Ebel v. Ebel ( 1997 )

  •                                                                 F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                     JUL 30 1997
                                FOR THE TENTH CIRCUIT
                                                                PATRICK FISHER
    In re:
    doing business as Haystack Mountain
    Golf Course & Driving Range, doing
    business as Golf Haystack,
    v.                                               No. 96-1190
                                                 (D.C. No. 95-K-1860)
    CLARENCE JOSEPH EBEL, JR.,                         (D. Colo.)
    DENNIS W. KING, Interim Trustee,
    In re:
    doing business as Haystack Mountain
    Golf Course & Driving Range, doing
    business as Golf Haystack,
                                                      No. 96-1210
    v.                                            (D.C. No. 95-K-1860)
                                                        (D. Colo.)
                   - Appellants,
    DENNIS W. KING, Interim Trustee,
                               ORDER AND JUDGMENT *
    Before BRORBY, BARRETT, and MURPHY, Circuit Judges.
          After examining the briefs and appellate records, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. These cases are
    therefore ordered submitted without oral argument. 1
                                  Procedural Background
          In 1986, appellee Lois Ebel was granted a divorce from appellant Clarence
    “Bud” Ebel by the Boulder County District Court (“the Boulder court”). That
    court retained jurisdiction over the division of the marital property which
    included a nine-hole golf course, a driving range, an adjoining house, and three
          This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
          The former law firm that represented Mr. Ebel had been allowed to
    intervene in the bankruptcy proceedings. The intervenors are the appellants in
    case No. 96-1210; Mr. Ebel is the appellant in case No. 96-1190.
    nearby building lots. The property, which after the divorce was owned by the
    Ebels as tenants in common, was eventually turned over to a receiver. 2 After
    much wrangling and attempts by both parties to buy out the interest of the other, a
    permanent orders hearing to determine the division of property was set by the
    Boulder court for March of 1990. Before that hearing could be completed,
    however, Mr. Ebel apparently became ill, and the hearing was rescheduled to June
    12, 1990. On June 8, 1990, Mr. Ebel filed a voluntary Chapter 7 bankruptcy
    petition. Despite having been informed of the bankruptcy filing, the Boulder
    court, on June 12, 1990, reconvened the property division hearing. Although he
    had been told that the hearing would continue despite his bankruptcy petition and
    the resulting automatic stay, Mr. Ebel did not participate in the reconvened
    hearing. After the hearing, the Boulder court issued findings of fact and
    conclusions of law awarding the entire marital property to Mrs. Ebel. That order
    and decree is dated June 14, 1990 (“Boulder court Order”).
          By motion dated June 18, 1990, Mrs. Ebel petitioned the bankruptcy court
    for relief from stay. After a hearing, the bankruptcy court, in an order dated July
    20, 1990, granted relief from stay “solely for the purpose of permitting the state
          There is confusion over exactly which pieces of the marital property were
    placed in receivership. Resolution of that issue, however, is not necessary for the
    disposition of the specific issues presented by these appeals.
    court’s Order and Decree dated June 14, 1990 in Boulder County District Court,
    Case No. 85 DR 1206 to enter” (“July 1990 Order”). Appellant’s App. at 62.
    Mr. Ebel did not challenge this order.
          Instead, Mr. Ebel proceeded to appeal the Boulder court Order granting the
    marital estate to his former wife. That order was affirmed by the Colorado Court
    of Appeals, which found the distribution to be equitable based on Mr. Ebel’s
    withdrawals of assets from the marital estate. See In re Marriage of Ebel, 
    874 P.2d 406
    , 407 (Colo. Ct. App. 1993). In response to Mr. Ebel’s argument that the
    Boulder court Order was unenforceable because it violated the automatic stay, the
    Colorado Court of Appeals cited the bankruptcy court’s July 1990 Order as
    having lifted the stay, thus obviating any basis for reversing the judgment based
    on the effect of the stay. The court noted that Mr. Ebel’s “concerns as to the
    bankruptcy court’s order are better addressed to that court.” Id. at 408. The
    Colorado Supreme Court denied the petition for certiorari.
