In an appeal from the district court's denial of petitioner's motion to vacate an arbitral award, the order is affirmed where the arbitrator's factual findings regarding the meaning of the contract at issue could not be overturned simply because the evidence was conflicting.  In addition, attorney's fees are awarded to respondent because petitioner's appeal vexatiously multiplied the proceedings.

Read DMA Int'l., Inc. v. Qwest Comms. Int'l., Inc., No. 08-1392

Appellate Information

Filed November 4, 2009

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

John A. Yaklevich, Moore & Yaklevich, Columbus, OH

For Appellees:

Christopher J. Koenigs, Michael B. Carroll, Sherman & Howard, L.L.C., Denver, CO

In an ERISA action against an insurer seeking disability benefits, summary judgment for defendant is reversed where: 1) the administrator failed to render a final decision within the time limits prescribed by the benefit plan and ERISA; and 2) the insurer's references to hemiparesis and the conclusions of the reviewing physicians did not provide a sufficient grounds for the denial of plaintiff's claim.

Read Rasenack v. AIG Life Ins. Co., No. 07-1521

Appellate Information

Filed November 2, 2009

Judges

Opinion by Judge Seymour

Counsel

For Appellants:

John Case of Benson & Case, LLP, Denver, CO

For Appellees:

James D. Kilroy, Katrin Miller Rothgery and Jessica E. Yates, Snell & Wilmer L.L.P., Denver, CO

Defendant's sentence for illegal reentry into the U.S. following removal is affirmed where California's robbery statute, as interpreted by the California Supreme Court, was in line with the uniform generic definition of robbery and, therefore, the sixteen-offense-level increase imposed by the district court based on defendant's California robbery conviction was appropriate.

Read US v. Garcia-Caraveo, No. 08-2140

Appellate Information

Filed November 3, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellant:

Scott M. Davidson, Albuquerque, NM

For Appellee:

John Anderson and Paige Messec, Assistant United States Attorneys, Albuquerque, NM

In an appeal from the bankruptcy court's decision confirming appellees' joint bankruptcy reorganization plan and denying appellants' competing plan, dismissal of the appeal as moot is reversed where: 1) the competing plan could theoretically be confirmed without requiring disgorgement of payments made to third-party creditors; and 2) reversal of the existing plan would not require the undoing of complex transactions.

Read In re: Paige, No. 08-4104

Appellate Information

Filed November 3, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellants:

Adam S. Affleck, Michael N. Zundel, James A. Boevers, Andrew B. Clawson, and Erin M. Stone, Prince, Yeates & Geldzahler, P.C., Salt Lake City, UT

For Appellees:

Peter W. Billings and Garry E. Jubber, of Fabian & Clendenin, P.C., Salt Lake City, UT

In a bankruptcy adversary proceeding seeking to prevent the discharge of a debt owed to plaintiff by his attorney (the debtor), judgment for plaintiff is affirmed where: 1) the parties had an attorney-client relationship during the relevant period under Colorado law; 2) the loans to defendant were not "standard commercial transactions" exempt from the requirements of Colo. R. Prof'l Conduct 1.8(a); and 3) the bankruptcy court's finding that defendant had the requisite intent to deceive plaintiff was not clearly erroneous.

Read In re: Riebesell, No. 09-1072

Appellate Information

Filed October 28, 2009

Judges

Opinion by Judge O'Brien

Counsel

For Appellant:

Harold Frederick Riebesell, Jr., Pro Se.

For Appellee:

D. Bruce Coles, Law Office of D. Bruce Coles, Denver, CO

In a petition for review of the BIA's denial of petitioner's second motion to reopen his removal proceedings, the petition is denied where the BIA correctly determined that 8 C.F.R. section 1003.2(d)'s post-departure bar divested it of jurisdiction to review a motion to reopen filed by a removed alien, like petitioner, even though relevant regulations allowed an alien to file one motion to reopen within 90 days.

Read Mendiola v. Holder, No. 08-9565

Appellate Information

Filed October 28, 2009

Judges

Opinion by Judge Baldock

Counsel

For Petitioner:

Kari E. Hong, Portland, OR

For Respondent:

R. Alexander Goring, Michelle Gorden Latour, Office of Immigration Litigation, (Michelle Gorden Latour, Office of Immigration Litigation, United States Department of Justice, Washington, DC

In a petition for review of the BIA's order finding petitioner ineligible for cancellation of removal because he had been convicted of an aggravated felony, the petition is denied where, under the circumstance-specific approach, it was permissible for the Immigration Judge to rely upon sentencing-related material to determine the amount of the loss.

Read Hamilton v. Holder, No. 09-9505

Appellate Information

Filed October 27, 2009

Judges

Opinion by Judge O'Brien

Counsel

For Petitioner:

Yalila Guerrero, Houston, TX

For Respondent:

Anh-Thu P. Mai-Windle, Ann M. Welhaf, Civil Division, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC

In an action seeking a declaration that plaintiff held a lease on certain oil-producing land, judgment for plaintiff is affirmed where the production allocation scheme of the unit failed to meet the unambiguous requirements of defendant's lease, and that lease had expired by its terms.

Read Trans-Western Petroleum, Inc. v. US Gypsum Co., No. 08-4120

Appellate Information

Filed October 27, 2009

Judges

Opinion by Judge Holloway

Counsel

For Appellants:

Jack R. Luellen, Katherine W. Wittenberg and Frederick M. MacDonald, Beatty & Wozniak, P.C., Denver, CO

For Appellee:

Stephen K. Christiansen, Thomas W. Clawson and Sam Meziani, Van Cott, Bagley, Cornwall McCarthy, Salt Lake City, UT

Defendant's firearm possession conviction is affirmed where defendant forfeited any Fourth Amendment privacy rights he might have had in a storage unit by directing his girlfriend to enter into the rental agreement using another person's name and stolen identification.

Read US v. Johnson, No. 08-4031

Appellate Information

Filed October 27, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellant:

Bretta Pirie, Salt Lake City, UT

For Appellee:

Diana Hagen, Assistant United States Attorney, Salt Lake City, UT

In a petition for review of an FDA order imposing civil penalties on a medical device manufacturer for failing to file certain reports, the order is affirmed where: 1) the hearing petitioners received provided them with due process; 2) the events at issue constituted "serious injuries" under 21 U.S.C. section 360i(a)(1)(A); and 3) petitioners were only required to have acted in deliberate indifference to or reckless disregard of the reporting requirements.

Read TMJ Implants, Inc. v. U.S. Dept. of Health & Hum. Servs., No. 08-9539

Appellate Information

Filed October 27, 2009

Judges

Opinion by Judge Tacha

Counsel

For Petitioners:

Lynn M. Watwood, Jr., TMJ Implants, Inc., Golden, CO

For Respondent:

Peter R. Maier, Gregory G. Katsas and Douglas N. Letter, Attorney, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C.