They also ask if they can have a life and practice law. . . . [T]hey do not get a sense of fulfillment from practicing law. They do not get a sense of meaning from it and it seems to be valueless.</p></blockquote> <p>We’ve been looking at books, articles, surveys, and academic research from business, academia, the professional world, and even the United Nations. All agree that meaningless malaise in the workplace is worldwide and afflicts both men and women across a full range of occupations from the “maintainers” to professionals. Money doesn’t help, neither does living in a “happy,” first world country. Striving after wealth and income growth only makes things worse. Meanwhile, rates of self-destruction are alarmingly on the rise, especially in this century.</p> <p><em>More next time.</em></p> <p>&nbsp;</p> <div style="border: 1px solid #becbcf; background-color: #dee4e7;"> <p><em>Kevin Rhodes is on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. His past blog posts for the CBA have been collected in two volumes — click the book covers for more information.</em></p> <p><a href="https://www.amazon.com/Law-Enlightenment-Other-States-Mind/dp/1521495009/ref=asap_bc?ie=UTF8" target="_blank" rel="attachment wp-att-37444 noopener"><img class="alignleft size-full wp-image-37444" src="http://cbaclelegalconnection.com/wp-content/uploads/2017/07/Law-enlightenment-2nd-edition.jpg" alt="" width="150" height="225" srcset="http://cbaclelegalconnection.com/wp-content/uploads/2017/07/Law-enlightenment-2nd-edition.jpg 150w, http://cbaclelegalconnection.com/wp-content/uploads/2017/07/Law-enlightenment-2nd-edition-100x150.jpg 100w" sizes="(max-width: 150px) 100vw, 150px" /></a><a href="https://www.amazon.com/Cyborg-Lawyers-Kevin-Rhodes/dp/1521825769/ref=asap_bc?ie=UTF8" target="_blank" rel="attachment wp-att-37445 noopener"><img class="alignleft size-full wp-image-37445" src="http://cbaclelegalconnection.com/wp-content/uploads/2017/07/cover-3-thumbnail.jpg" alt="" width="150" height="225" srcset="http://cbaclelegalconnection.com/wp-content/uploads/2017/07/cover-3-thumbnail.jpg 150w, http://cbaclelegalconnection.com/wp-content/uploads/2017/07/cover-3-thumbnail-100x150.jpg 100w" sizes="(max-width: 150px) 100vw, 150px" /></a></p> </div> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/MciOdNAqDpY" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/08/isnt-legal-work-essential/feed/ 0 http://cbaclelegalconnection.com/2017/08/isnt-legal-work-essential/ 2017-08-17 15:26 +00:00 2017-08-17 09:26 -06:00 http://cbaclelegalconnection.com/?p=37544 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/oNvs_JqihsQ/ Case Law Colorado Court of Appeals Colorado Court of Appeals: Announcement Sheet, 8/17/2017 On Thursday, June 17, 2017, the Colorado Court of Appeals issued no published opinion and 35 unpublished opinions. Thu, 17 Aug 2017 15:19:03 Z http://cbaclelegalconnection.com/2017/08/colorado-court-appeals-announcement-sheet-8172017/#respond Susan Hoyt <div class="pf-content"><p>On Thursday, June 17, 2017, the Colorado Court of Appeals issued no published opinion and 35 unpublished opinions.</p> <p>Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is <a href="https://www.courts.state.co.us/Courts/Court_Of_Appeals/Case_Announcements/Files/2017/6335DC08-17-17.pdf" target="_blank" rel="noopener noreferrer">available here</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/oNvs_JqihsQ" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/08/colorado-court-appeals-announcement-sheet-8172017/feed/ 0 http://cbaclelegalconnection.com/2017/08/colorado-court-appeals-announcement-sheet-8172017/ 2017-08-17 15:19 +00:00 2017-08-17 09:19 -06:00 http://cbaclelegalconnection.com/?p=37542 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/E8dj6_AWOU0/ Case Law attorney fees business law Colorado Court of Appeals contract law litigation Colorado Court of Appeals: District Court Properly Denied Attorney Fees to Non-prevailing Party The Colorado Court of Appeals issued its opinion in <em>Klein v. Tiburon Development, LLC</em> on Thursday, August 10, 2017. Thu, 17 Aug 2017 15:16:10 Z http://cbaclelegalconnection.com/2017/08/colorado-court-appeals-district-court-properly-denied-attorney-fees-non-prevailing-party/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/16CA0824-PD.pdf" target="_blank" rel="noopener"><em>Klein v. Tiburon Development, LLC</em></a> on Thursday, August 10, 2017.</p> <blockquote><p><em>Attorney Fees—Fee-Shifting Provision—Contract—Violation of Public Policy—Substantial Justification.