May 9, 2008

The supreme court will issue these six decisions on Monday:

06SC627 Granite State v. Ken Caryl Ranch

06SC798 Arko v. People

07SC60 Leyva v. People

07SC73 Sigala v. Atencio's Market & ICAO

07SA249 In re Hoyal v. Pioneer Sand

07SC353 Schwartz v. Schwartz

Here are yesterday's court of appeals announcements. The court issued only unpublished decisions.

May 7, 2008

The court of appeals will release the following unpublished decisions tomorrow:

05CA1023 People v. Roy Standingcrow
05CA1282 People v. Phillip Board, Jr.
05CA1425 People v. Shannon Lee Southard
05CA1721 People v. Billy Dwayne Slaughter
05CA1850 People v. John Wayne Warrener
05CA1951 People v. Haki Muhammad
05CA2407 People v. Justin D. Conner
05CA2558 People v. Leevan F. Nufio
06CA0359 People v. Terence Kilpatrick Bruce
06CA1691 In re the Marriage of Jolie Cannon Donnell, n/k/a Jolie Cannon and David Byran Donnell
06CA1715 People v. Michael R. Connor
06CA2269 People v. Robert K. Ray
07CA0129 Notch Mountain Corporation, a Colorado corporation; New Mortgage Investments Corporation, a Colorado corporation, f/k/a Mortgage Investments Corporation, a Colorado corporation; and Turkey Creek Limited Liability Company, a Colorado limited liability company v. Forest Ridge Holdings, Inc., a Colorado corporation
07CA0453 Surety Services, LLC v. Yanke & Co., d/b/a Epic Oil and Gas, Inc.
07CA0531 John D. Watson and Debra S. Watson v. B Lazy M Ranch Owners Association, Inc., a Colorado nonprofit corporation
07CA0701 Corinne Gibson v. Industrial Claim Appeals Office of the State of Colorado and City of Colorado Springs
07CA0939 In re the Marriage of Steven Ayala and Donna J. Ayala
07CA1050 People v. Kimberly Diane Le

May 5, 2008

Happy Cinco de Mayo!

The supreme court has not posted any case announcements this morning, so I'm assuming they will not be releasing any (which makes sense since the court heard arguments last week, including arguments in Delta).

May 2, 2008

According to the supreme court's announcements page, no cases will be announced on Monday. I don't know whether that means there will be no rulings on cert. petitions or not. Guess we'll have to stay in suspense till then.

Gov. Ritter has appointed the new court of appeals judges: Sean Connelly, Richard Gabriel, and David Richman (who clerked for the same judge as I). The press release announcing the appointments is here. Congratulations to them and best wishes for a great tenure on the court. The appointments are effective July 1, so I expect they will all take office around then.

May 1, 2008

Here are today's court of appeals announcements. The court issued 10 published decisions, summarized below.

In a sexual assault on a child case, the trial court erred in conducting the competency hearing of the victim in the presence of the jury. The court of appeals concluded that holding a competency hearing in the jury’s presence is error since, where credibility is the central issue, the impact of conducting the competency proceedings in the presence of the jury cannot be diminished. Because here the competency hearing was held in the jury’s presence, the defendant’s convictions had to be set aside. People v. Wittrein

Interpreting C.R.S. § 42-4-1301.1(8), the court of appeals concluded that probable cause was required to collect blood of unconscious defendant. Defendant was found unconscious at the scene of a traffic accident in which his passenger was killed. The court remanded to the trial court to determine whether probable cause was present at the time the blood was collected. In addition, the court concluded that DUI under C.R.S. § 42-4-1301(1)(a) is a lesser included offense of vehicular homicide under C.R.S. § 18-3-106(1)(b)(I). People v. Grassi

In a case of first impression in Colorado involving consideration of a police officer’s identification following the pursuit and capture of a fleeing or just-apprehended suspect, the court upheld the trial court's denial of defendants motion to suppress. Defendant argued that the plainclothes officer did not identify him as part of a criminal investigation, but rather did so as a witness to the ongoing criminal act, in an unnecessarily suggestive one-on-one identification. The court of appeals' rejected that argument, concluding that "A police officer: (1) is a trained observer; (2) has a primary interest in capturing the right person to protect the public, his or her integrity, and that of the prosecution; (3) can be expected to be relatively calm, deliberate, and less suggestible when compared to a victim of, or witness to, a recent crime; (4) is familiar with the identification procedure and is unlikely to be startled or distracted by the circumstances or the scene." People v. Howard

“No damages for delay” clauses are valid and enforceable in Colorado. But they are to be strictly construed against the owner or contractee. And active interference by an owner or contractor is a recognized exception to such clauses. Here, the record contained sufficient evidence for a jury to find such interference, and thus, the trial court did not err in denying defendant's motion for a directed verdict. Tricon Kent Co. v. Lafarge North America, Inc.

In ordering respondent to cease and desist from acting as a booking agent, the Director of the Division of Registrations, interpreted the term “soliciting” in the definition of “outfitter” in C.R.S. § 12-55.5-102(5) to include “acting as a booking agent . . . for outfitters.” The court of appeals said that although this is a reasonable interpretation of the term “soliciting,” the term “soliciting” does not stand alone in the definition. Instead, it is part of the phrase “soliciting to provide . . . outfitting services.” The court concluded that in order to give effect to each statutory word, an "outfitter" is not one who simply solicits outfitting services, but one who solicits to provide outfitting services. Accordingly, a person who solicits on behalf of others who provide outfitting services is not an outfitter within the plain language of the statute. Thus, to the extent the Director ordered respondent to cease and desist from acting as a booking agent based on a determination that a booking agent is an “outfitter” within the definition of § 12-55.5-102(5), the Director erred. The court also concluded that the Director exceeded her statutory grant of authority by promulgating rules that regulate the booking agent activities of revoked outfitters. Judge Hawthorne dissented from that part of the decision. McCool, Director of the Division of Registrations, in her official capacity, on behalf of the Office of Outfitters Registration v. Richard K. Sears

While deeds procured by fraud are generally voidable, a deed procured by "fraud in the factum" is void. Fraud in the factum occurs if a person has been fraudulently deceived about the nature of a document, so that he or she is excusably ignorant about what has been signed. Unlike other types of fraud, fraud in the factum yields an instrument that is void, and not merely voidable. Here, Plaintiff alleged fraud in the factum, and had supporting evidence in the form of affidavits (the signer of the deed was mentally incapacitated to some degree). Therefore, a material issue of fact existed on whether deed was void or merely voidable. If Plaintiff proves fraud in the factum, the deed is void. If Plaintiff does not, then the alleged mental incapacity at the time of the execution of the warranty deed, by itself, would render the warranty deed merely voidable. Delsas v. Centex Home Equity Company, LLC

C.R.S. § 13-17-202(1)(a)(III), rather than a rule, establishes the period for accepting an offer of settlement. Thus, the three-day extension of time set forth in C.R.C.P. 6(e) does not apply. When a statute sets forth a particular procedure, court-promulgated rules simply do not apply. Therefore, the Plaintiff was not entitled to an extra 3 days to accept the statutory offer of settlement, and his acceptance was therefore untimely. Montoya v. Connolly’s Towing, Inc.

