June 15, 2010

Sorry for the lack of updates. I am tied up in a month-long trial and have not had time to do updates. I'm not sure when I'll get caught up, but I'll try at some point in the next month.

June 3, 2010

The court of appeals' case announcements for today are here. The court issued the following unpublished decisions:

07CA2011 People v. Kenneth H. Tripp
07CA2162 People v. Demetrio Vasquez Chavez
08CA0673 People v. Amie Renee Lewis
08CA0834 People v. Douglas Alan Scott
08CA0998 People v. Minor Michael Still
08CA1357 Thomas M. Haskins, III v. Lucy V. Walker
08CA1376 People v. Mario Valenzuela
09CA0189 Nicholas Batik and Sandy Batik v. Charley P. Mansour and Robinson Brick Company, a Colorado corporation and The People of the State of Colorado
09CA0574 People v. Leon D. Smith
09CA0621 Overland Pass Pipeline Company, LLC v. The Herman Blach Land Company
09CA0770 John C. Pernicka; et. al and Aspen Holding, Inc. v. Airpark Village, LLC
09CA1162 Hope C. Byrne v. Kathleen R. Barkle
09CA1257 Estrellita Marez and Cynthia Montez v. Grand Auto, Inc.
09CA1288 Samuel Elgin v. Richard F. Duvall
09CA1326 Michael Greeno v. Michelle Tressler
09CA1381 In re the Marriage of James D. Thompson and Linda G. Thompson
09CA1429 Afshin Pahlavan v. Executive Director of CDOC and Warden, Fremont Correctional Facility
09CA1624 People v. Charles Glenn Carver
09CA1716 People v. Vance Martin
09CA1825 People v. Charles Henry
09CA2048 Rescare, Inc., and Ace American Insurance Company v. Industrial Claim Appeals Office of the State of Colorado and Diane Miller
09CA2260 Tagawa Greenhouses, Inc. and Board of Assessment Appeals v. Weld County Board of Commissioners
09CA2788 Karim Sawadogo v. Industrial Claim Appeals Office of the State of Colorado and Amerigas Propane Incorporated
10CA0265 Rico B. Caldera v. Industrial Claim Appeals Office of the State of Colorado and Superior Plaster & Drywall, Inc.
10CA0339 Kristal R. Hager v. Industrial Claim Appeals Office of the State of Colorado and BSMC, LLC
10CA0358 A-Reliable Plumbing Inc. v. Industrial Claim Appeals Office of the State of Colorado and Ruthina Gibbons
10CA0453 Tricia L. Jiron v. Industrial Claim Appeals Office of the State of Colorado and Toyota of Colorado Springs, Inc.
10CA0456 Linda E. Haithcox v. Industrial Claim Appeals Office of the State of Colorado and Denver Health & Hospital Authority

June 2, 2010

The supreme court's announcements for yesterday are here. The court issued 2 decisions, summarized below. The court granted cert. in 2 cases, and the issues in those appeals follow the summaries. After that are the court of appeals' announcements and summaries from last week.

Husband and wife separated after twenty-seven years of marriage. In a temporary orders hearing, the magistrate awarded Wife temporary maintenance, taking into consideration the significant
increase in the parties’ standard of living in the final years of the marriage due to Husband’s formation of an oil and gas company. The trial court adopted the temporary maintenance award as part of its permanent orders and, after hearing expert testimony on the appropriateness of a marketability discount, found enforceable a separation agreement between the parties that valued Husband’s ownership interest in the oil and gas company subject to a thirty-three percent marketability discount. The court of appeals reversed the trial court’s award of temporary maintenance on the ground that the magistrate’s findings were unclear and conflicting and because the magistrate improperly considered the parties’ standard of living in the threshold test for determining maintenance entitlement under C.R.S. § 14-10-114(3). The court of appeals found the the separation agreement unconscionable, and rejected an argument by Wife that marketability discounts are never appropriate when valuing a closely held corporation in marriage dissolution proceedings. The supreme court affirmed the court of appeals’ determination with respect to marketability discounts, holding that trial courts may in their discretion apply marketability discounts when valuing an ownership interest in a closely held corporation in marriage dissolution proceedings. The supreme court concluded, however, that the court of appeals erred in reversing the maintenance award. The supreme court held that the threshold inquiry under § 14-10-114(3) contemplates that a trial court will consider the particular circumstances surrounding the marriage, including the parties’ standard of living. In re Marriage of Thornhill

In two consolidate workers' compensation cases, the supreme court held that a workers’ compensation claimant is entitled to the maximum rate of benefits in effect at the “time of injury.” In Avalanche Industries, Inc. v. Clark, 198 P.3d 589, 597-98 (Colo. 2008), the court had held that “time of injury” could mean either the time of accident or the time of disablement. In each of the consolidated cases, the court of appeals relied on section III.C. of Avalanche Industries to hold that the claimant was entitled to have his benefits calculated based on the maximum rate in effect at the claimant’s time of disablement. The supreme court held that section III.C. of Avalanche Industries was unnecessary to decide that case and overrules the holding that the claimant’s “time of injury” could mean either time of accident or time of disablement. Because the court of appeals’ opinions relied on section III.C. of Avalanche Industries in these cases, the supreme court reversed those decisions. Justice Coats, joined by Justice Eid, specially concurred, noting, "I concur in the court’s decision to overrule section III.C of its holding in Avalanche Industries, and I write separately only to emphasize that the remainder of the court’s rationale in that case is not at issue here. I therefore do not understand the majority’s opinion as in any way reaffirming it." Benchmark/Elite, Inc. v. Simpson and Colorado Springs v. Bennett

No. 09SC1022, Vagneur v. City of Aspen
Summary of Issue:
Whether the court of appeals erred in holding that the petitioners’ proposed initiatives are administrative and thus outside the scope of the initiative power under article V, sections 1 and 9 of the Colorado Constitution

No. 10SC39, Apodaca v. Allstate Insurance Company
Summary of Issue:
Whether the court of appeals erred in deciding, on a question of first impression, that the provisions of the Colorado Uninsured Motorist Act do not apply to supplemental liability policies that provide automobile liability insurance.

The court of appeals' case announcements from last Thursday are here. The court issued 11 published decisions, summarized below. The list of unpublished decisions follows the summaries.

Acting on its own motion, the court of appeals concluded that two counts of theft merged into one because the separate convictions were for the same offense and thus multiplicitous in violation of double jeopardy. The court explained that it was appropriate for it to consider the issue on its own motion under the circumstances of the case. People v. Vigil

The court of appeals rejected Defendant's contention that he was denied his constitutional right to counsel when the trial court entered a plea of not guilty for him while he was unrepresented. He argued that counsel was required at arraignment, because the entry of a plea of not guilty may constitute a waiver of rights if they are not asserted before, at, or shortly after arraignment. The court of appeals noted that without asking defendant whether he understood and waived his right to counsel, the trial court entered pleas of not guilty to all charges. The trial court did not attempt to obtain a waiver, and defendant did not, expressly or impliedly, waive his right to counsel. The court of appeals concluded that defendant was without counsel at his arraignment and at several subsequent hearings where substantive matters were not addressed, but he was represented by counsel at the motions hearings and throughout trial. The court held that this did not amount to a "total deprivation" of counsel and, therefore, was not structural error. Instead, it was error to be analyzed under the constitutional harmless error standard, under which it was found to be harmless beyond a reasonable doubt. People v. Moore

The court of appeals concluded that by testifying that he told the detective "everything," defendant opened the door to what he told the detective and when. Cross-examination regarding defendant's silence, when considered in light of the direct examination, pointed out that his pre-Miranda phone interview with the detective was inconsistent with his statement that he told her "everything." The court noted that the prosecution could not effectively confront defendant's statement without exploring (1) what he told the detective during the phone interviews and (2) whether defendant had an opportunity to speak with law enforcement officials later, but did not tell the whole story. Thus, under the circumstances, the prosecutor did not unfairly remark about defendant's Fifth Amendment right to silence. People v. Davis

The court of appeals reversed a district court's conclusion that restitution could not be awarded in a criminal case for an amount which does not represent an actual pecuniary loss to the victim. The court of appeals agreed with the People that the victim suffered a “loss” recognizable under the restitution statute, and that rental value is an appropriate way to measure that loss. Therefore, the district court erroneously concluded that the restitution order was illegal or not authorized by law. People v. Suttmiller

Court of appeals lacked jurisdiction to address trial court's decision quashing an arrest warrant. The court noted that an order enforcing a subpoena pursuant to a special statutory proceeding constitutes a final judgment because it disposes of the proceedings. In contrast, an order to quash does not dispose of the proceedings and therefore does not constitute a final judgment. Instead, such orders are interlocutory and not appealable final judgments. State of Colorado, ex rel. Suthers v. CB Services Corporation

The court of appeals upheld the district court's order designating defendant a sexually violaent predator (SVP). Defendant contended that the Sex Offender Risk Scale (SORS) does not meet the statutory requirement for a “risk assessment screening instrument” under C.R.S. § 18-3-414.5(1)(a)(IV). Specifically, he contended that the SORS does not determine whether a defendant is likely to reoffend by committing any of the specifically enumerated offenses under the specified circumstances, but only determines whether the defendant is likely to succeed in treatment and supervision. The court of appeals disagreed, concluding that the Sex Offender Management Board satisfied the objectives and criteria set forth in C.R.S. § 16-11.7-103(4)(c.5) for developing the assessment screening instrument. Thus, the court rejected the contention that the SORS fails to assess the likelihood to reoffend as required by section 18-3-414.5(1)(a)(IV). People v. Brosh

As a matter of first impression in Colorado, the court of appeals concluded that an issue actually determined in a prior proceeding is not final for purposes of issue preclusion until certiorari has been resolved both in the Colorado Supreme Court and the United States Supreme Court. It therefore reversed the summary judgment entered against plaintiff on his constructive fraud and civil conspiracy claims and remanded those claims for further proceedings. Barnett v. Elite Properties of America, Inc.

The sole basis for the restriction of father’s parenting time was his admitted use of medical marijuana, but the record did not show that father’s use of medical marijuana represented a threat to the physical and emotional health and safety of the child, or otherwise suggested any risk of harm. Therefore, father’s use of medical marijuana could not support the trial court’s restriction on his parenting time. In so holding, however, the court of appeals was careful to note, "In reaching this conclusion, we do not express an opinion as to whether medical marijuana use may constitute endangerment; rather, we conclude only that endangerment was not shown here. We also express no view on father’s constitutional right to use medical marijuana and whether the exercise of this right should bar UAs and drug screening. See Colo. Const. art. XVIII, § 14. Further, nothing in this opinion precludes father from arguing that his constitutional right to use medical marijuana should bar urinalysis testing, nor does this opinion preclude mother’s ability to request a hearing on her motion to restrict father’s parenting time." Judge Furman specially concurred, concluding that he disagreed "with the majority’s conclusion that 'nothing in this opinion precludes father from arguing that his constitutional right to use medical marijuana should bar urinalysis testing.'” Judge Furman noted, "I would limit our analysis to the arguments before us and, irrespective of whatever constitutional right father may have, any modification to the existing parenting plan must be based on the best interests of the child." In re Marriage of Parr

Plaintiff appealed a district court’s order, adopting the report of a special master, concluding no quorum was present at a court-ordered annual meeting of defendant company, an administratively dissolved Colorado corporation, and therefore that no board of directors was elected. Plaintiff also appealed the district court’s denial of its motion to reconvene the annual meeting. The court of appeals reversed and remanded, concluding that the absence of a vote alone could not support a reasonable doubt as to the validity of the signature on the proxy appointment, and therefore the district court erred in adopting the special master’s rejection of a shareholder's proxy appointments. The district court also erred in its adoption of the special master’s date requirement for proxy appointment forms and its adoption of her rejection of such forms on that basis. The court of appeals concluded, therefore, that a sufficient number of shares were represented to establish a quorum and validly elect the board of directors. P.F.P. Family Holdings, L.P. v. Stan Lee Media, Inc.