          While Mr. Ebel’s state court appeal was pending, Mrs. Ebel filed a
    complaint in the bankruptcy court against Mr. Ebel and the trustee seeking an
    order compelling the defendants to render to her an accounting and to turn over to
    her “all proceeds received by the Trustee and/or Debtor postpetition from the
    operation of the Golf Course and from the marital property.” Appellant’s App. at
    66-69. Mrs. Ebel also requested that the stay be lifted allowing her to execute
    and implement the Boulder court Order.
          The bankruptcy court initially denied Mrs. Ebel’s motion for summary
    judgment on this complaint. It concluded that the trustee’s interest in the property
    as a hypothetical judgment lienor, pursuant to 11 U.S.C. § 544(a), was superior to
    Mrs. Ebel’s equitable resulting trust in the property because Mrs. Ebel had filed
    neither a lien nor notice of lis pendens so as to put the trustee on notice of her
    claim. The district court reversed, holding that the trustee could not avoid Mrs.
    Ebel’s interest in the property because the presence of the receiver gave the
    trustee constructive notice of Mrs. Ebel’s interest, thus preventing him from
    acquiring good title from Mr. Ebel. See Ebel v. Ebel (In re Ebel), 
    144 B.R. 510
    516 (D. Colo. 1992) (“September 1992 Order”). The case was remanded to the
    bankruptcy court for further proceedings.
          For the next two years, the parties engaged in settlement negotiations which
    ultimately proved unsuccessful. On March 25, 1994, the bankruptcy court issued
    an order on remand from the district court’s September 1992 Order, reversing its
    prior position and granting Mrs. Ebel’s motion for summary judgment on her
    turnover complaint (“March 1994 Order”). The court reasoned that, even though
    the Boulder court hearing of June 1990 technically violated the automatic stay
    provision of 11 U.S.C. § 362, the July 1990 Order of the bankruptcy court had in
    reality “ratified” the state court action and effectively adopted the state court
    order as an order of the bankruptcy court. Thus, the Boulder court’s decision
    regarding Mrs. Ebel’s interest in the property was now given retroactive effect in
    the bankruptcy proceeding.
          The trustee moved for reconsideration, arguing due process concerns and
    concerns regarding the disposition of the three building lots and other
    appurtenances to the golf course that were not specifically addressed in the
    Boulder court Order. After a hearing, the bankruptcy court again changed course,
    finding that the action of the Boulder court in awarding the marital property to
    Mrs. Ebel had indeed been invalid because it was taken in violation of the
    automatic stay. See Appellant’s App. at 265-66 (“June 1994 Order”). The order
    further found that “the property division order, made without [Mr. Ebel’s]
    participation, raises due process concerns.” Id. at 265. Citing the district court’s
    conclusion in its September 1992 Order that the trustee could not avoid
    Mrs. Ebel’s interest in the golf course property and this court’s opinions in Calder
    v. Job (In re Calder), 
    907 F.2d 953
     (10th Cir. 1990), and Ellis v. Consolidated
    Diesel Electric Corp., 
    894 F.2d 371
     (10th Cir. 1990), the bankruptcy court
    concluded that the Boulder court Order was void. The stay was then modified to
    permit the parties to return to state court to relitigate the property issues
    addressed in the June 1990 Boulder court hearing.
          As an additional part of the June 1994 Order, the bankruptcy court
    determined that the district court’s September 1992 Order applied only to the golf
    course and the residence because they were the only portions of the marital
    property subject to receivership. The court concluded, therefore, that the trustee
    could avoid Mrs. Ebel’s interest in the three building lots and could pursue their
    liquidation. The court stated: “the parties may resolve their ownership disputes
    regarding the proceeds based upon the adjudication of the division of marital
    property.” Appellant’s App. at 266. Finally, the bankruptcy court amended its
    March 1994 Order to deny Mrs. Ebel summary judgment as to the golf course
    property and to grant summary judgment to the trustee as to the three building
    lots. The June 1994 Order was filed on June 10, 1994.
          Under Bankruptcy Rule 9023, making Fed. R. Civ. P. 59 applicable (with
    certain exceptions not relevant here) to cases in bankruptcy, Mrs. Ebel had ten
    days within which to file a motion to alter or amend the June 1994 Order.