City adopted regulations under the Areas and Activities of State Interest Act (AASIA), C.R.S. §§ 24-65.1-101 to -502. City asserted that CDOT must comply with these regulations. CDOT disagreed and sought declaratory relief, arguing it was exempt from the city’s regulatory scheme for three reasons: (1) CDOT is not subject to regulations promulgated under the AASIA because it is not a “person” within the meaning of that law; (2) Alternatively, the AASIA conflicts with, and implicitly has been repealed by, provisions in Title 43 of the Colorado Revised Statutes; and (3) Insofar as they may apply to CDOT’s core functions, the city’s regulations are preempted by Title 43. The court of appeals disagreed. The court concluded that CDOT is a "person" as defined in C.R.S. § 24-65.1-102(6). The court also held that there was no statutory conflict and that the city's regulations were not preempted by Title 43. Colorado Department of Transportation v. City of Idaho Springs

In reading C.R.S. § 13-21-101(1), as applied in Rodriguez v. Schutt, the court of appeals perceived a contradiction between the plain meaning of the term “postjudgment interest” and language in that section that seems to provide that the date of accrual for “postjudgment interest” is the date the action accrued. The final sentence of § 13-21-101(1), as read and applied by Rodriguez, thus lends
itself to two alternative meanings: (1) the term “postjudgment interest” carries its ordinary and plain meaning, and relates specifically to the language providing for a market-determined rate of interest, but not to the date of accrual as set forth in that sentence; or (2) the term “postjudgment interest” does not carry its ordinary meaning, and is defined by both the market-determined rate and the date of accrual language. The court concluded that because the General Assembly intended that the market-determined rate should apply to all interest,“whether prejudgment or postjudgment,” its use of the date the action accrued as the date on which all interest is calculated did not suggest the General Assembly intended to create a new type of postjudgment interest that, in essence, would award personal injury plaintiffs double interest for the time period between the date the action accrued and the date judgment is entered. The court concluded that the use of the date the action accrued as the first date on which interest is calculated merely reflects the General Assembly’s intention that § 13-21-101(1) should apply to all interest, “whether prejudgment or postjudgment,” in those cases where the plaintiff properly claims interest in the complaint. Thus, as read and applied by the court in Rodriguez, in cases where interest is properly claimed by a plaintiff, § 13-21-101 provides for prejudgment interest on personal injury claims accruing at nine percent, regardless of whether the judgment debtor appeals. The plaintiff was not, however, entitled to postjudgment interest calculated from the date of the accident to the date of entry of judgment. Sperry v. Field

In a quiet title action, in response to service by publication, defendant's son faxed an unsigned letter to the court with the deed of trust attached, stating: (1) “I am writing this letter on behalf of my father,” (2) “I have attached a copy of the recorded Deed of Trust, which has not been satisfied or paid,” (3) “no service has ever been attempted on my father in this case,” and (4) “We would ask you to dismiss [the] quiet title action, since my Father’s interest in the land is evident.” The trial court granted a default judgment, and refused to set it aside. The court of appeals reversed, concluding that the letter was a communication with the court that indicated defendant's intention to defend. The letter showed defendant's interest in the property by attaching the deed of trust, and requested that the court “dismiss the Plaintiff’s quiet title action, since [the] interest in the land
is evident.” The court of appeals concluded that the letter constituted an appearance entitling defendant to notice under C.R.C.P. 55(b). The trial court applied the wrong legal standard by focusing on defendant’s notice of the summons and complaint rather than on his lack of notice of the hearing under C.R.C.P. 55(b). Applying the wrong legal standard was an abuse of discretion and required reversal. BS & C Enterprises, L.L.C. v. Barnett

April 30, 2008

The supreme court has recently added two original proceedings to its caseload. The description of the issues in those cases are here, and below that is the list of the decisions the court of appeals will release tomorrow:

No. 08SA121

Arapahoe County District Court Case No. 00CR32 (Judge Robert Russell II)

In re:

Plaintiff:

THE PEOPLE OF THE STATE OF COLORADO

v.

Defendant:

ERIC PETERSEN.

Synopsis:

Petitioner Eric Petersen seeks relief from the district court’s denial of his notice of appeal, arguing that he has made a sufficient showing of good cause for enlargement of the time for filing a notice of appeal pursuant to CAR 4(b) and 26(b). He requests that the court issue an order directing the district court to accept his notice of appeal as timely.

On April 14, 2008, the court issued a rule to show cause why the relief requested should not be granted. Respondents the People of the State of Colorado and the Honorable Robert Russell LL are directed to provide a written answer on or before May 5, 2008. Petitioner Petersen has twenty days from receipt of the answer within which to reply.

 

No. 08SA129

El Paso County District Court Case No. 95CR3134 (Judge Larry Schwartz)

In re:

Plaintiff:

THE PEOPLE OF THE STATE OF COLORADO

v.

Defendant:

SANFORD B. SCHUPPER.

Synopsis:

The petitioner, Sanford Schupper, seeks relief from the district court and court of appeals’ denial of an appeal bond, arguing that it was a violation of due process for the district court to deprive Schupper of the right to counsel at trial and then to deny an appeal bond in order that Schupper would serve his sentence before his conviction is inevitably reversed. Moreover, he contends that the district court and court of appeals violated the mandatory language of CAR 9(b), which requires the court to state in writing the reasons for denying an appeal bond. He also asserts that both courts abused their discretion by ignoring the mandatory factors from section 16-4-202 and by denying the appeal bond for reasons that are impermissible under the law.

On April 23, 2008, the court issued a rule to show cause why the requested relief should not be granted. Respondent, the People of the State of Colorado, is directed to provide a written answer on or before May 7, 2008. Petitioner Schupper has ten days from receipt of the answer within which to reply.

Tomorrow, the court of appeals will release the following decisions:

Published Opinions

04CA2118 People v. David Arthur Wittrein
05CA1051 People v. Ronald Brett Grassi
05CA2297 People v. Antonio R. Howard
06CA0595 Tricon Kent Co. v. Lafarge North America, Inc.; Lafarge West, Inc.; and Safeco Insurance Co. of America
06CA1922 Rosemary McCool, Director of the Division of Registrations, in her official capacity, on behalf of the Office of Outfitters Registration, Department of Regulatory Agencies, State of Colorado v. Richard K. Sears
06CA2571 Joe Delsas, by his next friend, Dennis Delsas v. Centex Home Equity Company, LLC, and United States Small Business Administration
07CA0109 Chris Montoya v. Connolly’s Towing, Inc., a Colorado corporation
07CA0274 Department of Transportation, State of Colorado v. City of Idaho Springs, a municipal corporation
07CA0282 Brenda Sperry v. Sherry Field
07CA0647 BS & C Enterprises, L.L.C. v. Douglas K. Barnett