</em></p> <p>Following remand, the district court denied the Kleins’ request for attorney fees and costs pursuant to a line of credit agreement (LOC) between them and Tiburon Development LLC (Tiburon). The district court granted Tiburon’s and Sell’s (a member of Tiburon) motions for attorney fees and costs.</p> <p>On appeal, the Kleins contended that the district court erroneously denied their request for attorney fees pursuant to the fee-shifting provision of the LOC. However, enforcing  and awarding the Kleins their attorney fees and costs pursuant to the LOC would violate public policy because the Kleins lost the predominant and only contested part of the LOC claim, and they had only nominal success on the secondary and uncontested issue of entitlement to interest on the LOC. It would have been an abuse of discretion to conclude that the Kleins were the prevailing party on the LOC claim. Further, the Kleins were sanctioned for their conduct during the litigation and ordered to pay all of Tiburon’s attorney fees.</p> <p>The Kleins next contended that the district court erred in awarding Sell the attorney fees he incurred in seeking an award of fees because Sell failed to carry his burden to prove that the Kleins’ defense to his fees motion lacked substantial justification, and the district court never found that the Kleins’ defense was frivolous. An award of fees incurred in seeking fees under C.R.S. § 13-17-102 must be supported by a determination in the record that the sanctioned party’s defense to the fees motion lacked substantial justification. Because the record in this case does not support that finding, the district court erred in including in its fee award the fees Sell incurred in pursuing his motion for fees.</p> <p>The Kleins further contended that the district court’s award of fees to Sell unreasonably included fees Sell incurred to respond to the Kleins’ C.R.C.P. 59 motion, which they asserted was not relevant to their claims against Sell. It was not an abuse of discretion for the district court to award Sell the attorney fees he incurred to respond to the Kleins’ C.R.C.P. 59 motion, and the decision was supported by findings in the record.</p> <p>The judgments denying an award of attorney fees and costs to the Kleins and awarding Sell the attorney fees he incurred to respond to the Kleins’ C.R.C.P. 59 motion were affirmed. The judgment was reversed insofar as the court awarded Sell the attorney fees he incurred in seeking fees against the Kleins, and the case was remanded for the district court to subtract the amount of such fees from the award.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/E8dj6_AWOU0" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/08/colorado-court-appeals-district-court-properly-denied-attorney-fees-non-prevailing-party/feed/ 0 http://cbaclelegalconnection.com/2017/08/colorado-court-appeals-district-court-properly-denied-attorney-fees-non-prevailing-party/ 2017-08-17 15:16 +00:00 2017-08-17 09:16 -06:00 http://cbaclelegalconnection.com/?p=37540 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/CN8to3dMpcc/ Case Law Colorado Court of Appeals criminal law identity theft merger Colorado Court of Appeals: Multiple Counts of Identity Theft Proper for Multiple Instances with Same Victim The Colorado Court of Appeals issued its opinion in <em>People v. Allman</em> on Thursday, August 10, 2017. Thu, 17 Aug 2017 15:10:47 Z http://cbaclelegalconnection.com/2017/08/colorado-court-appeals-multiple-counts-identity-theft-proper-multiple-instances-victim/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/15CA1235-PD.pdf" target="_blank" rel="noopener"><em>People v. Allman</em></a> on Thursday, August 10, 2017.</p> <blockquote><p><em>Identity Theft—Forgery—Theft from an At-Risk Adult—Merger—Sentence—Concurrent—Probation.</em></p> <p>Using an alias, Allman presented himself to the victim as a businessman who had recently moved from Washington to Colorado. Allman moved into the victim’s basement, gained her trust, and when the victim left on vacation, Allman accessed the victim’s bank accounts and stole money from them. Allman also opened several credit cards in the victim’s name, moved out of her home, took her car, and obtained over $40,000 of credit in her name. Allman was convicted of eight counts of identity theft, two counts of forgery, one count of aggravated motor vehicle theft, and one count of theft from an at-risk adult. He was sentenced consecutively for some counts and concurrently for others.</p> <p>On appeal, Allman argued that the convictions for identity theft are unconstitutionally multiplicitous and must merge into one conviction and sentence for that offense because identity theft is a continuing crime where, as here, the identity of only one victim has been stolen. The Colorado Court of Appeals concluded that the crime of identity theft under C.R.S. § 18-5-902(1)(a) is not a continuing course of conduct and, therefore, each discrete act of identity theft under that subsection is a separately chargeable offense.