    According to Mrs. Ebel’s attorney, however, she did not receive a copy of the
    order until 4:30 p.m. on June 20 via fax. The attorney immediately filed a motion
    for additional time to file her “motion to reconsider” the June 1994 Order. On
    June 22, 1994, the bankruptcy court granted Mrs. Ebel’s motion for additional
    time. Her motion to reconsider is dated June 30, 1994 and relies on Fed. R. Civ.
    P. 59(e) as the basis for relief. 3
           In granting Mrs. Ebel’s motion to reconsider, which it treated as a Rule
    59(e) motion, the bankruptcy court once again changed direction. On August 9,
    1994, the court issued an order which revisited the arguments advanced in prior
    proceedings, vacated the June 1994 Order, and reinstated the order of March
    1994. In so doing, the court concluded that, because Mr. Ebel had pursued an
    appeal of the state court property judgment through the state appellate system, he
    had, indeed, received full due process. The court further reiterated its intent to
    adopt, as orders of the bankruptcy court, the permanent orders issued by the
    Boulder court in June of 1990 (“August 1994 Order”).
           Both the trustee and Mr. Ebel appealed. The district court, aware that the
    bankruptcy court had no authority to extend the time for filing Mrs. Ebel’s Rule
    59(e) motion, see Collard v. United States, 
    10 F.3d 718
    , 719 (10th Cir. 1993);
           Rule 59(e) provides that “[a]ny motion to alter or amend a judgment shall
    be filed no later than 10 days after entry of the judgment.” A “motion to
    reconsider” is not among the motions recognized by the Federal Rules of Civil
    Procedure. A motion filed within ten days of the entry of judgment will
    ordinarily be treated as a Rule 59(e) motion. Motions served after that time are
    construed as Rule 60(b) motions. See Van Skiver v. United States, 
    952 F.2d 1241
    , 1243 (10th Cir. 1991). It is immaterial that the party filing the motion has
    attached a particular label to it. See Dalton v. First Interstate Bank of Denver,
    863 F.2d 702
    , 703 (10th Cir. 1988). The timing of the motion determines its
    Bankr. R. 9006(b)(2); Bankr. R. 9023, dismissed the appeal without prejudice and
    remanded it to the bankruptcy court to determine whether its August 1994 Order
    should be vacated for lack of jurisdiction.
          Acknowledging that it could not treat Mrs. Ebel’s motion as a Rule 59(e)
    motion, the bankruptcy court proceeded to consider whether Mrs. Ebel was
    eligible for relief under Rule 60(b). Concluding that she had satisfied the
    requirements for relief under both 60(b)5 and 60(b)6, 4 the bankruptcy court, in an
    order dated July 14, 1995, reaffirmed its August 1994 Order. In so doing, the
    court also determined that its previous ruling granting summary judgment to the
    trustee on the issue of possession of the building lots was “premature” because
    there had been no motion for summary judgment by the trustee, Mr. Ebel, or the
          Rule 60(b) provides in pertinent part:
          On motion and upon such terms as are just, the court may relieve a
          party or a party's legal representative from a final judgment, order, or
          proceeding for the following reasons: (1) mistake, inadvertence,
          surprise, or excusable neglect; (2) newly discovered evidence which
          by due diligence could not have been discovered in time to move for
          a new trial under Rule 59(b); (3) fraud (whether heretofore
          denominated intrinsic or extrinsic), misrepresentation, or other
          misconduct of an adverse party; (4) the judgment is void; (5) the
          judgment has been satisfied, released, or discharged, or a prior
          judgment upon which it is based has been reversed or otherwise
          vacated, or it is no longer equitable that the judgment should have
          prospective application; or (6) any other reason justifying relief from
          the operation of the judgment.
          Fed. R. Civ. P. 60(b).
    intervenors pending at the time the court granted summary judgment on the lots.
    Mr. Ebel and the intervenors appealed the July 14, 1995 order to the district court.
          The district court affirmed, holding that the bankruptcy court had not erred
    in failing to dismiss the Rule 59(e) motion as untimely and that it was proper for
    the court to treat the motion as one under Rule 60(b). The district court did not
    specifically address Mr. Ebel’s argument that the grant of relief under Rule 60(b)
    was an abuse of discretion. Instead, the district court addressed the merits and
    rejected Mr. Ebel’s argument that, in March 1994, by suddenly characterizing the
    June 1990 Order as a ratification of the Boulder court’s property division without
    notice to him, the bankruptcy court denied him due process. It also rejected
    Mr. Ebel’s contention that the ratification was void because it violated the
    automatic stay. It is this district court order, affirming the July 14, 1995 order of
    the bankruptcy court, which is the subject of this appeal.