Unpublished Opinions

02CA1563 People v. Darkhanbayar Tumentsereg
05CA1558 People v. Jerrelle A. Smith
05CA1886 & 07CA0099 Chris Brossia and Katrina Brossia v. Rick Construction, Ltd. Liability Company
05CA2187 People v. Thomas Lawrence Taylor
05CA2387 People v. Sigido Jai Sibayan
05CA2580 People v. Frank Anton Samora
06CA0023 People v. Frank Martin Funk
06CA0399 People v. Jeremiah Eli Garcia
06CA0443 People v. Rudy R. Heredia
06CA1071 People v. Dwayne A. Hudson
06CA1461 In re the Marriage of Mary T. Stecker, n/k/a Mary T. Dybicz and
William J. Stecker
06CA1528 People v. Allan Sean Redfern
06CA1689 Connie Schranz-Ramirez v. Lorraine E. Rivera and Henry Rivera, a/k/a Hank Rivera
06CA2017 Steel Dimensions, LLC, a Colorado limited liability company v. Town of Frederick, a Colorado municipality; Town Board of the Town of Frederick; Eric Doering, in his official capacity as Mayor of the Town of Frederick; Karen Dunbar and Sue Wedel, members of the Frederick Town Council; Marty Maslen, Chief Building Official of the Town of Frederick; and John Does 1-3, unknown officers, employees, and contractors of the Town of Frederick
06CA2195 People v. Clarence H. Vandehey, Jr.
06CA2219 Department of Transportation, State of Colorado v. Board of County Commissioners of Douglas County
06CA2413 David Nix v. Colorado Department of Revenue, Motor Vehicle Division
06CA2535 People v. Maeghan Anne Dodge
06CA2545 In re the Marriage of Anna V. Schreiner and Mark A. Schreiner
06CA2624 Brandy Gorin v. Leslie Benedict and Hsieh Kaun Lee and American Standard Insurance Company of Wisconsin, a Wisconsin corporation
06CA2625 Christina Garcia and Christopher Garcia v. Centra Software, Inc., and Women.com Networks, Inc.
07CA0069 In the Matter of the Estate of Dorothy Hirsch, Deceased, Charles E. Hirsch, Jr. v. Wells Fargo Bank West, N.A.; HCA HealthONE, L.L.C., d/b/a Presbyterian/St. Luke’s Medical Center; University of Nebraska Foundation; and Children’s Hospital Foundation
07CA0113 Hyon K. Park and Jeffrey Hill, bankruptcy trustee v. Daniel K. Oh; Daniel K. Oh & Associates, a Colorado corporation; ReMax Unlimited, Inc., a Colorado corporation; Fred T. Baker, Jr.; and Heritage Cleaners, Inc., a Colorado corporation
07CA0425 People v. Scott Thompson
07CA0610 Jorgensen, Motycka & Lewis, P.C. v. Shughart Thomson & Kilroy, P.C.
07CA0849 May B. McCormick v. Industrial Claim Appeals Office of the State of Colorado and Exempla Healthcare
07CA1021 Ahmed Bekkouche v. Industrial Claim Appeals Office of the State of Colorado, Riviera Electric, and RSKCo
07CA1880 Joel F. Lorr v. Industrial Claim Appeals Office of the State of Colorado and Douglas County
07CA2056 Lewis N. Scott v. Industrial Claim Appeals Office of the State of Colorado and G & W Foods, Inc.
07CA2192 People In the Interest of R.M., K.M., M.J., and D.J., Children, and Concerning S.M.
07CA2326 Shane W. Hickman v. Industrial Claim Appeals Office of the State of Colorado and Restaurant Concepts II, LLC, d/b/a Applebees Neighborhood Grill & Bar
08CA0091 Linda L. Davis v. Industrial Claim Appeals Office of the State of Colorado and Town of Silverton
08CA0130 David M. Stanecki v. Industrial Claim Appeals Office of the State of Colorado and Generations

April 28, 2008

The supreme court's announcements for today are here. The court issued one decision, People v. Kerst, summarized below. The court granted cert in Herr v. People, No. 08SC5, on these issues:

Whether the prosecution, by failing to object to a district court’s decision to delay for a prescribed period of time the resolution of a Crim. P. 35(b) motion, waives a later objection that the delay was unreasonable.

Whether a defendant abandons a Crim. P. 35(b) motion by relying on an order of the district court creating what the court deems a reasonable delay in deciding the motion.

In an interlocutory appeal of a suppression order, the supreme court unanimously reversed the trial court's suppression of evidence of counterfeit money taken from the home of the defendant during the execution of a search warrant. The trial court had found that the police officer who submitted the affidavit in support of the search warrant omitted facts from the affidavit with a reckless disregard for the truth, and that had the omitted facts been included, the affidavit would not have established probable cause for a search. The supreme court reversed, holding that regardless of whether the facts were omitted with a reckless disregard for the truth, the omitted information was not material such that its omission rendered the affidavit substantially misleading as to the existence of probable cause. Thus, suppression of the evidence was improper. People v. Kerst

April 24, 2008

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

April 23, 2008

The court of appeals will release the following unpublished decisions tomorrow:

03CA1598 In re the Marriage of Victoria O’Brien, n/k/a Victoria Provenza, and James H. O’Brien
05CA0698 People v. Marvin Dale Bredemeier, Jr.
05CA1042 People v. Jerry Martinez
05CA1454 People v. Kenneth E. Werner
05CA1713 People v. Luke Alexander Thomas
05CA1992 People v. Rodney R. Valenzuela
05CA2293 People v. Billy Edward Scott
05CA2431 & 06CA0959 In re the Marriage of David Leigh and Katherine Prough-Leigh
05CA2489 People v. Kent Eric Lebere
06CA0297 People v. Keith W. Schumacher
06CA0365 People v. Earl David Hines
06CA0457 Estate of Harold Hansen; Robert H. Hansen and Louise M. Hoban, Personal Representatives; the Harold Hansen Living Trust; and Robert H. Hansen and Louise M. Hoban, Trustees, v. American Spectrum Real Estate Services Colorado, Inc., and Thomas H. Keyse and Block Markus Williams, L.L.C
06CA0476 People v. Michael Marquez
06CA0515 People v. Matthew Todd Jerpseth
06CA0834 People v. Corlisha S. Jones
06CA1051 People v. Gregg L. Gatrell
06CA1124 People v. Brent Legg
06CA1295 People v. David Gordon
06CA1730 People v. Brient E. Roberts
06CA1806 People v. Thomas Richard Cape
06CA1810 People v. Marcus Abramo Fontana
06CA1882 People v. Larry Johnson, a/k/a Larry Dean Johnson
06CA1964 People v. Richard L. Montoya
06CA2176 People v. Julian Washington
06CA2336 Natalie A. Mozer, as personal representative of the Estate of Harvey G. Mozer v. Suzanne Boxer-Gassman
06CA2378 Patricia Davis v. GuideOne Mutual Insurance Company
06CA2461 People v. Susan Crum
07CA0281 Amor A. Portugal v. Colorado Division of Insurance
07CA0314 In re the Marriage of Wanda Chmiel and Andrew Tellis
07CA0424 Grand County and County Workers Compensation Pool v. Industrial Claim Appeals Office of the State of Colorado and Kimberly Mahana
07CA0522 Robert Wolfe v. Timothy Ritter and T. Filer
07CA0549 Authorized Factory Installers I LLC.; and Scott Gabriele v. Liberty Savings Bank, FSB; and Joyce McIntire
07CA0868 People v. Billy Von Hallcy
07CA0989 In the Matter of the Estate of Florence R. Gilmartin, Deceased. Keith Gilmartin v. William G. Kaufman, Special Administrator
07CA1010 People v. Clifton E. McRae
07CA1175 James A. Childs v. Jason Else, Michael Arellano, Dennis Burbank, and William Richter
07CA1307 In re the Marriage of Lisa K. Nytes, n/k/a Lisa K. Price and Michael T. Nytes
07CA1754 Mary Beth Allen v. Ron Murray, Warden, High Plains Correctional Facility, and Aristedes Zavares, Executive Director, Colorado Department of Corrections
07CA1912 People v. Bertha Martinez
07CA2160 Carlos G. Garcia v. Industrial Claim Appeals Office of the State of Colorado and Division of Employment, Customer Service/Benefits
07CA2483 People in the Interest of E.D.D. and C.J.D., Jr., Children,
Upon the Petition of the Denver Department of Human Services, and Concerning A.A.T.