Assignment of rights to monetary distributions from an LLC was void because (1) under the operating agreement, the provisions of the operating agreement governed the assignment; (2) the assignment was not approved as required by the operating agreements; and (3) the attempted transfer of the assignor’s interest in the LLC was ineffective “for any purpose whatsoever” because the provisions of the operating agreement were not satisfied. Condo v. Conners

Petitioner sought review of a final order of the Industrial Claim Appeals Office (Panel). In that order, the Panel reversed a hearing officer’s decision holding that the Division of Employment and Training (Division) lacked authority to treat five related entities as a “single employing unit,” combine their unemployment tax accounts into a single account, and retroactively collect allegedly delinquent taxes for the years 2002 through 2007. The court of appeals concluded that the hearing officer correctly determined the Division lacked authority to treat the separate entities as a single employing unit or a single employer, and therefore set aside the Panel’s decision and remand with instructions to reinstate the decision of the hearing officer. Accord Human Resources, Inc. v. Industrial Claim Appeals Office

The court issued the following unpublished decisions:

06CA1674 People v. Robert Ulrich Shockley
06CA2090 People v. Demetrio Vasquez Chavez
07CA1172 People v. Juan Carlos Perez-Hernandez
07CA1229 People v. Dennis P. Valenzuela
07CA1506 People v. Rondale Lockley
07CA1807 People v. Kevin Michael Jakub
07CA2370 People v. James Armijo
08CA0229 People v. Veryl Bruce Scaife
08CA0636 People v. Seth Daniel Lee
08CA0916 People v. Christopher Kennedy
08CA1346 People v. Bryan John Shuford
08CA1658 People v. James A. Navarro
08CA1908 People v. Arthur Gonzales
08CA2190 People v. David P. Stevens
08CA2269 People v. Erick John Stephens
08CA2646 Advanced Pest Management of Colorado, Inc., d/b/a Colorado Mosquito Control, Inc., a Colorado corporation v. Jefferson County Department of Health and Environment
09CA0260 People v. Nicky L. Smith-Bey
09CA0379 People v. Rayfeal R. Nunn
09CA0526 In re the Marriage of Sandra L. Mileto and Anthony L. Mileto
09CA0716 People v. Clinton Martin Drake
09CA0766 In re the Marriage of Laura J. Goff and Richard James Goff
09CA0768 Steven Pham, as personal representative of the estate of Louis Diep Pham, deceased; Kinh B. Pham, natural parent of Louis Diep Pham, deceased; La T. Bui, natural parent of Louis Diep Pham, deceased; Vu Duy Nguyen; Kieu Trang Thi-Do; Khanh Ba Pham; Bang Le; and Minh Ngoc Ha v. State Farm Automobile Insurance Company
09CA0774 Thomas R. Allison v. Omnilink Systems, Inc.
09CA0804 In re the Marriage of Kimberly A. Springer and Ronald Vincent Springer
09CA0865 In re the Marriage of Teresa A. Hansen and Robert D. Hansen
09CA0874 People v. Alan Baxter
09CA0911 The Town of Springfield, a Colorado municipality v. Jerry Chandler
09CA0932 People v. Ellery R. Emert
09CA0982 People v. Cynthia Renee Pinkey
09CA1113 In re the Marriage of James Bonar and Aloma Bonar
09CA1194 In re the Marriage of Cheryl C. Carson and Kenneth L. Carson
09CA1236 Samuel J. Barnett v. Elite Properties of America, Inc., d/b/a Classic Homes
09CA1296 People v. Michael Eugene Bohlen
09CA1570 In re the Marriage of Scott Nelson Williams and Kelly Guzman, f/k/a Kelly Williams
09CA1599 People In the Interest of K.T., a Child and Concerning A.T.
09CA1603 People In the Interest of A.R.S., and R.R.S., Children and Concerning R.S., and J.S.
09CA1604 People v. Doris Ann Danko-Fix
09CA1720 Eric Marshall v. Kevin Estep, Warden CMRC
09CA1861 Pamela Mucklow v. James Wilson
09CA1940 In re the Marriage of Autumn Dyer and Chris Davidson
09CA2469 In re the Marriage of Victor L. Erazo and Kelli S. Erazo, n/k/a Kelli Schaefer
09CA2643 People In the Interest of I.G., Child and Concerning L.O.
09CA2645 People In the Interest of J.R., a Child and Concerning S.B.
09CA2733 Law Office of Cameron Curry, P.C. v. Industrial Claim Appeals Office of the State of Colorado and Sharon L. McLay
10CA0081 Laura L. Logan v. Industrial Claim Appeals Office of the State of Colorado and Collection Service Solutions, LLC
10CA0223 People In the Interest of J.W., Child and Concerning M.W.

May 24, 2010

Sorry for my silence, but life has gotten in the way of blogging. I'll try to remedy the situation quickly. The supreme court updates are first, followed by the court of appeals'.

Here are today's supreme court announcements. The court issued one decision, summarized below. The court also granted cert. in two cases, and the issues in those cases follow the summary.

The water court dismissed the State and Division Engineers’ and the Colorado Water Conservation Board’s petitions seeking to invoke the retained jurisdiction provisions of two augmentation plan decrees held by the Upper Eagle Regional Water Authority. The Colorado Supreme Court reviewed the water court’s judgments of dismissal and accompanying questions involving the water court’s construction and implementation of the augmentation plan retained jurisdiction provision, C.R.S. § 37-92-304(6), of the Water Right Determination and Administration Act of 1969. The supreme court reversed, holding that the water court erred in dismissing the Engineers’ and the CWCB’s petitions. The petitions alleged sufficient facts that met the petitioners’ burden of going forward to show that injury has occurred or is likely to occur, based on operational experience involving the actual mix of out-of-priority diversions and consumptive depletions covered by the augmentation plans. The water court should have conducted additional proceedings in both of these cases under section 37-92-304(6). The supreme court held that the plain language of section 37-92-304(6) directs the water court’s use of retained jurisdiction “as is necessary or desirable to preclude or remedy any such injury,” and the water court should extend the period of retained jurisdiction for such time as “the nonoccurrence of injury shall not have been conclusively established.” In the Matter of the Application for Water Rights of the Upper Eagle Regional Water Authority

The court granted cert. in these two cases:

No. 09SC846, Villarreal v. People
Summary of Issue:
Whether the court of appeals erred when it held that a finding of no plain error in Petitioner’s earlier appeal regarding defective or missing jury instructions, necessarily required a finding of no ineffective assistance of counsel regarding a failure to object to or request the same jury instructions in Petitioner’s later Crim. P. 35(c) motion, thus affirming the trial court’s order denying the Crim. P. 35(c) motion.

No. 09SC1043, Tillery v. People
Summary of Issue:
Whether the court of appeals erred by holding that section 18-3-405(2)(d), C.R.S., authorizes conviction and sentencing of more than one pattern of sexual abuse charge against a single victim.

Here are the supreme court's announcements from May 17. The court issued one decision and granted cert. in one case.

The Colorado Supreme Court affirmed the judgment of the court of appeals, holding that the court of appeals is barred from hearing a defendant’s collateral attacks on his or her original sentence following the expiration of the three-year statute of limitations established by C.R.S. § 16-5-402(1).
The supreme court also held that, at a probation revocation hearing, a prosecutor may use hearsay evidence to prove that a defendant violated the terms of his or her probation by a non-criminal act provided that: the defendant has an opportunity to present witnesses and testify in his or her own behalf, the prosecution witnesses who introduce the hearsay evidence are subject to cross-examination, and the prosecutor reveals the identity of the declarants to the defendant prior to the hearing so that he or she may reasonably test the accuracy of the hearsay evidence. Where one or more probation violations are set aside on appeal due to the prosecutor’s improper use of
hearsay evidence and another violation remains, the appellate court will remand to the trial court for further review unless the record clearly shows that the trial court would have reached the same result even without consideration of the improper evidence. Justice Coats concurred in part and dissented in part, noting that the majority articulated "a rule permitting the unbridled use of hearsay evidence in revocation proceedings, at least where the proof of an additional crime is not involved and the hearsay declarants’ names have not been withheld by the prosecution, that I consider to be irreconcilable with the applicable jurisprudence of the United States Supreme Court. Because I believe that the Due Process Clause guarantees a probationer the right of confrontation in the absence of a finding of good cause to deprive him of that right and because I believe the statutory guarantee of a fair opportunity to rebut hearsay in this jurisdiction is limited by its own terms to the admission of evidence violating a constitutional exclusionary rule, I concur only in the majority’s decision to order a new revocation hearing but not in its directions for the conduct of that hearing." Justice Eid also concurred in part and dissented in part. Justice Eid did not believe defendant's due process rights were violated at his probation revocation hearing. People v. Loveall

The court granted cert in No. 10SC94, Denver Post Corp. v. Ritter,
Summary of Issue:
Whether the court of appeals properly held that the personal cell phone billing statements of Governor Bill Ritter do not constitute public records subject to disclosure under the Colorado Open Records Act.

The court of appeals' announcements from last Thursday (May 20) are here. The court issued the following unpublished decisions:

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
07CA1831 Travis Downs v. State Farm Mutual Automobile Insurance Company, an Illinois corporation
08CA0087 People v. Kevin David Guidry
08CA0154 People v. Jason Patrick Baca
08CA0831 People v. Sean Christopher Russell
08CA0879 People v. Zachary Mondragon
08CA1492 People v. Demetrius Thomas
08CA1493 People v. Tammie Reed
08CA1620 People v. Venus Cameron
08CA1826 People v. Elbert Hughley
08CA1897 Mindy Riebe v. Mountain States Mutual Casualty Company
08CA1935 People v. Patrick Shawn McGinley
08CA2082 People v. Victor Porras-Gonzales
09CA0074 People v. Jose Chacon-Posada
09CA0205 In re the Marriage of Abhay Nilkanth Shastri and Leena Abhay Shastri
09CA0221 SMT Investors Limited Partnership, et al. v. Town of Frederick, Colorado, et al.
09CA0250 People v. Bobby Lloyd Mestas
09CA0352 People v. René Moroe
09CA0639 People v. Tommy Lee Robinson
09CA0699 People v. Louis Junior Warren
09CA0898 Wayne A. Bethurum v. Colorado Attorney General, SOMB Board, and Ari Zavaras, Executive Director CDOC
09CA1036 Gerald Vigil v. Department of Corrections and State Personnel Board
09CA1072 David Leigh v. Esther Hannon
09CA1117 In re the Marriage of Ferydoon Asgari and Ameneh Moghaddam
09CA1132 In re the Marriage of Douglas Speights and Janette Speights
09CA1214 Andre Demetrius Jones v. People of the State of Colorado
09CA1225 John Geisler v. Colorado Department of Revenue, Motor Vehicle Division
09CA1470 Southwest Real Estate Services, Inc. v. Sandra E. Brasier
09CA1553 People v. Robert Duran
09CA1621 In re the Marriage of Kimberly Tousignaut, n/k/a Kimberly M. Lund and Scott D. Tousignaut
09CA1769 People v. Oscar G. Rivera
09CA1792 Andres Aguilar v. Industrial Claim Appeals Office of the State of Colorado, Colorado Flatwork, Inc., and Pinnacol Assurance
09CA1886 People In the Interest of A.E., a Child and Concerning J.V.-C.
09CA1930 Zippers, LLC, d/b/a Zippers Bar and Grill v. Pueblo Liquor & Beer Licensing Board
09CA2348 People v. Ronald Fogle
09CA2606 People In the Interest of M.K.G., Child and Concerning J.B.G. 09CA2703 Yunika D. Taylor v. Industrial Claim Appeals Office of the State of Colorado and Denver Public Schools
10CA0015 People In the Interest of C.M., a Child and Concerning J.M.
10CA0058 People In the Interest of R.M.T.F., J.D.T.F., and A.C.T.F., Children and Concerning P.L.T.
10CA0263 People In the Interest of M.S.B. and K.B., Children and Concerning M.H.B.

The court of appeals' announcements from May 13 are here. The court issued 10 published decisions, summarized below.

Granting a petition for rehearing, the court of appeals held that because there was no finding that the elected district attorney authorized the wiretap application, it was necessary to remand for further proceedings to determine whether the elected district attorney authorized the wiretap application. In so holding, the court of appeals noted that "the authorization of the designated official provides a sufficient constitutional safeguard against unlawful government intrusion into the privacy of its citizens via interceptions of oral or electronic communications." People v. O’Hara

No statute or case law authorizes a district court to include, as part of a direct sentence to community corrections or DOC, a restitution order from an unrelated juvenile case. On the contrary, the criminal restitution statutes authorize a district court to order restitution payments only to the victims of the offender’s criminal conduct, not, as relevant here, to the victims of the offender’s juvenile conduct in an unrelated juvenile case. Therefore, in the instant case, the district court had no authority to include the juvenile court’s restitution order, either in its community corrections sentence or in its DOC sentence. The court of appeals also concluded that the juvenile court lacked authority to transfer such obligation to defendant’s adult case. People v. Brooks

Defendant's conviction for first degree murder was not barred by C.R.S. § 18-1-303. Defendant had been convicted for violating RICO based on seven acts of racketeering, including the murder at issue in the state case. The court of appeals concluded that defendant’s conduct did not constitute an offense within the concurrent jurisdiction of this state and the United States. The murder of the victim here was prosecutable as an “offense” under Colorado law, but not under federal law. People v. Gladney

Defendant appealed the order denying his “Petition by Special Appearance by Plaintiff Pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983.” Defendant pled guilty to first degree kidnapping and conspiracy to distribute a schedule II controlled substance. He argued on appeal that (1) he was born Donald James Drew, and the person charged in this matter was DONALD JAMES DREW; (2) the capitalization of the name created a “Strawman/Stramineous Homo/Ens Legis/Artificial Person” (artificial person); (3) the artificial person was convicted; (4) he has been incarcerated as surety chattel or security for the artificial person; and (5) he has been denied due process. The court of appeals concluded, "Claims so premised are patently frivolous and without merit." People v. Drew

Workers' comp. claimant sought review of the final order of the Industrial Claim Appeals Office, affirming the order of the administrative law judge (ALJ) who affirmed the Director’s medical utilization review (MUR) order directing a change of treating physician and found that no physicians appointed to claimant’s MUR committee had any disqualifying conflicts of interest. The court of appeals concluded that the review process did not violate claimant’s rights to due process and that no disqualifying conflict existed. The court of appeals rejected claimant's arguments that his due process rights were violated because he was denied an opportunity both to conduct discovery and to present evidence to the MUR committee at a hearing before the recommendation to change his physician was entered, and that the MUR committee members’ associations with insurer and SelectNet created inherent conflicts of interest which should have precluded their participation in the process, but that because he was not permitted to conduct discovery into the committee members’ affiliations, the extent of their alleged conflicts of interest could not be determined. Franz v. Industrial Claim Appeals Office In a related case, the court of appeals affirmed the determination that the claimant was not entitled to attorneys fees. He had sought fees based on his assertion that employer and its insurer had improperly requested a hearing on an issue that was not yet ripe, thus entitling him to an award of attorney fees under C.R.S. § 8-43-211(2)(d).
The court of appeals concluded that the Panel’s decision that the issue was ripe for hearing was supported by the record, and therefore claimant was not entitled to attorney fees. Franz v. Industrial Claim Appeals Office

Complainant appealed an administrative law judge’s order determining that respondent, Protect Colorado Jobs, Inc. (PCJ), was not an “issue committee” within the meaning of Colorado Constitution article XXVIII, subsection 2(10)(a) with respect to a right-to-work initiative, Amendment 47, that was put to Colorado voters in the November 2008 election, because PCJ did not have “a major purpose” of supporting that initiative. Based on that determination, the ALJ concluded that PCJ had not violated C.R.S. § 1-45-108(1)(a)(I) and (3) of the Fair Campaign Practices Act by failing to register and file reports of its contributions and expenditures relating to Amendment 47 with the Secretary of State. The court of appeals reversed concluding that the facts in the record demonstrate that PCJ had a major purpose of supporting the initiative. Cerbo v. Protect Colorado Jobs, Inc.

