“There is no real ending. It’s just the place where you stop the story.” – Frank Herbert. In this attorney-discipline case, Attorney Bass was suspended from the practice of law, stayed subject to the successful completion of a two-year probationary period. The Office of Attorney Regulation later asked the Presiding Disciplinary Judge to revoke her probation. He did so after 4 months of attempting to serve her with the request. The date for the end of her probation passed. A week later the Judge revoked her probation and suspended her for a year and a day. She appealed, claiming that the Judge lacked authority to do so after the last day of her probation. The Court disagreed because only an affidavit of compliance and the issuance of an order certifying completion ends probation. Because that didn’t happen, she was still “on probation.” Thus, the Judge was authorized to order suspension.
Monthly Archives: June 2013
Dennis Shaw and First Horizon Home Loan Corporation, v. 17 West Mill St, LLC, 2013CO37 (June 24, 2013)
“Rather fail with honor than succeed by fraud.” – Sophocles. In this case the attorney for a borrower signed a request for a release of a lender’s deed of trust as “attorney for lender.” Lender later found out and sued, seeking to set aside the release because CRS 38-39-102 voids releases based on a “fraudulent request.” The Court upheld the trial court and reversed the court of appeals by holding that “fraudulent” means proof of actual fraud by a preponderance of the evidence, similar to common law fraud. It did so to fulfill the purpose of the statute: creating certainty, predictability, and relieving public trustees from a duty to inspect releases to determine validity. Here, borrower’s attorney signed for the lender because he had done so before and was under time pressures. It was negligent, not fraudulent. Thus, the later bona fide purchaser obtained title to the property.
DCP Midstream, LP, v. Anadarko Petroleum Corp.; Kerr-McGee Oil & Gas Onshore LP; and Kerr-McGee Gathering LLC, 2013 CO 36 (June 24, 2013)
Do courts manage cases “to secure the just, speedy, and inexpensive determination of every action?” (CRCP 1). They should. Here, Plaintiff sought information about thousands of gas wells and contracts, though it sued on far fewer. The trial court permitted broad discovery. In a wide-reaching opinion, the Court reversed and ordered all trial courts to actively manage discovery when objections to scope arise under CRCP 26(b). Those objections should be explicitly addressed in the context of the cost-benefit, proportionality, and other “good cause” factors in CRC 26(b)(2)(F). The Court would not distinguish between discovery of “claims and defenses” and “subject matter,” though the concurrence would have. The Court also reiterated that the attorney-client privilege applies to a Title Opinion if it is a confidential communication made in the course of obtaining advice.
“Thousands of possibilities [to sue]. Get yours.” – Best Buy tagline. Plaintiff was on Best Buy’s property to purchase a refrigerator and was injured. Plaintiff sued under the Premises Liability Act (PLA) and ended up in federal court. The district court dismissed, finding the PLA only applies to activities “directly and inherently” related to the land. On appeal, the Tenth Circuit certified a question to the Court asking if that was correct. Answer: no. The PLA is more broad than “directly and inherently,” but not so broad that it applies to any tort on another’s property. Interpreting Pierson v. Black Canyon, the Court held that the PLA applies to “conditions, activities, and circumstances on the property” that the landowner is liable for as a landowner. Thus, the fact-specific inquiry must include whether the injury was caused by the landowner’s actions as the landowner.
“Denver city council candidate [Fry] caught up in plagiarism charge.” That headline landed The Denver Post in court for defamation. It started with a questionnaire answered by a Denver City Council candidate that appeared to be plagiarized. The candidate, upon reviewing the Post’s information, agreed, confessed, contacted the person from whom she took her responses and apologized. Afterwards, the Post ran the headline. Buried deep in the article, it quoted Fry: “I would never intentionally lift from another source and should have been more careful.” The district court found that the article was not false simply because it omitted the fact that Fry admitted her mistake. The court of appeals conducted a detailed exegesis of the article and agreed with the trial court. It held that an average reader would not conclude that ‘caught up’ and ‘charge’ suggested a crime. Case dismissed.
The following changes have been made the Colorado Rules of Civil Procedure:
Rule 103. Garnishment
SECTION 1 [NO CHANGE]
(a) Through (f) [NO CHANGE]
(g) Court Order on Garnishment Answer.
