February 4, 2010

Here are today's court of appeals announcements. The court issued 6 published decisions, summarized below.

Creating an intra-court conflict, the court of appeals expressly rejected the conclusion in People v. Martinez, 36 P.3d 154 (Colo. App. 2001) that consent in a sexual assault case is an issue of mens rea. The court disagreed with Martinez and declined to follow it. Instead, the court concluded the defense theory of consent concerned the material fact of the actus reus of sexual assault shaped how the doctrine of chances applies to this case. The court concluded that in sexual assault cases in which the defendant claims that the victim consented, the doctrine of chances serves as a proper rationale to admit evidence of other sexual offenses because when one person claims rape, the unusual and abnormal element of lying by the complaining witness may be present. But when two (or more) persons tell similar stories, the chances are reduced that both are lying or that one is telling the truth and the other is coincidentally telling a similar false story. To ensure that the doctrine is not applied in such a way that the exception swallows the rule, the court adopted three criteria to be met when other acts are used to prove the actus reus through the doctrine of chances. First, is the evidence of other acts roughly similar to the charged crime? Second, does the number of unusual occurrences in which the defendant has been involved exceed the frequency rate for the general population? Third, is there a real dispute between the prosecution and the defense over whether the actus reus occurred? Applying these criteria, the court concluded that it was not an abuse of discretion to admit evidence of a previous sexual assault. People v. Everett

Mother was entitled to a presumption that, as a fit parent, she would act in the best interests of the child, and that this presumption could be rebutted only by findings based on clear and convincing evidence that the grant of decision-making responsibility and parenting time to the petitioners was in the child’s best interests. Because the trial court did not apply this standard of proof, the court of appeals concluded that it erred. In so holding, the court rejected the petitioner's position that the trial court’s finding that they were psychological parents was sufficient to protect mother’s rights.
In re Parental Responsibilities of Reese

Husband contended that the trial court applied the wrong standard of proof in invalidating his marriage and, further, that the court abused its discretion in finding that his representation concerning his illness was fraudulent and in neglecting to determine whether that representation went to the essence of the marriage. The court of appeals rejected those contentions, concluding that the trial court did not err in applying a preponderance of the evidence standard and that the record supported a conclusion that Husband's misrepresentations went to the essence of the marriage. In re Marriage of Farr

To determine whether an order in post-judgment collection proceedings is appealable, the court of appeals concluded that the order must end the particular part of the action in which it is entered, leave nothing further for the court pronouncing it to do in order to completely determine the rights of the parties as to that part of the proceeding, and be more than a ministerial or administrative determination. The court noted that "We employ the phrase 'particular part'to modify 'the action' because, in postjudgment collection situations, the underlying 'action' has already been concluded, by definition, with the entry of a judgment. Nevertheless, part of the action may still be 'live,'as when the final underlying judgment has not been satisfied and the judgment creditor seeks court assistance to obtain payment. Further, the requirement that the order must be more than a ministerial or administrative determination ensures that the order affects rights or creates liabilities not previously resolved by the adjudication of the merits." Luster v. Brinkman

Trial court erroneously dismissed, as untimely, inmate's complaint under C.R.C.P. 106.5, challenging his disciplinary conviction. Inmate filed his complaint more than thirty days after the warden approved the conviction. But the cout concluded that fact was inconsequential because the warden’s decision was not the “final decision of the body or officer,” within the meaning of C.R.C.P. 106(b). The court noted that by statute, a private prison lacks authority to “[m]ake a final determination on a disciplinary action that affects the liberty of an inmate.” C.R.S. § 17-1-203(1)(c). The final determination is made, under the governing regulations, by the DOC’s Private Prisons Monitoring Unit. See DOC Admin. Reg. 150-01(IV)(E)(3)(r). Because Inmate filed his complaint within thirty days of the monitoring unit’s review, his action was timely. Geerdes v. Director, Colorado Department of Corrections

Courts may not seal records of dismissed cases involving alleged sex offenders who received deferred judgments. The court of appeals concluded that C.R.S. § 24-72-308(3)(c) precludes such sealing. Therefore, the court reversed an order sealing the records of petitioner's criminal case. Petitioner had pled guilty to the class five felony attempted sexual assault on a child and received a deferred judgment. Four years later, the trial court concluded that petitioner had complied with the terms of the deferred judgment. Accordingly, petitioner was allowed to withdraw his plea and the case was dismissed. He then filed a civil action seeking to seal the records of his criminal case, and the trial court granted his request to seal. On appeal, the panel majority concluded that a case dismissed after a deferred judgment still contains “records pertaining to a conviction,” under C.R.S. § 24-72-308(3)(c). Therefore, § 24-72-308(3)(c) precludes sealing because it prohibits sealing "records pertaining to a [sex offense] conviction." Judge Connelly wrote the majority opinion and was joined by Judge Terry. Judge Webb dissented, concluding, "in my view, '[u]pon full compliance with such conditions [of the deferred sentence] by the defendant, the plea of guilty previously entered shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice,' section 18-1.3-102(2), means that the conviction has been wiped away. In cases where no trial has occurred, without a guilty plea there can be no conviction. Therefore, the absence of a conviction removes any basis for invoking section 24-72-308(3)(c)." M.T. v. People

February 3, 2010

The court of appeals will release the following decisions tomorrow, including 6 published decisions:

Published Opinions

07CA2368 People v. Barry Alan Everett
08CA2428 In re the Parental Responsibilities of Randy Reese and Candice Reese and Adriana Henderson and Concerning E.B.H., a Child
09CA0238 In re the Marriage of Joy Lynn Farr and Larry Allen Farr
09CA0563 Stacy Luster and Walter Luster v. Judith M. Brinkman, M.D., by and through her assignee for collection, COPIC Insurance Company
09CA0644 Shawn Geerdes v. Director, Colorado Department of Corrections and Warden, Crowley County Correctional Facility
09CA0710 M.T. v. The People of the State of Colorado

Unpublished Opinions

06CA2325 People v. Robert Wayne Ingrum
07CA0818 People v. Samuel Lee Cordle
07CA0826 People v. Rebecca Mary DeWitt
07CA1380 People v. Arnold Anthony Cary
07CA1635 People v. Floyd Allen
07CA2414 People v. Nathan Scott Schmittel
07CA2567 NSF Collectors, Inc. v. Harry C. Elder; and Evergreen Custom Builders, LLC v. Holley Albertson & Polk, P.C.; and Dennis B. Polk, individually
08CA0820 People v. Frank Borrego
08CA0992 People v. Austin Verland Ray
08CA1061 People v. Kirk Cornell Hurd
08CA1215 People v. Karl Heinz Singleton
08CA1641 In re the Support of M.A.H. and K.G.H., Children and Concerning Michael Allen Hartley and Sherry M. Adams and Las Animas County Department of Human Services
08CA1936 People v. Shane A. Romero
08CA2511 Hamon Contractors, Inc. v. City of Louisville, State of Colorado
09CA0012 Waldo Mackey v. Dr. Joseph Wermers, Cathie Holst, Anthony DeCesaro, and Sgt. Morris
09CA0303 People In the Interest of S.R.B., A.B., C.B., E.W.B., and E.J.B., Children and Concerning S.B. and D.B.
09CA0336 Dorothy DeWitt v. Michael Anthony Lee
09CA0485 In re the Estate of William C. Scott, Deceased. Scott Development Group, LLC, Garnishee v. The Scott Family Trust, Judgment Creditor
09CA0786 James R. Lawson v. Credit Service Company, Inc.
09CA0844 Shadi Rokhshadfar, Hamid Reza-Nouri Moghadam, Sharon Clark, and Glen Clark v. Jill B. Evans, a/k/a Bernita Mae H. Evans, and J. David Evans
09CA0862 Kenneth D. Johnson v. Director, Colorado Department of Corrections, and Warden, Bent County Correctional Facility
09CA0891 Joseph Puckett v. Farmers Insurance Exchange
09CA1016 People v. Jose Arturo Pena
09CA1196 People v. Jerald Allen
09CA1565 E. Sommer Molnar v. Industrial Claim Appeals Office of the State of Colorado and Walnut Brewery, Inc.
09CA1673 Scott Bellanca v. Industrial Claim Appeals Office of the State of Colorado and Colorado Glass & Shower Ltd.
09CA1740 Ricky C. Menasco v. Industrial Claim Appeals Office of the State of Colorado and Aramark Corporation
09CA2051 Lisa D. Anderson v. Industrial Claim Appeals Office of the State of Colorado and U.S. Buying Services, Inc.
09CA2090 Ruth M. Williams v. Industrial Claim Appeals Office of the State of Colorado and National Institute for Trial Advocacy
09CA2378 Larry E. James v. Industrial Claim Appeals Office of the State of Colorado and Intermountain Color, Inc.
09CA2455 Susan A. Pressel v. Industrial Claim Appeals Office of the State of Colorado and Keller Williams Littleton
09CA2509 Linda K. Cosby v. Industrial Claim Appeals Office of the State of Colorado and Palo Alto, Inc. Taco Bell

February 1, 2010

The supreme court's announcements for today are here. The court issued two decisions, summarized below. The court also granted cert. in two cases, and the issues in those appeals follow the case summaries.

The supreme court reversed an order suppressing drugs obtained from a closed backpack in the trunk of a vehicle after the defendant provided general consent to search the vehicle. The supreme court also reversed the trial court’s order suppressing all subsequent statements as fruit of the poisonous tree after the search. The court held that the driver in control of a vehicle has the power to consent to a search of the vehicle even if he is not the registered owner and the registered owner is present at the time. The court also held that general consent to search a vehicle extends to all objectively reasonable places in which the implied object of the search may be found. That includes closed containers so long as no forcible destruction of property is necessary to access its contents. People v. Minor

The supreme court reversed the district court's suppression of evidence seized in the execution of a search warrant for defendant's home. The district court found that the affidavit in support of the warrant failed to establish probable cause, largely because it failed to identify the person or agency conducting the audit from which the allegations of criminal activity were derived and because the records that were evaluated in the audit and sought pursuant to the warrant appeared to be several years old. The supreme court concluded that when considered in the totality of the circumstances, the affidavit provided a substantial basis to believe the information it contained was reliable, and there was a reasonable probability that evidence of the criminal activity it alleged would still be found at the defendant’s home. People v. Crippen

No. 09SC627
Lucht’s Concrete Pumping v. Horner
Summary of Issue:
Whether the court of appeals erred in concluding that the continued employment of an existing at-will employee was not adequate consideration to support a noncompetition agreement.

No. 09SC887
Martinez v. People
Summary of Issue:
Whether petitioner’s rights under the Colorado Constitution to be present during his jury trial and to confrontation were violated when the prosecution assert in closing, without evidentiary reference and support, that petitioner had “tailored” his testimony.

January 28, 2010

I'm back. This post will catch me up.

The supreme court had no announcements this past Monday. The supreme court's January 19th announcements are here. The court issued one decision, summarized below. The court did not grant cert. in any cases.

Defendant impliedly waived his Miranda rights, under the facts of the case. Defendant went to the police station voluntarily in order to speak with police officers about a shooting. Before questioning, he was advised of and acknowledged each of his Miranda rights. He answered the officers’ questions without hesitation for almost an hour and forty-five minutes. During this time, the defendant had several opportunities to pause and consider his rights. He did not choose to assert his rights until after the officers told him that witnesses had identified him as the shooter. People v. Martin

The court of appeals' oral argument calender for March is here.

Here are the court of appeals' announcements from Thursday, January 21. The court issued 5 published decisions, summarized below.

Delay in defendant's trial did not violate his federal and state constitutional rights to a speedy trial. The procedural history of the case was described as extraordinarily "tortured and star-crossed," and included eight rescheduled trial dates, two mistrials, three replacements of defense counsel (including one because of a suicide and another because of a mental breakdown mid-trial), one interlocutory appeal by the prosecution, and two petitions to the supreme court by defendant preceded entry of the dismissal order. Following the United States Supreme Court's decision in Vermont v. Brillon, the analysis for constitutional speedy trial challenges changed. In light of Brillon, the court of appeals attributed approximately twenty-three months of delay to defendant. This is more than half of the relevant time period (thirty to thirty-six months, depending on the charges). The court attributed at most seven months of the delay to the state, with little weight attached. The court acknowledged that defendant consistently asserted his right to a speedy trial (except when seeking to stay these proceedings during the federal litigation), but concluded that defendant made only a minimal showing of prejudice without ever specifying how the delay had impaired his ability to mount a defense to the charges. Considering the totality of the circumstances, the court concluded defendant did not carry his burden of proving a violation of his constitutional right to a speedy trial. People v. Glaser

Inmate alleged that his constitutional right to meaningful access to the courts was violated by the removal of a printer from the law library. The district court concluded that plaintiff's twenty-two-page, handwritten petition with attachments showed that plaintiff is capable of communicating his needs and legal issues. Therefore, the removal of the printer did not prevent plaintiff from raising legal claims in the courts, and plaintiff's claim was properly dismissed. Graham v. Maketa

In order to recover damages for loss of use of a commercial chattel that is normally rented out for profit (in this case a rental car), its owner must demonstrate that it lost the opportunity to earn income from the chattel. The appropriate measure of damages is the net profit plaintiff would have received from rental of the chattel during the time period reasonably needed for repairs, less any expenses saved. In addition, the court of appeals concluded that a company taking assignments of debt not in default is not required to obtain a license, although it is subject to the other provisions of the Colorado Fair Debt Collection Practices Act. The plaintiff here fell within the exemption found in C.R.S sec. 12-14-103(2)(b)(VII)(C) because at the time the debt was assigned to plaintiff. PurCo Fleet Services, Inc. v. Koenig

Plaintiff obtained from Bank a commercial loan that was secured by real property. Bank invoked a provision in the loan agreement expressly providing for a prepayment penalty when plaintiff voluntarily tendered the entire principal balance before it was due. A prepayment penalty is not a type of liquidated damages in these circumstances. Even if plaintiff was correct that the prepayment penalty here was unreasonable, it was not void as a liquidated damages clause that amounts to a penalty because it was not based on a breach of the contract. Planned Pethood Plus, Inc. v. KeyCorp, Inc.

Creditors of an LLC, as a group, have standing to sue an LLC member who knowingly receives an unlawful distribution under C.R.S. sec. 7-80-606. In addition, the limited fiduciary duty which directors of insolvent corporations have to the corporation's creditors also extends to managers of LLCs. Colborne Corporation v. Weinstein

Here are today's court of appeals announcements. The court issued the following unpublished decisions.

07CA0156 People v. Matthew Gene Wartena
07CA0160 People v. Sergio Rodriguez-Garza
07CA0696 People v. Gerald Hammond
07CA1889 In re the Marriage of David M. Bean and Bobbi G. Bean
07CA2278 People v. Aric Jerome Miera
07CA2560 People v. Edward Brazil Medeiros
08CA0187 People v. Daniel Suazo Jr.
08CA0468 People v. Dirk Reeves
08CA0564 People v. Jade Diego Maldonado
08CA0747 People v. Donnell Jackson, a/k/a Darnell Jackson
08CA1083 People v. Joey James Partain
08CA1104 People v. Burton Calkins
08CA1138 People v. Derek Duane Kohl
08CA1147 People v. Lloyd T. Clark
08CA1284 People v. Mario Michael Sanchez
08CA1540 People v. Keith Balka
08CA1598 Clifford L. Whitehall v. John J. Zodrow
08CA1637 People v. Steven Scott Browning
08CA2217 People v. Robert James Landrum
08CA2229 Donald E. Harrelson, individually and as husband and personal representative of the Estate of Anna Pauline Hulvey Harrelson, decedent; Tabatha L. Myers; and Willis D. Barrett v. Douglas B. Huene, M.D.; and High Country Orthopedics & Sports Medicine, P.C.
08CA2550 People v. Benjamin Anderson
08CA2718 & 09CA2273 Estate of Michael F. Maurer, a/k/a Michael Maurer, a/k/a Mike Maurer, by Patricia M. Maurer, Personal Representative v. Steve Hill and Renata Hill and Hubert J. Hill
09CA0069 People v. Zachary Rhodes
09CA0148 Creekside Hotel Associates, LLC, a Colorado limited liability company v. General Innkeeping Acceptance Corporation, a Tennessee corporation
09CA0291 Markell Taylor, Sr. v. Colorado Department of Corrections and Warden, Rifle Correctional Center
09CA0309 In re the Marriage of Valarie Carter and Michael Carter
09CA0491 People v. Monsheay Overstreet
09CA0570 In re the Marriage of Andrea J. Elliott and Evan D. Elliott
09CA0761 Kenneth D. Bennett v. Industrial Claim Appeals Office of the State of Colorado, Bennett Plumbing & Backflow Services, and Pinnacol Assurance
09CA0778 People v. James Thomas Gettings
09CA0794 Elfido Navarrete v. Industrial Claim Appeals Office of the State of Colorado and Pinnacol Assurance
09CA1617 Bret J. Dofek v. Industrial Claim Appeals Office of the State of Colorado and Hospital Shared Services, Inc.
09CA2017 People v. Coy Thomas Dunn
09CA2039 People v. Douglas Junior Taylor
09CA2062 People In the Interest of J.M.B., Child and Concerning M.A.B.
09CA2091 People In the Interest of G.C.H., a Child and Concerning M.D-S.H.
09CA2128 Yevgeniya Fefer v. Industrial Claim Appeals Office of the State of Colorado and T-Mobile USA, Inc.
09CA2153 Fate Price v. Industrial Claim Appeals Office of the State of Colorado and John E. Potter, Postmaster General, United States Postal Service
09CA2293 People In the Interest of D.P., Jr., Child and Concerning D.P., Sr.

January 15, 2010

A quick post. I will be in trial next week and part of the week after that, so I probably won't do any additional updates until the end of January.

The court of appeals' oral argument calendar for February is here.