The district court held a lengthy evidentiary hearing on defendant’s Crim. P. 32(d) motion and made extensive factual findings in rejecting the ineffective assistance of counsel arguments defendant raised in his Crim. P. 35(c) and at the hearing. Thus, unlike the usual case, here the district court had an opportunity to and did consider defendant’s ineffective assistance of counsel claims before he filed his direct appeal. The court of appeals concluded that by raising the same ineffective assistance of counsel claims in his postconviction motion that he raised in the Crim. P. 32(d) proceeding, defendant was attempting to relitigate claims the district court had already resolved against him. Defendant could have challenged the district court’s factual findings and its conclusion that counsel was not ineffective on direct appeal, but chose not to do so. Accordingly, under the circumstances, the court of appeals concluded that the ineffective assistance of counsel claims defendant raised in his postconviction motion were successive. People v. Vondra

When a trial court properly rejects a C.R.C.P. 56(f) affidavit, may the court simultaneously enter summary judgment, or must it first afford the nonmovant an opportunity to address the merits of the motion? The court of appeals concluded that although a trial court may collapse its denial of C.R.C.P. 56(f) relief into entry of summary judgment, such action is reviewable for an abuse of discretion. On the facts, the court concluded that the trial court did not abuse its discretion in denying Rule 56(f) relief and granting summary judgment. Bailey v. Airgas-Intermountain, Inc.

In an action about safety concerns over firearm hunting in rural Boulder County near plaintiffs' homes, the court of appeals affirmed the dismissal of this action due to plaintiffs’ failure to exhaust administrative remedies before the Division of Wildlife and the Wildlife Commission. Judge Connelly specially concurred, noting "The majority agrees exhaustion is 'the sole issue before us.'But, while professing to express no opinion on the merits of plaintiffs’ claims, it proceeds to conduct plenary review of the substantive statute on which those claims are based. I would not conflate exhaustion and the merits." Moss v. Members of the Colorado Wildlife Commission

May 12, 2010

The court of appeals will release the following decisions tomorrow:

Published Opinions

07CA2311 People v. Thomas Lynn O’Hara III
08CA0334 People v. Keith Clayton Brooks, Jr.
08CA0396 People v. William Lawrence Gladney
08CA2664 People v. Donald James Drew
09CA0298 Vincent S. Franz v. Industrial Claim Appeals Office of the State of Colorado, Brookharts, Inc., and Pinnacol Assurance
09CA0587 Michael Cerbo and Colorado Secretary of State v. Protect Colorado Jobs, Inc. and Office of Administrative Courts
09CA1007 People v. Michael Joseph Vondra
09CA1125 James Bailey, et al. v. Airgas-Intermountain, Inc.; et al.
09CA1262 Anita Moss and Robert Westby v. Members of the Colorado Wildlife Commission, et al.
09CA1433 Vincent S. Franz v. Industrial Claim Appeals Office of the State of Colorado, Brookharts, Inc., and Pinnacol Assurance

Unpublished Opinions

05CA1623People v. Genero Javon Zuniga
06CA1021 People v. Nathan Thill
06CA2314 People v. David Aaron Klimek
07CA0902 People v. Abraham Hagos
08CA1151 & 08CA2474 Green River Media and Communications, LLC, et al. v. Northland Cable Properties, Inc., et al.
08CA1262 Milana Casablanca, a minor, through her mother and next friend, Desiree Casablanca-Bentz, and Desiree Casablanca-Bentz, individually v. Robert W. Caulfield and Mary S. Port
08CA1281 People v. Juan Ramon Ramirez
08CA2125 People v. Lacey Haines
08CA2475 People v. Edward Arnold
08CA2537 People v. Christopher Haines
08CA2549 People v. Gregory D. Thomas
08CA2716 People v. Michelle Vega
09CA0154 Andrew A. Hammond, d/b/a Select Electric, a Colorado registered tradename v. Reality Technology, Inc., a Colorado corporation; and Ivan Drinks, Sr.
09CA0453 People v. William Odom
09CA0488 People v. Cecil Bynum
09CA0625 Burg Simpson Eldredge Hersh & Jardine, P.C., a Colorado professional corporation v. City of Central, a home rule city and municipal corporation of Colorado
09CA0835 Floranzo F. Gomez v. Marya Lynn Mondragon, a/k/a Marya Gomez
09CA1152 Fire Insurance Exchange v. Pedro Soto
09CA1187 Crystal River Oil & Gas, LLC and KC Resources, Inc. v. Eagle Well Service, Inc. d/b/a Bronco Energy Services
09CA1238 United Mechanical Systems, Inc., a Colorado corporation v. Arthur Ranes and Design Track, LLC, a Colorado limited liability company
09CA1338 Richard Palmer v. Chuck Diaz, Diane Herwitz, and Sandra Burrill
09CA2172 People In the Interest of P.M.M. and A.M., Children and Concerning J.A.M. and J.C.
09CA2672 People In the Interest of J.R.A., A.A., R.A.A., G.M.E.A., A.N.A., and A.A.L., Children and Concerning G.M.A.
09CA2732 Carolyn S. Weatherly v. Industrial Claim Appeals Office of the State of Colorado and the University of Colorado
10CA0135 People In the Interest of Angela Pampena

May 11, 2010

Here are the summaries of yesterday's supreme court decisions:

The supreme court affirmed the court of appeals’ denial of defendant’s motion to suppress heroin found in his vehicle when he was arrested. The trial court had denied the motion to suppress determining that the evidence was discovered pursuant to a valid search incident to arrest. After the court of appeals affirmed, the United States Supreme Court decided Arizona v. Gant, -- U.S. --, 129 S. Ct. 1710 (2009), which reformulated the application of the search-incident-to-arrest exception involving motor vehicles. The supreme court did not decide whether the search-incident-to-arrest exception continues to apply in this case post-Gant. Instead, the court affirmed on alternate grounds, holding that the heroin was admissible because it was discovered pursuant to a valid inventory search of the vehicle. Pineda v. People

In an interlocutory appeal of a suppression order, the supreme court affirmed. After being followed from an import store that was the object of police surveillance and being stopped for a traffic infraction, the defendant conceded buying a “pot pipe” at the store, took the as yet unwrapped pipe from his pocket, and turned it over to the police. The district court found that these circumstances did not provide the officers with probable cause to search the defendant’s vehicle or justify a search of the vehicle incident to the defendant’s arrest. The supreme court held that, under the circumstances of this case, as determined by the district court, the arresting officers lacked probable cause to support a warrantless search of the defendant’s vehicle or justification for a search incident to his arrest, as that doctrine was subsequently clarified in Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710 (2009). The supreme court also held that the officers’ search in this case did not fall within any recognized good-faith exception to the Fourth Amendment exclusionary rule. Justice Eid dissented, noting, "The majority applies the exclusionary rule in this case even though the officers who conducted the search of defendant’s vehicle incident to his arrest did so in good-faith reliance upon precedent of this court (and of virtually every federal appeals court) expressly permitting such a search -- precedent recently overruled by the U.S. Supreme Court in Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710 (2009). In other words, by applying the exclusionary rule in this case, the majority punishes the officers for our mistake, not theirs. In such a situation, where exclusion of the evidence seized would in no way 'deter wrongful police conduct,' application of the exclusionary rule is inappropriate. Herring v. United States, ___ U.S. ___, ___, 129 S. Ct. 695, 698 (2009). Accordingly, I would hold that this case is governed by the good-faith exception to the exclusionary rule." People v. McCarty

In another interlocutory appeal of an order suppressing drugs and drug paraphernalia seized from the defendant’s vehicle during a search incident to her arrest, the supreme court affirmed. Although the district court had initially denied the motion, it entertained a motion for reconsideration and reversed its earlier ruling following the release of Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710 (2009). Because it was undisputed that the defendant had already been arrested, handcuffed, and placed in a patrol car at the time of the search and because it would not have been reasonable for the officers to believe that the defendant’s vehicle might contain evidence relevant to false reporting, the crime for which she was arrested, the supreme court affirmed the suppression order. Justice Eid dissented, noting, "As articulated in my dissent in a companion case issued today, I would find that the search in this case was conducted in good-faith reliance on our pre-Gant precedent, and that therefore the good-faith exception to the exclusionary rule applies. See People v. McCarty, No. 09SA161, slip op. at 3-14 (Colo. May 10, 2010) (Eid, J., dissenting)." People v. Chamberlain

In an original proceeding, the defendant challenged the trial court’s indeterminate ten year to life sentence after applying the pattern of sexual abuse enhancement provision, C.R.S. § 18-3-405(2)(d). Defendant was convicted of attempted sexual assault on a child, in violation of section 18-3-405(1), and attempted sexual assault on a child by one in a position of trust, in violation of section 18-3-405.3(1), (2)(a). The trial court, in sentencing the defendant, applied the pattern of sexual abuse sentence enhancer, section 18-3-405(2)(d). The supreme court held that the trial court erred as a matter of law in applying the pattern of sexual abuse sentence enhancer to defendant’s judgment of conviction, because the jury found him guilty only of attempted sexual assaults. Justice Coats, joined by Justices Rice and Eid, dissented, noting, "Rather than addressing the trial court’s inconsistent-verdicts analysis head on, the majority simply declines to acknowledge what I consider to be the jury’s clear findings of two completed sexual assaults in connection with the pattern-of-abuse charge." In re People v. Day

Following the United States Supreme Court’s decision in Arizona v. Gant, a search of a glove compartment in a car is unlawful where the driver was neither within reaching distance of the vehicle’s passenger compartment and there was no indication that any evidence of the offense of arrest would be found in the car. Even if the driver disclaimed any possessory interest in the glove compartment, his possessory interest in the car itself prevents an officer from entering the vehicle in order to access the glove compartment within it. The supreme court further held that the defendant's presence at the unlawful search rendered the confession resulting from that search inadmissible as evidence. Justice Eid, joined by Justice Coats, dissented, concluding that "the majority invalidates the search in this case under the 'evidence-gathering' rationale of Gant even though it does not know the offense for which the defendant was arrested -- the critical piece of information on which the Gant determination is made." She also concluded that the defendant had no standing to challenge the search of the locked glove compartment in this case. Perez v. People

The supreme court held that claims for personal injury under the Construction Defect Action Reform Act, begin to accrue for purposes of the two-year statute of limitations at the time the claimant first discovers, or in the exercise of reasonable diligence should have discovered, the physical manifestations of the defect that ultimately causes the injury. The court further held that the statute’s notice of claim and tolling provisions preclude equitable tolling under the “repair doctrine.” Chief Justice Mullarkey, joined by Justice Hobbs, dissented, concluding that because the builder's "attempted repair in the spring of 2004 constituted an improvement to real property as defined by section 13-80-104(1)(a), C.R.S. (2009), the statute of limitations did not begin to run until the [petitioners] were aware of the defect in that repair. They became aware of the defective repair only when Judith Smith was injured on February 2, 2005. Their complaint, filed on January 17, 2007, was within the two-year statute of limitations. Also, the tolling provisions of section 13-20-803.5, C.R.S. (2009) were not intended, and should not be interpreted, as a replacement to the repair doctrine." Smith v. Executive Custom Homes

The supreme court affirmed the judgment of the court of appeals that a beneficiary of a workers’ compensation award for permanent and total disability (“PTD”) is entitled to an additional lump sum payment up to the maximum aggregate available, under a 2007 amendment to C.R.S. § 8-43-406. The supreme court held that the General Assembly’s amendment is procedural in nature and applies prospectively. Claimant suffered a work-related injury in 1990, was awarded PTD benefits in 2002, and later received a lump sum payment in the amount of the statutory maximum aggregate available at the time of her injury. In 2007, the General Assembly increased the maximum aggregate lump sum available, and claimant requested an additional lump sum payment under the new statutory cap. The supreme court held that she is entitled to the additional lump sum payment because an employee’s election of a lump sum payment functions as an advance of an award of PTD benefits to which the employee already is entitled, thereby altering only the method of distribution of an existing award. A lump sum payment does not create, eliminate, or modify the parties’ existing rights or liabilities, which are determined as of the date of injury but vest only upon entry of an award of benefits. Accordingly, the lump sum provision is procedural in nature and applies prospectively to requests for lump sum payments filed subsequent to the amendment’s date of enactment, irrespective of the date of the employee’s injury. Justice Rice, joined by Justices Coats and Eid, concurred in part and dissented in part. She concluded that the 2007 amendment to section 8-43-406 constituted a substantive change to workers’ compensation award payments. She said that because the amendment "effected a substantive change, precedent dictates that the law at the time of the injury control." She would have held that claimant's award should be capped by the statutory recovery limit in place at the time of her injury, not the later 2007 amended sum that postdated her collection of benefits. Specialty Restaurants Corp. v. Nelson

May 10, 2010

Today's supreme court announcements are here. The court issued the following 7 decisions, which I will summarize later this week.