April 21, 2008

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

In an interlocutory appeal from a suppression order, the supreme court affirmed the district court's order suppressing statements the defendant made in response to police interrogation. The supreme court held that the trial court’s relevant factual findings are supported by the record. The court noted that although the trial court improperly considered the interrogating police officers’ subjective intent in determining whether defendant was in custody, the trial court’s other factual findings, and the undisputed evidence in the record, established that the defendant was in police custody when he was interrogated. Because it was conceded that the defendant did not receive proper Miranda warnings before that custodial interrogation, suppression was appropriate. Justice Rice wrote the opinion of the court. Justice Coats said that while "the statements suppressed by the majority today are all ostensibly exculpatory in nature, and the majority’s rationale for suppressing them is so case-specific as to have little precedential value, I believe the persistent unwillingness of this court to be guided by the United States Supreme Court in this matter of federal constitutional law merits some comment." He criticized the majority's analysis: "In the absence of actual indicia of an arrest, the majority marshals a laundry list of circumstances or factors, indicative of little more than an interview at the police station. The fact that interview rooms are typically neither large nor public, that two officers are present for an interview, or that they close the door for privacy indicate virtually nothing about the voluntariness of an interviewee’s presence. As the Supreme Court has expressly noted, the fact that questioners carry holstered side-arms indicates only that they are police officers, which is understood by the interviewee when he consents to a stationhouse interview. United States v. Drayton, 536 U.S. 194, 205 (2002). And rather than being an indication of arrest, riding in a police car, only after giving consent and without having been patted-down or handcuffed, would suggest to any reasonable person precisely the opposite. In the absence of an objectively manifested change in circumstances, the fact that a defendant who is present by agreement is not expressly told that he is free to leave has little meaning; and it seems more than a little disingenuous to suggest it as a worthy practice in light of the trial court’s adverse reaction to the police reminder that the defendant was free not to speak with them. To the extent that circumstances actually did change at some point as a result of the defendant’s responses, he clearly felt free to, and did, terminate the interview, and only his earlier statements are at issue here. In fact, the majority’s substantial reliance on events following termination of the interview is a further indication of its failure to grasp, or at least its failure to apply, the objective standard dictated by the Supreme Court." Justice Eid dissented separately, believing a remand was necessary. In her view, "the trial court made two significant and fundamental errors in this case. First, the court found that the incomplete Miranda warnings given by the officers created custody: [F]rom the moment [the defendant] was advised of his Miranda rights, Defendant was in custody for the purposes of Miranda. . . . Defendant was advised of Miranda at the very beginning of the questioning, which would indicate to someone familiar with the criminal process that he was being deprived of his freedom. . . . In so holding, the court got it exactly backwards. Miranda warnings do not create custody. . . . The second fundamental error committed by the trial court is the fact that it relied on the officers’ subjective intentions in its analysis of whether Elmarr was in custody, concluding that 'Captain Epp likely suspected that Defendant was involved in the murder and intended to attempt to elicit incriminating statements from Defendant.'As the majority recognizes, and Elmarr acknowledges, the subjective intentions of the officers in questioning the defendant have no role in determining whether the defendant was in custody. . . . In my view, we should correct the trial court’s errors and remand the case for further proceedings." People v. Elmarr

The court granted cert. in these cases:

USAA v. Parker, No. 07SC524, on this issue:

Whether prejudgment interest awarded on a judgment for underinsured motorist insurance benefits accrues at a rate of 8% per annum from the date the monies are owed under C.R.S. section 5-12-102 or whether prejudgment interest accrues at a rate of 9% per annum for actions brought to recover damages for personal injuries under C.R.S. section 13-21-101 from the date of the automobile accident.

People v. Disher, No. 07SC1088, on this issue:

Whether the district court erred when it held that pursuant to section 18-6-800.3, C.R.S. (2007), explicit evidence of a xexual relationship is necessary for a finding of an intimate relationship to invoke a domestic violence sentencing enhancer.

April 18, 2008

The supreme court will issue one opinion on Monday, No. 07SA379 People v. Elmarr.

Here are yesterday's court of appeals announcements. The court issued 10 published decisions, summarized below.

Defendant waived his contention that his harassment by stalking charge arose from the same criminal episode as a misdemeanor harassment charge in a separate case, and that prosecuting him on the former charge in this case violated his right to have the offenses prosecuted in a single prosecution, under C.R.S. § 18-1-408(2). By failing to raise this contention before jeopardy attached in this case, the defendant waived the claim. The plain language of the waiver clause added to C.R.S. § 18-1-408(2) in 1994 states that waiver can occur if the defendant fails to object at the time jeopardy attaches with respect to the first prosecution. But the statute says nothing about whether a mandatory joinder claim could also be waived if the defendant knew of the claim before the second prosecution but failed to object. The court concluded that given the testimony showing that the General Assembly’s purpose in enacting the 1994 amendment was to narrow the scope of the compulsory joinder statute and preclude defendants from taking advantage of it if they were aware of a compulsory joinder claim but failed to raise it -- it would be anomalous to interpret the amendment as implicitly overruling earlier case law that was intended to achieve the same purpose. So the court declined to interpret the statute to exclude any possibility of waiver in situations not expressly enumerated in it. People v. Carey

Defendant did not have a reasonable expectation of privacy in his trash once it was left at the curb. Defendant argued that he had a reasonable expectation of privacy in his trash because it was not readily accessible to the public in that his trash can was kept in a locked garage; it was only brought to the curb when the trash truck arrived; the trash service used a mechanical arm to empty the trash can, thus preventing driver observation of the contents; and the trash was sealed in opaque bags inside a trash can. The court rejected that argument, noting that when trash is placed at curbside, it is presumed to be accessible to the public. Defendant also contended that C.R.S. § 18-6-401(1)(c), which prohibits manufacturing or attempted manufacturing of a controlled substance on the premises where a child is found, or where a child resides, or possession of any of the enumerated products with the intent to use any of them as an immediate precursor in the manufacture of a controlled substance, was overbroad. Defendant argued that the possession portion of the statute unconstitutionally infringed on the right to parent, because a parent may be prosecuted for possession of legal substances in circumstances where he or she may intend to manufacture a controlled substance in a location where a child does not reside. The court concluded that Defendant lacked standing to assert overbreadth of the statute based on a provision under which he was not charged (Defendant was charged only with manufacturing). People v. Laurent

An indemnity provision required indemnification “against all claims for damage to persons and property growing out of the execution of the work.” The court of appeals concluded that language is insufficiently specific to “evidence a mutual understanding of the parties that the subcontractor would indemnify [the contractor] even if its work was not negligent.” Thus, under the provision, the indemnity obligation was limited to damages arising only from the indemnitor's own negligent acts, breach of contract, or intentional torts. Boulder Plaza Residential, LLC v. Summit Flooring, LLC