The court of appeals' announcements from yesterday are here. The court released the following unpublished decisions:

06CA2159 People v. Joseph Tutak
06CA2607 People v. Clayton Fay
07CA1129 People v. Gary Hauk
07CA1248 People v. Timothy Nicholls
07CA1300 People v. Timothy Vincent Maya
07CA1522 People v. James Ryan Neeley
08CA0043 People v. Darrell W. Sands
08CA0652 Yellow Book USA, Inc., f/d/b/a McLeod USA Publishing Company v. Zodrow et al. P.C., d/b/a Attorneys at Zodrow P.C., and John J. Zodrow
08CA1513 People v. Kareem Stevenson
08CA1621 People v. Venus Eleanor Cameron
08CA1898 Anneliese Hagney v. Amanda Rushing
08CA2036 People v. Julio Cesar Rios
08CA2052 Russell M. Boles v. Mr. Chapalain and Jason Zwirn
08CA2112 In re the Marriage of William G. Lucero, Jr. and Amy Lucero
08CA2594 People v. Abel Martinez-Sanchez
09CA0016 People v. Jose Heriberto Martinez-Lopez
09CA0264 Eckstine Electric Company and Pinnacol Assurance v. Industrial Claim Appeals Office of the State of Colorado and Scott T. Shelton
09CA0383 John-Pierre Bleger & Jean-Pierre Bakery, Inc. v. Industrial Claim Appeals Office of the State of Colorado and Stacey Inzinga
09CA0525 In re the Petition of N.H. and M.A.H. For the Adoption of J.K.R. and T.P.R., Children and Concerning A.P.P.R.
09CA0558 In re the Marriage of James P. Sandoval and Julie Webster
09CA0614 People v. Jesus Fernandez-Rodriguez
09CA0864 People In the Interest of K.M.W., M.W., K.L.C., M.A.C., and D.E.W., Children and Concerning C.R.C.
09CA0915 David Joseph Hover v. Colorado Department of Corrections
09CA1015 In the Matter of Jon Jonsson, a/k/a Alexander William Baldwin Frederick Michael Christian Andersson
09CA1051 People In the Interest of Lauren Anne Nettina and One South Porter Adventist
09CA1270 & 09CA1271 People In the Interest of D.M. and T.M., Children and Concerning J.H.
09CA1315 People In the Interest of Phillip Bernal
09CA1594 People In the Interest of Angela Pampena
09CA1785 People v. Raul Permuy Calderon
09CA2040 People In the Interest of D.M.A.G.D., a Child and Concerning A.C.J. a/k/a C.A.L.
09CA2095 People In the Interest of M.C., M.C., and R.C., Children and Concerning E.C. and B.C.
09CA2373 Daniel L. Hammond v. Industrial Claim Appeals Office of the State of Colorado and First Data Technologies

January 11, 2010

This post has both today's supreme court announcements and summaries and the court of appeals' from last Thursday. This may be my last post for a couple of weeks, as I'm getting ready for a trial that takes place next week and will have no time for posting. I will catch up towards the end of the month. Thanks for your patience.

Here are today's supreme court announcements. The court issued five decisions, summarized below. The court granted cert. in five cases, and the issues in those appeals follow the summaries.

Trial court erred in setting aside a default judgment. The defendant failed to respond to the complaint after service of process was hand delivered to an assistant of defendant’s registered agent, but the registered agent failed to find the process papers in his in-box. The supreme court held that the service was valid where the process server hand delivered the process papers to an assistant who performed administrative duties for the registered agent, even though the person served was not the registered agent’s primary assistant. Since service was proper, the trial court had personal jurisdiction over the defendant and the default judgment was not void under C.R.C.P. 60(b)(3). The court also held that a reasonably careful registered agent would not have neglected to find the process papers and therefore defendant’s failure to respond to the complaint constituted neither mistake nor excusable neglect under C.R.C.P. 60(b)(1). In re: Goodman Associates, LLC v. WP Mountain Properties, LLC

In an interlocutory appeal challenging a district court order suppressing statements made during a custodial interrogation, the supreme court reversed, holding that the defendant did not make an unambiguous request for counsel and therefore the interrogating officer did not violate his Fifth Amendment rights under Miranda and Edwards by continuing to question him to clarify whether he intended to invoke his right to counsel. People v. Broder

The People challenge the court of appeals’ determination that the defendant is entitled to a new trial after the trial court denied his motion for substitute counsel. Defendant's motion for new counsel implicated three of his trial rights: the right to enter a plea of not guilty, the right to testify, and the duty of defense attorneys to reasonably investigate possible defense strategies. The supreme court determined that, although the defense lawyers did not impermissibly usurp their client’s right to enter a plea of not guilty, the trial record was insufficient to determine whether others of Bergerud’s trial rights were violated by his attorneys’ actions. Had his trial rights been violated, the denial of his request for substitute counsel would have resulted in a constitutionally offensive choice between continuing with counsel or exercising other guaranteed rights. The court therefore remanded for further factual findings by the trial court to resolve ambiguities in the record. Justice Coats, joined by Justices Rice and Eid, dissented, noting that in his view "the majority misapprehends the nature and limits of these particular rights and therefore the relationship between them. Perhaps even more importantly, I fear that the complexity and sweeping scope of the majority’s opinion is likely to force upon defense counsel and trial courts alike intolerable choices, necessarily based on imprecise predictions about the unfolding of events at trial." He would have simply reversed j udgment of the court of appeals and remanded to that court for consideration of any remaining assignments of error. People v. Bergerud

A previous federal district court ruling did not preclude Plaintiff’s legal malpractice action. The federal district court relied on three alternative grounds in denying Plaintiff’s post-conviction motion for a new trial. In affirming this ruling, the Tenth Circuit relied on one of these grounds, expressly declining to consider the remaining two. The supreme court applied comment o to the Restatement (Second) of Judgments, section 27 (1989), to hold that when a trial court relies on alternative grounds in its judgment and the appellate court affirms on only one ground and declines to reach the others, preclusive effect extends only to the ground that was actually considered and relied upon by the appellate court. Therefore, the preclusive effect extended only to the ground actually relied upon by the Tenth Circuit, and Plaintiff may relitigate the other two issues. Stanton v. Schultz

The People filed criminal impersonation charges against defendant in the Nineteenth Judicial
District. Defendant filed a motion to change venue under C.R.S. § 18-1-202 arguing that venue
was improper because neither the crime nor “any act in furtherance” of the crime occurred in the Nineteenth Judicial District. The trial court granted the motion and ordered that the case be transferred to the Thirteenth Judicial District. The supreme court affirmed, concluding that defendant would have fully completed the alleged crime before he took any action in the Nineteenth Judicial District. People v. Nevarez-Zambrano

The court granted cert. in these cases:

No. 09SC252, Lewis v. People
Summary of Issue:
Whether People v. Henderson, 810 P.2d 1058, 1062 (Colo. 1991), should be overruled in light of subsequent United States Supreme Court caselaw such as Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 124 S.Ct. 2531 (2004).

No. 09SC582, Rubio v. People
Summary of Issue:
Whether the court of appeals erred in concluding that a defendant was entitled to jury instructions on lesser non-included offenses for four of six counts arising from the same criminal act.

No. 09SC763, Jones v. People
Summary of Issue:
Whether the court of appeals erred in holding that the trial court lacked jurisdiction to find that the parole board unlawfully revoked parole due to parolee’s failure to comply with the sex offender terms and conditions of his parole.

No. 09SC781, Kendrick v. Pippin
Summary of Issues:
Whether the court of appeals erred in holding that a driver who loses control of a vehicle in winter driving conditions and collides with a vehicle stopped at a traffic light is entitled to a sudden emergency jury instruction.
Whether the court of appeals erred in concluding that a plaintiff is not entitled to an instruction based on res ipsa loquitur when the defendant loses control of her vehicle during winter driving conditions and collides with the plaintiff.
Whether the court of appeals erred in concluding that jury misconduct did not occur when a member of the jury made her own calculations regarding vehicle accident reaction time and shared the calculations with the other members of the jury.

No. 09SC916, Jefferson County Board of Equalization v. Gerganoff
Summary of Issue:
Whether section 39-8-109, C.R.S. (2008), requires the Board of Assessment Appeals to award costs to taxpayers whose appeal is sustained in part.

Here are the court of appeals' announcements from last Thursday. The court issued the following decisions. The summaries of the published decisions follows the list.

Published Opinions

08CA2009 Betty G. Amos and Estate of Thomas R. Righetti v. Aspen Alps 123, LLC and Equitable Bank
08CA2719 Michael Sean Edmond v. City of Colorado Springs, a Colorado municipal corporation; et. al.
09CA0388 William L. O’Quinn v. Leslie A. Baca
09CA0598 Paint Connection Plus and Twin City Fire Insurance Company v. Industrial Claim Appeals Office of the State of Colorado and Donald Sinkey
09CA0604 Daniel S. Jorgensen and Linda Jorgensen v. Colorado Rural Properties, LLC, Dennis Neal, and Scarlett VanRoss

Unpublished Opinions

07CA2571 Kevin J. O’Connor v. Colorado College, a Colorado nonprofit corporation; et. al.
08CA0550 Widefield School District No. 3 in the County of El Paso, State of Colorado v. Edward Tyler, an individual; Kimberly Tyler-James, an individual; and Leadership Preparatory Academy of Colorado Springs
08CA1700 People v. Michael Brent Martin
08CA2661 Attorneys Title Guaranty Fund, Inc. v. William Bronchick, individually, and Mile High Title & Escrow, LLC
09CA0343 People v. Gregory Stewart Hubler
09CA0524 People v. Robert Marquez
09CA0728 In re the Marriage of Thomas Mattson and Jennifer Affleck, f/k/a Jennifer Mattson

In an action seeking to set aside a public trustee foreclosure, plaintiffs appealed the summary judgment in favor of the foreclosing Bank and the purchaser of the property. The court of appeals agreed with the trial court that C.R.C.P. 120 requires strict compliance and that the Bank did not do comply. But the court of appeals concluded C.R.S. § 38-38-505 does not supplant the notice requirements of C.R.C.P. 120 and that undisputed actual notice to plaintiff precludes a remand to set aside the sale. The court concluded that absent prejudice, lack of strict compliance with Rule 120 does not require the foreclosure be voided. The court said, "we discern no reason in Colorado law why a completed foreclosure must be set aside where the complaining party received timely actual notice and as a result the right to contest the default was not prejudiced." The court concluded, however, that potential bid rigging might void the sale, and therefore remanded the case to the trial court. On remand, the trial court shall void the public trustee's deed and then exericise its equitable discretion, based on appropriate findings, to determine whether, after voiding the deed, the public trustee should be directed to accept one of the other bids and issue the deed to that bidder, or whether the foreclosure sale should be voided and the public trustee directed to conduct a new foreclosure sale, with attendant redemption rights for Plaintiffs. Amos v. Aspen Alps 123, LLC

Because the trial court granted Plaintiff’s motion to proceed in forma pauperis and he is an inmate, Plaintiff was required to pay his service fees in installments under C.R.S. § 13-17.5-103(2). Thus, the trial court did not abuse its discretion in requiring Plaintiff to pay service of process fees on an installment schedule, as required by section 13-17.5-103. Nevertheless, the trial court could also determine to waive reimbursement of any service of process fees expended from mandated funds. But once the trial court had in its possession copies of Plaintiff’s summons and complaint, it was required to give those documents to the sheriff to effectuate service of process, unless the court concluded the claims were frivolous or filed in bad faith. Because the trial court did not determine that the claims were frivolous of filed in bad faith, the trial court erred in not effectuating service. The court of appeals also concluded the trial court abused its discretion in dismissing the complaint for failure to prosecute. Edmond v. City of Colorado Springs

On appeal, Plaintiff conteded that the offer of settlement statute, C.R.S. § 13-17-202, is unconstitutional. The court of appeals declined to the argument because it concluded the issue was not preserved. In so holding, the court noted that although both parties certified that they complied with C.A.R. 28(k), they did not direct the court in their principal briefs to a place in the record on appeal where the constitutionality of the offer of settlement statute was raised and ruled upon. Nor did the court's review of the record reveal anywhere the issue was raised in the lower court. O’Quinn v. Baca

In an appeal challenging the imposition of penalties for the filing of an invalid final admission of liability (FAL), the court of appeals affirmed. The court concluded that Maximum Medical Improvement (MMI) is not “divisible and cannot be parceled out among the various components of a multi-faceted industrial injury.” Therefore, the determination that the FAL was invalid was proper. The court also disagreed with petitioners’ position that the FAL had to be filed in this instance to avoid possible penalties for the failure to timely admit. The court noted that the petitioners had other options available. First , because MMI is not divisible, the rating physician’s report triggered no obligation to file an FAL and petitioners could have waited to admit liability for permanent disability benefits until the rating physician found claimant at MMI. Paint Connection Plus v. Industrial Claim Appeals Office

Because the obligation to pay which arises by application of the unjust enrichment theory is not truly a contractual obligation as contemplated by the economic loss rule, the existence of such an obligation does not bar a tort claim: the obligation to pay necessarily exists independently of a contract. Application of the economic loss rule arising from a purely equitable obligation to pay would not serve to maintain any distinction between tort and contract law, nor would it enforce any bargained-for expectation or risk allocation. Therefore, the district court erred in determining that the economic loss rule barred a civil theft claim as a matter of law. Jorgensen v. Colorado Rural Properties, LLC

January 4, 2010

Happy New Year!

The supreme court did not issue any case announcements today. Here are the court of appeals' case announcements for December 31. The court issued the following unpublished decisions:

08CA0549 In re the Marriage of James D. Thompson and Linda G. Thompson
08CA1045 In re the Marriage of James D. Thompson and Linda G. Thompson
08CA2244 People v. Keegan Scott Redler
08CA2613 Richard J. Pearce v. Edward Dale Parrish, Edward Dale Parrish, P.C., and Edward Dale Parrish, LLC
09CA0029 People v. Ellery Emert
09CA0159 In re the Marriage of James D. Thompson and Linda G. Thompson
09CA1106 People In the Interest of D.G., a Child and Concerning J.G.
09CA1540 People v. Ryan Alexander Pettigrew

Here are the summaries of the court of appeals' published decisions from December 24:

Trial court erred by permitting the jury to engage in predeliberation discussions about defendant's criminal case, and court of appeals could not conclude the error was harmless beyond a reasonable doubt. It therefore vacated defendant's conviction. Judge Webb concurred in part and dissented in part, concluding that predeliberation discussions in criminal cases is not constitutional error. Judge Webb said that the "existence of constitutional error should not be predicated on inaccuracy." He would have held the error to be nonconstitutional and would have affirmed because, in his view, the error did not substantially influence the verdict or affect the trial's fairness. People v. Flockhart

Self-defense is an available defense against the charge of obstructing a peace officer when a defendant reasonably believes that unreasonable or excessive force is being used by the peace officer. Because defendant was precluded from asserting an affirmative defense of self-defense, his conviction on that charge was reversed. People v. Barrus

Trial court erred in finding that defendant fit the definition of a sexually violent predator because the victims knew him as their neighbor, and therefore he was not a stranger under the statutory definition. ‘Sexually violent predator’ means an offender whose victim was a stranger to the offender or a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization. Because the record did not support a finding that the victims were strangers to the offender as the statute requires, the court of appeals reversed the trial court’s conclusion that defendant meets the statutory definition. People v. Hunter

Trial court erred in concluding Plaintiff lacked standing. Plaintiff has a legally protected interest in avoiding financial liability for expenses covered by her insurance policy. She suffered an injury in fact to this interest when she paid the difference between the allegedly reasonable amount a doctor charged for his services and the amount the insurer paid him. To the extent she paid for covered services, she has standing. The court also held that the trial court abused its discretion in denying class certification. Reyher v. State Farm Mutual Automobile Insurance Company

A municipal ordinance imposed a duty on an owner of property adjacent to a public sidewalk to clear the sidewalk of snow and ice. Where such an ordinance exists, does the premises liability statute operate to abrogate the common law rule – referred to as the “no duty” rule – that such an owner does not owe a duty to pedestrians to clear naturally accumulated snow and ice from an adjacent public sidewalk? The court answered that question "no." Defendant-property owner did not assume a duty to pedestrians to clear the sidewalk merely because it complied with the snow removal ordinance at issue from time to time. Therefore, the "no duty" rule applies here, and Plaintiff's premises liability claim against property owner failed as a matter of law. Burbach v. Canwest Investments, LLC

The personal cell phone billing statements of Governor Ritter, did not constitute public records subject to disclosure under the Colorado Open Records Act (CORA), C.R.S. §§ 24-72-201 to -206. The Denver Post had the initial burden to show that the bills were likely “made, maintained, or kept” by Ritter in his official capacity as governor. Because the Post did not meet its required burden, the trial court properly dismissed the complaint. Denver Post Corp. v. Ritter

By definition, a true C.R.C.P. 56(h) order, without more, is not subject to C.R.C.P. 54(b) certification (since Rule 56(h) addresses issues of law that are not dispositive of a claim). Under the circumstances, though the trial court's order in effect constituted an order for summary judgment that was properly certified under Rule 54(b). On the merits, the court determined that the decedet mother’s will was not effective, at the time of its execution and delivery to revoke a trust. Under the trust agreement, the powers to revoke could be exercised only by delivering written, signed notice to the trustee, and the revocation clause was clear that the settlor intended that the power should be exercised only during her lifetime. Therefore, the will was not effective in revoking the trust. In re Estate of McCreath

“Knowingly,” as used in the CCPA, requires actual knowledge. Constructive knowledge is insufficient to satisfy the statute. State of Colorado v. The Mandatory Poster Agency, Inc.

Sheriff's decision not to reissue a concealed weapons permit was a quasi-judicial decision. On the merits, the court of appeals concluded that the Sheriff did not provide the requisite procedural due process in making that decision. The court held that the applicant was given inadequate notice or opportunity to respond, and therefore remanded for a new hearing. Copley v. Robinson

Where a mistrial is declared in a criminal prosecution over defense objection, double jeopardy bars retrial unless there was “manifest necessity” for the mistrial. Here, the county court declared a mistrial during cross-examination of an alleged victim in the misdemeanor assault case against defendant. Defendant then filed a C.R.C.P. 106(a)(4) action contending that retrial would violate double jeopardy. The district court denied that relief. The court of appeals reversed and remanded for entry of an order precluding retrial because the mistrial was not manifestly necessary. The cross-examination question that prompted the mistrial appeared to have been a proper one; "at the very least," the court of appeals was not convinced it was improper. Therefore, the prosecution failed to carry its heavy burden of showing manifest necessity for the mistrial.
Doumbouya v. The County Court of the City and County of Denver

December 30, 2009

This is my last post until after New Years. So have a happy end to 2009 and a great beginning to 2010.

The supreme court issued no case announcements on Monday.