08SC756 Pineda v. People
09SA124 People v. Chamberlain
09SA161 People v. McCarty
09SA350 In re People v. Day
09SC171 Perez v. People
09SC223 Smith v. Executive Custom Homes
09SC536 Specialty Restaurants v. Nelson

The court granted cert. in these three cases:

No. 09SC668, Jackson v. Unocal Corporation
Summary of Issues:
Whether the court of appeals erred by creating a “preponderance of the evidence” burden of proof in the certification of a class pursuant to C.R.C.P. 23.
Whether the court of appeals erred by requiring the trial court to assess the credibility of expert testimony at the class certification stage.
Whether the court of appeals’ construction of C.R.C.P. 23 improperly invaded the trial court’s case management discretion.

No. 09SC990, Wood v. People
Summary of Issue:
Whether the court of appeals erred in determining that the trial court’s pretrial denial of immunity from prosecution under the make-my-day statute is not reviewable.

No. 10SC77, State Farm Mutual Automobile Insurance Co. v. Reyher
Summary of Issue:
Whether the Court of appeals erred in reversing the trial court’s denial of class certification under C.R.C.P. 23.

May 6, 2010

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

The court's May oral argument calendar is here.

May 5, 2010

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

06CA2051 People v. Alex Stewart
07CA0028 People v. Steven Eugene Clouse
07CA0596 People v. Timothy Darrell Edwards
07CA2137 People v. Danny Ollie Daniels
08CA0328 People v. Ruben Ortega
08CA1370 Steven H. Wimp v. Brasher, LLC, and Janice L. Hunt
08CA1963 People v. William Eller
08CA2644 People v. Samantha Rae Marrero
09CA0503 People v. Kenneth Moore
09CA0599 Jack Sunahara, Jr. v. State Farm Mutual Automobile Insurance Company
09CA0667 Renee Dulany v. Longmont Police Detective Laura Faatz, in her individual and official capacities
09CA0821 Thaddeus I. Ragsdale and Darla E. Davis v. William Bailey
09CA0904 People v. Bruce Goodrich
09CA0925 Gretchen Smith v. Mark J. Rue
09CA1024 Sequoia Investments, LLC and Kyle J. Geditz and Timothy D. Hargrove v. Cheuk S. Kwan
09CA1353 Philip Hayward v. Board of County Commissioners of Douglas County, State of Colorado
09CA1435 Opportunity Knocks, Inc. v. Industrial Claim Appeals Office of the State of Colorado and Michelle A. Landwehr
09CA2450 Nathaniel R. Singleton v. Industrial Claim Appeals Office of the State of Colorado and NY Boys, LLC
09CA2466 Tamale Kitchen 10 LLC v. Industrial Claim Appeals Office of the State of Colorado and Stephen B. Martinez Jr.
09CA2698 Meagan C. Taylor v. Industrial Claim Appeals Office of the State of Colorado and Mountain View Pet Lodge, LLC
09CA2742 Theresa A. Michalek v. Industrial Claim Appeals Office of the State of Colorado and JZRN, LLC
10CA0180 Nancy M. Heidlebaugh v. Industrial Claim Appeals Office of the State of Colorado and the University of Colorado
10CA0221 Sarah M. Dickerson v. Industrial Claim Appeals Office of the State of Colorado and Urban Peak

May 4, 2010

This post gets me up to date. First, are the supreme court announcements from last week (there were no announcements this week). Next are the court of appeals' announcements and summaries from last Thursday. Following those are the summaries of the court of appeals' published decisions from April 15.

The supreme court had no announcements this week, since the court was busy with arguments last week. The supreme court's announcements from April 26 are here. The court issued 2 decisions, summarized below. The court also granted cert. in one case, and the issue in that appeal follows the case summaries.

The trial court abused its discretion by denying the defendant’s motion to withdraw his guilty pleas. A defendant may withdraw a guilty plea by showing a fair and just reason for doing so. Under Colorado law, a trial judge shall not participate in plea negotiations. In this case, the trial judge gave the defendant advice by saying “let me talk to you as a human being,” made a tacit offer of leniency if the defendant accepted a plea agreement, and stated that he was “not going to be a happy judge” if the defendant did not agree to a plea deal. By making these comments, the trial judge participated in plea negotiations and stepped out of his role as a neutral and impartial arbiter of justice. Accordingly, the defendant demonstrated a fair and just reason for withdrawing his guilty pleas, and the trial court abused its discretion by denying the motion to withdraw the guilty pleas. Crumb v. People

In an interlocutory appeal of a suppression order, the supreme court reversed the trial court's order suppressing statements the defendant made in response to police interrogation. The defendant signed a Miranda waiver form before speaking to a law enforcement officer about several charged and uncharged crimes. The supreme court held that the defendant’s Miranda waiver, which the trial court found to be knowing and voluntary, was sufficient to waive his Fifth and Sixth Amendment rights to counsel. People v. Vickery

The court granted cert. in the following case:

No. 09SC1063, Constable v. Northglenn, LLC
Summary of Issue:
Whether a landlord-tenant lease agreement that contractually requires a tenant to indemnify the landlord for the landlord’s own negligence is enforceable when the duty breached by the landlord is nondelegable.

The court of appeals' announcements from last Thursday are here. The court issued 4 published decisions, summarized below. The list of unpublished decisions follows the summaries.

Defendant argued that the district court lost jurisdiction by failing to comply with C.R.S. § 16-14-104 of the Uniform Mandatory Disposition of Detainers Act (UMDDA). The court of appeals remanded for further proceedings because it could not determine whether the court complied with section 16-14-104. On remand, the district court must hear evidence and determine whether defendant properly invoked his UMDDA rights before December 19, 2006. If the court determines that Gess did so, it shall determine whether the charges were resolved within the statutory period.
People v. Gess

The court of appeals concluded, consistent with previous decisions, that it furthers public policy if a governmental entity is free to announce its intention to acquire private property before filing a petition and serving a summons under C.R.S. §§ 38-1-102 and 38-1-103. The court noted that it is also inevitable that delays will occur during which property owners may be unable to develop, lease, or sell their properties because of the uncertainty created by the impending condemnation.
The court concluded that that damages arising from protracted delay alone are not compensable and that mere plotting and planning do not, without more, amount to an invasion of property or deprive the owner of the use and enjoyment of the property. But the court also noted that the rights of a condemning authority are not unlimited. On the facts as alleged in the complaint, the court concluded that the landowners have alleged that (1) Brighton officials have interfered with landowners’ power of disposition or use of their properties by representing to third parties in public meetings involving the proposed water treatment facility that Brighton “already owns” landowners’ properties; and (2) Brighton has posted a sign adjacent to landowners’ properties stating that the new water treatment facility would be built there. The court concluded that the landowners alleged affirmative actions by Brighton apart from the protracted delay, which could allow a fact finder to determine that Brighton legally interfered with their properties and exercised dominion and control over the properties. G&A Land, LLC v. The City of Brighton

Minor appealed her adjudications for acts that, if committed by an adult, would constitute unlawful sexual contact and harassment. The court of appeals concluded that the juvenile court erred by failing to review in camera eight of the nine Department of Human Services files of the victim in this case, by failing to disclose certain documents from the file that it did review, and by failing to make sufficient findings to support its refusal to disclose other documents. It therefore reversed and remanded for further proceedings. People In the Interest of A.D.T.

In a case of first impression, the court of appeals concluded that “the generally accepted rule” that interest ceases to accrue on funds deposited by a stakeholder in an interpleader action during the time the funds are on deposit with the court applies to contractual interest when the funds are properly interpleaded. Newflower Market, Inc. v. Cook

Here is the list of unpublished decisions released last week:

06CA1683 People v. Innis Lee Collins
08CA0455 People v. Larry Timothy Young
08CA0541 People v. Steven Dale Swank
08CA1261 People v. Cesar A. Chan
08CA2037 People v. Paul C. Romero
08CA2478 People v. Aaron Jahbar Delaney
08CA2518 People v. Mark Stephen Dolan
09CA0310 People v. Allegria Morrison
09CA0664 In re the Marriage of Sherry L. Parkinson and Joseph A. Parkinson
09CA0922 In re the Marriage of Sharon Talley-Socher and Ralf Socher
09CA0936 BA Mortgage, LLC v. Quail Creek Condominium Association, Inc.
09CA1064 TransFirst, LLC v. Martin Daskal, a/k/a Barry Daskal
09CA1110 Annie M. Gauvin v. Industrial Claim Appeals Office of the State of Colorado, Microfilm & Imaging of Durango, and State Farm Fire & Casualty Company
09CA1357 People v. Raul Hurtado Marquez
09CA2074 In re the Marriage of Nicole Krauss and Justin Krauss
09CA2334 People In the Interest of K.K., K.K., and A.K., Children and Concerning M.K. and D.K.
09CA2638 People In the Interest of A.G., a Child and Concerning L.N.M.
09CA2722 PeopleIn the Interest of S.M., Jr., Child and Concerning S.M., Sr. and S.R.G.

Here are the summaries of the court of appeals' decisions from April 15:

The court of appeals rejected a Batson challenge to the prosecution's use of peremptory challenges on hispanic prospective jurors. Though it rejected the challenge, the court concluded that a defendant need not present rebuttal to preserve the issue, but that a trial court should allow a defendant's counsel the opportunity to rebut a prosecutor's stated reason for a peremptory challenge and the court should make express findings on the third step of the analysis. The court also upheld the refusal to give an abandonment instruction, noting that the time has passed to claim abandonment of an attempted aggravated robbery after the defendant has injured the victim. In this case, the defendant stabbed the victim with a knife and asked for money. The defense of abandonment therefore was no longer available. People v. O’Shaughnessy

The court of appeals concluded that conditional guilty pleas are permissible in Colorado. The court hten held that the trial court erred in concluding that probable cause existed and that even if it did not that the officers acted in good faith in executing the warrant. Therefore, the evidence should have been suppressed. Defendant should be permitted to withdraw his guilty plea. Judge Dailey dissented, concluding that the good faith exception to the exclusionary rule should apply. People v. Hoffman

Defendant challenged the search of the trailer residence of his parolee brother. The court of appeals held that defendant – who himself was on the run from authorities and who knew he lacked the requisite permission to live with his parolee brother – had no reasonable expectation of privacy in this trailer. Therefore, the court rejected the Fourth Amendment challenge to the search, and affirmed his convictions. People v. Brown

The court of appeals reversed the trial court's conclusion that the court lacked personal jurisdiction over the defendant. The facts relevant to the issue of personal jurisdiction were found by the trial court after an evidentiary hearing, and based on those facts, the court of appeals concluded that defendant is subject to personal jurisdiction in Colorado. Plaintiff sought compensation for injuries he incurred when an electric meter manufactured by defendant exploded. Defendant is a Chinese company with no offices, employees, or facilities in the United States. It sold some of its electric meters, including the one that allegedly injured plaintiff, to a California company with its principal place of business in California. The California company sold some of the electric meters under the name Harbor Freight Tools throughout the United States through catalog and internet sales, and sold others to a separate entity, Harbor Freight Tools, USA, Inc. Harbor Freight Tools, USA is a Delaware corporation that is owned by some of the same individuals who own the California company and that operates Harbor Freight Tools retail stores throughout the United States, including the one in Colorado where plaintiff purchased the allegedly defective meter. The meter in question was manufactured by defendant in China, sold to the California company, sold to Harbor Freight Tools, USA, and, finally, sold to plaintiff.
Dfendant revised its product to serve the United States market, including by stamping “Cen-Tech,” the California company’s trademark, on the meters it sold to the company. It advertised its products to the United States market through publications with nation-wide distribution. It knew that the California company sold the meters throughout the United States. But defendant recision did not make any revisions or aim any advertising exclusively at Colorado and no personnel ever visited Colorado. Defendant did not sell the Cen-Tech stamped meters directly to anyone in Colorado. It did, however, sell a different model of electric meter to the Rozek Company, a corporation with its principal place of business in Colorado. Defendant has been selling meters to Rozek for ten years and its Rozek sales have generated $10,000 to $47,000 per year in revenue. Defendant participated in arranging shipment of the Rozek meters to Colorado. Under these facts, the court of appeals concluded that sufficient minimum contacts existed to exercise personal jurisdiction over the company. Etchieson v. Central Purchasing LLC

Taxpayer hired oil and gas well service companies to “fracture” wells that it operated in Colorado. Fracturing is a method of well stimulation whereby a fracturing fluid and “proppant” are forced, under high pressure, into a well to create fractures in the hydrocarbon-producing formation. “Proppant” may be natural sand or an artificial material. The court of appeals upheld the district court's conclusion that the facturing transaction is inseparable from the service provided by fracturing companies and therefore is not subject to sales tax. and further agree that the “true object” of the transaction is to provide a service to taxpayer, not the sale of tangible personal property. But the court of appeals reversed the trial court's determination separators are exempt from taxation. Noble Energy, Incorporated v. Colorado Department of Revenue