          On appeal, Mr. Ebel argues that the bankruptcy court abused its discretion
    in granting Mrs. Ebel relief under Rule 60(b); that neither the bankruptcy court
    nor the parties intended at the time of the June 1990 Order to give retroactive
    effect to the Boulder court Order, and, alternatively, that the grant of such
    retroactive relief from stay was an abuse of discretion. The intervenors urge
    similar arguments.
                                      Rule 60(b) Ruling
          We begin by noting that the bankruptcy court was required to construe
    Mrs. Ebel’s motion for reconsideration, filed beyond the ten-day limit for filing a
    Rule 59(e) motion, as one for relief under Rule 60(b). 5 See Van Skiver, 952 F.2d
    at 1243. Rule 60(b) gives courts a “grand reservoir of equitable power to do
    justice in a particular case.” State Bank of Southern Utah v. Gledhill (In re
    76 F.3d 1070
    , 1080 (10th Cir. 1996) (quotations omitted). Under the
    rule, federal courts have “broad authority to relieve a party from a final judgment
    ‘upon such terms as are just . . . for . . . any other reason justifying relief from the
    operation of the judgment.’” Id. (quoting Fed. R. Civ. P. 60(b)(6)). Such relief
    may be granted only in “extraordinary circumstances and only when such action is
    necessary to accomplish justice.” Lyons v. Jefferson Bank & Trust, 
    994 F.2d 716
    729 (10th Cir. 1993) (quotation omitted).
          Our review of the court’s grant of Rule 60(b) relief is for abuse of
    discretion, see In re Gledhill, 76 F.3d at 1080, however, a “‘district court would
    necessarily abuse its discretion if it based its ruling on an erroneous view of the
    law or on a clearly erroneous assessment of the evidence.’” Lyons, 994 F.2d at
           With some modifications not relevant here, Rule 60(b) is made applicable
    to the bankruptcy courts pursuant to Bankr. R. 9024.
    727 (quoting Cooter & Gell v. Hartmarx Corp., 
    496 U.S. 384
    , 405 (1990)). 6 To
    the extent the bankruptcy court based its ruling on discretionary factors, we
    review for abuse of discretion; to the extent its ruling was based on its findings of
    fact and conclusions of law, however, we apply the traditional review reserved for
    those determinations -- clearly erroneous for the findings of fact and de novo for
    the legal conclusions. See Lyons, 994 F.2d at 727.
          Apart from the standard of review discussed above, we must also be
    concerned with the proper scope of review. It is clear that review of the denial of
    a Rule 60(b) motion is confined only to review of the order of denial and does not
    extend to review of the underlying judgment itself. See Van Skiver, 952 F.2d at
    1243. Similarly, our cases reviewing the grant of Rule 60(b) relief have involved
    review of the order granting such relief and the bases therefore and not of the
    merits of the underlying judgment. See, e.g., Gledhill, 
    76 F.3d 1070
    ; Orner v.
           We have recently examined the circumstances under which an order
    granting relief under Rule 60(b) (as opposed to one denying such relief) will be a
    final decision within the meaning of 28 U.S.C. § 1291 or otherwise appealable
    under generally applicable rules governing appellate jurisdiction. See
    Stubblefield v. Windsor Capital Group, 
    74 F.3d 990
    , 995-97 (10th Cir. 1996)
    (holding that an order granting Rule 60(b) relief to void a settlement agreement
    which also vacated a judgment and scheduled both a settlement conference and a
    jury trial was not final for purposes of appeal). In contrast to Stubblefield,
    however, the order of the bankruptcy court here granting Rule 60(b) relief
    reinstated its order of March 25, 1994 granting summary judgment to Mrs. Ebel,
    thus effectively ending the litigation on the merits and leaving nothing more for
    the court to do but execute the judgment. The order granting Rule 60(b) relief
    under these circumstances, therefore, is final and appealable.