Here are last Thursday's case announcements from the court of appeals. The court issued the following decisions, including 10 published decisions. I will post summaries when I can, though it won't be until sometime next week:

Published Opinions

07CA0312 People v. Rhoderick T. Flockhart
07CA1715 People v. Tom Wendell Barrus
08CA0316 People v. James Henry Hunter
08CA2021 & 09CA0080 Pauline Reyher and Dr. Wallace Brucker, on behalf of themselves and all others similarly situated v. State Farm Mutual Automobile Insurance Company, an Illinois corporation
08CA2342 Cynthia Burbach v. Canwest Investments, LLC
08CA2659 Denver Post Corp., a Colorado corporation, d/b/a The Denver Post; and Karen Crummy v. Bill Ritter, Governor of the State of Colorado
09CA0222 In re the Estate of Hazel I. McCreath, Deceased. Charlotte M. Ritchey v. Milford L. McCreath and Elton R. McCreath
09CA0253 State of Colorado, ex. rel. John W. Suthers, Attorney General v. The Mandatory Poster Agency, Inc., d/b/a Colorado Food Service Compliance Center, d/b/a The Colorado Labor Law Poster Service; Steven J. Fata; Thomas Fata; and Joe Fata
09CA0469 Robert M. Copley v. J. Grayson Robinson, acting in his professional capacity as Sheriff of Arapahoe County, State of Colorado; and Board of County Commissioners of the County of Arapahoe, State of Colorado
09CA2271 Boubacar Doumbouya v. The County Court of the City and County of Denver; Hon. Andre Rudolph, one of the judges thereof; and the City and County of Denver

Unpublished Opinions

06CA0750 People v. Gabriel Joseph Stites
06CA1060 People v. James Sidney Triggs
06CA1716 William Lancaster Smith, Jr. SEP IRA, by and through its custodian, Colorado East Bank and Trust v. Dash Directory, Inc. and Willard L. Hathcock, individually
06CA1777 People v. Donja Vaughn
06CA1859 People v. Donja Vaughn
07CA0735 People v. Cleveland Michael Flood, Jr.
07CA0935 People v. Gerald Kenneth Jorgensen
08CA1234 People v. Sylvia Ann Johnson
08CA1431 People v. Papa Odoi
08CA1849 In re the Marriage of David L. Wilds and Jacqueline D. Wilds, n/k/a Jacqueline D. Heagle
08CA2224 People v. Jimmie L. Lillie
08CA2279 People v. James V. Marshall
08CA2614 Robert Todaro and Tomson’s Construction v. General Steel Domestic Sales, LLC, d/b/a General Steel; Capital Steel Industries, LLC, d/b/a Capital Steel; Jeffrey Knight; Jonah Goldman; Megan Nylander; Steven Paige; and Luke Boddy
09CA0102 Kimberly S. Weldon v. Irwin Mortgage Corporation
09CA0771 City of Greeley, acting by and through its Water and Sewer Board v. Richard F. Snyder
09CA1070 People v. Stanimir Georgiev Pavlov
09CA1293 People In the Interest of N.W., R.H., and J.H., Children and Concerning A.M.K.
09CA1493 People In the Interest of M.S.R., a Child and Concerning D.S.R.
09CA1623 Edward Hardin v. Industrial Claim Appeals Office of the State of Colorado and Denver Public Schools
09CA1707 Joshua J. Voeller v. Industrial Claim Appeals Office of the State of Colorado and studioTBD CO_LA(B)_orative LLC
09CA1735 Eugene A. Oliveros v. Industrial Claim Appeals Office of the State of Colorado and Allstar Automotive, LLC
09CA1786 Susan M. Flanagan v. Industrial Claim Appeals Office of the State of Colorado and TVI Inc.
09CA1873 Erik L. Dickerson v. Industrial Claim Appeals Office of the State of Colorado and Munson Landscaping & Excavating Inc.
09CA1881 Dennis C. Ortega v. Industrial Claim Appeals Office of the State of Colorado and All Frequencies Inc.
09CA1952 Darryl E. Wright v. Industrial Claim Appeals Office of the State of Colorado and Airgas Intermountain Inc.
09CA2007 J. M. Zamora v. Industrial Claim Appeals Office of the State of Colorado and Dillon Companies Inc.
09CA2092 Jesus R. Garcia v. Industrial Claim Appeals Office of the State of Colorado and Gambro Inc.
09CA2175 Sharon J. Staude v. Industrial Claim Appeals Office of the State of Colorado and Kaiser Foundation Health Plan

December 21, 2009

Here are the supreme court's announcements for today. The court issued no decisions and did not grant cert. in any cases.

This will probably be my last post until after Christmas. Happy holidays to all.

December 17, 2009

The court of appeals' case announcements for today are here. The court issued one published decision, summarized below.

In a divided decision, the court of appeals concluded that, under C.R.S. § 19-1-104(1)(b), a juvenile court’s subject matter jurisdiction in neglect or dependency cases is based on the fact of the child being neglected or dependent. Since mother admitted that fact, the juvenile court’s acceptance of her admission established the essential factual predicate for the court’s exercise of its jurisdiction. The majority held that although the juvenile court did not enter an order sustaining the petition, its failure to do so did not divest the court of jurisdiction. Because the juvenile court’s failure to enter an adjudicatory order did not deprive it of jurisdiction and mother failed to raise these contentions before the court, any procedural error has been waived. Judge Lichtenstein dissented, concluding that a child's status as dependent or neglected "is determined only by the entry of an order of adjudication." She therefore concluded that "the lack of an adjudicatory order divested the court of jurisdiction to terminate the mother-child relationship," and would have vacated the termination order. People in the Interest of N.D.V.

December 16, 2009

The court of appeals will release the following decisions tomorrow, including one published decision:

Published Opinions

09CA0522 People In the Interest of N.D.V., a Child and Concerning Y.R.

Unpublished Opinions

06CA0860 People v. Charles J. Myricks
06CA2379 People v. Christian Abiakam
07CA0952 People v. Valene Renee Ferri
07CA1949 People v. Marselino Paul Atencio
07CA2446 People v. Brian Keith Potts
08CA0305 People v. Roger E. Keeton
08CA0315 People v. Kevin Pounds
08CA1842 People v. Raymond Trujillo
08CA1883 People v. Bradley Scott Hurtt
08CA1947 Barnwater Cats Rescue Organization, Inc. v. Stephen P. Gardea and Concerning Tonya Nita Heinzen and David S. Carroll
08CA2136 Colorado Department of Transportation v. Howard Beall
08CA2539 Latasha Bain v. Harrison School District No. 2
08CA2553 People v. Kevin Gooley
08CA2672 Suzanne Webel; Raymond P. Bovet; Europamark, Inc., a Colorado corporation; and Blackhawk Venture Equity Partners, LLC, a Colorado limited liability company v. Arthur C. Darrow and Darlene M. Darrow, trustees u/d/t dated October 4, 1993 f/b/o the Darrow Family Trust
09CA0193 Susan Wafer and Wafer Thoroughbred Ranch, Inc., a Colorado corporation v. Colorado Racing Commission, by and through Commissioners David Lynn Hoffman; Marilyn Alkire; Jack K. Pretti, Charlie Vail; Mary Sharon Wells; and State of Colorado, by and through Department of Revenue, Division of Racing Events, Daniel J. Hartman, Director
09CA0211 Michael J. Heaphy and Melissa L. Decker v. Kim H. Taylor and Patricia L. Taylor
09CA0214 In re the Marriage of Teresa Vaicys and Jayson Tuck Coté
09CA0271 & 09CA0560 Michael Arellano and Safeway Inc. v. Martinson Snow Removal, Inc.
09CA0292 Ronnie Lee Raile v. Warden Brill, Kit Carson Correctional Center
09CA0405 People v. Jefferie D. Hocker
09CA0414 Dwaine Curtis, Barbara Curtis, Kara Curtis, and Jala Curtis v. Windsor Police Chief John Michaels, in his individual and official capacities, and Windsor Police Officer Bob Ball, #949, in his individual and official capacities
09CA0475 People In the Interest of B.O., A.O., and C.O., Children and Concerning C.O., a/k/a C.C.
09CA0861 Jeckonias N. Muragara v. Industrial Claim Appeals Office of the State of Colorado and BLC Village at Skyline, LLC
09CA1333 People In the Interest of D.I., Child and Concerning J.C.
09CA1371 People In the Interest of E.M., C.M., and A.M., Children and Concerning M.M.
09CA1406 People In the Interest of C.C., a Child and Concerning S.C.
09CA1510 People In the Interest of B.M.B. and E.D.B., Children and Concerning E.M.S.
09CA1812 People In the Interest of A.C.E.G., a Child and Concerning E.E.S.
09CA1814 Clint L. Butler v. Industrial Claim Appeals Office of the State of Colorado and Big Sur Waterbeds, Inc.
09CA1834 Doug A. Garvis v. Industrial Claim Appeals Office of the State of Colorado and Division of Employment and Training, Benefit Payment Control
09CA1841 People In the Interest of M.S., Child and Concerning R.S.

December 14, 2009

The supreme court's announcements for today are here. The court issued 5 decisions, summarized below. The court also granted cert. in 4 cases. The issues in those cases follows the summaries. After that are the summaries of last week's court of appeals' decisions.

The Colorado Supreme Court concluded that even assuming that theatrical smoking actually can amount to protected expressive conduct under some circumstances, the statutory ban on smoking does not impermissibly infringe on the plaintiffs’ constitutionally protected freedom of expression because it is content neutral and narrowly tailored to serve the state’s substantial interest in protecting the public health and welfare. Justice Hobbs dissented, concluding that "the Colorado Clean Indoor Air Act, as applied to theatrical performances when the script of a play calls for smoking, is unconstitutional because theatrical smoking constitutes expressive conduct protected by the First Amendment." He concluded the state did not carry "its burden of demonstrating that its prohibition of expressive conduct is narrowly tailored to meet a significant governmental interest . . . because the smoking ban leaves the theaters without adequate alternate channels for their expression." Curious Theatre v. Colo. Dept. of Health

A statutory county may not refuse to process the location and extent review application of a fire protection district uncer C.R.S. § 30-28-110(1) of the County Planning Act because the district did not first seek modification of a planned unit development under § 24-67-106(3)(b) of the Planned Unit Development Act. To fulfill its statutory duty to provide fire protection services, the Respondent District intends to condemn a parcel of land within a PUD upon which to locate a new fire station. Boulder County refused to process the District’s application for location and extent review, asserting that the District first needed to seek modification of the PUD pursuant to section 24-67-106(3)(b). The supreme court upheld the affirmance of the district court's summary judgment in favor of the District, concluding that the long-standing rule that other political subdivisions may override the restrictions of local zoning regulations applies to the provisions of the PUD Act. Nothing in the PUD Act’s modification provision functions to alter this conclusion. The General Assembly intended that a county not be able to use its zoning authority to frustrate the efforts of other political subdivisions to carry-out their statutory duties. Accordingly, although Boulder County is entitled to conduct location and extent review, it may not condition acceptance of the District’s application for location and extent review upon county approval of a PUD modification. Justice Martinez, joined by Justices Coats and Eid, dissented, concluding that the General Assembly has not "in any way expressed an intent to allow political subdivisions to override the 'innovative,' 'integrated,'and 'unified'approach to planning for 'particular sites'that is encouraged by the PUD Act." BOCC of Boulder v. Hygiene Fire Protection District

Colorado Springs’ drainage fee system does not trigger the Regulatory Impairment of Property Rights Act. The supreme court held that the fee assessed to petitioner was promulgated by Colorado Springs via legislative process and uniformly assessed to all property owners occupying the drainage basin. Accordingly, the court held that the drainage fee system falls under the act’s exception for legislatively formulated fees imposed upon a broad class of property owners. Justice Eid, joined by Justice Martinez, dissented, agreeing with the district court that "the imposition of fees in this case was made on an individualized, discretionary basis, not as a 'legislatively formulated assessment.'" She would have remanded the case to the court of appeals to consider petitioner's arguments challenging the district court’s determination that its claim under RIPRA failed on the merits. Wolf Ranch v. City of Colorado Springs

District court did not err in holding a child competency proceeding in front of the jury. In addition, an impermissible response by an expert witness was an error invited by defense counsel’s questioning. The supreme court also concluded that the child victim’s mental health records were privileged and that the trial court was not required to review them in camera. Finally, the supreme court held that education records may be subject to an in camera review if the defendant shows a need for the information that outweighs any privacy interests. In this case, however, the education records did not relate to the evidence presented at trial, and therefore the trial court’s refusal to review them was not error. Justice Martinez, joined by Justice Bender, concurred in the judgment,
concluding, "I disagree with the majority’s analysis of three of the issues in the opinion. First, the majority calls it the 'better practice"to conduct child competency proceedings outside of the presence of the jury, but then inconsistently considers whether there was prejudice. I would simply find it is error to conduct competency proceedings in front of the jury, but in this case the error was harmless. Second, I disagree that defense counsel invited error by asking a prosecution witness an 'open-ended'question on cross-examination. After finding invited error, the majority nevertheless addresses plain error. I would apply the plain error standard to determine reversal is not required because the error was neither invited nor preserved. Finally, I do not agree that this case presents an issue of implied waiver. Rather, the primary issue raised by the defense is that due process rights trump the privileges associated with a victim’s mental health records. Unlike the majority, I would directly address this issue, but I ultimately arrive at the same result as the majority." People v. Wittrein

Trial court properly suppressed evidence obtained pursuant to an unlawful search of defendant’s tax returns and supporting documentation, which were found in his client file police seized from his tax preparer’s office. First, defendant had standing under the Fourth Amendment to object to a search of his client file. A taxpayer has a reasonable expectation of privacy in his or her tax returns and return information, even when that information is in the custody of a tax preparer. This reasonable expectation of privacy is based on federal and state laws that protect the confidentiality of tax returns and return information. Second, defendant’s client file was searched in violation of the Fourth Amendment. The affidavit supporting the warrant did not name defendant or refer to him in any way and therefore failed to establish individualized probable cause to search his client file. Finally, the good faith exception to the exclusionary rule does not apply in this case because the affidavit supporting the warrant was so lacking in indicia of probable cause to search defendant’s file that no reasonably well-trained officer could have relied upon it. Justice Rice, joined by Justice Eid, dissented, concluding that the police officers were acting in good faith, and therefore the good faith exception to the exclusionary rule applied. Justice Coats, dissenting separately, concluding that the search itself did not violate the Fourth Amendment. People v. Gutierrez

The court granted cert. in these cases:

No. 09SC229, Estate of Ford v. Eicher
Summary of Issue:
Whether the court of appeals properly applied People v. Shreck, 22 P.3d 68 (Colo. 2001), and People v. Ramirez, 155 P.3d 371 (Colo. 2007), in its review of the trial court’s exclusion of expert testimony when it concluded that the causation testimony of two medical experts was reliable and therefore admissible and reversed the trial court’s exclusion of that testimony.

No. 09SC377, Foiles v. Whittman
Summary of Issue:
Whether the court of appeals erred when it held that the personal representative of the surviving spouse’s estate can assert the exempt property allowance (C.R.S. section 15-11-403) in the decedent spouse’s estate.

No. 09SC380, Boulder County Board of Commissioners v. HealthSouth Corporation
Summary of Issues:
Whether a taxpayer has a statutory right to a tax abatement and refund when the taxpayer overstated assets by including false entries on tax schedules used for property valuation.
Whether the equitable doctrine of unclean hands prevents a taxpayer from receiving a tax abatement and refund when the taxpayer overstated assets by including false entries on tax schedules used for property aluation.

No. 09SC626, Henisse v. First Transit, Inc.
Summary of Issues:
Whether the court of appeals erred in holding that the employee of a private business is a “public employee” and entitled to governmental immunity based on the employer’s agreement with the Regional Transportation District.
Whether the Colorado Governmental Immunity Act limits the liability of a private employer that contracts with a governmental entity to perform public services when the negligence of that business’s employee causes injury and the sole claim against the employer is for vicarious liability of its employee.

Here are the summaries of last week's court of appeals' opinions:

After he pled guilty, defendant filed a postconviction motion alleging that the statute upon which his conviction was based violated his equal protection rights as applied to him. The court of appeals concluded that defendant’s guilty plea barred the as-applied equal protection challenge, and therefore dismissed the appeal. People v. Ford

Specific evidence of value is not required to support a disqualification from the receipt of unemployment benefits based on theft. But while evidence of the value of the item allegedly stolen by an employee is not required in unemployment cases, where a theft is alleged as the basis for disqualification of unemployment benefits, the employer must establish by a preponderance of the evidence the mens rea required in theft or larceny cases. The court remanded for further proceedings on claimant's mens rea. Starr v. Industrial Claim Appeals Office

Defendant appealed his conviction for second degree assault-causing serious bodily injury. The victim suffered a fractured rib and a lacerated spleen. Defendant argued neither of those injuries amounted to “serious bodily injury,” under C.R.S. § 18-1-901(3)(p) because the prosecution failed to show that (1) the victim’s broken rib was of the second or third degree or (2) the lacerated spleen involved a substantial risk of death or protracted loss or impairment of the function of that organ. The court concluded that any break or fracture is sufficient to establish “serious bodily injury” under § 18-1-901(3)(p). Judge Graham specially concurred, noting "I see no need to reach a question of statutory interpretation regarding 'breaks, fractures, or burns of the second or third degree. § 18-1-901(3)(p), C.R.S. 2009. Here, there was a substantial risk of the removal of the victim’s spleen and supporting testimony which, in my view, conclusively established that the victim suffered a serious bodily injury." People v. Daniels

In a unilateral land annexation case, the court of appeals concluded that a statutory exception to municipal annexation power concerning “public rights-of-way” does not include railroad rights-of-way, because railroad rights-of-way are not public rights-of-way. Sinclair Marketing Inc. v. The City of Commerce City

December 10, 2009

The court of appeals' announcement for today are here. The court issued the following decisions, including four published opinions. I will summarize those later.

Published Opinions

08CA1925 People v. Arthur Lewis Ford
08CA2413 Dana K. Starr v. Industrial Claim Appeals Office of the State of Colorado and Community Hospital Association
08CA2586 People v. Kalin Andrew Daniels
08CA2633 Sinclair Marketing Inc., a Wyoming corporation; Sinclair Oil Corporation, a Wyoming corporation; Sinclair Transportation Company, a Wyoming corporation; Burch Family Partnership, LLP, a Colorado limited liability partnership; Murray Family Farms, LLP, a Colorado limited liability partnership; Blue Dog Leasing, LLC, a Colorado limited liability company; Thomas H. Wielde; Log Jammer, LLC, a Colorado limited liability company; Hunt Brothers Properties, Inc., a Colorado limited liability company; K-W Enterprises, a Colorado general partnership; 9985E104, LLC, a Colorado limited liability company; Continental World Leasing Real Estate, LLC, a Colorado limited liability company; T1 Ellis Enterprises, LLC, a Colorado limited liability company; Marilinn Sonneman; Arthur Crocfer; Mary Jane Crocfer; Bruce J. Crocfer; Eugene A. Kapaun; and Mary Kapaun v. The City of Commerce City, Colorado, a home-rule Colorado municipal corporation; and The City Council for the City of Commerce City, Colorado

Unpublished Opinions

05CA2648 People v. Tyrone Walker
06CA1036 People v. Dejuan L. VanDyke
07CA1344 People v. Judy Kay Hillen
07CA2323 People v. James Francis Bodensieck
07CA2434 People v. Marcellous Ander Roebuck
08CA0013 People v. Maurice Lynn Wilson
08CA0330 People v. Arlus Daniel, Jr.
08CA0906 People v. Federico Lopez
08CA1088 People v. Shawne A. Toney
08CA1349 People v. Yvonne Marie Gothard
08CA1371 Beverly Mann v. The State of Colorado; David R. Gloss, individually and as an agent of Jefferson County and as an agent of the State of Colorado; Stephenie D. Lorimer; Mary Munger, individually and in her capacity as a City of Lakewood, Colorado Police Officer; Janet Young, individually and in her capacity as a City of Lakewood, Colorado Assistant City Attorney; the City of Lakewood, Colorado; Carla Martin, individually and in her former capacity as general manager of Golden Pond Senior Living, LLC; Golden Pond Senior Living, LLC; William Kilpatrick, individually and in his capacity as City of Golden, Colorado Police Chief; Matt Jurischk, individually and in his capacity as a City of Golden, Colorado Police Officer; the City of Golden, Colorado; Enrico Galimberti, individually and in his capacity as a Deputy Jefferson County Sheriff; Donald Tait, in his capacity as a Supervising Deputy Jefferson County Sheriff; Ted Mink, in his capacity as Jefferson County Sheriff; Jefferson County, Colorado; Gayle King; and Troy L. King
08CA1520 People v. Troy Shane Osborne
08CA1829 People v. David B. Hoeck
08CA2208 People v. Christopher Middleton
08CA2301 Frederick J. Quintana, Donna Faye Bothoff, individually and as next friend of her minor daughter, Jenna Quintana v. Lucy M. Quintana
08CA2362 Dianne L. Demers v. Marilynn Zupancic
08CA2551 People v. Daniel G. Watson
08CA2607 Paul Robert Allen v. Executive Director of the Colorado Department of Corrections and Warden of the Bent County Correctional Facility
08CA2679 In re the Marriage of Debra Lynne Shumar and Darrell Gordon Shumar
09CA0169 People v. B.L.
09CA0368 Edward F. Calus v. Cheryl Stanley
09CA0531 In the Matter of the Estate of Otilda Garcia, Deceased. Reginaldo Garcia v. Carlos Garcia
09CA0550 People v. Paul Robert Graham
09CA0579 Haven Joe v. Industrial Claim Appeals Office of the State of Colorado, Harrison Western Construction Corporation, and National Union Fire Insurance Company
09CA1370 People v. Stephanie Felts
09CA1761 People In the Interest of C.N., a Child and Concerning D.S.