In a dispute over interference with an easement, the court of appeals concluded that the Colorado Governmental Immunity Act, C.R.S. §§ 24-10-101 et seq. did not bar the plaintiff’s claims for declaratory, injunctive, and restorative relief concerning City property on which the easements allegedly have been altered and obstructed. Therefore, the court rejected the defendant City’s interlocutory appeal of the order denying its motion to dismiss under the CGIA. Judge Connelly dissented, concluding that the CGIA protects the City from actions that either “lie in tort or could lie in tort." In his view, this action sounded in tort, and therefore was barred by the CGIA. The Upper Platte and Beaver Canal Company v. Riverview Commons General Improvement District

Defendants, the City of Commerce City and others, appealed the district court’s order granting summary judgment for plaintiff, Waste Management of Colorado, Inc. (Waste Management). The court of appeals agreed with the district court's determination that Waste Management’s provision of so-called “roll-off” containers to customers and its contracts with transportation companies to haul trailers for it were not subject to tax under the City’s Sales and Use Tax Code, because neither type of transaction involved the furnishing of tangible personal property within the meaning of the Code. Waste Management of Colorado, Inc. v. City of Commerce City, Colorado

The Concealed Carry Act (CCA), C.R.S. §§ 18-12-201 to -216, applies to universities because the statute expressly applies to “all areas of the state.” None of the statutory exceptions applied, and therefore the plaintiffs stated a claim for relief under the CCA for the University of Colorado's gun ban. The court of appeals also concluded that plaintiffs stated a claim for relief under Colorado Constitution article II, section 13, which affords individuals the right to bear arms in self-defense.
Students for Concealed Carry on Campus, LLC v. The Regents of the University of Colorado

In an appeal from the termination of parental rights, Mother asserted the trial judge erred by (1) not recusing himself sua sponte, presumably at the termination hearing, and (2) denying her motion for new trial and for recusal. The court of appeals concluded that the trial judge erred by determining a relationship between the court clerk and the caseworker did not warrant recusal. The court remanded for further proceedings to determine (1) whether mother has waived her right to raise this claim and (2) whether mother received ineffective assistance of counsel and has therefore not waived her right to raise this claim. People In the Interest of A.G.

The prosecution appealed an order in a juvenile delinquency that denied the restitution sought by the Crime Victim Compensation Board (CVCB). The prosecution argued that the court lacked authority to request confidential documents necessary to calculate the amount of disbursements that the CVCB had made for victim expenses, which the court had previously concluded were compensable. The court of appeals affirmed. The court noted that the trial court had ordered the prosecution to provide documentation so that restitution could be properly calculated (since the court had found some of the claimed restituation not compensable because it was not caused by the juvenile). The prosecution did not produce the records but instead claimed it could not because it did not have access to the CVCB's records due to the confidentiality provision of C.R.S. § 24-4.1-107.5. Because the prosecution refused to comply with the court’s request for additional evidence necessary to apportion expenses, the court lacked a factual basis to enter a final order specifying the exact amount of restitution owed. Thus, the only question properly before the court of appeals was whether, in light of the prosecution’s noncompliance with the court’s request for documentation, the court abused its discretion by refusing to order restitution. The court of appeals concluded the court acted within its discretion. People In the Interest of K.M.

April 23, 2010

I was hoping to get updated by the end of the week, but my workload has prevented that. I have two arguments next week, so I will likely be unable to do any posts until the first week of May.

April 19, 2010

There are no supreme court announcements today, so far. I suspect the court is still getting organized from the big move. The supreme court and court of appeals are now located at 101 W. Colfax Avenue, and will be until the completion of the Ralph L. Carr Colorado Judicial Complex, which is scheduled for 2014.

But here are last Thursday's announcements from the court of appeals. The court issued 10 published decisions, which I will summarize in the next few days. Here is the list of decisions the court released:

Published Opinions

06CA1228 People v. Michael P. O’Shaughnessy
08CA1008 People v. James T. Hoffman
08CA2010 People v. Christopher A. Brown
09CA0218 William Etchieson v. Central Purchasing LLC, d/b/a Harbor Freight Tools; and Harbor Freight Tools, USA, Inc., d/b/a Harbor Freight Tools and Precision Mastech Enterprises, Co. of Hong Kong, China
09CA0426 Noble Energy, Incorporated, a Delaware corporation, successor by merger to Noble Energy Production, Incorporated, a Delaware corporation, successor by merger to Patina Oil & Gas Corporation, a Delaware corporation v. Colorado Department of Revenue; and Roxanne Huber, in her official capacity as Executive Director of the Colorado Department of Revenue
09CA0769 The Upper Platte and Beaver Canal Company v. Riverview Commons General Improvement District, a quasi-municipal subdivision of the State of Colorado, and the City of Fort Morgan, a Colorado home rule municipal corporation
09CA1083 Waste Management of Colorado, Inc., a Colorado corporation v. City of Commerce City, Colorado, a municipal corporation; Jerry Flannery, in his official capacity as the City Manager of the City of Commerce City; Roger Tinklenberg, Hearing Officer, and in his official capacity as the Acting Deputy City Manager of the City of Commerce City; and Carol Enninga, in her official capacity as the acting Director of Finance of the City of Commerce City
09CA1230 Students for Concealed Carry on Campus, LLC, a Texas limited liability company; Martha Altman; Eric Mote; and John Davis v. The Regents of the University of Colorado; et al.
09CA1451 People In the Interest of A.G., A.G., R.B., and N.B., Children and Concerning C.M.
09CA1699 People In the Interest of K.M.

Unpublished Opinions

05CA2181 Thomas M. Haskins, III v. Lucy V. Walker
06CA0541 People v. Sean Patrick King
06CA1145 People v. Ruben Ortiz-Monarres
07CA0165 People v. Sean Patrick King
07CA0325 People v. Aaron Arreola-Mora
07CA0409 People v. Edward F. Benge
07CA0488 People v. Ira Vincent Miner
07CA0761 People v. Isaac Jason Lloyd
07CA0762 People v. Kenneth Lee Nethken
07CA1003 People v. William Wright
07CA1004 People v. William Michael Cox
07CA1288 People v. Jan Elijah Rogers
07CA2544 Thomas M. Haskins, III v. Lucy V. Walker
08CA0132 People v. Roy Melanson
08CA1357 Thomas M. Haskins, III v. Lucy V. Walker
08CA1860 People v. Golda L. Harvey
08CA2388 People v. Vincent McKinnon
08CA2642 People v. Bryant Aaron Martinez
08CA2690 People v. Thurmond Hargis Albert
08CA2710 Nancy C. Johnson v. Jefferson County Republican Committee and Office of Administrative Courts
09CA0008 People v. Bryan Cory Andrews Buenger
09CA0381 In the Matter of the Estate of Marguerite M. Huntsman, Deceased, and Hilary Fearon v. Board of County Commissioners for the County of Boulder, State of Colorado
09CA0435 Raul Permuy Calderon v. Kevin Milyard, Warden of the Sterling Correction Facility; and Aristedes Zavaras, Executive Director of the Colorado Department of Corrections
09CA0481 People v. Anthony R. Sanchez
09CA0496 People v. Julio Contreras Wilson
09CA0603 Boise-Cascade Colorado v. Industrial Claim Appeals Office of the State of Colorado and Philip Frederick
09CA0934 In re the Marriage of Leslie Anne Kayser, f/k/a Leslie Anne Harvey and Brian Mark Harvey
09CA0963 James L. Sawyer Estate, by Joanna Sawyer, Personal Representative, and Joanna Sawyer, individually v. M. Scott Sheely, d/b/a Contracting Solutions
09CA1167 In re the Marriage of Leslie Anne Kayser, f/k/a Leslie Anne Harvey and Brian Mark Harvey
09CA1331 In the Interest of C.J.S., Child and Concerning C.S. and S.R.
09CA1355 Progressive Insurance Company v. Thomas J. Ashton
09CA1359 People v. Leon K. Gladwell
09CA1388 Thomas M. Haskins, III v. Lucy V. Walker
09CA1598 Board of County Commissioners of Delta County, Colorado v. Robert Neirinckx
09CA2104 People In the Interest of Evelyn Claire Chavez
09CA2383 People In the Interest of M.C., Child and Concerning L.C.
09CA2522 Larry Murray v. Industrial Claim Appeals Office of the State of Colorado and Dennis P. Olivas Trucking
09CA2571 People In the Interest of R.M.L.M., a Child and Concerning J.A.
09CA2792 A Splash of Paint, Inc. v. Industrial Claim Appeals Office of the State of Colorado and Kevin J. Powell

April 12, 2010

Here are today's supreme court announcements. The court issued one decision, summarized below. The court granted cert. in three cases, and the issues in those appeals follow the summary.

In an appeal by the People of a ruling of the district court declaring unconstitutional a portion of the statutory scheme providing for unitary review in death penalty cases, the supreme court reversed. The district court had construed C.R.S. § 16-12-208(3) to impose a two-year time limit on the completion of all proceedings for postconviction review, the certification of the record, and all appellate briefing and to prohibit extensions of any kind beyond that time. Although the district court upheld what it considered to be the legislatively imposed two-year limit, it found the prohibition against any extension beyond that period unconstitutional for conflicting with Crim. P. 32.2 and infringing on the rule-making power of the judiciary. In reversing, the supreme court held that because section 16-12-208(3) does not itself impose an absolute two-year time limit on presenting a unitary appeal but rather directs the court to do so, the district court misconstrued the statute as conflicting with the court rule. Because Crim. P. 32.2 implements the legislature’s direction by imposing a series of highly specific time limits, which are designed to meet the two-year goal when, but only when, that can be accomplished without violating the defendant’s constitutional rights or the legislature’s other expressly articulated goals, no absolute two-year time limit exists in either statute or rule. The supreme court noted that "the failure of this court to include in its rules an inflexible two-year time limit on any aspect of the unitary review process means that no such practice limit exists." People v. Owens

The court granted cert. in these cases:

No. 09SC840, South Fork Water and Sanitation District v. Town of South Fork, Colorado
Summary of Issues:
Whether the Municipal Permission Statute, section 31-35-402(1)(b), C.R.S. (2008), grants South Fork Water and Sanitation District veto power over the Town of South Fork’s acquisition of water rights and private water systems.
Whether the court of appeals erred in holding that the District acted unreasonably in exercising its veto power under section 31-35-402(1)(b), C.R.S. (2008) and Town of Sheridan v. Valley Sanitation Dist., 137 Colo. 315, 324 P.2d 1038 (1958).

No. 09SC966, Larson v. Sinclair Transportation Company
Summary of Issues:
Whether the court of appeals erred in concluding that section 38-5-105, C.R.S., grants Sinclair Transportation Company the power of eminent domain.
Whether the court of appeals erred in concluding that potential
safety issues and regulations need not be considered when determining whether “the particular land lies within a route which is the most direct route practicable,” under section 38-1-101.5, C.R.S.

No. 09SC1019, Evans v. People
Summary of Issue:
Whether the district court and the court of appeals erred by concluding that the trial court lacked authority to reduce a sentence where imposition of incarceration is discretionary.

April 9, 2010

The supreme court will issue one decision, No. 09SA248 People v. Owens, on Monday.

April 8, 2010

The court of appeals' announcements for today are here. The court released the following unpublished decisions:

07CA1927 People v. Philip Andrew Stalkup
08CA0188 People v. Charles Franklin Pierce
08CA0307 People v. Sharon Hernandez
08CA0392 People v. Robbie Donyel Hudson
08CA0761 People v. Joshua Cordova
08CA0823 People v. Devon Scott Weinstein
08CA0865 People v. Marcella Madrid
08CA1525 People v. Bradley K. Hogue
09CA0114 Brianna Kampmann, Fred Kampmann, and Fran Kampmann and Peter M. Anderson v. Farmers Insurance Exchange Corporation
09CA0893 Keirns Construction Co., a Colorado corporation, and Keirns Rental Properties, LLC, a Colorado limited liability corporation v. Landmark Engineering, Ltd., a Colorado corporation, Wayne G. Thompson, and Larry Miller
09CA2068 People v. Gary Fugate
09CA2169 People In the Interest of M.R. and J.A. and Concerning A.G.
09CA2189 People In the Interest of Jesus Robert Bruce

April 5, 2010

I'm back from vacation, and this post should get me current.

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 follows the summary. After that are the court of appeals' announcements and case summaries from last week.

In an appeal of an order suppressing evidence related to dog-fighting activities after the trial court determined the warrant under which the evidence was collected was without probable cause, the supreme court reversed. The court concluded that reading the two search warrants and their supporting affidavits together (issued for the same residence on the same day), probable cause was present. Justice Eid, joined by Justice Rice, concurred in the judgment, noting that "the affidavits in this case were not the sort of “bare bones” affidavits on which reliance would be unreasonable," and therefore would have upheld the search under the good faith exception to the exclusionary rule regardless of whether there was probable cause. People v. Scott

No. 09SC1002, People v. Wehmas
Summary of Issue:
Whether a DUI in Colorado is a sufficiently grave offense to justify warrantless entry into a home, when exigent circumstances are present.