    30 F.3d 1307
     (10th Cir. 1994); Oklahoma Radio Assocs. v. FDIC, 
    987 F.2d 685
     (10th Cir. 1993); Zimmerman v. Quinn, 
    744 F.2d 81
     (10th Cir. 1984).
    Thus, because this case is an appeal from a ruling on a Rule 60(b) motion, our
    review is limited to the propriety of that grant of relief and, as part of the Rule
    60(b) analysis, will not extend to the merits of the underlying judgment.
          Relief under Rule 60(b) is extraordinary and should only be granted under
    exceptional circumstances. See United States v. 31.63 Acres of Land, 
    840 F.2d 760
    , 761 (10th Cir. 1988). Although the bankruptcy court specifically cited
    grounds under Rule 60(b)(5) and 60(b)(6) to support its grant of relief, “there is
    no need to pinpoint which clause of Rule 60(b) is the basis for the decision below
    where a timely motion is being reviewed.” Pelican Prod. Corp. v. Marino, 
    893 F.2d 1143
    , 1145 (10th Cir. 1990). Instead, we examine the record as a whole to
    determine the propriety of the court’s judgment. See id.
          It is improper for a court to grant relief under Rule 60(b) if, in doing so, the
    court simply revisits arguments which had already been raised and dismissed. See
    Van Skiver, 952 F.2d at 1244. Nor is it proper to “advance[] new arguments or
    supporting facts which were otherwise available for presentation when the
    original . . . motion was briefed.” Id. at 1243 (quotation omitted). In her motion
    to reconsider, Mrs. Ebel revisited issues which had already been considered and
    ruled on by the court. She argued the status of the building lots and the effect of
    the stay on the Boulder court order. These issues had clearly been decided in the
    June 1994 Order. Revisiting issues already addressed is not the purpose of Rule
    60(b), see id., and the bankruptcy court abused its discretion in granting relief on
    that basis.
           In addition to grounds already decided by the court, Mrs. Ebel argued in her
    motion to reconsider that the bankruptcy court’s June 1994 remand to state court
    for purposes of dividing the marital estate was erroneous because the state court
    proceeding had long since closed. She also urged the bankruptcy court to
    “abstain” on the issues regarding marital property as an exercise in comity.
    Mrs. Ebel can qualify for Rule 60(b) relief by demonstrating one or more of the
    six grounds for such relief specified in the Rule. None of the grounds enumerated
    in her motion to reconsider, however, fit any of the Rule 60(b) categories nor do
    they constitute the exceptional circumstances required.
           To the extent that these arguments attempt to point out mistakes of law,
    Rule 60(b)(1) provides an avenue for relief under these circumstances only for
    “obvious errors of law, apparent on the record.” Id. at 1244. These issues do not
    involve any facially obvious legal errors. Arguments that the court misapplied the
    law or misunderstood the movant’s position are properly brought under Rule 59(e)
    but cannot be the basis for relief under Rule 60(b). See id.
          To the extent that the cessation of the state court proceedings is cited as a
    “changed circumstance,” we note below that there are other avenues available to
    decide the fate of the marital estate aside from returning the issues to the
    Colorado courts. The fact that the Ebel dissolution matter is closed in the
    Colorado system is not a sufficiently exceptional circumstance justifying Rule
    60(b) relief.
          Even in the broader picture of this case, it is clear that, in granting Rule
    60(b) relief to Mrs. Ebel, the bankruptcy court merely revisited old ground. As
    noted above, after entering his March 1994 Order giving relief to Mrs. Ebel, the
    bankruptcy court changed course and reversed itself in the June 1994 Order.
    After the submission of Mrs. Ebel’s motion to reconsider, which the bankruptcy
    court mistakenly treated as a Rule 59(e) motion, the court entered its August 1994
    Order, changing course yet again and returning to a position of the March 1994
    Order granting relief to Mrs. Ebel. This August 1994 Order was characterized by
    the district court as “revisit[ing] arguments” which formed the basis for the June
    1994 Order. Among the issues revisited were the effect of the automatic stay on
    the Boulder court order and the general due process issues.