December 7, 2009

The supreme court had no case announcements today. The court of appeals' oral argument calendar for January is here.

December 4, 2009

The supreme court's announcements from Monday are here. The court did not issue any decisions and did not grant cert. in any cases.

Here are last week's court of appeals announcements, and the summaries of the court of appeals' decisions from last Wednesday:

Guilty pleas in Colorado are designed to waive the right to attack most pretrial decisions, including orders denying defendants’ motions to suppress. The court of appeals thus concluded that Colorado law does not presently provide for conditional guilty pleas. Therefore, the court dismissed appeal, noting that "because defendant’s plea was expressly based upon the condition that he be allowed to pursue this appeal, he must be permitted, if he desires, to withdraw his guilty plea when this case is returned to the trial court. If defendant elects to withdraw his plea, the prosecution must be given the option of reinstating all charges, and then deciding whether to offer defendant the same plea disposition or a different plea disposition, or to proceed to trial." People v. Neuhaus

Trial court correctly permitted the jury to aggregate the value of stolen items received by defendant to meet the offense level. People v. Crawford

A mentally ill defendant had a right to a jury trial under Colorado’s insanity statute, C.R.S. § 16-8-105.5(2), even after the prosecution conceded his insanity, because he objected to his counsel’s entry of a plea of not guilty by reason of insanity (NGRI), contended he did not commit the underlying charge, and did not personally waive a jury trial. People v. Laeke

Where arbitration agreement indisputably empowered the arbitrator to decide whether to award attorney fees and costs, the ultimate award involved the merits of the dispute (not an issue of empowerment), and therefore cannot be overturned just because the arbitrator did not fully explain her reasoning. Judge Gabriel dissented in part, concluding that judicial review of arbitration awards is so no restricted "as to prevent a court from vacating an arbitration award when, as here, the arbitrator refuses to apply or ignores a legal standard agreed upon by the parties for resolution of their dispute." Treadwell v. Village Homes of Colorado, Inc.

Since civil theft claim could not have been proven without first proving that defendants also breached their contract with plaintiff, the civil theft claim was barred by the economic loss rule.
Makoto USA, Inc. v. Russell

Umbrella polices are not included under C.R.S. § 10-4-609 and, thus, are not subject to the UM/UIM coverage requirements of that statute. Apodaca v. Allstate Insurance Company

As a matter of first impression, the court of appeals held that that a health care proxy decision-maker does not have authority to enter into arbitration agreements for incapacitated patients.
Lujan v. Life Care Centers of America

In an appeal of a driver's license revocation arising out of a DUI, the court held that the evidence at the revocation hearing was sufficient to support the hearing officer’s conclusions that there was reasonable suspicion to justify the initial traffic stop and probable cause to justify her later arrest in this incident. Judge Furman specially concurred, disagreeing with "the majority’s premise that in civil driver’s license revocation proceedings, a licensee may properly raise issues concerning the legality of the initial investigatory stop." Baldwin v. Huber

Expert testimony is necessary to establish the standard of care an appraiser must employ when appraising a structure that may be a “mobile home.” Hice v. Lott

Colorado Constitution Article XXVII, section 9(2)(a) does not establishes an absolute constitutional right of a complainant to a hearing within forty-five days absent a finding of good cause. Instead, a defendant is entitled to a continuance of the hearing for up to forty-five days after the referral from the secretary of state , without any showing of good cause. A defendant must demonstrate good cause for any continuance beyond the forty-five-day period. Johnson v. Griffin

In an appeal raising the novel issue whether inquiry into a litigant’s immigration status is relevant for purposes of contesting that litigant’s ability to recover lost future wages, the court of appeals concluded that the question of one’s immigration status is almost always relevant for purposes of considering lost wages; however, there is no uniform resolution of whether an illegal alien should be banned from recovering lost wages. The court held that where a claimant is seeking to recover lost future wages as damages, the inquiry into his right as an immigrant to earn such wages is
relevant, but there must be a showing that the immigrant has violated the IRCA and that he is unlikely to remain in the country during the period for which wages are sought before he can be precluded from recovering such wages. Judge Connelly dissented, concluding that he "would not reach the merits of defendant’s challenge to the pretrial order excluding evidence of plaintiff’s immigration status. Because defendant failed to make any offer of proof regarding what the evidence would have shown, she cannot show its exclusion affected her substantial rights. See CRE 103(a)." Silva v. Wilcox

The plain language of C.R.S. 38-33.3-123(1)(c) does not require a prevailing party to be a unit owner to collect attorney fees, and the omission of the language from this subsection, in light of its inclusion in other subsections of the statute, shows the General Assembly’s intent not to limit recovery of attorney fees under that subsection to unit owners. Cody Park Property Owners’ Association, Inc. v. Harder

C.R.S. § 39-1-102(1.6)(a)(I) does not requires that land be used continuously as a farm or ranch for at least two years preceding a January 1 assessment date to be classified as agricultural land. Instead, the plain language of the statute requires only that (1) it presently be used as a farm or ranch and (2) the land was used the previous two years. It need not be used continuously as a ranch or farm during that two-year period. Aberdeen Investors Inc. v. Adams County Board of County Commissioners

Under C.R.S. 24-10-109(5), a statute of limitations is not tolled when the 90-day waiting period required by the CGIA has expired prior to the expiration of the applicable statute of limitations.
Cochran v. West Glenwood Springs Sanitation District

Where record showed that trial counsel became upset when he became aware of an allegation that he advised defendant to abscond to Mexico, trial court did not err in finding an actual conflict of interest existed. That conflict caused prejudice and therefore defendant's 35(c) motion was granted and a new trial ordered. People v. Curren

Here are yesterday's announcements from the court of appeals. The court released the following unpublished decisions:

06CA0121 People v. Thomas Patrick Reinig
06CA0173 People v. Luke J. Chlapowski
06CA1426 People v. Earl Coward
07CA1064 Columbia Credit Services, Inc. v. Irving Kruger
08CA0447 People v. Jesse Angelo Folks
08CA0511 People v. Lorenzo Montiel
08CA0988 People v. Jeffrey Wayne Anderson
08CA1518 People v. Lyle Allen Vandiver
08CA1799 In re the Marriage of Peggy Angotti and Ronald Angotti
08CA2064 Kelly J. Barlean v. Michele Mahady Haberlach
08CA2196 People v. Vincent Trujillo
08CA2596 In re the Marriage of Diana Rose Conrad and Robert Francis Williams, III
09CA0278 James Joseph Heron, IV v. Colorado Department of Revenue, Motor Vehicle Division, Hearing Section
09CA0376 James R. Lawson v. Denver Health and Hospital Foundation, d/b/a Denver Health Medical Center; Porter Adventist Hospital; Radiology Imaging Associates, P.C.; and Inpatient Services, P.C.
09CA1054 LaTeesha L. Jones v. Industrial Claim Appeals Office of the State of Colorado and Catholic Charities Comm SVC ARC DEN
09CA1284 Dennis E. Pacheco v. Industrial Claim Appeals Office of the State of Colorado and Tire Distribution Systems, Inc.
09CA1289 Kim Eugene Rosenquist, as trustee of the Rosenquist Family Trust dated January 18, 2007 v. Eileen Rosenquist
09CA1292 Jeremy Aaron Reeves v. Industrial Claim Appeals Office of the State of Colorado and Accurate Concrete Cutting, Inc.
09CA1543 Charles E. Chisholm v. Industrial Claim Appeals Office of the State of Colorado and Elkhead Steel, Inc.
09CA1671 Tonya M. Blunt v. Industrial Claim Appeals Office of the State of Colorado and AMPCO Auto Parks, Inc.
09CA1700 Roger L. Summer v. Industrial Claim Appeals Office of the State of Colorado and Talent Tree Crystal, Inc.
09CA1771 Douglas B. Wells v. Industrial Claim Appeals Office of the State of Colorado and Oldcastle SW Group, Inc.
09CA1779 Kirk R. Bobo v. Industrial Claim Appeals Office of the State of Colorado and Sun Microsystems, Inc.
09CA1783 Lisa L. Cline v. Industrial Claim Appeals Office of the State of Colorado and Human Touch Unskilled Services, Inc.
09CA1815 Michael J. Alegria v. Industrial Claim Appeals Office of the State of Colorado and Coggeshall Construction & Design Inc.

November 24, 2009

Sorry for the blog silence. Work interfered. This post will get me caught up. It includes yesterday's supreme court decision, the list of unpublished cases the court of appeals released on November 19, summaries of the court of appeals' decisions from, and a list of the cases the court of appeals will release tomorrow. But not in that order. This will be my last post for the week, so Happy Thanksgiving. If you're driving don't drink, and if you're drinking, don't drive.

Here are the supreme court announcements from yesterday. The court issued one decision, summarized below. The court granted cert. in one case, No. 09SC553, DeBella v. People, on this issue:

Whether the court of appeals erred in concluding the trial court did not commit reversible error by permitting the jury – over defense objection and without a request from the jury – to review during deliberations an ex parte videotaped interview of the victim without limiting the jury’s use of the videotape and without instructing the jury not to place undue emphasis on the videotape.

In a water court appeal, the supreme court affirmed in part and reversed in part the water court’s approval of the Applicant’s proposed plan for augmentation. The court held that the water court did not err in requiring the Applicant to provide replacement water for post-pumping depletions made before the filing of the augmentation plan application that have a continuing injurious effect on surface waters. The court also affirmed the decision that replacement obligations in the Box Elder Creek basin must be determined based on surface water conditions that would exist in the basin absent groundwater pumping in the area. The court declined to issue an opinion as to whether the State and Division Engineers have the discretionary authority to implement a groundwater administration system, termed “well call” by Applicants, when the water court declined to include such a provision in the decree. The court concluded that the issue was advisory. Finally, the supreme court reversed the water court’s determination that substitute water supply plan appeals under C.R.S. § 37-92-308(4)should be reviewed de novo. While the issue of the proper standard of review to apply to such appeals was moot, the court nonetheless addressed it under the exception to the mootness doctrine applicable to issues that are capable of repetition, yet evade review. The court held that section 37-92-308(4) appeals should be reviewed under the Colorado Administrative Procedure Act, C.R.S. § 24-4-106. Concerning the Application for Water Rights of Well Augmentation Subdistrict of the Central Colorado Water Conservancy District and South Platte Well Users Association in Adams, Morgan, and Weld Counties

Published Opinions

07CA0896 People v. Shane Aaron Neuhaus
07CA2279 People v. Darcie Lynn Crawford
08CA0079 People v. Abel Gebre Laeke
08CA0304 Steven Treadwell, Juliana Treadwell, Glenn Fricke, Sheryl Fricke, Ronald Kruzel, Colleen Kruzel, James McEntee, Mary Ann McEntee, Jeffrey Smith, Janet Smith, Patricia Sondheimer, Lewis Worker, Theresa Worker, Terry Brogdon, and Cindy Brogdon v. Village Homes of Colorado, Inc.
08CA1372 Makoto USA, Inc., a Colorado corporation v. Paul R. Russell, Alysn Hassenforder, and Inner Quests, Inc., a Colorado corporation
08CA2231 Codiejo Apodaca, n/k/a Codiejo Martinez, and Michelle I. Carlton v. Allstate Insurance Company, an Illinois Insurance corporation, and Sandra H. Perkins
08CA2367 Kathryn Lujan, individually, and the Estate of Estella O. Lujan, through Kathryn Lujan as putative representative v. Life Care Centers of America, a Tennessee corporation, d/b/a Evergreen Nursing Home
08CA2492 Stacey M. Baldwin v. Roxy Huber, Executive Director of the Motor Vehicle Division, Department of Revenue, State of Colorado
08CA2615 Shannon Hice v. Katrina Lott, Sheila C. Middendorf, B & B Appraisals, and SCM Appraisals, Inc.
08CA2711 Nancy C. Johnson v. Faye Griffin, Walter Griffin, and the Committee to Elect Faye Griffin Commissioner District 1 and Office of Administrative Courts
08CA2717 Luis Silva v. Maria Wilcox
09CA0299 Cody Park Property Owners’ Association, Inc. v. Sigismund L. Harder, Alexandra W. Harder, Alan D. Heitsman, and Tammy Heitsman
09CA0424 Aberdeen Investors Inc. v. Adams County Board of County Commissioners and Colorado State Board of Assessment Appeals
09CA0527 Donni Cochran v. West Glenwood Springs Sanitation District
09CA0872 People v. John Estel Curren

Unpublished Opinions

07CA1494 People v. Alfredo Madriz
07CA1523 People v. Daniel Barranco
07CA1603 People v. David Harris
07CA1985 People v. Lee Aaron Aragon
07CA2264 In re the Marriage of Richard E. Downey and Radine S. Downey n/k/a Radine S. Coopersmith and Concerning Greenberg, Herringer & Ward, LLC
07CA2328 People v. Brooke Anne Henderson
07CA2505 People v. Louis Joseph Espinosa, Jr.
08CA0044 In re the Marriage of Diane L. Moore and Timothy W. Moore
08CA0359 People v. Lamont Wilkerson
08CA0459 People v. Joey L. Evans
08CA0569 People v. Jerry Richard Moore
08CA0682 People v. Lorandon Demarcus Byrd
08CA1175 People v. Billy Jim Edwards, Jr.
08CA1176 People v. Richard David Bileddo
08CA1228 People v. Jose Mendoza-Ruiz
08CA1457 People v. Ronald Jennings Fogle
08CA1612 Edward L. Williams v. ASCI of Colorado Springs and Asphalt Specialties Co., Inc.
08CA1722 People v. Kelley Dolan Gillespie
08CA1828 Presbytery of Plains and Peaks and Covenant Presbyterian Church v. Indian Peaks Community Church and Georges Michael Houssney
08CA1981 People v. Neil Caven
08CA1998 People v. Loy Dean Vondette
08CA2133 People v. Mark Shannon Curry
08CA2182 In re the Marriage of Michelene Underwood and Anthony P. Underwood
08CA2310 People v. Joseph M. Roberts
08CA2313 People v. Kenneth W. Adrian
08CA2337 People v. Corinthian Prentiss
08CA2341 One Creative Place, LLC, a Colorado limited liability company, and JetAway Aviation, LLC, a Colorado limited liability company v. Board of County Commissioners of the County of Montrose, Colorado and Jet Center Partners, LLC
08CA2382 People v. Cedric Marshall Watkins
08CA2464 In re the Marriage of Jimmy Ray Goodrich and Candice Sekich, f/k/a Candice Goodrich
08CA2480 In the Matter of the Estate of Sarah Jane Mabry. Sally M. Gansz v. Letha M. Steed
08CA2482 People v. Joseph Hernandez
08CA2490 In re the Marriage of Christina Ann Kilby and Wilfred Jeffery Tapp
08CA2546 People v. Sylvester Davis
08CA2709 One Creative Place, LLC, a Colorado limited liability company, and JetAway Aviation, LLC, a Colorado limited liability company v. Board of County Commissioners of the County of Montrose, Colorado
09CA0285 In re the Marriage of Daniel Anthony Tirone and Nancy Rosalie Tirone
09CA0293 Raul Permuy Calderón v. Kevin Milyard, Warden of Sterling Correctional Facility, and Aristedes Zavaras, Executive Director of Colorado Department of Corrections
09CA0314 Jason Lee Evans v. Colorado Department of Revenue, Motor Vehicle Division
09CA0331 John Hathaway v. Heather Marie Nasakaitis
09CA0374 & 09CA1313 Clinton Eckhardt v. Altela, Inc.
09CA0465 People v. Jorge Peregrino-Renteria
09CA0468 Judy K. Corey, M.D. v. Daniel L. Escajeda, M.D. and Northwest Anesthesia, Inc.
09CA0536 In re the Marriage of Lorrie Lee Harford and Joshua Russell Harford
09CA0657 In re the Marriage of Maria S. Murillo and Alejandro E. Murillo
09CA0787 People In the Interest of A.J.L., a/k/a A.J.C., A.K.M.H., and Q.D.J.W., Children and Concerning A.P.L.
09CA0813 People v. Charles L. Elliott
09CA1191 Lynda D. Iles v. Industrial Claim Appeals Office of the State of Colorado and Division of Employment, Benefit Payment Control
09CA1282 James B. Crosby v. Industrial Claim Appeals Office of the State of Colorado and Panorama Orthopedics, PC

Here are the summaries of the court of appeals' published decisions from November 12:

A fictional fourteen-year-old girl, created by two police officers conducting an Internet sting operation, can be a “victim” within the meaning of the sexually violent predator statute, C.R.S. § 18-3-414.5. The court concluded that the term "victim" means “intended victim” in the context of a conviction for attempted sexual assault. People v. Buerge

Airline asserted that section 44941 of the Federal Aviation and Transportation Security Act (ATSA) provides immunity from liability for its employee’s allegedly defamatory statements to the Transportation Security Administration (TSA) connoting that plaintiff was a threat to a departing aircraft because he was mentally unstable and possibly armed. The court of appeals concluded that the trial court properly submitted the ATSA immunity issue to the jury; the record supports the jury’s rejection of immunity; the employee’s statements to TSA were not protected opinions because they conveyed provably false negative connotations; reviewed de novo, the record includes clear and convincing evidence that the employee acted with actual malice; and plaintiff did not preserve his claims for prejudgment interest under Virginia law. Hoeper v. Air Wisconsin Airlines Corporation

The trial court erred in rejecting a self-defense instruction on an illegal discharge of a firearm charge. The jury could have concluded that defendant knowingly discharged his firearm in order to defend himself by scaring off his attackers. To hold that a defendant cannot claim self-defense to an illegal discharge of a firearm charge would have an improper result: a person would be criminally liable for firing a warning shot in self-defense, but could be acquitted of shooting a person in self-defense during the same episode. People v. Taylor

A court may seal records involving a charge of false reporting if that charge was “completely dismissed.” C.R.S. § 24-72-308(1)(a)(I). But the district court could not seal the records that relate to petitioners’s charge of false reporting because those records also pertained to a charge of failure to notify, a class 2 misdemeanor traffic offense. Section 24-72-308(3)(a)(I), forbids courts from sealing records pertaining to class 2 misdemeanor traffic offenses. Judge Russel, dissented, noting that "I think it is possible to seal a record insofar as it relates to one offense, even if that record must remain unsealed for other purposes." Clark v. People

The court of appeals held, as a matter of first impression, that in a kinship adoption appeal governed by C.A.R. 4(a), the unique circumstances doctrine allows this court to accept notices of appeal filed past the seventy-five-day period set forth in that rule. Judge Gabriel, concurring in part and dissenting in part, disagreed with the majority’s determination that the unique circumstances doctrine allowed the court to accept notices of appeal filed past the seventy-five-day period. In the Interest of C.A.B.L.