No. 10SC104, D.P.H. v. J.L.B.
Summary of Issues:
Whether the court of appeals erred in holding that a parent may preclude a finding of abandonment by demonstrating a future intent to return to the child.
Whether the court of appeals erred in concluding that the district court should have delayed its determination of the adoption proceedings to allow father’s motion to enforce parental rights to be decided first.

Here are last week's court of appeals announcements. The court issued four published, summarized below. Following the summaries is the list of unpublished decisions the court issued.

A delivery driver employed by a food vendor delivered vendor's products to one of Whole Foods’ stores weekly. Each time driver made a delivery, he performed the following tasks: checked in with Whole Foods’ receiver; 2ent into the retail area of the store to the refrigerated display of vendor’s products; inventoried the products, noting outdated products and determining the new supply needed; prepared an invoice and selected the products to put in stock; brought the products to the receiver and obtained his signature on the invoice; arranged the new products on the display shelves; and removed outdated products, brought them to the receiver to inventory, and took them back to the delivery truck. Driver was injured at the Whole Foods’ store while attempting to perform the tasks. He filed suit against Whole Foods, claiming his injuries resulted from Whole Foods’ negligence. The district court granted summary judgment in favor of Whole Foods, concluding that Whole Foods was driver’s statutory employer under C.R.S. § 8-41-401(1)(a), and was thus immune from common law negligence liability for injuries he suffered while performing the services. The court of appeals affirmed, agreeing that Whole Foods was Humphrey’s statutory employer under section 8-41-401(1)(a). Humphrey v. Whole Foods Market Rocky Mountain/Southwest, L.P.

In a paternity action, mother appealed the trial court's judgment declaring petitioner to be the presumed natural father of her child, and awarding him joint decision-making authority and parenting time. The court of appeals affirmed. In concluding that the petitioner was the presumed natural father, the trial court noted petitioner’s concession that he had not legally adopted the child and was not her biological father. Although the child’s biological father had not been determined, the court acknowledged that an individual mentioned by the mother as the possible biological father had received notice of the proceedings, but did not appear or express any interest in the child. The birth certificate stated“father unknown.” The court further found that mother had conceded that petitioner received the child into his home and openly held her out as his natural child. Therefore, the court determined that petitioner established his paternity of the child as a presumed natural father under C.R.S. § 19-4-105(1)(d). In affirming, the court of appeals rejected mother's argument that the definition of a “parent and child relationship” automatically precludes petitioner from presumptive father status because he is not the child’s biological parent. Instead, the court of appeals concluded that the definition in section 19-4-102 applies to a parent and child relationship once it has been declared and clarifies that it is the legal equivalent of the traditional relationships recognized between children and their adoptive or natural parents. In re the Parental Responsibilities of A.D.

In a case concerning representations by a transaction broker in connection with the sale of resort property, the buyer brought claims against the transaction broker for (1) negligent misrepresentation, alleging that the broker “failed to act reasonably in ascertaining the accuracy” of its representation that the resort was a “turn-key business opportunity” for the operation of a twelve-site RV park; (2) fraudulent representation, alleging that broker’s representation of the resort as a “turn-key business opportunity” for the operation of a twelve-site RV park was made either with knowledge on the part of broker that it was false or with utter indifference to its truth or falsity; and (3) fraudulent concealment, alleging that broker failed to disclose that the seller had never received proper permits from either the County or CDPHE to operate the resort as a twelve-site RV park and that broker was either aware of the nonexistence of such permits or acted with utter indifference thereto. Broker moved for summary judgment, arguing that because it acted as a transaction broker under C.R.S. § 12-61-807, it had no duty to investigate or verify that the resort was a “turn-key business opportunity” for the operation of a twelve-site RV park. The trial court granted summary judgment and the court of appeals affrimed. Because the broker was a transaction broker, it had a duty to disclose to buyer adverse material facts of which it was actually aware. See C.R.S. § 12-61-807(2)(b)(VI). Here, buyer’s allegation in his complaint that “defendants were aware of the non-existence of such permits or acted with utter indifference thereto” is insufficient. Buyer was required to allege and prove that broker had a duty to disclose and actually knew of the material facts that were not disclosed. The evidence was undisputed that broker had “no actual knowledge of the permit issues and no reason to think anything other than that this was an operating business.” Barfield v. Hall Realty, Inc.

Respondent appealed a trial court order dismissing its inverse condemnation counterclaim against petitioner, the City of Colorado Springs. The court of appeals affirmed. The City argued that no taking of respondent's property had occurred before the City took possession of the property and that respondent’s lost rental income was not compensable. The trial court granted the City’s motion to dismiss, concluding that under Lipson v. Colorado State Department of Highways, 588 P.2d 390 (Colo. App. 1978), the City’s precondemnation conduct was not, as a matter of law, a legal interference with respondent’s physical use, enjoyment, or power of disposition of its property. City of Colorado Springs v. Andersen Mahon Enterprises, LLP

The court released the following unpublished decisions:

06CA0477 People v. Russell L. Tucker
06CA0564 People v. Terrele W. Boyce
07CA1556 People v. Terrina Flora-Alexander
07CA2212 People v. Robert Loren Turley
07CA2255 People v. Charles Anthony Gross
08CA0808 In re the Marriage of Janna R. Marxuach-Steur, n/k/a Janna R. Marxuach and Mark W. Steur
08CA1491 People v. Ezequiel Rodriguez
08CA1622 People v. Tess Damm
08CA1769 People v. Abe Davis
08CA2043 People v. Casimer Anthony Tamules, IV
09CA0049 Shane Burden v. Doctor Garlick and Jim, R.N.
09CA0306 Chris O’Brien v. Kristan Maynard
09CA0641 In re the Marriage of Jandi Lynne Polka and Fredric Lee Polka
09CA0811 People v. Monica Cain
09CA0894 Amica Mutual Insurance Company, a Rhode Island corporation v. FirstBank of Boulder, a Colorado corporation
09CA0902 People v. Derrick Thomas Salazar
09CA1004 People v. Michael D. Moehring
09CA1159 People In the Interest of R.C., a Child
09CA1277 Latrice Wray v. Dwight Crews
09CA1363 People v. Leon Bates
09CA1759 People v. Darren Smith
09CA1813 People In the Interest of K.M., Child and Concerning A.B.
09CA2163 Elke A. Baca v. Industrial Claim Appeals Office of the State of Colorado and Denver Public School District, #1
09CA2428 Lola Marie Barnett, f/k/a Lois Marie Barnett v. Industrial Claim Appeals Office of the State of Colorado and Division of Employment and Training
09CA2499 People In the Interest of J.W., a Child and Concerning S.W.
09CA2529 Marviena J. Armstrong v. Industrial Claim Appeals Office of the State of Colorado and State-Wide Lock & Safe, Inc.
09CA2610 Jonathan W. Prince v. Industrial Claim Appeals Office of the State of Colorado and Boulder Breadworks, L.L.C.
09CA2653 Jaffe R. Rissman v. Industrial Claim Appeals Office of the State of Colorado and Aspen Medical Care, P.C.
09CA2748 People v. Charles Glen McKendry
10CA0009Lerwill D. Steinv.Industrial Claim Appeals Office of the State of Colorado and Tynans Volkswagen, Inc.
10CA0063 Kenneth A. Castro v. Industrial Claim Appeals Office of the State of Colorado and Arnold Logistics, LLC
10CA0064 Kenneth A. Castro v. Industrial Claim Appeals Office of the State of Colorado and Safeway Stores, Inc., Administrative Office
10CA0100 Rodney B. Walker v. Industrial Claim Appeals Office of the State of Colorado and Interstate Brands Corp.

March 25, 2010

Today's court of appeals announcements are here. The court issued one published decision, summarized below. The list of unpublished decisions follows the summary.

Mother's parental rights were terminated under a statute that allows parents to file expedited petitions to relinquish rights to children under one year old. C.R.S. § 19-5-103.5. Mother filed an expedited relinquishment petition but sought to withdraw it before it was acted upon. The district court refused to allow the petition to be withdrawn and, over mother’s objection, granted it. The court of appeals concluded that this was contrary to the statute, which grants finality only to relinquishment orders and not petitions. The court concluded the statute does not preclude withdrawal of a relinquishment petition prior to actual entry of an order terminating parental rights. In the Matter of the Petition of A.T.M.

Here is the list of unpublished decisions the court of appeals issued:

06CA0497 People v. Terrin Devon Coleman
06CA1976 People v. Luke Barela
07CA0900 People v. Alphonso Ceasar
07CA2320 People v. Jose J. Alba
07CA2322 People v. Jerad Allen Pickering
08CA0727 People v. Alfredo Enrique Vargas
08CA0835 People v. Jorge Ibuado
08CA1087 People v. Randall J. Graham
08CA1580 People v. Thomas L. Ashley
08CA1590 People v. Benjamin Marquez
08CA1699 People v. Jerome Christopher Hooks
08CA2197 People v. Rudy Saiz
08CA2298 Pedro Nival v. Colorado Department of Corrections
09CA0960 In the Matter of the Estates of Jewell I. Gomez, deceased, and Ernest Arthur Gomez, deceased. Georgia Janella Jarvis, and Alver George Hudgens v. Cynthia Ranson-Gomez
09CA1287 Jeffery Sims and Martha Sims v. James Dreibholz
09CA1486 John M. Cogswell and Ann F. Cogswell v. Ronald J. Oehl
09CA2319 People In the Interest of A.M. and N.T., Children and Concerning A.W.
09CA2540 People In the Interest of J.D.J., a Child and Concerning A.U.
09CA2658 People In the Interest of K.A.G. and H.J.B., Children and Concerning K.D.G.

March 22, 2010

This post includes today's supreme court announcements and the summaries of last week's court of appeals' decisions (all 19 of 'em). Being the higher court, the supreme court post is first.

Today's supreme court announcements are here. The court issued 5 decisions, summarized below. The court granted cert. in one case, which is listed after the summaries.

Under to section 3 of Article VI of the Colorado Constitution, the Governor submitted two interrogatories to the supreme court on whether various provisions of Article XXVIII of the Colorado Constitution were unconstitutional in light of the United States Supreme Court’s decision in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010). The supreme court answered both interrogatories. The court held that to the extent section 3(4) of Article XXVIII makes it unlawful for a corporation or labor organization to make expenditures expressly advocating the election or defeat of a candidate, it violates the First Amendment. The court also held that, to the extent section 6(2) of Article XXVIII of the Colorado Constitution makes it
unlawful for a corporation or a labor organization to provide funding for an electioneering communication, it violates First Amendment. In re: interrogatories propounded by Governor Bill Ritter, Jr.

In an eminent domain action, the City of Brighton condemned approximately 0.8 acres of agricultural land owned by petitioners. The condemned strip of property would have to be dedicated to Brighton should petitioners' entire property be annexed and the use changed for commercial and residential development. A jury awarded $204,387.15 as just compensation for the taken property, based on its highest and best use being for commercial and residential development. The court of appeals had held that, where condemned undeveloped land would have to be dedicated as a condition of development, the land must be valued based only on uses to which the property could be put in the absence of rezoning or development approval. The court of appeals further ruled that the trial court abused its discretion in admitting evidence that relied on the entire property’s potential for development. The supreme court disagreed and reversed the court of appeals’ judgment. Under Colorado’s expansive evidentiary rules for property valuation in condemnation cases, the supreme court held that all evidence relevant to the determination of the present market value of the condemned property is admissible, including evidence of the most advantageous potential future use of the entire property, even if the condemned property would need to be dedicated as part of annexation and rezoning of the entire property in the future. Thus, the court held that the trial court did not err in admitting evidence regarding the entire agricultural property’s highest and best use based on the property’s potential for development. Justice Coats, joined by Chief Justice Mullarkey and Justice Martinez, dissented, noting that while he agreed that the petitioners "are entitled to compensation for the strip of their land condemned by Brighton (even though rezoning would require its cession to the city for nothing), I do not believe they are entitled to be compensated at a market rate commensurate with a use to which that strip could never be put." Palizzi v. City of Brighton

Under new rule C.R.C.P. 16.2, a court retains jurisdiction for five years over marital dissolution cases when a spouse has misstated or omitted assets in financial disclosures. The Colorado Supreme Court interpreted whether this five-year retention provision applies when the disclosure was made pursuant to a petition for dissolution filed before the new rule’s effective date. Analyzing the language of the new rule, the court determined that the five-year retention provision and related provisions apply to future, as opposed to past, disclosures. This forward-looking language indicates that the five-year retention provision becomes operative only after a party has made disclosures under the new rule to resolve petitions for marital dissolution filed after the effective date or disclosures necessary to resolve the issues contained in a post-decree motion filed after the effective date. In the present cases, the spouses made their disclosures to resolve
marital dissolution cases filed before the effective date. Therefore, the courts did not retain jurisdiction under the new rule to address post-decree motions seeking to reopen the property divisions in the present cases. In re the Marriage of Schelp (together with In re the Marriage of Roberts and In re the Marriage of Barnett)

The supreme court reversed a trial court’s order suppressing the defendant’s statements because the defendant made a voluntary, knowing, and intelligent waiver of his Fifth Amendment Miranda rights prior to the statement. The supreme court held that the voluntary waiver test asks if there was coercive government conduct, and the test for a knowing and intelligent waiver weighs the totality of the circumstances according to a multitude of factors. The court concluded that the trial court's analysis was flawed in both respects. People v. Ferguson

After the owner of record failed to pay assessed taxes, Weld County issued a treasurer’s deed to the respondents for a parcel of property containing a reservoir. Six years later, the petitioners brought suit to challenge the validity of the treasurer’s deed. A challenge to a treasurer’s deed must be brought within five years, C.R.S. § 39-12-101, but the statute of limitations does not apply to a void deed. The trial court held that deficiencies in assessment, notice, and description made the treasurer’s deed void and thus not subject to the five-year statute of limitations. The court of appeals reversed, reasoning that where extraneous evidence is necessary to determine a deed’s flaws, that deed is not void on its face and can only be voidable. Thus, it held that the statute of limitations barred the petitioners’ claims. The supreme court affirmed on different grounds. The court held that the line between a void and a voidable tax deed does not depend on the nature of the evidence used to determine the deed’s defect, but rather on the nature of the defect itself. When a defect goes to the jurisdiction or authority of the taxing entity, that defect will render a deed void. This may happen, for example, if taxes are erroneously doubly assessed or if taxes are assessed on public property. But if a defect does not challenge the jurisdiction or authority of the taxing entity, then a deed is merely voidable, making the related claims subject to the statute of limitations. In this case, the defects –- errors in assessment, notice, and description –- challenge the manner in which the deed was issued but do not challenge Weld County’s jurisdiction or authority to tax the property or to issue the deed. The supreme court therefore held that the treasurer’s deed was voidable, rather than void. Since the petitioners’ claims were brought after the expiration of the relevant statute of limitations, their claim to set aside the treasurer’s deed was time-barred. Lake Canal Reservoir Company v. Beethe

The court granted cert. in one case, No. 09SC263, Allen v. Steele, on these issues:

Whether the court of appeals erred in imposing liability on attorneys to non-clients for negligent misrepresentation in light of Mehaffy, Rider, Windholz & Wilson v. Cent. Bank Denver, 892 P.2d 230 (Colo. 1995).
Whether the court of appeals erred in relying on Restatement (Third) of the Law Governing Lawyers section 15 (2000) as a basis for establishing a duty of care on a lawyer to a non-client.