In a medical negligence case involving acts or omissions during surgery, the jury should be instructed that a surgeon is vicariously liable for the negligence of subordinate hospital employees from the time the surgeon assumes control of the operating room until the surgeon concludes the procedure. Thus, this "captain of the ship" instruction was properly given in this case. In addition, Plaintiff's release of the nurses did not preclude the surgeon from being held vicariously liable for their negligence. The court also concluded that the trial court properly gave a res ipsa loquitur instruction, and adopted the reasoning of a California decision that held, as a matter of law, that “when, during the course of surgery, a foreign object such as a sponge is lost in a patient, a prima facie case of negligence is made out under the doctrine of res ipsa loquitur.” The court also rejected the surgeon's contention that the trial court erred by awarding postfiling, prejudgment interest on the amount of noneconomic damages awarded by the jury, rather than on the $250,000 cap for noneconomic damages. On cross-appeal, the court concluded that allowing prefiling interest to be a component of the prejudgment interest calculation in cases subject to the HCAA caps, permitted the court to give effect to both C.R.S. § 13-21-101 and the HCAA. Therefore, the court concluded that prefiling interest based on the unreduced jury award should be added to the award to calculate postfiling interest. Ochoa v. Vered

In an appeal from the state personnel board, the court affirmed the board's affirmance of the of an administrative law judge (ALJ) to reinstate the an employee of the Department of Natural Resources, and to award him back pay, front pay, and attorney fees, after it determined the Department violated Colorado’s Anti-Discrimination Act (CADA), C.R.S. § 24-34-402, and the Americans with Disabilities Act (ADA), 42 U.S.C. sections 12101-12117 (1994). Ward v. Department of Natural Resources

Even assuming that the antisubrogation rule may be asserted by a co-insured which asserted claims against an insured, and that the insurer's status as a nonparty is irrelevant because it is the real party in interest, the antisubrogation rule does not apply because the party claiming the rule applies is not an “insured” party. Thus, requiring it to pay attorney fees under the terms of the the subcontract does not pass the “loss” back to any party that purchased coverage for the loss. Boulder Plaza Residential, LLC v. Summit Flooring, LLC (II)

Where a party received a notice of deposition only two days before the deposition, and one of those days was a Sunday, he did not receive at least five days notice before the deposition, as required C.R.C.P. 121 § 1-12(1), and thus the trial court erred when it concluded he received “reasonable notice.” Under C.R.C.P. 32(d)(1), however, “[a]ll errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.” The court concluded further proceedings were necessary to determine whether the party's objection was "prompt." The court noted that the factors to consider include (1) the explanation of the party for its failure to comply with the required disclosure; (2) the potential prejudice or surprise to the party against whom the testimony is offered that would arise from allowing the testimony; (3) the availability of a continuance to cure such prejudice; (4) the extent to which introducing such testimony would disrupt the trial; and (5) the non-disclosing party’s bad faith or willfulness. Keenan v. Gregg

In this workers’ compensation action, the court addressed whether an injured claimant, who provides her own transportation to attend medical appointments for treatment of her injuries, is subject to the 120-day time limitation for submission of bills that is applied to health care service providers under Workers’ Compensation Rule 16-11(A)(1), 7 Code of Colo. Regs. 1101-3 (Nov. 2005 – Jan. 2007). The court concluded that such a claimant is not a “provider” within the meaning of Workers’ Compensation Rule 16-2(R), 7 Code of Colo. Regs. 1101-3 (Nov. 2005 – Jan. 2007), and therefore, the claimant is not subject to the 120-day limitation. The court noted that while the rules applicable to this appeal had since been amended and in some cases renumbered, the rules had not been changed in a manner that would affect the court's analysis. Safeway, Inc. v. Industrial Claim Appeals Office

In an interlocutory appeal, the court of appeals addressed the parameters of a trial court’s jurisdiction to determine the ownership and management of two Internet lending businesses in the face of claims that they are owned and operated by Indian tribes. The court examined the analytical structure necessary to decide whether tribal sovereign immunity applies to these businesses, and, if so, whether it protects them, and individuals associated with them, from action undertaken by the Attorney General to enforce the Uniform Commercial Credit Code (UCCC) and the Colorado Consumer Protection Act (CCPA). The case arose when the Attorney General issued investigative subpoenas to two "pay day loan" providers. The subpoenas were unanswered. The facts of the case are complex, but eventually arrest warrants were issued for officers of two companies. The companies assert tribal sovereign immunity and argue they are immune from the Attorney General's enforcement action. The court of appeals concluded that the trial court should require the production of documents and information necessary determine these questions (1) Are the companies owned and operated as “arms” of Indian tribes, and thus immune from the Attorney General’s enforcement actions? (2) if so, are any individuals associated with the companies likewise immune? (3) If the companies are immune, have they waived their immunity? The opinion is fairly lengthy, but worth reading. State of Colorado, ex rel. Suthers v. Cash Advance and Preferred Cash Loans

C.A.R. 3.4(g) governs petitions on appeal in dependency and neglect proceedings. Counsel filed a petition that did not comply with the rule but instead simply said “there are no legal or factual issues that might support the appeal.” Normally, failure to comply with the mandatory language “shall” contained in C.A.R. 3.4(g)(3) will result in a dismissal of the petition. But no published case has applied that language to dismiss a petition. Therefore, a motions division of the court of appeals exercised its discretion, determined that additional briefing was necessary, and entered an order permitting counsel either to renew her request to withdraw or to file a petition that complied with C.A.R. 3.4(g)(3). Counsel filed a second petition on appeal that complied with C.A.R. 3.4(g)(3), and the court addressed the petition on the merits. The court, however, affirmed the termination of parental rights. People In the Interest of D.M.

April 16, 2008

The finalists for the 3 new court of appeals' judgeships were announced today. The press release is here. Governor Ritter has 15 days from today to make the appointments.

The court of appeals will release the following decisions tomorrow (I will post summaries Friday, as I will be tied up all day Thursday on matters outside the office):

Published Opinions

05CA1378 People v. Lawrence Joseph Carey, Jr.
06CA0885 People v. Jae Michael Laurent
06CA1269 Boulder Plaza Residential, LLC, a Colorado limited liability company v. Summit Flooring, LLC, a Colorado limited liability company
06CA2134 Gloria Ochoa v. Eldad Vered, M.D.
06CA2496 Patrick Ward, Complainant v. Department of Natural Resources and State Personnel Board
06CA2558 Boulder Plaza Residential, LLC, a Colorado limited liability company v. Summit Flooring, LLC, a Colorado limited liability company
07CA0036 Damien Keenan, by and through his guardian, Kelly Hickman v. Kelly Gregg, M.D.
07CA0071 Safeway, Inc. v. Industrial Claim Appeals Office of the State of Colorado and Tearsa Sloan
07CA0582 State of Colorado, ex rel. John W. Suthers, Attorney General, and Laura E. Udis, Administrator, Uniform Consumer Credit Code v. Cash Advance and Preferred Cash Loans
07CA1647 People In the Interest of D.M. and D.S., Children Upon the Petition of the Denver Department of Human Services and Concerning V.L.M.