District court did not erred by refusing to vacate an order reviving a judgment. The parties that purchased the property had actual notice of the judgment lien when they purchased the property. The court of appeals rejected their arguments that the the revival order should be vacated because they were not given notice of the revival motion and because they were not joined as indispensable parties in the revival proceeding. Hicks v. Joondeph

Court of appeals had jurisdiction over an appeal of a district court’s judgment that, consistent with a ruling from the Colorado Ground Water Commission, the Upper Black Squirrel Creek Ground Water Management District could adopt certain rules restricting the amount of underground water that could be withdrawn from alluvial and Denver Basin wells. The court noted that though the case was certainly a “water case,” it did not involve “priorities or adjudications,” and therefore the court had jurisdiction over the case. On the merits, the court affirmed. Meridian Ranch Metropolitan District v. Colorado Ground Water Commission

The People appealed a trial court’s sentence, following revocation of probation, reinstating probation for the defendant. The court of appeals rejected the People's contention that revocation of probation negated the People’s recommendation for a waiver of the two-felony rule. Therefore, the court concluded that the trial court retained discretion to sentence the defendant to probation under C.R.S. § 18-1.3-201(4)(a)(I). People v. Nance

Trial court erred in dismissing complaint after concluding a snowplow is not a “motor vehicle” under the Colorado Governmental Immunity Act (CGIA). The court of appeals concluded that a snowplow is a "motor vehicle" under the act, and therefore and sovereign immunity is waived.
Herrera v. City and County of Denver

The phrase “under court rule” in C.R.S. § 13-20-901(1) applies not just to C.R.C.P. 23 but also to court rules which prescribe the method of computing the time limit to appeal the grant or denial of class certification. Therefore, the court of appeals applied C.A.R. 26(a) together with the grant afforded under the statute to determine the ten-day deadline for briging an interlocutory appeal of class certification. On the merits, the court of appeals concluded that the trial court erred in certifying the case as a class action. Garcia v. Medved Chevrolet, Inc.

The court of appeals' announcements from November 19 are here. The court released the following unpublished decisions and rulings on petitions for rehearing:

06CA1368 People v. Carlos Yeazel
06CA1613 People v. Jonathan Nathaniel Estes
06CA2231 People v. Benjamin Benevidez
07CA0186 People v. Arthur J. Lomax
07CA0562 People v. Michael DiPentino
07CA0841 In re the Marriage of Susan M. Kroll and Leonard J. Kroll
07CA2116 People v. Tyler Zapp
07CA2203 People v. Theodore R. Wagner
07CA2206 People v. Candy Ra Coppinger
07CA2413 People v. Nicholas Steven Cutshall
07CA2470 People v. Edward L. Rodriguez
08CA0061 In re the Marriage of Susan M. Kroll and Leonard J. Kroll
08CA0186 People v. Michael Riley Olson
08CA0331 People v. Anthony Gilbert Martinez
08CA0386 People v. Willie Joe Losa
08CA1026 People v. Ramon Hetzel
08CA1327 People v. Derrick Kyle Coffman
08CA1694 Arkansas Oklahoma Gas Corporation v. Marathon Oil Company, as successor to Texas Oil and Gas Corporation
08CA1791 People v. Jesus E. Rivera
08CA2045 Northglenn, LLC, a Colorado limited liability company v. Carol Constable, f/k/a Carol Graham, d/b/a Flowers n’ Roses
08CA2070 & 09CA0084 Saltire Development, Inc., a Colorado corporation and Gordon Blaikie v. Margo M. Hields and Paul W.R. Hields
08CA2172 In re the Marriage of Christine McCormick, n/k/a Christine Fritschen and Robert A. McCormick
08CA2209 Patrick Youngs v. Industrial Claim Appeals Office of the State of Colorado, White Moving and Storage, Inc., and Pinnacol Assurance
08CA2385 Denley Kester v. Board of Engineers and Land Surveyors and Administrative Courts, State of Colorado
08CA2421 Richard Bedor v. Michael E. Johnson
08CA2438 People v. Alonzo Ponce-Jiminez
08CA2663 People v. Tyrone L. Walker
09CA0357 People v. Antonette Victoria Manzanares
09CA0521 People v. Wayne Sater
09CA0643 People v. Raul Permuy Calderon
09CA0890 People v. Antonio M. Bethea
09CA0995 People v. Robert Daniel Lillie
09CA1029 People v. Shay Martin
09CA1145 In the Interest of C.G. and H.G.
09CA1328 Claudia D. Serocki v. Industrial Claim Appeals Office of the State of Colorado and Alterra Healthcare Corporation
09CA1471 In the Interest of D.S.
09CA1571 Crystal M. Stevenson v. Industrial Claim Appeals Office of the State of Colorado and Transfirst Holdings, Inc.
09CA1639 Steven P. Haines v. Industrial Claim Appeals Office of the State of Colorado and Maverick Press Printing & Graphics

Petitions for Rehearing

06CA1560 People v. Ricardo Lemar Samuels
06CA1853 People v. Thomas Dean Tillery
07CA1895 People v. Matthew Christopher O’Neal
07CA2425 In re the Marriage of Darla K. Richards and Glenn D. Richards
07CA2443 People v. Kevin Patrick McAllister
08CA0157 People v. Anthony Douglas Riley, a/k/a Anthony Douglas Pryor-Riley
08CA0648 People v. Harry J. Hall
08CA0777 People v. Aaron Ivan Jordan
08CA1597 Michael Sean Edmond v. Bill Ritter, Governor of Colorado; the State of Colorado; and the Honorable Larry Edward Schwartz, acting as District Court Judge for El Paso County, Colorado
09CA0020 Christian Gilbert v. Arthur Julian, Assistant Chief Hearing Officer; Andrew Stone, Hearing Officer; and Roxy Huber, Executive Director of the Colorado Department of Revenue, Division of Motor Vehicles
09CA0120 In re the Marriage of Stanley K. Anderson and Donna M. Warling-Johnson
09CA0913 In the Interest of R.P.E., J.M.E., and D.Z.E.

November 16, 2009

Today's supreme court announcements are here. The court issued one decision, summarized below. The court granted cert. in 3 cases. The issues in those appeals follows the case summary.

In a wrongful death action filed for the death of his mother, Plaintiff had signed an arbitration agreement for his mother, for whom he held a power of attorney. The defendant nursing home filed a motion to compel arbitration of the wrongful death action. The trial court denied the motion to compel, holding that a person possessing a power of attorney could not enter an arbitration agreement on behalf of an incapacitated patient under the Health Care Availability Act, C.R.S. 13-64-403. The court of appeals reversed, holding that a person possessing a power of attorney may sign an arbitration agreement on behalf of an incapacitated patient. The supreme court affirmed, holding that a person possessing a power of attorney is permitted to agree to arbitrate on behalf of an incapacitated patient under section 13-64-403. Absent a restriction or limitation on his authority under the power of attorney from his mother, plaintiff was authorized to enter into the arbitration agreement on her behalf. Finally, the supreme court held that there were material facts in dispute on whether the nursing home illegally conditioned the mother's medical care on the son signing the arbitration agreement. Thus, on remand, the trial court must conduct evidentiary proceedings to determine if the arbitration agreement violated subsection 13-64-403(7). Moffett v. Life Care Centers of America

No. 09SC456, Department of Transportation, State of Colorado v. Gypsum Ranch Co., LLC,
Summary of Issue:

Whether the court of appeals erred in holding that CDOT does not have the authority to take title to the subsurface mineral rights in condemnation proceedings and settlements.

No. 09SC665, People v. Simon
Summary of Issue:

Whether each crime for sexual assault between a defendant and his victim can be enhanced, from a class four felony to a class three felony, if the crime is one of the acts that constitutes part of the pattern of abuse.

November 12, 2009

Today's court of appeals announcements are here. The court released the following decisions, including 10 published opinions. The court's list also includes the petitions for rehearing it has ruled on, which is an addition to the court's usual case announcement list that appears on the case announcements page. I will not be able to post summaries until sometime next week.

Published Opinions

07CA2393 People v. Gregory Alan Buerge
08CA1358 William L. Hoeper v. Air Wisconsin Airlines Corporation
08CA1435 People v. Thomas Taylor
08CA1754 Christopher Clark v. People of the State of Colorado
08CA1899 In the Interest of C.A.B.L.
08CA1933 Donald P. Hicks and Robert C. Grubbs v. Brian C. Joondeph, Shirley S. Joondeph, and CitiMortgage, Inc.
09CA0131 Meridian Ranch Metropolitan District, Meridian Service Metropolitan District, and Cherokee Metropolitan District v. Colorado Ground Water Commission and Upper Black Squirrel Creek Ground Water Management District
09CA0220 People v. Keitheka Makau Nance, a/k/a Kietheka Makau Nance
09CA0349 Annette Herrera v. City and County of Denver and Martin Jacinto
09CA1465 Trina Garcia v. Medved Chevrolet, Inc., d/b/a Medved Cadillac, Inc., d/b/a Medved Cadillac Oldsmobile, Inc., d/b/a Medved Chevrolet-GEO, Inc., d/b/a Medved Oldsmobile, Inc., d/b/a Medved Craig Chevrolet, Inc.; Medved Chevrolet South, Inc., d/b/a Medved Hummer South; Castle Rock Ford-Mercury, Inc., d/b/a Medved Ford Lincoln Mercury, Inc., d/b/a Medved Brutyn Ford Lincoln Mercury, Inc.; Medved Buick Pontiac GMC, Inc.; Lakewood Chrysler-Plymouth, Inc., d/b/a Medved Chrysler Jeep, Inc.; Medved Chrysler Jeep Dodge South, Inc.; Medved Chrysler Jeep Dodge, Inc.; Medved Pontiac Buick GMC, Inc.; Medved Suzuki North, Inc.; Medved Suzuki South, Inc.; and John Medved, individually

Unpublished Opinions

05CA2142 People v. Joseph Paul Lucero
06CA1675 People v. Ricco Dickens
06CA2113 People v. Robert Wheeler
06CA2171 People v. Ronald Theo Harrison, II
06CA2231 People v. Benjamin Benevidez
06CA2232 People v. Jorge Arellanes
07CA0186 People v. Arthur J. Lomax
07CA0512 People v. Ronald Eugene McMullen
07CA0856 People v. Debra Romero
07CA0996 People v. Sidney Marion Blake
07CA1855 People v. William Sills Taylor,
07CA2413 People v. Nicholas Steven Cutshall
07CA2504 People v. Felix Pete Jaquez
08CA0106 People v. Ian Ford
08CA0800 People v. Clyde Joseph Vasquez
08CA1018 People v. Walter James Hansen
08CA1439 People v. Johnnie Leroy Norris
08CA1967 William T. Valentine, Sharon A. Valentine, and Valentine Digital, Inc. v. Mountain States Mutual Casualty Company
08CA1991 People v. Maria P. Parras
08CA2045 Northglenn, LLC v. Carol Constable, f/k/a Carol Graham, d/b/a Flowers n’ Roses
08CA2205 People v. Travis B. Colvin
08CA2415 In re the Marriage of Kavita V. Nair and Jeffrey M. Wicker
08CA2423 In re the Marriage of Jamie Pollock and Katherine Pollock
08CA2457 Commerce City Urban Renewal Authority v. Envirotest Systems Corp.
08CA2663 People v. Tyrone L. Walker
09CA0141 In re the Estate of Patricia Susan Hitchcock
09CA0216 Chris Clendening v. Industrial Claim Appeals Office of the State of Colorado; Schlumberger Oil; and Travelers Indemnity Company
09CA0412 Michael F. O’Brien v. Board of County Commissioners of the County of Boulder
09CA0837 People v. Alvaro Hernandez, a/k/a Alvaro Gerbabdez Segovio
09CA0918 In the Interest of D.H., J.S., and C.H.
09CA0931 People v. Woodie Mack Ashfield
09CA1112 Rita H. Richmond v. Industrial Claim Appeals Office of the State of Colorado and Spherion Atlantic Enterprises, Inc.
09CA1323 Durcy E. Marshall v. Industrial Claim Appeals Office of the State of Colorado and Division of Employment, Customer Service/Benefits
09CA1328 Claudia D. Serocki v. Industrial Claim Appeals Office of the State of Colorado and Alterra Healthcare Corporation
09CA1334 Curtis G. Kern v. Industrial Claim Appeals Office of the State of Colorado and Bulk Transporters, Inc.
09CA1343 Louis F. Duran v. Industrial Claim Appeals Office of the State of Colorado and Colorado Sintered Metals, Inc.
09CA1446 Margaret J. Van Hook v. Industrial Claim Appeals Office of the State of Colorado and Division of Employment Benefit Payment Control
09CA1471 In the Interest of D.S.
09CA1482 In the Interest of A.M., M.C.
09CA1495 Donald Q. Webb v. Industrial Claim Appeals Office of the State of Colorado and First Transit, Inc.
09CA1571 Crystal M. Stevenson v. Industrial Claim Appeals Office of the State of Colorado and Transfirst Holdings, Inc.
09CA1572 Charles L. Humphreys v. Industrial Claim Appeals Office of the State of Colorado and Town of Vail
09CA1573 Glen P. O’Brien v. Industrial Claim Appeals Office of the State of Colorado and Grand Junction Newspapers, Inc.
09CA1596 James T. Henry v. Industrial Claim Appeals Office of the State of Colorado and WCS, Inc.
09CA1677 Troy C. Ramirez v. Industrial Claim Appeals Office of the State of Colorado and Ellis Construction Specialties LTD, LLC
09CA1709
In the Interest of B.B.N., a/k/a R.V.S.
09CA1787 Kelly Besfer, v. Industrial Claim Appeals Office of the State of Colorado and Alta Physical Therapy, PC

Petitions for Rehearing

08CA1702 The Estate of Dennis Scoggins
08CA2461 Thurman Harrison, Jr. v. Executive Director of the Colorado Department of Corrections and Warden of the Fremont Correctional Facility

November 9, 2009

The supreme court's announcements for today are here. The court issued one decisions, summarized below. A second case, Board of County Commissioners of County of Rio Blanco v. ExxonMobil, was affirmed, by operation of law, by an equally divided court (Justice Coats did not participate). The court granted cert. in 4 cases. The issues in those cases follows the summary.

In an original proceeding under C.A.R. 21, the supreme court held that a district court has the authority to restore a defendant’s right to a preliminary hearing where waiver of that right was based on a miscommunication of the plea agreement. Because the district court concluded that it could not reach the issue of whether the waiver was effective, the supreme court returned that issue to the district court for resolution. In re People v. Nichelson

The court granted cert in these cases:

No. 09SC483, In the Matter of D.I.S.
Summary of Issues:
Whether a parent relinquishes his or her fundamental liberty interest in the care, custody, and control of his or her child by consenting to guardianship.
Whether it was error to place the burden upon parents to prove, by a preponderance of the evidence, that termination of non-parents’ guardianship would be in the best interests of minor child, where parents originally consented to the guardianship.

No. 09SC536, Specialty Restaurants Corp. v. Nelson
Summary of Issues:
Whether the court of appeals erred in holding that the 2007 amendment to section 8-43-406(2), C.R.S., which increased the aggregate maximum lump sum payment available to a workers’ compensation claimant, applied to a claimant whose injury occurred prior to the amendment.
Whether the court of appeals erred in failing to apply the presumption that a prior judicial interpretation of a statutory provision is adopted by the legislature when that same statutory provision is amended.

No. 09SC586, Benchmark/Elite, Inc. v. Simpson
Summary of Issue:
Whether the court of appeals erred in remanding for a determination on the claimant’s “time of disablement” for the purpose of setting the applicable statutory limit on claimant’s Workers’ Compensation benefits.

No. 09SC769, City of Colorado Springs v. Bennett
Summary of Issue:
Whether the court of appeals erred in remanding for a determination on the claimant’s “time of disablement” for the purpose of setting the applicable statutory limit on claimant’s Workers’ Compensation benefits.

November 6, 2009

The supreme court will issue two decisions on Monday, No. 08SC698 BOCC Rio Blanco v. ExxonMobil, and No. 09SA182 In re People v. Nichelson.

November 5, 2009

Today's court of appeals announcements are here. The court issued only unpublished decisions.