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

The office of the state attorney general is a "law enforcement agency" for purposes of C.R.S. § 16-10-103(1)(k). Therefore, the trial court committed reversible error by denying Defendant's challenge for cause to a prospective juror who was employed as an assistant attorney general. Judge Connelly specially concurred, agreeing that it was error to deny the challenge for cause and that reversal was required, but noting the "significant social costs" of Colorado's rule requiring new trials in such cases. People v. Novotny

Jury could reasonably have inferred that opening a guitar case and making the shotguns contained therein available could have been accomplished reasonably quickly and would be no more difficult or time-consuming than accessing an unlocked guitar case's contents. Therefore, the evidence was sufficient for the jury to conclude that deadly weapons were easily accessible and readily available for use by defendant. Interpreting C.R.S. § 18-12-108(1), the court concluded that Defendant was properly convicted on two counts of possession of a weapon by a previous offender, one for each weapon. Judge Taubman specially concurred, agreeing with the court that the trial court properly denied defendant's Batson challenge, but noting his concern about "the need for more careful litigation of this issue by the parties and more complete findings by the trial court." People v. Montez

Defendant argued that the search of his car that discovered the incriminating evidence on which these convictions were based violated the Fourth Amendment in light of Arizona v. Gant, 129 S.Ct. 1710 (2009), which held that certain searches of automobiles incident to arrest are unconstitutional. The court of appeals recognized that under Gant, the police violated defendant's Fourth Amendment rights, but declined to suppress the evidence, holding that the statutory good-faith exception (C.R.S. § 16-3-308) supported the trial court's denial of defendant's motion to suppress. People v. Key

Victim's bills for counseling were properly attributable to defendant's criminal conduct and therefore could be part of defendant's restitution. The court upheld the trial court's rejection of the defendant's request for an in-camera review of a victim's confidential mental health documents under C.R.S. § 24-4.1-107.5(2). The court of appeals noted that to be entitled to such an in-camera review, a defendant must show (1) that his or her request is not speculative and (2) that an evidentiary hypothesis warrants in-camera review because such documents would tend to disprove all or part of the prosecutor's restitution request on the basis that the requested amounts were not proximtely caused by the defendant's conduct. Defendant failed to satisfy this test People v. Rivera

In a road rage homicide case, defendant admitted that he flashed his lights to pass another vehicle, "swooped" in front of it after passing, and engaged his brakes either intentionally or unintentionally. Defendant's theory was that this conduct apparently so angered the other driver that he intentionally collided with defendant's Jeep. Even if the jury accepted defendant's descriptions of his own conduct and that of the driver as true, and even if we assume the other driver's actions were grossly negligent and not foreseeable, the conduct of the other driver would not have been an independent event and would not have broken the chain of events that began with defendant's admitted conduct and ended when the other vehicle and the northbound vehicle collided and the drivers of those vehicles died. Thus, there was no evidence upon which the jury could have concluded that defendant was not a participant in the final collision. Accordingly, the trial court did not err when it declined to give an instruction on independent intervening cause. People v. Reynolds

Cocaine was found in defendant's home by police executing warrants to arrest defendant's friend and to search the home. The police had told defendant and other occupants of the home to sit outside on the curb during the search. While defendant was outside the home, a detective asked defendant if he lived there and whether there was anything officers needed to know. Defendant responded that he had a small amount of cocaine inside his bedroom for personal use. defendant contended this statement was the product of custodial interrogation conducted without Miranda warnings. The court of appeals concluded that he was not in custody at the time, and therefore no Miranda warnings were necessary. Judge Webb dissented noting that, in his view, "a reasonable person in defendant's position would have considered himself in police custody of the degree more commonly associated with a formal arrest than with a brief investigatory detention when the detective questioned defendant." Therefore, Judge Webb would have held that the statements were obtained in violation of Miranda, and should be suppressed. People v. Mumford

Trial court erred in reversing the revocation of petitioner's driver license for refusing to submit to testing as required by the express consent statute, C.R.S. § 42-4-1301. The district court had reversed on the ground that the Department erred in refusing to issue a subpoena requested by petitioner. The court of appeals concluded that the department does not have to issue every subpoena requested, and that the refusal to subpoena the arresting officer did not affect defendant's substantial rights. Fallon v. Colorado Department of Revenue

The phrase "expressly advocating the election or defeat of a candidate," as used within the definition of "expenditure" contained in article XXVIII, section 2(8) of the Colorado Constitution, encompasses only communications using the so- called "magic words" of Buckley v. Valeo, 424 U.S. 1, 44 n.52, and words substantially similar or synonymous thereto, and requires an express exhortation that the reader, viewer, or listener take action to elect or defeat a candidate.
Colorado Ethics Watch v. Senate Majority Fund LLC

Newspaper's request for certain records under the Colorado Open Records Act, C.R.S. § 24-72-201 to 206, was properly denied. The documents were created in connection with the City Council's performance evaluation of the City Administrator. The court of appeals concluded that the documents are not subject to CORA's disclosure requirements under the statutory work product exception, § 24-72-202(6)(b)(II), (6.5). City of Fort Morgan v. Eastern Colorado Publishing Company

The court of appeals held that partition in kind based on the value of the underlying property is permissible, and upheld its application in the case before it. The court noted that the decision to partition in kind based on value must be made on a case-by-case basis, and recognized that in some cases, manifest prejudice might be shown where such a partition would leave one of the former cotenants in sole possession of an indivisible and particularly significant feature of the property. McNamara v. Mossman

In an action against a medical device manufacturer and its sales representative, plaintiffs appealed the summary judgment in favor of defendants on claims of negligence and strict liability failure to warn. The court of appeals concluded that the trial court correctly applied the "learned intermediary" doctrine in the context of the failure to warn claim and correctly held that product warnings need be given only to plaintiff's physician. The court also concluded that the trial court correctly applied the "captain of the ship" doctrine. O'Connell v. Biomet, Inc.

Even if newspaper article touting attorney's expertise could be considered advertising, such advertising, in the context of a CCPA claim, cannot be considered to create a public impact unless it contains misrepresentations or deceptive information. The court held that the term "refusal" indicates that bait and switch advertising, as defined in the CCPA, includes an intent not to comply with a consumer's expectations. Thus, proving such intent to deceive is necessary to establish a bait and switch claim. On the facts, the article did not represent that the attorney would act as lead counsel on any case for which his services were sought. But the court reversed the trial court's conclusion that plaintiffs could not recover consequential damages in their claim of breach of the attorney representation contract. Since the complaint alleged that defendants had failed to comply with the representation agreement's provision that the attorney would "have primary responsibility" for plaintiff's representation, the allegation was founded specifically on a term of the agreement for which the parties had bargained--a claim separate and distinct from their claims sounding in negligence. General Steel Domestic Sales, LLC v. Hogan & Hartson, LLP

Dispute between two metro districts involved whether a service plan providing that plaintiff "will" build specified recreational facilities obligated it to build those facilities. The court of appeals held that it does, unless plaintiff can demonstrate that plan compliance is no longer "practicable." Plains Metropolitan District v. Ken-Caryl Ranch Metropolitan District

The Boulder County Board of Adjustment of Boulder County (BOA) appealed the district court's judgment reversing the BOA's determination that the principal use of plaintiffs' property was residential rather than agricultural. The court of appeals affirmed, concluding that the principal use of the property could not be deemed residential use under the plain language of the Boulder County Land Use Code. Shupe v. Boulder County

The phrase "actual damages awarded" in C.R.S. § 13-21-102(1)(a) refers to the jury's compensatory damage verdict alone, not the verdict as augmented by the prejudgment interest mandated by section 13-21-101(1). To hold otherwise would have the practical effect of its holding would be to negate the rule in Colorado that prejudgment interest cannot be awarded on exemplary damages. Vickery v. Vickery

Under Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo. 1992), a plaintiff must (1) the employer directed the employee to perform an illegal act as part of the employee's work-related duties or prohibited the employee from performing a public duty or exercising an important job-related right or privilege; (2) the action directed by the employer would violate a specific statute related to public health, safety, or welfare, or would undermine a clearly expressed policy relating to the employee's basic responsibility as a citizen or the employee's right or privilege as a worker; (3) the employee was terminated as the result of refusing to perform the act directed by the employer; and (4) the employer was aware that the employee's refusal to perform the act was based on the employee's reasonable belief that the directed act was unlawful. Id. at 109. The court of appeals concluded that when an employee objects to performing an act that satisfies the second element of a claim for wrongful termination of public policy and is immediately fired before having an opportunity to refuse to perform the directed act, the refusal element of the Lorenz test is satisfied. The court also adopted the general formula for calculating back pay damages used in other jurisdictions: the amount the employee reasonably could have expected to earn absent the wrongful termination, reduced by either (a) the employee's actual earnings in an effort to mitigate damages or (b) the amount the employee failed to earn by not properly mitigating his or her damages. Bonidy v.Vail Valley Center for Aesthetic Dentistry, P.C.

It was error for magistrate to expunge two possession charges under C.R.S. § 42-4-1715(1)(b)(I).
Section 42-4-1715(1)(b)(I) provides that "[u]pon application by a person, the court shall expunge all records concerning a conviction of the person for" underage drinking and driving" if certain requirements are met. Section 42-4-1715(1)(b)(I), however, does not provide for the expungement of other charges, even if brought at the same time or in the same document as the UDD charge. The magistrate also expunged two possession charges, as well as the UDD charge, concluding that it is not possible to expunge one charge in a criminal case without expunging other charges that were dismissed. The court concluded that the magistrate misunderstood the nature and scope of her expungement authority under section 42-4-1715(1)(b)(I). The court said that "expunge," as used in section 42-4-1715(1)(b)(I), does not require expungement of records concerning non-UDD charges when such charges are brought along with the UDD charges. People v. Connors

Mother asserted that termination of her parental rights violated the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901 to 1963 (2006) (ICWA). The court of appeals concluded that although there were errors in compliance with the ICWA's notice provisions, those errors were harmless, and therefore, the court affirmed the judgment. Specifically, the notices sent did not comply with all the provisions in the ICWA, but the Navajo Nation responded that it could not verify enrollment or eligibility for tribal enrollment for mother and her son. Mother did not provide further information to assist in that determination and the Eastern Shawnee Tribe responded that the child was not an Indian child. Accordingly, the notice errors were harmless. People In the Interest of A.R.Y.-M

In an unemployment benefits case, petitioner appealed a final order of the Industrial Claim Appeals Office (Panel) that affirmed a hearing officer's decision precluding claimant from receiving unemployment benefits for a specified period based on his withdrawing money from a retirement account. The court of appeals affirmed. C.R.S. § 8-73-110(3)(a)(I) specifies that, except as provided in section 8-73-110(3)(a)(II), "an individual's weekly benefit amount shall be reduced . . . by . . . (C) [t]he prorated weekly amount of any other similar . . . lump-sum retirement payment from a plan . . . which has been contributed to by a base period employer." Section 8-73-110(3)(a)(III) further provides that if an individual receives a lump-sum retirement payment from a plan contributed to by a base period employer and the payment fails to meet all the criteria in section 8-73-110(3)(a)(II), the individual is deemed to have received his or her "full-time weekly wage for a number of consecutive weeks equal to the total amount of the lump-sum retirement payment, divided by the full-time weekly wage." To avoid the provisions of section 8-73-110(3)(a)(I)(C) and (III), an individual receiving a lump-sum distribution from an applicable retirement plan must satisfy all the criteria under section 8-73-110(3)(a)(II). After his termination, claimant received a distribution payment from his 401(k) retirement account and reinvested that amount in a qualified individual retirement account (IRA). Claimant also received a distribution payment from the pension plan which he reinvested in the same IRA. But approximately four to five months later, claimant withdrew funds from the IRA to help purchase a house. Because claimant did not reinvest the distributions' entire amount in the new IRA for a period of at least one year as required under section 8-73-110(3), he was precluded from receiving benefits for a prescribed period under that section. Laszar v. ICAO

March 18, 2010

Today's court of appeals announcements are here. The court issued 19 published decisions, which I will try to summarize by early next week.