Unpublished Opinions

03CA2283 People v. Clayton L. Lee
04CA2339 & 06CA0037 People v. Robert Ernest Schwartz
05CA0172 People v. Tony R. Barajas
05CA1281 People v. Alvin J. Taylor
05CA1826 People v. Andrew H. Maestas
05CA2579 People v. Billy Lee Longoria
06CA0338 People v. Mickey Shawn St. Clair
06CA0651 People v. Clifton Blecha
06CA0865 People v. Jerome Velasquez
06CA0935 People v. Willard Clayton Smith
06CA1160 People v. Mohammed Ali
06CA1240 People v. Robert L. Chavez
06CA1725 People v. Jeramy Lee Apodaca
06CA2324 People v. Samuel Kingman Lincoln
06CA2390 People v. Anthony Allen Mack
06CA2566 People v. Joseph Pryor
06CA2598 People v. Bedah D. Frey
06CA2668 Crystal Hunter-Erichsen v. Lester Nieves, P.C., a professional corporation; and Lester Nieves
07CA0098 People v. Ronald Kelly Young
07CA0300 In re the Marriage of Vincent A. DiCroce and Diane M. DiCroce
07CA0383 Aero Products Research, Inc., a California corporation, d/b/a Advance Products v. Think on Your Feet, Inc. and John A. Cimino, P.C.
07CA0494 Pratt Management Company, LLC v. Encompass Mechanical Services-Rocky Mountains, Inc.
07CA0615 People v. Ronald Silva
07CA0723 Richard Blair, d/b/a RV Land, Rylan Blair, and Phoebe Paetsch v. Ed Tickel and Cannell, L.L.C, a Colorado corporation
07CA1222 In re the Marriage of Susan J. DeBrucque and Allen M. Williams
07CA1284 In re the Marriage of Jeffrey S. Krebill and Shelley Aibner, f/k/a Shelley Krebill
07CA1375 David D. Rediger v. Seymore Investments, LLC, a Colorado intervivos trust; Ashley Trust, a Colorado intervivos trust; Justin Trust, a Colorado intervivos trust; Ashtin Trust, a Colorado intervivos trust; Dan E. Spicer, individually, and as settler for the above named estates and as co-member/manager of the Seymore Investments, LLC
07CA1546 Robert D. Gandy v. Arkansas Valley Correctional Facility; Lou Archuletta, Warden; Lt. John Doe, Unknown Hearing Committee Member; Lt. Martinez, Hearing Committee Member; Lt. T. Ritter, Hearing Committee Member; and John W. Suthers, the Attorney General of the State of Colorado
07CA1721 Randy Robertson v. Industrial Claim Appeals Office of the State of Colorado, Vincam Staff Administrators, and Western Guaranty Fund
07CA1794 In re the Marriage of Lisa D. Keyes and Terry M. Keyes
07CA2143 People v. Larry John Jaramillo
07CA2535 People In the Interest of W.D.R., a Child and Concerning L.A.R.

April 15, 2008

The supreme court's argument calendar for April-May is here.

The court of appeals' argument calendar for June is here.

The supreme court's announcements from yesterday are here. The court issued 3 decisions, summarized below. The court granted cert. in one case, No. 07SC690, People v. Tolbert, on these issues:

Whether the CCA erred failing to strike the phrase “plus 2 years parole” from the prison sentence imposed on a sex offender.

Whether, where the defendant presented a postconviction claim in a second postconviction motion in the trial court without having appealed the trial court’s previous denial of that claim, the court of appeals erred in concluding that the second presentation of that claim was successive, when the correct procedural bar would have been abuse of process.

Reviewing a trial court's order precluding an expert witness from testifying at trial for failure to provide a complete testimonial history, the supreme court concluded the first part of C.R.C.P. 37(c)(1) mandates that evidence not disclosed must be precluded at trial. In situations where preclusion is not appropriate, the trial court must look to the second provision of Rule 37(c)(1), which authorizes trial courts to determine an appropriate alternative sanction commensurate with the violation. The court held that preclusion of expert witnesses for failure to provide part of their testimonial history is a disproportionate sanction, and thus reversed the trial court's judgment. Justice Eid dissented, concluding that "expert witness preclusion is an available sanction under Rule 37(c)(1) for such willful or grossly negligent disclosure violations. In my view, under Rule 37(c)(1), if a party fails to disclose 'information' required by Rule 26(a)(2) (here, the testimonial histories of expert witnesses), the trial court can preclude the party from 'presenting any evidence not so disclosed' (here, the expert testimony)." Trattler v. Citron

The Department of Transportation sought review of the court of appeals' judgment affirming the denial of its motion to dismiss a groundwater contamination case. The district court had denied the Department's motion to dismiss Brown Group's claims for contribution, unjust enrichment, and declaratory relief, finding them to be equitable in nature and not governed by the Colorado Governmental Immunity Act. The court of appeals affirmed that denial. The supreme court held that because Brown Group's claims for contribution, unjust enrichment, and declaratory relief all assert claims of liability against the Department that either lie in tort or could lie in tort within the meaning of the Governmental Immunity Act, they are governed by it and must meet its prerequisites. Since Brown Group failed to comply with the notice requirement of the CGIA, the motion to dismiss should have been granted. Colorado Department of Transportation v. Brown Retail Group, Inc.

The town council of the Town of Marble held a public meeting January 8, 2004, in which it voted to reject a proposal for erecting a permanent monument at a local park owned by the Town. Respondents, the proponents of the proposal, brought suit, alleging that the posted notice of the meeting was not "full" notice, as required by Colorado's Open Meetings Law, because it did not expressly state that the council would be taking formal action on the proposal. After a bench trial, the trial court found for Petitioners, but the court of appeals reversed. The supreme court reversed the court of appeals and reinstated the trial court's judgment. The court held that the notice of the January 8th meeting was "full" because an ordinary member of the community would understand that the agenda item listed on the notice would include consideration of, and possible formal action on, the park proposal. In addition, the court held that because the notice contained the agenda information available at the time of posting, it satisfied the requirement that "specific agenda information" be included in the notice "where possible." Consequently, the notice complied with the Open Meetings Law. Justice Martinez dissented, concluding that the public did not receive "full" notice of the January 8th meeting: "at this meeting, the Council decided the highly contentious issue of the [] project, and yet none of the proponents of the project attended. In my view, the notice failed to fairly inform the public that the Council would take formal action on the [] project at this meeting." Town of Marble v. Darien

April 10, 2008

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

April 9, 2008

The court of appeals will release the following unpublished decisions tomorrow:

05CA0186 Richard D. Jordan v. Wayne Archuleta; et al.
05CA0891 People v. Wendel R. Wardell, Jr.
05CA1072 People v. Dariel Hough
05CA1756 People v. Toney L. Brown
05CA1877 People v. Christopher Eric Skodmin
05CA2423 People v. Kelly E. Murphy
06CA0214 People v. John Peter Pogline, Jr.
06CA0532 People v. Charles M. Krutsinger
06CA0617 People v. Thad Gerode Meracle
06CA0643 People v. Cecil Orlando Bynum
06CA1112 People v. Gabriel Chacon
06CA1146 People v. Richard C. Bueno
06CA1267 James Stolberg v. John Elway Ford Downtown
06CA1467 Lake Canal Reservoir Company; Lake Canal Company; Alden V. Hill; and Ann L. Deseran v. Chris Woodruff, County Assessor; John Lefebvre, County Treasurer; and Susie Velasquez, Trustee of Weld County and Douglas C. Beethe and Terese L. Beethe
06CA1813 People v. Cesar Gonzales-Huerta
06CA1814 People v. Alejandro Estrada-Huerta
06CA2037 Pamelia A. Nixon-Hartje v. Viacom, Inc., et al.
06CA2061 Allen Russell v. Guaranty Bank and Trust Co.
06CA2151 Celeste C. Grynberg v. Burnsed Oil Company, Inc.
06CA2366 Petrogen Corporation, a Nevada Corporation v. X-Clearing, a Colorado Corporation
06CA2405 John Beaudry, et al. v. Margaret Eichman, et al.
06CA2564 Zhanna Oderova and Golden Autumn Adult Day Care Services, Inc. v. Vitaliy Belyavskiy; Sunrise Adult Day Care Services, L.L.C.; P.O. Transportation, L.L.P., and Yuliya Zagrebelnaya
07CA0142 People v. Kenneth Shepard
07CA0159 People v. Robert J. Jones
07CA0706 People v. Hector G. Soto
07CA0938 People v. Rudy O. Cabrera
07CA1459 People In the Interest of Kristin Cannon
07CA1480 People v. Timothy C. Houser
07CA1526 People In the Interest of D.O.T., a Child Upon the Petition of the Denver Department of Human Services and Concerning L.D.W.
07CA1719 People In the Interest of J.C. and L.W., Children Upon the Petition of the El Paso County Department of Human Services and concerning A.W.
07CA1835 People In the Interest of A.G., a Child and Concerning H.C.
07CA2141 People In the Interest of D.I.N., a Child and Concerning Northern Cheyenne Tribe and C.L. and V.L.

April 7, 2008

The court of appeals has revised its oral argument calendar for May (by filling in some blanks that had been in the original calendar).

Here are today's supreme court announcements. The court issued 3 decisions, summarized below. The court also granted cert. in 3 cases. The issues in those appeals follow the summaries.

In an interlocutory appeal from a suppression order, the supreme court held that a self-imposed time limit for completing the forensic analysis of a seized item in an earlier warrant does not preclude the police from obtaining a later search warrant to seize and access the same item again. No constitutional or statutory provision prohibited the police from obtaining the later warrant to search defendant's computers and that warrant was supported by probable cause. People v. Strauss

In another interlocutory appeal from a suppression order, the supreme court reversed the order from Adams County District Court suppressing statements the defendant made while in police custody. The supreme court held that the trial court erred in suppressing statements the defendant made before receiving a Miranda warning, because those statements were not the product of interrogation. The supreme court also held that the trial court erred in suppressing statements the defendant made after receiving a Miranda warning and waiving his rights, because the evidence does not support the conclusion that the defendant’s Miranda waiver was coerced. Justice Martinez, joined by Chief Justice Mullarkey and Justice Bender, dissented in part and concurred only in the judgment in part. Justice Martinez would have held that the police subjected defendant to custodial interrogation without the benefit of Miranda warnings, and thus defendant's pre-Miranda statements should have been suppressed. But he agreed with the majority’s holding that defendant’s post-Miranda statements are admissible. He concurred in the judgment only, however, because he believed the issue was governed by Oregon v. Elstad, 470 U.S. 298 (1985), and Missouri v. Seibert, 542 U.S. 600 (2004), analysis which the majority opinion did not undertake. People v. Madrid

In an original proceeding brought by news media, the supreme court issued a rule to show cause to determine whether the trial court erred in redacting portions of a defendant’s grand jury indictment, namely extensive factual allegations, before making the indictment open for public inspection. The supreme court made the rule absolute, holding that because the indictment is a record of official action under the Colorado Criminal Justice Records Act, C.R.S. §§ 24-72-301 to -309, the indictment had to be released for public inspection in its entirety, subject only to the deletion of identifying information of any alleged sexual assault victims. In re People v. Thompson

The court granted cert. in these cases:

Carmichael v. People, No. 07SC478 on these issues:

Whether a defendant is denied his constitutional right to the effective assistance of counsel when counsel does not know that the potential penalty for the charged offenses is an indeterminate life sentence in prison and, based upon that misinformation, the defendant rejects a plea agreement for probation.

Whether a defendant’s conviction should be reversed when the defendant challenges a juror for cause, the district court denies the challenge based on a colloquy between the juror and the prosecutor, and that colloquy does not appear in the appellate record.

Whether the trial court erred when it refused to grant the defense’s challenge for cause to a juror who expressed doubt on her juror questionnaire as to whether she could be fair and impartial in the case.

Whether the lack of an accurate, complete record of appeal violates the defendant’s due process rights.

Whether the inordinate delay in preparing the record on appeal violated the defendant’s due process rights to a speedy appeal.

People v. Sherrod, No. 07SC812, on these questions:

Whether the court of appeals erred in finding that a chief judge’s appointment of a county court judge to be an acting district court judge nunc pro tunc constituted reversible error where the judge did not have the proper authority to oversee the case at the time of pretrial hearings, but subsequently acquired that authority by the time of trial.

Whether a defect in the trial court’s authority to hear pretrial rulings can be remedied by remand for a post-trial determination and re-entry of the pretrial rulings.

Farrar v. People, No. 07SC983, on this issue:

Whether a new trial is required when the trial court finds that an alleged sexual assault victim has “substantial credibility issues,” and that her post-conviction recantation is no more or less believable than her testimony at trial, in a case where the credibility of the alleged victim was the sole issue at trial.

April 4, 2008

The supreme court will issue the following three decisions on Monday: No. 07SA314, People v. Strauss, No. 07SA326 People v. Madrid, No. 07SA339 In re People v. Thompson.

April 3, 2008

The court of appeals' announcements for today are here. The court issued 10 published decisions, summarized below. Following the summaries is the list of unpublished decisions released today.

Colorado had no duty to set defendant’s probation revocation hearing until after termination of his incarceration, which occurred when he began his supervised parole in the federal case. Under the circumstances, therefore, the six-year delay in sentencing him for violating his probation did not contravene his constitutional right to a speedy trial. People v. Smith

When a defendant asserts a heat of passion defense, expert testimony may be admissible to describe characteristics of a heat of passion murder or attempted murder if the testimony will be helpful to the jury, as intended by CRE 702. But here the expert’s testimony would not have been helpful to the jury because the heat of passion mitigator of C.R.S. § 18-3-103(3)(b), does not apply when a person intentionally seeks out the highly provoking act in question, as defendant had done here. The undisputed evidence before the court indicated that defendant intentionally put himself in the provoking situation by going to his estranged wife’s house for the purpose of being there while she engaged in sexual relations with her boyfriend. Thus, the court did not err in determining that the statute’s provocation mitigator was inapplicable and, therefore, that the expert’s testimony would not be helpful to the jury. People v. Valdez

Documents from defendant's driving records were not testimonial for purposes of Crawford because the proofs of service reflected the administrative status of defendant’s driving privilege, and their primary functions were to notify him that he was not permitted to drive a motor vehicle in Colorado and to record that such notice was given. The documents were not created in response to an interrogation or a request from the prosecution regarding criminal conduct but were created before defendant engaged in the conduct for which he was charged. Although an objective person who prepared such a proof of service might reasonably believe it would be available in the event of a later traffic violation, the court concluded that this possibility did not make the document testimonial where the document served a routine administrative function and was created before the charged crime occurred. People v. Espinoza