November 4, 2009

The summaries of last week's court of appeals' decisions follow this list of unpublished decisions the court will release tomorrow:

06CA1946 People v. Thomas Paul McLendon Beale
07CA2338 People v. Robert Loren Turley
07CA2369 People v. Joey Pena
07CA2558 People v. Brianna Nichole Valdez
08CA0449 People v. Matthew Kasper
08CA1804 People v. Shawn Randall Trujillo
08CA1977 William Hunsaker, Jr. v. Colorado Department of Corrections and Sterling Correctional Facility
08CA2166 Macario Gomez and Shelly Gomez v. Silvia Tapia and Brenda Tapia
08CA2180 Rudolph Gonzales v. City and County of Denver
08CA2302 Haji Adem v. The Lakeside Park Company, a Colorado corporation
08CA2667 Lynn Eugene Scott v. Warden of the Sterling Correctional Facility
09CA0051 Jeffrey R. Wallner v. Roxanne Huber, Executive Director, Colorado Department of Revenue and Andrew Stone, Hearing Officer
09CA0635 People v. Gregory Clifford

Here are the summaries of last week's decisions:

Noting that the "unpredictable nature of jury trials and the ebb and flow of strategy and tactics render it impossible conclusively to determine in advance whose testimony will actually be likely or necessary," the court of appeals concluded that the trial court's finding that the defendant would have a compelling need to call the public defender as a witness was not an abuse of discretion. It therefore was not an abuse of discretion to disqualify the public defender. The court remanded , however, to determine whether the admission of the victim's hearsay statements, violated the defendant's right to confront and whether the forefeiture by wrongdoing doctrine applies. People v. Hagos

The court of appeals concluded that to qualify as a “primary care-giver” under Colorado Constitution article XVIII, section 14, a person must do more to manage the well-being of a patient who has a debilitating medical condition than merely supply marijuana. The court therefore affirmed the the defendant's various marijuana convictions. The court rejected defendant's argument that providing marijuana for medical use itself constitutes “significant responsibility for managing the well-being of a patient.”People v. Clendenin

Defendant sought to vacate his conviction, contending that the district court intruded into the plea negotiation process and thereby coerced him into pleading guilty. The court of appeals declined to address the argument, concluding that since defendant neither withdrew his guilty plea before sentencing nor filed a motion to vacate his sentence under Rule 35(vc), the court could not consider his contention. The court also declined to address defendant's sentencing arguments because defendant was convicted of a misdemeanor and therefore the court lacked authority under C.R.S. § 18-1-409to consider his sentencing issues. People v. Kirk

Trial court erroneously concluded that allegedly defamatory statements were libel per quod and therefore plaintiff was required to plead special damages. The court of appeals concluded the statements were libel per se, and therefore that plaintiff did not need to plead special damages. The court concluded that extrinsic evidence may be used to prove a publication refers to the plaintiff without rendering the statement defamatory per quod. The court therefore reversed summary judgment on the libel calim. The court also reversed summary judgment on an outrageous conduct claim, concluding "that reasonable jurors could view the first column as outrageous, going beyond all possible bounds of decency, atrocious, and utterly intolerable because it stated that [plaintiff], a crime victim, was disloyal to her late husband, whose murder she had witnessed." Judge Dailey dissented on the outrageous conduct issue, concluding that under the totality of the circumstances, defendants' conduct was not sufficiently outrageous to sustain the claim. Lee v. Colorado Times, Inc.

C.R.S. § 12-47-801(1) & (3) imposes limited liability upon alcohol vendors for injuries caused to third parties by their intoxicated patrons. The court of appeals reversed the district court's grant of summary judgment on the statutory claim, holding that "the statute does not require the proximate causation – that is, reasonable foreseeability – required for common law tort claims. A plaintiff must prove that the vendor’s improper service of alcohol caused the patron’s intoxication and that the patron’s intoxication caused the injuries, but not that the vendor should have foreseen those injuries." Strauch v. Build It and They Will Drink, Inc.

Guardians, aunt and uncle of a minor child, appealed from the district court’s order considering the guardians’ income in the determination of child support to be paid by the child's parents and requiring the guardians to travel with the child to Massachusetts at their own expense to allow for parenting time with the parents. The court of appeals concluded that under C.R.S. § 14-10-115, a guardian’s income should not be included in the determination of the amount of support to be paid. Section 14-10-115 does not mention a guardian’s duty of support. Rather, it states that child support is to be determined based on the combined adjusted gross income of the parents. § 14-10-115(1)(b)(I). In addition, the court concluded that under plain language of section 14-10-115(11)(a)(II), travel expenses for a child shall be divided between the parents. Consequently, the district court did not apply the correct legal standard when it ordered the guardians to travel to Massachusetts at their own expense. Sidman v. Sidman

Petitioners appealed the district court’s order concluding that two initiated ordinances they submitted consisted of administrative matters and therefore could not be placed on the ballot for the City of Aspen voters. The court of appeals affirmed, concluding "the proposed ordinances are administrative and not legislative in nature. They would reverse a host of administrative actions and decisions made not just by the city’s administrative staff, but also by at least two administrative agencies – CDOT and the FHA. . . . Under these circumstances, we cannot conclude that the hearing officer and district court erred in determining that the proposals were administrative and not suitable for legislative initiatives." Vagneur v. City of Aspen

A pedestrian overpass on which plaintiff was injured constituted a “sidewalk” under the Coloroado Governmental Immunity Act, C.R.S. § 24-10-103(6), and therefore immunity may be waived. Colucci v. Town of Vail

In an appeal addressing issues relating to potential personal liability of a corporate shareholder and another corporate insider who is not a shareholder, officer, or director, the court first concluded that under C.R.S. § 13-25-127(1), the burden of proof in an action to pierce the corporate veil is by a preponderance of the evidence, not by clear and convincing evidence. The court also held that in appropriate circumstances, the corporate veil may be pierced to impose personal liability on a corporate insider who is not a shareholder, officer, or director. McCallum Family L.L.C. v. Winger

Evidence supported the court’s dismissal of the county Department of Human Services from adependency and neglect case because (1) the department stated there were no child protective issues remaining in the case; (2) the department was not providing any services for the family; and (3) the guardian ad litem did not object to the children’s remaining in their parents’ custody; did not argue the parents had not complied with their treatment plans; and did not specify additional services the department could or would provide, that were not already being provided by therapists and school professionals. Moreover, there was no indication in the record that school professionals would not fulfill their duty to report to the appropriate authorities any child protection concerns. The court of appeals therefore rejected the the guardian ad litem's contention that the trial court committed reversible error in dismissing the department from the case. People In the Interest of E.D

November 2, 2009

After getting snowed in a bit last week and having computer issues, I'm a bit behind on updates. This post contains today's supreme court announcements. It also has last week's court of appeals announcements and the list of the cases the court decided, but summaries will have to be posted later this week.

Today's supreme court announcements are here. The court issued one decision, which is summarized below. The court granted cert. in 4 cases, which follow the case summary.

On remand from the supreme court, the water court entered a conditional decree for the Pagosa Area Water and Sanitation District and the San Juan Water Conservancy District based upon a planning period extending to 2055. On appeal, Trout Unlimited argued that the planning period should extend only to 2040. The supreme court upheld the water court's finding that the finding that the 2055 planning period is reasonable, but agreed with Trout Unlimited that current evidence in the record did not support the conditionally-decreed amounts of water. The court remanded for the water court to take additional evidence regarding specified decree provisions and a determination of water amounts reasonably necessary to serve the Districts’ reasonably anticipated needs in the 2055 period, above its current water supply. Pagosa Area Water and Sanitation District v. Trout Unlimited

No. 09SC218, Weinstein v. People
Summary of Issues:
Whether the court of appeals erred in approving the trial court’s affirmative defense instruction concerning the survival, scope, and applicability of a common law bonding agent’s privilege, and in its rejection of the Petitioner’s tendered affirmative defense instructions.

Whether there was sufficient evidence of the Petitioner’s required knowledge to reach the jury on the charge of burglary.

No. 09SC375, Pellman v. People
Summary of Issue:
Whether the court of appeals incorrectly interpreted the statutory definition of “position of trust” by failing to give effect to the language of the statute requiring an actor to be in a position of trust “at the time of an unlawful act.

No. 09SC478, Wend v. People
Summary of Issue:
Whether prosecutorial misconduct warrants reversal.

No. 09SC719, Catlin v. Tormey Bewley Corporation.
Summary of Issues:
Whether interest on loans advanced to finance the cost of litigation is awardable as an actual cost under section 13-17-202, C.R.S. or as a prevailing party cost under section 13-16-122, C.R.S.

Whether a litigant may recover expert witness fees as an actual cost or prevailing party cost where the expert witness is precluded from testifying, but where it was reasonable to believe, at the time it was incurred, that the expert would be permitted to testify.

Whether litigants may recover as actual costs or prevailing party costs money paid to lay witnesses to reimburse the lay witnesses for wages lost due to appearing to testify.

The court of appeals' announcements from last Thursday are here. The court issued the following decisions, including 10 published opinions. I will summarize those later this week:

Published Opinions

05CA2296People v. Abraham Hagos
08CA0624 People v. Stacy Clendenin
08CA1676 People v. Robert Todd Kirk
08CA2233 Han Ye Lee v. Colorado Times, Inc.; Yeunho Shin; and Kim Chang Kuen
08CA2241 Michael Alan Strauch v. Build It and They Will Drink, Inc., d/b/a Eden Nightclub, and Rodney Owen Beers
08CA2454 Alan Sidman and Sheryl Sidman v. Michael Sidman and Renee Sidman
08CA2552 Curtis Vagneur and Jeffrey Evans v. City of Aspen, State of Colorado; Kathryn Koch, in her official capacity as City Clerk for the City of Aspen; Karen Goldman, in her official capacity as Administrative Hearing Officer; Les Holst; Clifford Weiss; and Terry Paulson
09CA0006 Richard Colucci v. Town of Vail
09CA0212 McCallum Family L.L.C. v. Marc Winger and Karen Winger
09CA0576 People In the Interest of E.D, M.D., and A.D., Children and Concerning S.D. and M.D.

Unpublished Opinions

06CA1421 People v. Tyrus Michael Sarnella
06CA1427 People v. Tyrus Michael Sarnella
06CA1749 People v. Juan C. Herrera
07CA1558 People v. James Michael Fickle
07CA2117 People v. Luciano Flores-Vera
07CA2250 People v. Gary Hernandez
07CA2251 People v. Utorn Chimtawee
08CA0350 People v. Bradley Lucero
08CA0898 Denise C. Olson, f/k/a Denise C. Perry v. Deborah A. Allen
08CA1196 People v. Daniel M. Rangel
08CA1469 People v. Douglas Paul Nichols
08CA1543 Roger Nittler and Company, Inc. v. Jon C. Cook
08CA1558 People v. Bobby A. Manigo
08CA1615 People v. Isaac Lawrence Apodaca
08CA1639 People v. Brian Andrew Smith
08CA2151 People v. Carl Allen Nakagawa
08CA2219 People v. Yovani Lopez-Garcia
08CA2222 People v. William T. Gilmore
08CA2373 People v. Scott Dackery Horton
08CA2379 People v. Wayne A. Small
08CA2400 People v. William Gene Hollis
08CA2563 Gary L. Davis and Yolanda L. Davis v. David Hill
09CA0048 Paul McDonough and Ellen McDonough v. Janckila Construction, Inc.
09CA0203 Paul M. Rausch v. Jeffery A. Malasek and Lutt Trucking, Inc., a Nebraska corporation
09CA0277 Colorado Capital Bank v. Reverse Lending Group, LLC
09CA0834 Angie Sheldon v. Industrial Claim Appeals Office of the State of Colorado; Access Computer Products, Inc.; and Pinnacol Assurance
09CA1088 People In the Interest of J.B., Child and Concerning H.T.
09CA1219 People In the Interest of D.D.H., a Child and Concerning B.C.H.
09CA1412 Debra L. Meyer v. Industrial Claim Appeals Office of the State of Colorado and Westone Laboratories, Inc.
09CA1600 Shirley A. Wolford v. Industrial Claim Appeals Office of the State of Colorado and Luxury Inn of La Junta, Inc.

October 26, 2009

The supreme court issued no case announcements today. The court has recently issued rules to show cause in the following C.A.R. 21 and 21.1 proceedings:

No. 09SA282, In re: People v. Almeyda

Synopsis:

Petitioner Edwin Almeyda seeks an order to show cause why his sentences in two Fremont County cases should not be declared fully served. Almeyda was convicted in 1988 in three separate matters -- two in Fremont County and one in El Paso County. Pursuant to section 17-22.5-101, C.R.S., the DOC construed the sentences as one continuous 31 year sentence. In March 2001, he was granted parole, and in March 2003 parole was revoked. Almeyda argues, and the El Paso District Court found, that he could not be reincarcerated for more than 5 years, and that he has served his sentences in full.

On September 30, 2009, the supreme court issued a rule to show cause why the requested relief should not be granted. Respondent Mary Carlson, Director of CDOC Time and Release Operations, is directed to provide a written answer on or before October 30, 2009 why the requested relief should not be granted. Almeyda has 30 days from receipt of the answer within which to reply.

No. 09SA280, In re: People v. Ray

Synopsis:

Petitioner Robert Keith Ray seeks issuance of a stay in this death penalty case until the court rules in People v. Sir Mario Owens, 08SA402, and an order instructing the district court to allow the time permitted by Crim. P. 32.2 to file any post-trial motions. Specifically, he requests that imposition of a death sentence, which triggers the statutory non-extendable two year deadline for completing all postconviction and appellate litigation pursuant to section 16-12-208, C.R.S., should be stayed here until the court determines in the Owens matter whether the "no extension" provision of the two-year deadline is constitutional. He also requests the supreme court to determine whether Judge Rafferty's ruling in the Owens case that the "no extensions" provision of the Unitary Review System is unconstitutional comepls him to formally enter the same ruling in his matter. Finally, he asks the supreme court to determine whether the district court exceeded its jurisdiction when it made motions for new trial due two weeks prior to sentencing even though Crim P. 32.2 provides that the defendant may file such motions no later than 15 days after the imposition of a sentence.

On September 30, 2009, the supreme court issued an order to show cause why the requested relief shold not be granted. Respondent The Honorable Gerald J. Rafferty and the People of the State of Colorado are directed to provide a written answer on or before October 30, 2009. Petitioner Ray has 30 days from receipt of the answer within which to reply.

No. 09SA257, In re: Rocky Mountain Bank v. France

Synopsis:

On September 10, 2009, the supreme court accepted the following certified question of law from the United States Bankruptcy Court for the District of Colorado:

Whether a financing statement, which identifies the individual debtor's correct first and last name, only, but does not include the debtor's middle initial or middle name and thereby does not indetify the debtor's full legal name, sufficiently provides the name of the debtor consistent with Colo. Rev. Stat. section 4-9-503(a)(4)(A) so as to establish a perfected and enforceable secured claim.

The Trustee's opening brief is due on or before October 13, 2009. The Bank's answer brief shall be filed within 30 days from receipt of the opening brief. The Trustee's reply brief may be filed within 14 days from receipt of the answer brief.

No. 09SA247, In re: People v. Shirley

Synopsis:

The People seek relief from the district court's order in this aggravated incest case that their endorsed and subpoenaed expert witness could not testify in the People's case in chief, but only as a rebuttal witness, and only after an offer of proof to determine whether the testimony is rebuttal.

On August 31, 2009, the court issued an order to show cause why the requested relief should not be granted. Respondent Darin Shirley is directed to provide a written answer on or before September 30, 2009. The People have 30 days from receipt of the answer within which to reply.

No. 09SA216, In re the Marriage of Weis

Synopsis:

Petitioner Melanie Bergeron seeks relief from the El Paso County Court's order holding her in county jail pursuant to a contempt order for her failure to pay certain debts that petitioner contends were subject to an automatic stay of the bankruptcy code.

On August 10, 2009, the supreme court ordered that petitioner should be released from jail. It further issued a rule to show cause why the relief requested should not be granted. respondents the Honorable Jann DuBois and Craig Weis are directed to provide a written answer on or before August 31. Petitioner has 20 days from receipt of the answer within which to reply.

October 22, 2009

Here are the summaries of last week's court of appeals' decisions. After these summaries are today's announcements and the list of unpublished decisions the court released.

The court of appeals held that United States Supreme Court precedent does not dictate that the absence of an authorizing law or condition of probation necessarily renders unconstitutional a warrantless search of a probationer’s residence based on reasonable suspicion. Instead, the totality of all other relevant circumstances may render such a search reasonable. The court assessed those circumstances and concluded that defendant’s reasonable expectation of privacy in his residence was greatly reduced and that the state insterests were substantial, especially since defendant’s status was as a probationer on ISP. The court concluded that the probation officer’s reasonable suspicion that defendant had violated conditions of his probation was sufficient to justify the search of defendant’s bedroom: neither a warrant nor probable cause was required. People v. Samuels

The trial court committed reversible error when it denied defendant's challenge for cause to a prospective juror, because the juror refused to hold the prosecution to its burden of proof. During voir dire the prospective juror responded to the following statement from defense counsel: "And so correct me if I’m putting words in your mouth. Ms. [N.], I think, thinks that it’s sort of a balancing of the evidence, and one side has to prove one thing and the other side has to prove one thing, that you sort of do a weighing test at the end, and we both have a[n] equal burden. Would you say that? PROSPECTIVE JUROR N.: Absolutely." People v. Hancock

The make-my-day statute, C.R.S. § 18-1-704.5 does not authorize an appeal from a pretrial order denying immunity. The court of appeals concluded that in the absence of legislative authorization, such an order is unreviewable. People v. Wood

Whether the Sixth Amendment right to counsel requires that a pro se defendant who voluntarily absents himself from his criminal trial -- as contrasted with such a defendant who is held to have waived the right of self-representation by engaging in disruptive behavior -- be appointed counsel during his absence has not been decided by the United States Supreme Court and is unresolved in Colorado. Addressing that question, the court of appeals concluded that the trial court’s failure to direct advisory counsel to take control of the case when defendant, Michael Alan Brante, voluntarily absented himself did not violate the Sixth Amendment. People v. Brante

The court of appeals rejected defendant's argument that the trial court erred by admitting his cellular telephone into evidence. Defendant claimed that the telephone was inadmissible either as hearsay or under CRE 403. The court concluded that an officer’s testimony served to authenticate that the phone was the one on which defendant received the officer’s call. Thus, the phone was properly admitted into evidence. Upon its admission, the jurors could inspect it to determine its contents. Analyzing the hearsay issue, the court noted that the telephone was an electronic device containing electronically stored information, not a "person" or "declarant" making a communicative "statement" within the meaning of CRE 801. Upon admission of the telephone, the jurors could inspect it see that it had, in fact, stored the officer's telephone number as an incoming call. Hence, the stored information was not hearsay and the trial court did not abuse its discretion by overruling defendant's objection on those grounds. The court also concluded that defendant failed to prove that the evidence was substantially more prejudicial than probative under CRE 403. People v. Buckner

Defendant's convictions for vehicular eluding and second degree assault were not based on identical evidence, and, therefore, the trial court had the statutory authority to impose consecutive sentences. Defendant argued that, because the only injury that occurred was a non-serious knee injury one officer sustained during the vehicular eluding episode, and because that officer was named in both of the counts to which she pleaded guilty, the second degree assault conviction grounded on her admission to recklessly causing serious bodily injury by means of a deadly weapon was based on evidence identical to that which supporteds the vehicular eluding conviction. In response, the prosecution contendeds that, because defendant’s guilty plea to the second degree assault conviction was not based on any evidence at all, (1) this conviction is not based on the same evidence as the vehicular eluding conviction; and (2) she waived her right to demand concurrent sentencing pursuant to C.R.S. §18-1-408(3). The court agreed with the prosecution's argument. People v. Maestas