</p> <p>Allman also appealed a number of sentencing issues. He first contended that his sentences for the identity theft counts should merge. The court rejected this argument based on its finding that identity theft is not a continuing crime. Second, Allman alternatively contended that the identity theft sentences should run concurrently because they are based on identical evidence. Because Allman’s eight convictions for identity theft were based on factually distinct evidence, the trial court was not required to impose concurrent sentences. Third, he argued that his sentence for two counts of forgery should run concurrently to each other and to one of his sentences for identity theft because he used the same credit card for all three offenses. The record is clear that neither forgery offense is factually identical to the other, nor is either of them factually identical to the identity theft count. Thus the trial court was not required to impose concurrent sentences for these offenses. Fourth, Allman argued that he was illegally sentenced to both the custody of the Department of Corrections and probation. Where, as here, a court sentences a defendant for multiple offenses in the same case, it may, within its discretion and subject to statutory limitations, impose imprisonment for certain offenses and probation for others, including probation consecutively to a period of incarceration. Fifth, Allman contended that his sentence for theft from an at-risk adult should run concurrently to his other sentences because the jury was not required to make a specific finding regarding exactly what Allman stole from the victim as the basis for that count. Under the circumstances of this case, the sentencing court was not required to order a concurrent sentence for the theft conviction.</p> <p>The judgment and sentence were affirmed.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/CN8to3dMpcc" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/08/colorado-court-appeals-multiple-counts-identity-theft-proper-multiple-instances-victim/feed/ 0 http://cbaclelegalconnection.com/2017/08/colorado-court-appeals-multiple-counts-identity-theft-proper-multiple-instances-victim/ 2017-08-17 15:10 +00:00 2017-08-17 09:10 -06:00 http://cbaclelegalconnection.com/?p=37538 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/1S9eSnT_SgM/ Case Law 10th Circuit Tenth Circuit: Unpublished Opinions, 8/16/2017 On Wednesday, August 16, 2017, the Tenth Circuit Court of Appeals issued no published opinion and nine unpublished opinions. Thu, 17 Aug 2017 15:03:48 Z http://cbaclelegalconnection.com/2017/08/tenth-circuit-unpublished-opinions-8162017/#respond Susan Hoyt <div class="pf-content"><p>On Wednesday, August 16, 2017, the Tenth Circuit Court of Appeals issued no published opinion and nine unpublished opinions.</p> <p><a href="http://www.ca10.uscourts.gov/opinions/17/17-2097.pdf" target="_blank" rel="noopener"><em>United States v. Pacheco-Soto</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/17/17-4048.pdf" target="_blank" rel="noopener"><em>Webb v. Thompson</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/17/17-5063.pdf" target="_blank" rel="noopener"><em>Arp v. McCollum</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/17/17-8001.pdf" target="_blank" rel="noopener"><em>Harper v. Guthrie</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/17/17-2092.pdf" target="_blank" rel="noopener"><em>United States v. Nevarez-Barela</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-6370.pdf" target="_blank" rel="noopener"><em>Leatherwood v. Rios</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-3007.pdf" target="_blank" rel="noopener"><em>GCIU-Employer Retirement Fund v. Coleridge Fine Arts</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/17/17-2074.pdf" target="_blank" rel="noopener"><em>Cain v. Frawner</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-1409.pdf" target="_blank" rel="noopener"><em>Carbajal v. O&#8217;Neill</em></a></p> <p>Case summaries are not provided for unpublished opinions. However, some published opinions are <a href="http://cbaclelegalconnection.com/tag/10th-circuit/">summarized and provided by Legal Connection</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/1S9eSnT_SgM" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/08/tenth-circuit-unpublished-opinions-8162017/feed/ 0 http://cbaclelegalconnection.com/2017/08/tenth-circuit-unpublished-opinions-8162017/ 2017-08-17 15:03 +00:00 2017-08-17 09:03 -06:00