In an appeal in a C.R.C.P 106 action challegning a denial of a rezoning, the court rejected the property owner's contentions that the city's reasons for denying the rezoning application were not not supported by competent evidence and that the stated reasons were simply pretexts to delay redevelopment of the property until the city could adopt transit-oriented development requirements in response to the likely placement of a light-rail station near the property. The court concluded that the city's decision had to be affirmed because the property owner's opening brief did not address all of the reasons the city denied the rezoning application, any one of which was sufficient to support the denial. Alternatively, the court concluded that the city's decision is supported by competent evidence. The court also declined the property owner's invitation to find that notwithstanding the existence of legitimate reasons for the denial, the city had an improper motive. IBC Denver II, LLC v. City of Wheat Ridge

In anorth C.R.C.P. 106 action, the court rejected an appeal of an order issued by the Greeley Liquor Licensing Authority, finding that a restaurant had violated C.R.S. § 12-47-901(1)(a), by serving a visibly intoxicated person or a known habitual drunkard. Since the term “known habitual drunkard” is not defined by the statute, the hearing officer applied its common meaning. On review, the district court referred to two dictionaries, and determined that the hearing officer’s definitionwas consistent with those definitions and that her findings were supported by the record. The court of appeals affirmed, rejecting the restaurant's argument that the phrase should be interpreted to mean a person who has been adjudicated or determined by a court of competent jurisdiction to be a habitual drunkard. The court also rejected the argument that C.R.S. §§ 12-47-901(1)(a), 13-21-103, and 42-2-104(2)(c), must be read in pari materia because they address the same subject matter. K & S Corporation v. Greeley Liquor Licensing Authority

The district court erroneously declined to award father any fees for his New York counsel, finding that it did “not have jurisdiction to award fees for work performed in a separate case in a foreign jurisdiction.” The court of appeals concluded that the trial court did have jurisdiction and should have considered whether to award such fees. In re Marriage of Ward

In another C.R.C.P. 106 action, the court of appeals rejected an appeal of a district court judgment upholding the decision of the Board of Adjustment for Zoning Appeals for the City and County of Denver, which had upheld the Denver Department of Zoning Administration’s refusal of plaintiff's request to take action against a small residential care facility. Plaintiff had requested the Department to prohibit a caregiver staff member and her adult daughter from residing in a small residential care facility located adjacent to his residence. The Department denied the request because, under its interpretation of the applicable provisions, Denver’s zoning code is silent regarding the challenged use, and the use is not inconsistent with the use of a residential care facility. Lieb v. Trimble

Trial court properly dismissed father's claims for breach of contract against mother. The dissolution court had exclusive jurisdiction. But the trial court erred in reversing father's tort claims for lack of jurisdiction. The court of appeals concluded that under C.R.S. § 14-10-129.5(4) (which provides in part that "Nothing in this section shall preclude a party’s right to a separate and independent legal action in tort"), the court had jurisdiction to consider those tort claims even though the claims arose from a dispute over parenting time. Judge Marquez specially concurred, concluding that the key sentence of § 14-10-129.5(4), "should not be construed so broadly as to recognize an independent action brought under the guise of an intentional tort but with the purpose of enforcing or modifying parenting time. Therefore, I would require that this distinction be made before allowing a claim to go forward." Marshall v. Marshall

In a 106 action brought by an inmate, the court of appeals affirmed the inmate's disciplinary conviction. The court rejected the inmate's argument that the hearing officer lacked jurisdiction because he was not a qualified administrative law judge under the APA. The court noted that DOC disciplinary proceedings are not conducted or reviewed under the APA. The court held the evidence was sufficient for his conviction and also upheld the imposition of restitution as an appropriate sanction. Burns v. Executive Director, Colorado Department of Corrections

The court of appeals reversed a district court order for involuntary medications to be administered to respondent. The court first concluded that the issue, though moot, was capable of repetition yet evading review. It therefore addressed the merits. The court agreed with respondent that the district court erred by allowing her to waive her right to counsel because she did not make a knowing and intelligent waiver. The court said that the record failed to sufficiently show that respondent entered a waiver of counsel knowingly and intelligently as required by C.R.S. § 27-10-107(5). The record also indicated that the trial court allowed respondent to waive counsel without filing a waiver in writing. The trial court thus deviated from the plain language of § 27-10-107(5) requiring a waiver of counsel to be made in writing and filed with the court by the respondent. Further, after considering the gravity of the deviation and the resulting prejudice, the court of appeals concluded that the deviation concerned a failure to comply with essential statutory provisions grave enough to undermine the confidence in the fairness and outcome of the treatment hearing. Thus, reversal was necessary. People In the Interest of Ofengand

Here is the list of today's unpublished decisions:

05CA0546 People v. Larry Vigil
05CA1555 People v. Ricky O. Phouthavong
05CA2003 People v. James St. Veltri
05CA2124 People v. Robert A. Esquibel
06CA0026 People v. Robert G. Valenzuela, Jr.
06CA1083 State Farm Fire and Casualty Company, an Illinois corporation authorized and doing business in the State of Colorado; and Vail Spa Condominium Association, a Colorado non-profit association v. AFSS, Inc., d/b/a Associated Fire Sprinkler System, Inc., a Colorado corporation; Schirmer Engineering, a Delaware corporation; and AAA Insulation, LLC, a Colorado limited liability corporation
06CA1672 Marilyn Wagner, individually, and as Personal Representative for the Estate of Clinton and Sophie Andersen, Deceased v. Fredrick L. Culp
06CA1781 People v. Patricia Ann Agbisit
06CA1970 In re the Marriage of Joseph S. Pasionek and Lorena L. Hayner and Concerning A.M. Demirali
06CA2515 Pamela White Hadas v. Thomas C. Miller and Judith Phillips
07CA0020 People v. Rudolph Barry Custis
07CA0063 In the Interest of J.M.T. and J.S.T., Children and Concerning Cindi Gean Tuzzeo and Michael J. Tuzzeo
07CA0136 Devin Kansgen, a disabled minor, by his mother and legal guardian, Debra Kansgen v. St. Vrain School District
07CA0162 NHA Behavioral Services, Inc., a Florida corporation v. Shadowfax Properties, Inc., a Delaware corporation
07CA0389 People v. Westley Ybarra
07CA0396 Prokop Trust v. Vail Summit Resorts, Inc., d/b/a Keystone Resort
07CA0922 Adam Pinon v. Industrial Claim Appeals Office of the State of Colorado; U-Haul, d/b/a Americo Ind.; and Insurance Company of the State of Pennsylvania
07CA1859 People v. Carl Frederick Yens
07CA1948 People v. Anthony James Torrez
07CA1997 Jose O. Gutierrez v. Industrial Claim Appeals Office of the State of Colorado and Masco Contractor Services Central, Inc.
07CA2183 Linwood L. Lawrence v. Industrial Claim Appeals Office of the State of Colorado and Auraria Student Housing at the Regency
07CA2378 Margaret E. Pascoe v. Industrial Claim Appeals Office of the State of Colorado, Joanne Hanson Realtor, Inc., Coldwell Banker Colorado Rockies, Inc.
08CA0005 Anthony R. Toms v. Industrial Claim Appeals Office of the State of Colorado and Division of Employment, Customer Service/Benefits