Mother filed a complaint against defendant nursing home on July 1, 2005, alleging numerous acts of negligence in her care during her residency at the nursing home. Because she was incapacitated, the suit was filed on her behalf by her next friend and daughter. On July 22, 2005, mother died. Defendant had not filed an answer at that point. That same day, mother's counsel filed a suggestion of death on the record pursuant to C.R.C.P. 25(a)(1). In the suggestion of death, counsel stated that he was conferring with the surviving children and would notify the court of any substitution of parties or claims within ninety days. No substitution of claims or parties occurred, and on November 11, 2005, defendant filed a motion to dismiss the complaint based on the failure to substitute parties pursuant to C.R.C.P. 25(a)(1). No response was filed, and the trial court subsequently dismissed the first lawsuit with prejudice. On July 17, 2007, the daughters, individually and as representatives of mother's estate, filed their complaint against defendant for wrongful death and violations of the CCPA arising from the care in the nursing home. The trial court dismissed the second lawsuit on March 1, 2008 on the basis of claim preclusion. The court of appeals reversed the dismissal of both actions. First, the court concluded that dismissal of the first suit under C.R.C.P. 25(a)(1) was not proper, because Rule 25(a)(1) mandates personal service of the suggestion of death on nonparty successors or personal representatives in accordance with C.R.C.P. 4. Because the daughters were not personally served with the suggestion of death, the ninety-day limit to substitute parties was not triggered and the trial court improperly dismissed the first lawsuit. Because the first suit was not properly dismissed, the second suit could not be dismissed on claim preclusion grounds. Sawyer v. Kindred Nursing Centers West, LLC

Defendant challenged the summary denial of his postconviction motion challenging the constitutionality of his conviction and sentence for second degree kidnapping as a class two felony, and alleging ineffective assistance of counsel for failing to raise that constitutional issue at trial. The court of appeals rejected defendant's challenges. The court concluded that although was defendant was acquitted of the sexual assault charge, enhancement of his kidnapping conviction from a class four to a class two felony based on the sexual assault did not violate double jeopardy. The court noted that the plain language of the kidnapping statute specifically requires only that the person kidnapped be a victim of sexual assault, not that the kidnapper have perpetrated that crime. See § 18-3-302(3)(a). Therefore, the court concluded that the legislature sought to punish more severely any person who participated in the kidnapping when the person kidnapped was also sexually assaulted during the kidnapping. Thus, contrary to defendant’s argument, he was not being punished for the crime of which he was acquitted, but for the kidnapping, and such punishment is enhanced because the victim of the kidnapping suffered some additional harm during the kidnapping. People v. Aguilar-Ramos

In a cross-appeal in a criminal case, the the Attorney General contended the trial court erred by requiring the prosecution to prove defendant’s prior indecent exposure convictions to the jury beyond a reasonable doubt. The court of appeals disapproved of the trial court’s ruling because the statute is a sentence enhancer and prior convictions are exempt from the jury requirement imposed by Blakely v. Washington, 542 U.S. 296, 303 (2004). People v. Schreiber

In a dispute between father and mother involving custody of their minor daughter, the court of appeals noted that conflicting state rulings have created an untenable impasse: a Nebraska court has awarded father custody and issued a warrant to arrest mother for keeping the child in Colorado, while a Colorado district court has awarded mother custody and refused to enforce the Nebraska orders. Father contended that Colorado courts must give full faith and credit to the Nebraska orders. The Colorado district court rejected this contention, reasoning that (1) only Colorado, not Nebraska, had child-custody jurisdiction because Colorado is the child’s home state; and therefore (2) the Nebraska custody orders are unenforceable. The court of appeals agreed with the district court’s first premise, but noted that the second did not follow inexorably from the first. The court of appeals held that the Nebraska court’s jurisdictional and later rulings are binding on Colorado courts. The court therefore concluded that it was constrained to reverse the district court’s judgment, but it "strongly urge[d] the Nebraska court – and, if necessary, that state’s appellate courts – to reconsider Nebraska’s apparent lack of jurisdiction." In re the Parental Responsibilities Concerning L.S.

The prosecution appealed the trial court’s order sentencing defendant, a sex offender who pled guilty to a misdemeanor charge of failing to register at an additional address, to two years of probation, because the court did not include sex offense-specific treatment, which the prosecution argued resulted in an illegal sentence. The court of appeals noted, "Conditions of probation are not subject to appellate review 'unless probation is granted contrary to the provisions of this title.'§ 18-1.3-104(1)(a), C.R.S. 2009. Although we accept appeals where a condition of probation was based on 'considerations not statutorily or constitutionally authorized,'see People v. Hernandez-Clavel, 186 P.3d 96, 98 (Colo. App. 2008) (cert. granted June 30, 2008) (collecting cases), we discern no such ground here because, based on the information before the court when it imposed sentence, treatment was not mandatory. We further conclude that because in the plea disposition, the prosecutor agreed that it would 'take no position'on the sentence, the prosecution was barred from urging the court, months after [defendant ] had been sentenced, to require a second sex offense specific evaluation. Therefore, we do not consider whether that evaluation required the court to impose treatment." Judge Bernard dissented, concluding, "As a basic principle, I strongly agree with the proposition that people should say what they mean and mean what they say. The criminal law breathes life into this proposition by requiring that prosecutors, as representatives of the government, must almost always be held to the promises they make when entering into plea dispositions. But, 'almost always'is not always. There are two exceptions to this paradigm, which are pointed out in the majority’s opinion. I think that one of those, the imposition of an illegal sentence, is present here. I would conclude that the trial court’s ultimate decision declining to require defendant to participate in treatment resulted in an illegal sentence. I believe that the trial court made two legal mistakes that led to the illegal sentence. First, it relied on the wrong statute to conclude that defendant’s guilty plea here disqualified him from the requirement that sex offenders participate in treatment. Second, once the trial court ordered and received the second evaluation, it is my view that the court was compelled to require defendant to participate in modified sex-offender treatment as a condition of probation." People v. Sanders

The court of appeals' announcements for today are here. The court issued these unpublished decisions:

07CA0657 People v. Dustin Matthew Schiff
07CA1199 People v. Warney Ray Smith
07CA2382 People v. Christopher Carr
07CA2556 People v. Phillip Irvin Moses
07CA2563 Oloyea D. Wallin v. Crowley County Correctional Facility, Joe Ortiz, and Colorado Department of Corrections
08CA0384 People v. Connie Marie Petitt
08CA0567 People v. Antonio Dwan Williams
08CA0777 People v. Aaron Ivan Jordan
08CA1006 People v. John Deming
08CA1073 Scott A. Cunningham v. BHP Petroleum (U.K.) Corporation, a Delaware corporation; BHP Billiton Petroleum Great Britain Limited, a United Kingdom private limited company; BHP Petroleum Great Britain PLC, a United Kingdom public limited company; and Hamilton Brothers Petroleum Corporation, a Delaware corporation
08CA1131 People v. Abel Alvarado
08CA1210 In re the Marriage of Jennifer J. Papilion and John D. Papilion
08CA1287 People v. Don Martin
08CA1567 People v. Bruce A. Thompson
08CA1693 Alicia Larson v. James A. Macaluso and Pat R. Macaluso
08CA1803 In re the Marriage of Leslie Ginger Budd and James L. Budd
08CA2126 Daniel John Befort v. Warden, Buena Vista Correctional Facility
08CA2169 People v. Ramon Tena
08CA2173 People v. Desi Gallegos
08CA2300 In re the Marriage of Diane L. Moore and Timothy W. Moore
08CA2387 People v. Daniel Lucky Denny
08CA2520 Auto Source, LLC v. Centennial Leasing & Sales of Denver, LLC
08CA2565 In the Interest of E.K., Child Michael Longacre and Concerning Michelle Krause
09CA0011 & 09CA0027 People In the Interest of V.G. and J.C., Children and Concerning J.G. and K.B.
09CA0099 Bank of New York v. Arapahoe County Delegate Child Support Enforcement Unit
09CA0120 In re the Marriage of Stanley K. Anderson and Donna M. Warling-Johnson
09CA0178 Emil W. Brown and Mary E. O’Connor v. Dino H. Salvatori and David R. Heimbecher, a/k/a Dave Heimbecher; Board of County Commissioners of the County of Jefferson; Citywide Banks; and the Public Trustee of Jefferson County, Colorado
09CA0257 People v. Brian Keith Jones
09CA0429 Shonna N. Takacs v. Industrial Claim Appeals Office of the State of Colorado, Petsmart, Inc., and Travelers Indemnity Company
09CA0450 People v. Ronald Jennings Fogle
09CA0528 Art Price v. Warden, Buena Vista Correctional Facility
09CA1067 People In the Interest of L.S. and Concerning R.S.
09CA1272 People In the Interest of M.A.R. and R.M.Z., Children and Concerning B.L.B.
09CA1342 People In the Interest of J.M. and S.M., Children and Concerning J.M. and L.M.
09CA1419 People In the Interest of E.R.B., Child and Concerning W.K.T.
09CA1550 David M. Martinez v. Industrial Claim Appeals Office of the State of Colorado and Safeway Stores, Inc.
09CA1593 Michael L. Maestas v. Industrial Claim Appeals Office of the State of Colorado and US Security Associates, Inc.

October 19, 2009

Here are today's supreme court announcements. The court issued three decisions, summarized below. The court also granted cert. in one case.

After a proceeding in water court that upheld the state engineer’s proposed rules governing Water Division Three in the San Luis Valley, the water court imposed costs upon the parties that had objected to the rules. The proceedings involved seven different parties, included twenty-six days of hearings with testimony from over a dozen expert witnesses and was preceded by extensive discovery, including expensive computer modeling. On a direct appeal from the water court the supreme court held that proceedings such as these, which occurred under C.R.S. § 37-92-501(3)(a), were sufficiently trial-like to provide a water court with the discretion, pursuant to C.R.C.P. 54(d), to award costs to prevailing parties when the court sees fit to do so. The court reversed the amount awarded and remanded for further proceedings. Justice Eid, joined by justice Hobbs, concurred in part and dissented in part, concluding, "Because, in my view, the rulemaking nature of a section 37-92-501(3)(a) proceeding is entirely inconsistent with Rule 54(d)’s notion of awarding costs as a matter 'of course to the prevailing party'in contested litigation, I respectfully dissent from that portion of the majority’s opinion finding that costs may be awarded against a member of the public who participated in such a proceeding." Cotton Creek Circles v. Rio Grande Water Conservation District

The supreme court held that the plaintiffs--parents from eight school districts across the state acting in their individual capacities and on behalf of their school age children and fourteen school districts in the San Luis Valley--haved standing to the current state's public school financing system as violating the Colorado constitutional mandate of the education clause requiring a “thorough and uniform” system of public education. The plaintiffs claim that the system is severely underfunded and allocates funds on an arbitrary and irrational basis. The court concluded , 4-3, holds that these challenges are justiciable and that the plaintiffs must be given the opportunity to prove their claim. Following Lujan v. Colorado State Board of Education, a 1982 precedent, the court held that it is the responsibility of the judiciary to determine whether the plaintiffs prove that the public school finance system is not rationally related to this constitutional mandate. Therefore, the court reversed the court of appeals' holding to the contrary. Justice Rice, joined by justices Eid and Coats, dissented. She would have adopted the political question doctrine as framed by the United States Supreme Court, and would have concluded that the plaintiffs' claims are nonjusticiable political questions. Lobato v. State

In a case involving the remedial revival statute, C.R.S. § 13-80-111(1), a complaint was timely filed against a deceased, non-existent defendant and was later amended to name the estate of the deceased and the special administrator of that estate as defendants. The court concluded that the remedial revival statute cannot be used to revive a timely claim improperly filed against a non-existent defendant when the proper defendants were not added until after the statute of limitations ran. The court held that the trial court retained subject matter jurisdiction over the case despite the initially improper defendant. The remedial revival statute could not be invoked because the case was not “terminated because of lack of jurisdiction or improper venue” within the meaning of the statute, rather it was dismissed based on the statute of limitations. The court also held olds that the amended complaints do not relate back to the original complaint because the defendants did not receive notice of the suit prior to the expiration of the statute of limitations. Justice Eid, joined by Justices Martinez and Coats, concurred in part and concurred in the judgment in part, concluding that, unlike the majority, she "would interpret the term 'jurisdiction' in section 13-80-111(1) as referencing only subject matter jurisdiction, not personal jurisdiction." Currier v. Sutherland

The court granted cert in one case:

City of Manassa v. Ruff, No. 09SC612
Summary of Issues:
Whether the court of appeals erred in holding, contrary to Benuishis v. Industrial Claim Appeals Office, 195 P.3d 1142 (Colo. App. 2008) (cert. denied), that the prohibition in Workers’ Compensation Rule of Procedure 11-2(H), 7 Code Reg. 1101-3, against a Division of Workers’ Compensation Independent Medical Examination physician having an actual or appearance of a conflict of interest is not limited to relationships between the DIME physician and claimant’s treating physicians, but rather may also apply to a DIME physician’s contractual relationship with an insurer.
Whether the court of appeals erred in failing to defer to the interpretation by the Director of the Division of Workers’ Compensation (“Division”) and the Industrial Claim Appeals Office that a DIME physician’s contractual relationship with an insurer does not create an actual or appearance of a conflict of interest prohibited by WCRP 11-2(H), 7 Code Colo. Reg. 1103-3.
Whether the court of appeals erred in remanding this case to the administrative law judge to “consider the extent of the DIME physician’s financial relationship with Pinnacol to determine whether this relationship creates the appearance of a conflict of interest,” where the administrative law judge’s previous order contains full findings regarding such financial relationship.
Whether the performance of a DIME is a quasi judicial function requiring the DIME physician to disclose information to the parties regarding either the appearance of or an actual conflict of interest, as well as requiring the disqualification of the DIME physician in thepresence of a financial, business, employment, consulting, or similar relationship with a party to the dispute.

October 15, 2009

Today's post contains this week's supreme court announcements and the summaries of the cases the supreme court decied, along with the new cases in which the court granted cert. It also contains the court of appeals announcements for today and the list of cases the court issued. I will post summaries of today's court of appeals published opinions early next week.

Here are this week's supreme court announcements. The court issued 8 decisions, summarized below. The court also granted cert. in 7 cases. The issues in those appeals follow the summaries.

Intervenors obtained a radioactive materials license and a hazardous waste permit from the Colorado Department of Public Health and Environment (“the Department”) without first obtaining a Certificate of Designation from Adams County that allowed disposal of the materials contemplated by the license and permit. Adams County brought two suits against the Department to challenge its issuance of the license and permit. The trial court found that Adams County did not have standing, and the court of appeals affirmed. The supreme court held that that Adams County has standing to challenge the Department’s issuance of the license and permit. Adams County suffered an injury in fact to a legally protected interest, as it had an express statutory right to grant or deny a Certificate of Designation covering the contemplated materials prior to the Department’s issuance of a license or a permit. Furthermore, Adams County is not subordinate to the Department in this context, as it has a statutory “separate power” to issue or to refuse to issue Certificates of Designation. Justice Hobbs, joined by Chief Justice Mullarkey, concurred in part and dissented in part. He agreed that Adams County had standing, but only to challenge the the Department's” issuance of the hazardous waste permit and radioactive materials license in the absence of the County first being able to exercise its legally protected right to review an application for a Certificate of Designation for disposal of the wastes contemplated by the facility and to decide whether to issue such a Certificate. He disagreed with the majority's conclusion that county issuance of a Certificate of Designation is a prerequisite to the Department’s issuance of a permit or license because such an interpretation contravenes Colorado’s comprehensive statutory scheme for hazardous and low-level radioactive waste disposal and frustrates the Department’s duty and authority to implement the Rocky Mountain Low-Level Radioactive Waste Compact , codified at C.R.S. § 24-60-2202, which obligates party states to open and operate waste disposal facilities sufficient to manage the low-level radioactive waste generated within the region. Board of County Commissioners v. Colo. Dept. of Public Health

In this case arising out of an automobile accident, insurereas subrogee of its insured, brought suit against defendants, seeking to recover $100,000 it had advanced to its insured under an uninsured/under insured motorist policy. A jury trial was held and insurer was awarded $16,000 in damages. At the trial, an attorney who had previously represented insureretestified that she valued the case at $7,500. The supreme court that, while the act of subrogation has its roots in equity, the presence of a subrogee party does not transform otherwise legal claims into claims in equity. Therefore, the utilization of a jury as fact finder in this case was proper. As for the testimony of the former attorney, insurers objection to such testimony did not provide the trial court with an adequate opportunity to address the argument made on appeal that the evidence was inadmissible. American Family Insurance v. DeWitt

Petitioner was convicted of multiple sexual-assault-on-a-child and incest-related crimes. On direct appeal, the court of appeals accepted the People’s concession that the trial court erred in excluding testimony from a therapist of the defendant’s stepdaughter, on grounds of privilege. Rather than deciding whether the error was harmless, however, the court of appeals remanded for a hearing to obtain the therapist’s testimony and to determine whether that testimony was constitutionally material to the defendant’s case. See People v. Krutsinger, 121 P.3d 318 (Colo. App. 2005). Upon recertification, the court of appeals agreed with the trial court’s assessment that the error was not material and therefore not of constitutional magnitude, and it found the error harmless according to the standard for evaluating nonconstitutional error. The supreme court affirmed, but concluded that the court of appeals applied the wrong legal standard by conditioning a designation of federal constitutional error on a determination that the error would impact the verdict sufficiently to be constitutionally material. The supreme court determined that the exclusion of the testimony did not deprive the defendant of a meaningful opportunity to present a complete defense, and therefore the error did not rise to the level of federal constitutional error, even under the proper standard. The court also concluded that the error was harmless according to the standard for nonconstitutional error, and therefore affirmed. Krutsinger v. People

In a case of adverse possession under color of title case, the supreme court affirmed the judgment of the court of appeals reversing the trial court’s grant of summary judgment for petitioner for an unrestricted fee simple estate in a condominium parking space. Petitioner attempted to convey the parking space to a third-party non-condominium owner. The court held that the parking space is a condominium common element subject to the alienability restrictions included in the condominium’s Declaration, which functions as a restrictive covenant running with the land. Because the deed of conveyance to petitioner explicitly incorporated the Declaration and its restrictions, the parking space cannot be sold or leased to a third-party non-condominium owner.
While a plaintiff can quiet title under C.R.S. §38-41-108, adverse possession under color of title, where a void, irregular, or defective deed purports to grant title, color of title does notenlarge the property interest at issue. instead it gives the plaintiff legal ownership “to the extent and according to the purport of his paper title.” § 38-41-108. On remand, peitioner may be able to quiet its title under the color of title statute, thereby establishing legal ownership subject to the Declaration’s alienability restriction, but it is not entitled to an unrestricted fee simple estate. B.B. & C. Partnership v. Edelweiss Condominium Association

PUC'S assessment of a civil penalty for petitioner's refusal to provide records complied with the constitutional and statutory authorities. First, federal law does not preempt the PUC from requiring motor vehicle carriers to produce towing authorizations during the course of an investigation. Second, because non-consensual towing is a closely-regulated industry, and because the PUC’s regulations meet the conditions for a valid warrantless administrative search, the PUC’s request for records was constitutional. Finally, the PUC did not exceed its authority or abuse its discretion in assessing the civil penalty. Eddie's Leaf Spring v. Colorado PUC

In an interlocutory appeal, the prosecution challenged the trial court’s order suppressing all evidence obtained as a result of a police seizure of the defendant. Defendant was in the driver’s seat of a car that had come to a stop across a sidewalk against a fence. Based on the circumstances, the police had reason to believe that he was under the influence of alcohol or drugs. When the police removed him from the car and ordered him to the ground, he repeatedly took a combative stance toward them. The supreme court held , under the totality of the circumstances, that the police had reasonable suspicion to stop defendant and probable cause to arrest him for driving under the influence and resisting arrest. People v. Brown

In an interlocutory appeal by the People, the supreme court affirmed the district court's suppression of statements defendant made in response to police interrogation. The supreme court held that the defendant was in custody for purposes of Miranda when he was told by a police officer that if he would not come to the police station for questioning voluntarily, he would be forced to go against his will. Because the defendant did not receive Miranda warnings before his subsequent interrogation, the supreme court affirmeds the suppression of the defendant’s statements. People v. Sandoval

Petitioner challenged the actions of the Title Setting Board in setting titles, ballot titles, and submission clauses for Initiatives 2009-2010 #22, #23, and #24. The supreme court rejected petitioner's argument that the titles violate the Colorado Constitution’s prohibition on multiple subjects, Colo. Const. art. V, § 1(5.5). After reading the titles as a whole and considering their text in light of the context provided by their heading, the court concluded that the titles presented only one subject to voters. The court also rejects the argument that certain words in the titles are misleading because they use legal terms of art and thus are likely to be implemented in ways distinct from what might be expected by voters without legal training. The court held that such a challenge asks for its legal interpretation of the ballot initiatives prior to their enactment, which is beyond the scope of the court’s review. The court affirmed the actions of the Title Setting Board.
In the Matter of Title, Ballot Title and Submission Clause for 2009-2010 #24

The court granted cert in these cases:

No. 09SC119, French v. People
Summary of Issues:
Whether the court of appeals erred when it held that the record contained sufficient evidence enabling a jury to find French guilty of computer crime pursuant to section 18-5.5-102, C.R.S. (1998).
Whether the court of appeals erred when it held that the record contained sufficient evidence enabling a jury to find French guilty of securities fraud pursuant to section 11-51-501(1)(b), C.R.S. (1998).
Whether the court of appeals erred in upholding the trial court’s assessment of restitution absent evidence that French harmed the specific victims.