          After the district court remanded the August 1994 Order because of the
    improper extension of time under Rule 59(e), the bankruptcy court, in an order
    dated July 14, 1995, simply reaffirmed its August 1994 Order, but this time under
    the auspices of Rule 60(b). Thus, because it merely revisited arguments already
    rejected, the bankruptcy court abused its discretion in granting Rule 60(b) relief
    to Mrs. Ebel under the circumstances. 7
                                 Application of Rule 59(e)
          If Mrs. Ebel’s motion to reconsider had been timely under Rule 59(e), she
    could properly have urged her arguments that the law had been misapplied and
    her position misunderstood. See id. An appeal from a ruling on a Rule 59(e)
    motion would also have raised the bankruptcy court’s underlying judgment for
    review by this court. See id. at 1243 n.3. In order to avoid the constrictions of
    Rule 60, Mrs. Ebel, citing Thompson v. Immigration & Naturalization Service,
    375 U.S. 384
     (1964), and Stauber v. Kieser, 
    810 F.2d 1
     (10th Cir. 1982), argues
    that unique circumstances exist to justify her tardy Rule 59(e) motion. She
    particularly emphasizes the late receipt of notice from the court of the filing of
    the June 1994 Order (apparently due to insufficient postage) and the bankruptcy
    court’s later erroneous grant of an extension of time to file her Rule 59(e) motion.
          This case presents the issue we recently identified in Home & Family, Inc.
    v. England Resources Corp. (In re Home & Family, Inc.), 
    85 F.3d 478
     (10th Cir.
    1996): whether “parties represented by counsel may reasonably rely on an order
          Mrs. Ebel’s assertion that this issue was not raised in the district court is
    incorrect. See Opening Br. in Appeal of Adversary Proceeding No.
    91-1158-DEC, United States Bankruptcy Court for the District of Colorado at 11.
    entered in excess of a court’s jurisdiction” to excuse an untimely Rule 59(e)
    filing. See id. at 480-81. Again, however, we will defer resolution of that issue
    because of “our duty to refrain from rendering opinions on abstract propositions,
    or to declare principles or rules of law which cannot affect the matter in issue in
    the case before us.” Id. at 481 (quotations omitted). Even if we were to agree
    that unique circumstances exist here to overlook the untimeliness of the purported
    Rule 59(e) motion, our review of the merits of the underlying bankruptcy court
    order would compel us to reverse the district court’s affirmance of the relief
    granted Mrs. Ebel.
                                   Instructions on Remand
          As part of their prayer for relief on appeal, intervenors request this court to
    remand with instruction “to either conduct a hearing on the merits to fix the
    respective marital property interests of the debtor and of his former wife in the
    golf course and driving range as a ‘related proceeding’ under 28 U.S.C.
    § 1471(b), or to deflect jurisdiction to the state divorce court for that
    determination.” Intervenors’ Opening Br. at 13.
          While we note that 28 U.S.C. § 1471 has never become law, see Historical
    and Statutory Notes to Title 28, U.S.C., Chapter 90, § 157 of that title details
    ways in which non-core, related proceedings such as this one may be decided.
    The district court and the bankruptcy court have options open to them of which
    we are sure they are aware. See Lawrence P. King, Collier on Bankruptcy
    ¶ 3.03[1] (15th ed. rev’d. 1997). While Mrs. Ebel urges that the decision of the
    district court should be affirmed because, among other reasons, the state court
    proceedings have been closed, it appears from the briefs that there may exist a
    mechanism under the Colorado version of Fed. R. Civ. P. 60 to reopen the state
    case for purposes of the property division hearing. We do not take a position on
    which avenue of decision is the appropriate one. We leave it to the district court
    and/or the bankruptcy court on remand to determine the most efficient means by
    which to resolve this case.
          We note the inordinate amount of time and expense incurred by the parties
    in this case. At least for purposes of this portion of the saga, much of the effort
    incurred by Mrs. Ebel could have been avoided if she had petitioned for relief
    from stay before continuing with the property division proceedings in the Boulder
    court. While we agree with the bankruptcy court that, on remand, the property
    division may well be resolved exactly as it had been by the Boulder court in 1990,
    that suspicion does not justify allowing the proceedings to go forth in derogation
    of the automatic stay rights of Mr. Ebel.
          The judgment of the United States District Court for the District of
    Colorado is REVERSED, and this case is REMANDED for further proceedings
    consistent with this order and judgment.
                                                       Entered for the Court
                                                       Michael R. Murphy
                                                       Circuit Judge