(1) If an answer to a writ with notice shows the garnishee is indebted to the judgment debtor, the clerk shall enter judgment in favor of the judgment debtor and against the garnishee for the use of the judgment creditor in an amount not to exceed the total amount due and owing on the judgment and if the judgment creditor is pro se, request such indebtedness paid into the registry of the court. However, if the judgment creditor is represented by an attorney or is a collection agency licensed pursuant to 12-14-101, et. seq., C.R.S., the garnishee shall pay the funds directly to the attorney or licensed collection agency.
(2) through (4) [NO CHANGE]
SECTIONS 3 through 12 [NO CHANGE]
Rule 121, Section 1-15 Determination of Motions
1. through 9. [NO CHANGE]
10. Proposed Order. Except for orders containing signatures of the parties or attorneys as re- quired by statute or rule, each motion shall be accompanied by a proposed order submitted in editable format. The proposed order complies with this provision if it states that the requested relief be granted or denied.
HERE is a link to RULE CHANGE 2013(07).
Michael Weinstein; Kenneth Major; Manymajors Managements, Inc.; and Business Mechanic, Inc., v. Colborne Foodbotics, LLC 2013CO33 (June 10, 2013)
“LLCs combine the limited personal liability of a corporation with the single-tier tax treatment of a partnership.” (Opinion). Here, the Court interpreted the Colorado Limited Liability Company Act, CRS 7-80-606 (Act), and concluded that a judgment Creditor of the LLC could not bring suit against either the Managers or the Members of the LLC. The Managers were companies owned by the Members (natural persons). Creditor obtained a judgment against the LLC. Managers then induced the LLC to distribute its assets to the Members. Creditor sued the Members under the Act for an unlawful distribution, and sued the Managers for a common law breach of fiduciary duty claim. The Court concluded that under the express terms of the Act, only an LLC can sue its members for unlawful distributions. And, Act does not extend corporation common law to an LLC in any instance except a veil-piercing claim.
M.S. and S.S. v. The People In the Interest of A.C., and A.C., by and through his Guardian ad Litem.
“AC was born with cocaine in his system.” (Opinion). So begins a series of unfortunate events. AC’s third foster home parents are the petitioners (MS). They wanted to adopt AC. Initially the Denver DHS (DHS) called them “prospective adoptive parents,” until a report raised concerns about the mother. DHS removed AC without notice to anyone; a hearing was eventually held and the removal affirmed. MS appealed, arguing they had a constitutionally protected liberty interest in their relationship with AC based on their reasonable expectation that their relationship with A.C. would continue. The Court held they did not because neither CRS 19-3-507 (foster parents have a right to notice and participation), nor the 14th Amendment creates such an interest absent significant progress towards actual adoption. MS never started the adoption process and only had a foster parent’s rights.
Selected portions of a press release from the Colorado Supreme Court today:
DENVER – Alan Loeb, a member of the Colorado Court of Appeals for nearly 10 years, has been appointed Chief Judge-designate, replacing retiring Janice B. Davidson as the court’s administrative leader.
Colorado Supreme Court Chief Justice Michael L. Bender made the appointment several months before Chief Judge Davidson’s Oct. 1, 2013, retirement to allow Chief Judge-designate Loeb time to serve with Chief Judge Davidson, who was appointed to the court in 1988 and has served as Chief Judge since 2003.
“I look forward to this new step in my judicial career,” Chief Judge-designate Loeb said. “I am honored and humbled by the confidence the Chief Justice and my fellow members of the Court of Appeals have shown in me through this appointment.”
HERE is a link to the full Press Release.
Never date a client. Plaintiff was fired from her position for dating a client. She worked for a small nonprofit that provided clients with education, counseling, and other social services. She sued for wrongful termination, claiming that the Lawful Activities statutory exception to at-will employment protected her actions. That statute creates an exception from at-will termination for lawful off-the-job activities. An exception to that exception is that an employer may fire an employee to avoid a conflict of interest or the appearance of a conflict of interest. The court of appeals held that such conflicts are not limited to financial conflicts or conflicts that actually interfere with work. Finding the evidence sufficient to support termination, the court affirmed dismissal of plaintiff’s suit.