No. 09SC184, People v. Zhuk
Summary of Issue:
Whether the district court erred in dismissing as untimely the prosecution’s interlocutory appeal from a county court ruling pursuant to Crim. P. 37.1.

No. 09SC189, Bly v. Story
Summary of Issues:
Where the Petition in Condemnation did not identify the scope of the condemnor’s uses and purposes and lacked a legal description of the easement being acquired, whether the court of appeals erred in ruling the Petition was adequate.
Where the court of appeals acknowledged “no expert here could find comparable sales of driveway easements,” and where it was undisputed that the Income Method cannot be applied, whether the panel erred in precluding the jury from hearing valuation evidence based on the only remaining appraisal method, the Cost Method, and the cost of constructing the driveway.

No. 09SC224, Oram v. People
Summary of Issues:
Whether the court of appeals erred in approving the trial court’s affirmative defense instruction concerning the survival, scope, and applicability of a common law bonding agent’s privilege, and in its rejection of the petitioner’s tendered affirmative defense instructions.
Whether there was sufficient evidence of the petitioner’s required knowledge to reach the jury on the charge of burglary.

No. 09SC451, Rocky Mountain Festivals, Inc. v. Parsons Corporation
Summary of Issues:
Whether claims based upon the “wrong-of-another” under Elijah v. Fender, 674 P.2d 946 (Colo. 1984) can be pursued only in instances where there is a complete absence of fault on the part of a plaintiff with respect to each and every claim asserted in the prior case.
Whether petitioner was obligated, in responding to a motion for summary judgment, to prove up its damages even though the absence of damages was not one of the issues raised as the basis for the motion.

No. 09SC598, Crandall v. City and County of Denver
Summary of Issues:
Whether under C.R.S. § 13-17-201 attorneys’ fees and costs for time spent on work ultimately useful in a companion or overlapping case should be excluded from the award.
Whether the court of appeals erred in shifting to Petitioners the burden of differentiating between recoverable and non-recoverable attorneys’ fees and costs.

No. 09SC680, Brown v. People
Summary of Issues:
Whether the court of appeals erred in concluding there was insufficient evidence in the record to support giving the lesser-included offense instruction requested by the defense.
Whether the court of appeals erred in concluding there was insufficient evidence in the record to support giving the intoxication instruction requested by the defense.

Today's court of appeals announcements are here. The court issued the following opinions, 11 published decisions:

Published Opinions

06CA1560 People v. Ricardo Lemar Samuels
06CA2206 People v. Edrien Renard Hancock
06CA2581 People v. David Henry Wood
07CA0427 People v. Michael Alan Brante
07CA2510 People v. James V. Buckner
08CA0516 People v. Yvonne Dorine Maestas
08CA0811 & 08CA1514 Hollis Sawyer, by and through her next of friend, Jacqueline Sawyer v. Kindred Nursing Centers West, LLC, a Delaware limited liability company, d/b/a Iliff Care Center; Kindred Healthcare, Inc., a Delaware corporation, d/b/a Iliff Care Center; and Susan Johnson, individually and as administrator of Iliff Care Center and Concerning Bonnie Sawyer, individually, and Jacqueline Sawyer, individually and as the personal representativesof the Estate of Hollis Sawyer, deceased
08CA1392 People v. Dagoberto Aguilar-Ramos
08CA1721 People v. Timothy Edward Schreiber
08CA1872 In re the Parental Responsibilities Concerning L.S., a Child and Concerning Tatanjia Willard Spotanski McNamara and Stacy Joe Spotanski
08CA2295 People v. Timothy Wayne Sanders

Unpublished Opinions

06CA2653 People v. Deon Joseph Godfrey
07CA2110 People v. Fredy Orellana-Romero
07CA2421 People v. Johnny David Estrada
08CA0492 People v. David Patrick Hashman
08CA1093 People v. James Parish
08CA1135 People v. Joshua Breezley
08CA1689 People v. Cory Edrington
08CA1966 In re the Marriage of Lisa H. Yalacki, n/k/a Lisa H. Scharf and Daniel L. Yalacki
08CA1975 Western World Insurance Company, a New Jersey corporation, and The Booth Creek Townhouse Association v. United States Liability Insurance Company, a Pennsylvania corporation
08CA2212 Jonathan Matheny v. Warden, Limon Correctional Facility
08CA2238 Alison Maynard v. Gary Magness; Magness Land and Cattle L.L.C., a Colorado limited liability company; Todd Burt; Jeff Antanies; Hidden Valley Ranches, Inc.; and Magness Land Holdings, LLC, a Colorado limited liability corporation
08CA2285 In the Matter of the Estate of Jeannette Alice Swanger, a/k/a Jeannette A. Swanger, deceased and Concerning Mark Swanger v. Brant, Stevens & Graf, LLC, Cynthia R. Schlegel and Carl G. Stevens
08CA2363 People v. Ruben Joseph Garcia
08CA2397 Radine Coopersmith v. Lisa Ward, an individual; Greenberg, Herringer & Ward, LLC; David Greenberg, an individual; William Herringer, an individual
08CA2448 People v. Michael C. Field
08CA2491 People v. Robert Darrell Jones
08CA2525 In re the Marriage of Aaron Michael Aragon and Nicole M. Honeycutt
08CA2670 Alberta Development Partners, LLC, and Peter M. Cudlip v. Emanuel Bugelli
08CA2687 Wayne Warnke v. Eric L. Washburn; Robin F. Schepper; Emmett Y. Stafford, Jr.; Louise H. Stafford; John W. O’Dorisio, Sr. Family Trust; Weber Family Trust; Rebecca J. Hohnstein; Scott L. Hohnstein; Paula Cooper Black; Richard Sammartino; Pamela J. Sammartino; Robert W. Boyson; Prudence A. Boyson; Samuel E. Hill; Ricky Allen Hill; Amy Lynn Hill; Alexander M.R. Brown; and Leslie R. Brown
09CA0064 Marjorie R. Brown v. LSI, a Fidelity National Financial Company, a/k/a LSI Document Signing Service (a Division of Fidelity National Financial Company), a/k/a LSI West Document Signing (a Division of Fidelity National Financial Company), a/k/a LSI, a Division of Chicago Title Insurance Company
09CA0076 Ronald Anthony Vashone-Caruso v. David L. Michaud, Chairman, Colorado Board of Parole
09CA0417 Jose Herrera v. Industrial Claim Appeals Office of the State of Colorado and Cargill Meat Solutions
09CA0697 Raul Gomez, Jr. v. Industrial Claim Appeals Office of the State of Colorado and Harrison School District No. 2
09CA1006 People In the Interest of A.M. and T.M., Children and Concerning A.B.
09CA1231 Clear Creek Gilpin Abstract & Title v. Industrial Claim Appeals Office of the State of Colorado and Michael J. Gilbert
09CA1547 People In the Interest of A.D., S.D., J.R., and R.D., Children and Concerning J.D., and C.R.

October 9, 2009

The supreme court will release the following decisions on Tuesday (Monday is a legal holiday):

07SC977 AND 07SC978 - Board of County Commissioners of the County of Adams v. Colo. Dept. of Public Health
08SC308 American Family Insurance v. Ed DeWitt and Sarah DeWitt
08SC378 Krutsinger v. People
08SC384 B.B. & C. Partnership v. Edelweiss Condominium Association
08SA359 Eddie's Leaf Spring v. Colorado PUC
09SA100 People v. Brown
09SA117 People v. Sandoval
09SA165, 09SA166 and 09SA167 In the Matter of Title, Ballot Title and Submission Clause for 2009-2010 #24

Here are the summaries of last week's court of appeals decisions:

Unpreserved double jeopardy errors in sentecing context may be reviewed for plain error. The court of appeals adopted the reasoning of federal circuit courts in allowing such review. Judge Bernard specially concurred, rejecting that rationale, and concluding that such plain error review should not be available to defendants. People v. Tillery

The Colorado Rape Shield statute (C.R.S. § 18-3-407) does not violate equal protection. Defendants in sexual assault cases are not within a suspect classification and, therefore, the Equal Protection Clause requires only that there be a rational and reasonable basis for the classification and that it bear a fair relationship to the purpose of the statute. The court of appeals noted that section 18-3-407 is a rational attempt by the legislature to protect the complainant from harassment and humiliation and to encourage victims of sexual assaults to report crimes unhindered by the fear of having their past sexual activities made public. People v. Villa

Defendant's conviction for attempted murder was reversed due to prosecutorial misconduct during closing argument. The court of appeals held that hold the prosecution’s closing arguments were so flagrantly improper as to constitute plain error that should have prompted corrective action by the trial court even absent timely objection. An assault conviction was affirmed because the evidence of guilt was overwhelming. The prosecutor's improper conduct included: accusing defendant of having “lied over and over” and claiming that thereby showed his guilt; making inflammatory appeals to jury emotions; making repeated personal attacks on a defense expert who relied on crime scene evidence to opine that the shooting had occurred differently than the victim had testified; exhorting jurors to “do justice for other strangers”; and misisstating the presumption of innocence. People v. McBride

Defendant, who had been a legal intern for a district attorney in Colorado, sent a letter posing as the district attorney to his appointed counsel in a pending Montana criminal case. The letter appeared to attempt to influence the judge in the Montana case. Defendant was charged with criminal impersonation and attempting to influence a public servant, among other charges. He was convicted and on appeal argued that the letter should have been excluded under the attorney client privilege, as it was a letter between him and his lawyer. Not surprisingly, the court of appeals rejected that argument. People v. Tucker

The court of appeals affirmed defendant's conviction for possession of a weapon by a previous offender. It was uncontested that the pistol found in defendant's car was inoperable. Defendant had told the police that, when he found the pistol in a street gutter, it looked “as if it had been run over” and did not work. The pistol not only lacked grips, but also had a crack in the base of the gun handle that prevented the gun from being loaded. The trigger bar was not “how it should be,” and the firing pin would not activate. One witness opined that, to make it functional, a person would have to take the pistol to a gunsmith to have it disassembled according to the manufacturer’s specifications and rebuilt by replacing the missing parts. C.R.S. § 18-1-901(3)(h) defines a firearm as “any handgun, automatic, revolver, pistol, rifle, shotgun, or other instrument or device capable or intended to be capable of discharging bullets, cartridges, or other explosive charges.” The court of appeals concluded that under section 18-1-901(3)(h), a pistol (no matter what its condition, no matter what a defendant’s intent may be with respect to it) is a “per se” firearm. People v. O’Neal

In an attempted reckless manslaughter case, the trial court erred in refusing defendant’s tendered instruction regarding multiple assailants. But the trial court's instructions told the jury to consider the totality of the evidence, including multiple assailants. So the error was harmless. People v. Riley

In a constitutional challenge to the Englewood Sign Code, which is contained in the Englewood Municipal Code, the court of appeals concluded that the code’s special review procedure constitutes a constitutionally impermissible prior restraint on free speech. Mahaney v. City of Englewood

Plaintiff appealed the district court's judgment affirming the revocation of his driver's license by the Department of Revenue for driving with an excessive breath alcohol content. The court of appeals concluded that the Department improperly denied plaintiff’s request for a subpoena for the records concerning the functioning of the intoxilyzer used for his breath test, and therefore reversed and remanded for a new revocation hearing after the issuance of the subpoena. Gilbert v. Julian

October 8, 2009

This post has today's and last week's court of appeals case announcements. I have not been able to get to the summaries of last week's published decisions, but I hope to by the end of tomorrow.

Here are today's court of appeals announcements. The court issued the following unpublished decisions:

07CA0228 People v. Ricky Eugene Bailey
07CA0513 People v. Patricia Luttig
07CA1508 People v. Rajova B. Thomas
07CA1615 People v. Raymond Armelino
07CA2133 In re the Marriage of Tashia Asher Snyder and Ronald Norman Snyder
08CA1086 People v. John David Charity
08CA1790 Han, Inc. v. Isabel Ear
08CA1871 In re the Marriage of Elizabeth Hampton Painter and Keith Dee Painter
08CA2095 Debbie Hegg v. Crunch Excavating, Inc. and John Ardrey
08CA2275 In re the Marriage of Terrie Lee Thompson, n/k/a Terrie Lee Gilbertson and Thomas A. Thompson
08CA2404 In re the Marriage of Ramona Santillano and Leovigildo Santillano
08CA2626 Lisa Morrow, a/k/a Lisa Galbraith, as parent and next friend of Brynae Galbraith v. Frank Morrow
09CA0041 People v. Christopher Malone
09CA0089 Thurman Harrison, Jr. v. Executive Director of the Colorado Department of Corrections; and Warden of the Fremont Correctional Facility
09CA0139 People v. Raysean Allen Williams
09CA0449 People v. Ronald J. Fogle
09CA1226 People In the Interest of D.H., a Child and Concerning R.H.
09CA1240 Paul B. Jarnot v. Industrial Claim Appeals Office of the State of Colorado and John Q. Hammons Hotels
09CA1358 Joyce M. Montoya v. Industrial Claim Appeals Office of the State of Colorado and Urban Peak
09CA1377 Rosemary Blazejewski v. Industrial Claim Appeals Office of the State of Colorado and Wal Mart Associates, Inc.
09CA1422 Jeanette G. Pona v. Industrial Claim Appeals Office of the State of Colorado and IHS of Colorado Springs
09CA1466 Martin Felder v. Industrial Claim Appeals Office of the State of Colorado and Colorado State Department of Health Care
09CA1499 Jack A. O’Brien v. Industrial Claim Appeals Office of the State of Colorado and IPC International Corporation

Here are the court of appeals' case announcements from October 1. The court issued both published and unpublished decisions:

Published decisions:

People v. Tillery
People v. Villa
People v. McBride
People v. Tucker
People v. O’Neal
People v. Riley
Mahaney v. City of Englewood
Gilbert v. Julian

Unpublished decisions:

06CA0792 People v. Peter Karl Weinreich
06CA1403 People v. Ismael Jaime Bonilla
07CA0044 People v. Reynaldo Villa
07CA0227 People v. Troy Allen Short
07CA0811 People v. Harry William Kildare
07CA1407 People v. Adam Montez
07CA1560 People v. Eugene Benedict Aguirre
07CA1947 People v. Cosme Junior Garcia
07CA2425 In re the Marriage of Darla K. Richards and Glenn D. Richards
08CA0393 People v. Brandy Wine Atkins
08CA0394 People v. Brandy Wine Atkins
08CA1173 People v. David E. Woolery
08CA1352 People v. Andrew Patrick Hurst
08CA1509 Jaguar Associated Group, L.L.C. v. Janice E. Black
08CA1735 Elizabeth Michelle Morris v. Roxy Huber, Executive Director of the Colorado Department of Revenue, Motor Vehicle Division
08CA1810 People v. Peter Glenn Maestas
08CA1972 People In the Interest of Barbara Jean Hinman
08CA2114 In re the Marriage of Jeremiah M. Siscoe and Christina L. Siscoe
08CA2391 People v. Larry Chad Smithey
09CA0053 Founding Members of Catamount Ranch & Club, an unincorporated nonprofit association; Patrick Beirne; Marian Beirne; Mike Burks; Suzanne Turner; Richard Dillon; Phyllis Dillon; Lawrence Harrison; Ruth Harrison; James Larson; Susan Larson; Earl Liff; Elaine Liff; Charles Martyn; Penny Martyn; Victor Morgenstern; Gary Nelson; Holly Nelson; John Smith; Gail Ward; Steve Barwick; Pam Barwick; Alex Brewer; Dorance Brewer; David Dacus; Debbie Dacus; Hank Edwards; Cathy Edwards; Patrick Foley; Sarah Foley; Alfred Kahn, III; Susan Kahn; John Kelley; Chris Kelley; Brooks Kellogg; Gail Kellogg; Carl Marbach; Helen Marbach; Richard Mathews; Fran Mathews; James Nichols; Betty Nichols; Harvey Pensack; Joan Pensack; John Serhant; Ellen Serhant; Gil Kuykendall; Jean Kuykendall; Anne C. Clark; Robert King; Emily King; and Scott Guenther v. Catamount Development, Inc., a Colorado corporation; and SV Timbers Steamboat, LLC, a Delaware limited liability company
09CA0420 Joshua D. Moore v. Executive Director of the Colorado Department of Corrections
09CA0530 People In the Interest of R.B., a Child and Concerning S.S.
09CA0819 Esteban Ceballos Rios v. Industrial Claim Appeals Office of the State of Colorado and University of Colorado, Boulder Campus

October 5, 2009

My firm is officially moved into its new space, and I hope I can catch up soon, after unpacking and getting settled.

The supreme court's announcements for today are here. The court issued no decisions and did not grant cert. in any cases.

I will try to get the summaries of last week's court of appeals' decisions posted in the next few days.