March 17, 2010

Happy St. Patrick's Day! The court of appeals will release the following decisions tomorrow:

Published Opinions

06CA2204 People v. Martin Novotny
07CA0139 People v. Mark Anthony Montez
07CA0279 People v. Jon Paul Rivera
07CA1257 People v. Jeffrey Allen Key
08CA0397People v. Jason Benjamin Reynolds
08CA0974 People v. Andrew Wayne Mumford
08CA2554 Kevin Fallon v. Colorado Department of Revenue
08CA2689 & 09CA0384 Colorado Ethics Watch v. Senate Majority Fund, LLC and Colorado Leadership Fund, LLC and Office of Administrative Courts
09CA0133 The City of Fort Morgan, Colorado, a municipal corporation; and Andrea Strand, Custodian of Records v. Eastern Colorado Publishing Company, d/b/a The Fort Morgan Times; and William Holland
09CA0201 Helen S. McNamara and Sheila Caldwell v. Shannon Lee Mossman
09CA0224 Kerry O’Connell and Anne O’Connell v. Biomet, Inc., an Indiana corporation; EBI, L.P., an Indiana limited partnership; and John Kyger, an individual
09CA0252 General Steel Domestic Sales, LLC, d/b/a General Steel Corporation, a Colorado limited liability company; and Jeffrey W. Knight v. Hogan & Hartson, LLP, a foreign limited liability partnership; and Ty Cobb
09CA0425 Plains Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado v. Ken-Caryl Ranch Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado and Jan Rousselot; Ruth Sunderberg; and Patricia Lynch
09CA0571 Kenneth Shupe and Darla Shupe v. Boulder County, State of Colorado, et al.
09CA0586 Monica David Vickery v. Merry Gayle Vickery
09CA0602 Debbie Bonidy v. Vail Valley Center for Aesthetic Dentistry, P.C. and James J. Harding, D.D.S.
09CA0847 People and Boulder County Sheriff’s Office v. Matthew Gibson Connors
09CA2295 People In the Interest of A.R.Y.-M., a Child and Concerning R.Y.
09CA2475 Alex E. Laszar v. Industrial Claim Appeals Office of the State of Colorado and Saks Fifth Avenue

Unpublished Opinions

06CA0054 People v. Christopher James Taylor
06CA0723 People v. Cheryl Lynn Sandoval
06CA1701 People v. Anthony Edward Marquez
07CA0364 People v. Randy Joe Pevler
07CA0656 People v. Kenneth Woods
07CA1894 People v. Tomasitto Ulloa
07CA2249 People v. Ronald D. Kirkwood
07CA2252 People v. Adam James Younger
07CA2444 People v. Darren Keith Chandler
08CA0164 People v. Dominic Bishop
08CA0224 People v. Thomas Justin Bastian
08CA0521 People v. Takisha L. Barnett
08CA2078 People v. Robert Lawrence Orner
08CA2319 People v. Jesse Wilkinson
08CA2345 Stephen R. Eckstat and Victoria Eckstat v. Kenneth D. Cloud and Rosemary S. Cloud
08CA2366 People v. Rodrick Schenck
08CA2493 People v. Milton Montoya
09CA0087 People v. Humberto Valdiviezo-Perez and Concerning Kevin J. Parman
09CA0295 People v. Patrick Neal
09CA0372 People v. David F. Hurt, Jr.
09CA0406 Jaguar Associated Group, LLC v. Janice E. Black
09CA0408 People v. John H. Baca
09CA0637 The Estate of Michael Cooksey v. Maria Lugo and Christopher A. Warner
09CA0718 May’s Concrete, Inc. and Continental Casualty Co. v. Industrial Claim Appeals Office of the State of Colorado and Timothy Lockyer
09CA0722 Tebbie McLaughlin Kramer v. Industrial Claim Appeals Office of the State of Colorado; Capital Pacific Holdings, Inc.; and Ace Property and Casualty Insurance Company
09CA0775 Butch Gast v. Chatfield East Property Owners Association, Inc., a Colorado nonprofit corporation, acting by and through the Chatfield East Architectural Control Committee
09CA0829 In re the Marriage of John Notary and Svetlana Notary
09CA0836 People v. Claude E. Burton III
09CA0972 Christopher Reuel Proper v. Colorado Department of Revenue, Motor Vehicle Department
09CA1069 People v. Lili Washington
09CA1079 Town of Johnstown, Colorado, a Colorado home rule municipality v. Ivar W. Larson and Donna M. Larson
09CA1209 Ronald P. Lewis v. The Glenelk Association, Inc.
09CA1213 Maria Nunnally v. Industrial Claim Appeals Office of the State of Colorado and Eastman Kodak Company
09CA1228 Raymond A. Howard and Margaret L. Howard v. Kimberley M. Johnson
09CA1574 In re the Marriage of Teresa K. Anderson and Gregg I. Anderson
09CA1742 In re the Marriage of Jason Kris Knowles and Kelly Ann Knowles
09CA2028 Genesee Foundation v. Industrial Claim Appeals Office of the State of Colorado and Kim M. Cyr
09CA2063 People In the Interest of M.M., J.A., and J.G., Children and Concerning N.A.
09CA2100 People In the Interest of S.J.G. and C.M.G., Children and Concerning J.G.
09CA2245 People In the Interest of D.D. and Concerning A.L.
09CA2510 David L. Means v. Industrial Claim Appeals Office of the State of Colorado and Echosphere, L.L.C.
09CA2566 People In the Interest of E.M., A.M., J.M., Children and Concerning A.M. and S.P.
09CA2675 Michael N. DePaul v. Industrial Claim Appeals Office of the State of Colorado and Wal Mart Associates, Inc.

March 15, 2010

Here are today's supreme court announcements. The court issued one decision, summarized below. The court also granted in 6 cases, and the questions in those appeals follow the summary.

In order to revive a C.R.S. § 13-52-102(1) judgment lien premised upon a foreign judgment domesticated in Colorado under the Uniform Enforcement of Foreign Judgments Act, C.R.S. §§ 13-53-101 to 107, judgment creditors must revive the underlying foreign judgment in the jurisdiction that originally issued the judgment. Then, the judgment creditor must revive the domesticated foreign judgment in Colorado by complying with the requirements of C.R.C.P. 54(h) and filing a transcript of the revived judgment record in the county where the original transcript of judgment record was recorded. Wells Fargo v. Kopfman

The court granted cert. in these cases:

No. 09SC230, Ahluwalia v. QFA Royalties, LLC
Summary of Issues:
Whether the court of appeals erred in finding that there was “clear and unmistakable evidence” of an agreement to arbitrate arbitrability based on an arbitration clause in the first of three agreements when the second and third agreements each contained forum selection clauses designating specified courts as the forum to resolve the parties’ disputes.
Whether an order confirming an arbitration award is a final judgment triggering the timing requirements of C.R.C.P. 59(a) and whether a request for post-award interest is governed by C.R.C.P. 59(a).
Whether the court of appeals erred in affirming the arbitrator’s award of pre-award interest on future damages.
Whether the court of appeals erred in affirming the district court’s award of compounded post-award interest.

No. 09SC708, People v. Rector
Summary of Issues:
Whether the court of appeals acted counter to other published case law in reversing the defendant’s convictions based on the erroneous finding that the medical expert opined on an ultimate legal issue, and therefore, usurped the role of the jury.
Whether the court of appeals acted counter to other published case law in finding that, pursuant to People v. Shreck, 22 P.3d 68 (Colo. 2001), the district court should have made findings to determine the reliability of the expert’s anticipated testimony that the child-victim’s injuries were caused by an intentional act of abuse, and whether the lack of findings constituted reversible or harmless error.

No. 09SC828, Cropper v. People
Summary of Issue:
Whether the court of appeals erroneously concluded counsel's inaction under section 16-3-109(5) constituted a valid waiver of Petitioner's state and federal confrontation rights under this court's decision in Hinojos-Medoza, contrary to well established federal and state law concerning the waiver of constitutional rights and this court's decision in Mojica-Simental.

No. 09SC910, Colorado Department of Human Services v. Maggard
Summary of Issue:
Whether the court of appeals erred in reversing the State Personnel Board’s decision upholding the termination of Respondent’s employment and directing the Personnel Board to reinstate the initial decision of the ALJ.

No. 09SC989, In re the Parental Responsibilities of L.S.
Summary of Issue:
Whether the court of appeals misinterpreted the Parental Kidnapping Protection Act, the statutory embodiment of the full-faith-and-credit clause of the United States Constitution, thereby erring in its determination that a “Colorado court must respect and enforce the prior Nebraska orders.”

No. 09SC1011, Build It And They Will Drink, Inc. v. Strauch
Summary of Issue:
Whether the court of appeals erred in holding that reasonable foreseeability (proximate cause) of the injury-causing event is not an element, or an appropriate consideration, in determining the liability of a licensee under § 12-47-801, C.R.S. (2009).

March 12, 2010

The supreme court will issue one decision on Monday, Wells Fargo v. Kopfman, No. 08SC783.

March 11, 2010

This post should get me caught up. The supreme court's announcements are first, then today's court of appeals' announcements, then last week's court of appeals' announcements and summaries.

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

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

06CA2553 People v. Brian Marsteller
06CA2554 People v. Christine Speros
07CA1552 People v. David Estrada
07CA1668 People v. Axel Rafael Crespo-Gutierrez
07CA2508 People v. Charlie Sneed
08CA0245 People v. Robert Anthony Fresquez
08CA0568 People v. Robert Souren Ovigian
08CA1130 People v. Angelo Jose Gonzales
08CA1324 People v. Kyle Kevin Carstens
08CA1531 People v. Clinton R. Erickson
08CA2022 People v. Simon Ewing Sue
08CA2149 In re the Marriage of Hala Bollock, n/k/a Hala Khalil and Heath Bollock
08CA2158 People In the Interest of S.S.
08CA2243 People v. Jeffrey Lee Morris
08CA2403 Steamboat Ventures, Ltd., a Florida limited partnership v. The Formula, Inc., a Florida corporation
08CA2556 People v. Miguel Urtusuastegui
08CA2612 In re the Marriage of Robert James Garcia, Jr. and Lori Ann Garcia and Concerning Jennifer A. Rivera
08CA2649 Gerald Lewis v. Robert Swenson, et al.
08CA2656 People v. Daniel Charles Anderson
08CA2722 People v. Kyle Lee Houston
09CA0207 Christopher Hardt v. Colorado Department of Revenue, Division of Motor Vehicles
09CA0386 Humble Ventures, L.L.C., a Colorado limited liability company v. The City of Steamboat Springs, a Colorado home rule municipal corporation
09CA0482 Shane Burden v. Colorado Department of Corrections, Mail Tech Pino, D.A. Garcia, and A. Hicks
09CA0662 Greg Sembower v. Terry L. Black
09CA0743 People v. Chester Leroy Trykowski
09CA1047 People v. Michael W. Bingham
09CA1157 In re the Marriage of Christine Marie Allen and Jonathan Edward Allen
09CA1490 People v. Elmer Marsh
09CA1530 In re the Parental Responsibilities Concerning K.R.T., a Child and Concerning Sean Robert Curran and Tina Sue Thelander
09CA1531 People v. Rosalino Hernandez
09CA1972 Avsource Group v. Industrial Claim Appeals Office of the State of Colorado and Division of Employment and Training, U.I. Tax Administration
09CA2375 People In the Interest of T.W. and X.W., Children and Concerning C.W.
09CA2541 St. John’s Lutheran School v. Industrial Claim Appeals Office of the State of Colorado and Kristin D. Clay
09CA2579 Sheila M. Lamb v. Industrial Claim Appeals Office of the State of Colorado and S B & G Cartage Inc.

Here are last week's announcements from the court of appeals. The court issue the following decisions. The summaries of the ten published decisions follows the list.

Published Opinions

07CA0125 People v. Isaac Leroy Gallegos
07CA2311 People v. Thomas Lynn O’Hara III
07CA2325 People v. Ross Alley
08CA1322 People v. Troy Montoya
08CA1592 People v. Christopher Edwin Brown
09CA0085 People v. Jeremy Gardner
09CA0460 Lafarge North America, Inc., d/b/a Lafarge West, Inc. v. K.E.C.I. Colorado, Inc., a Colorado corporation
09CA0600 Paul Wiesner v. Roxy Huber, Executive Director of the Motor Vehicle Division, Department of Revenue, State of Colorado
09CA0799 Betty S. Hunter v. Alana C. Mansell
09CA1856 People In the Interest of G.R.N.M., Child and Concerning R.D.M.

Unpublished Opinions

04CA2118 People v. David Arthur Wittrein
06CA1088 People v. Raymond Lamont Allen
06CA1105 People v. Francisco J. Galvan-Manriquez
06CA2088 People v. William J. Hunsaker, Jr.
07CA0486 People v. James Ray Taylor
07CA1777 People v. Shannon Djuan Johnson
07CA2372 People v. Robert Rodriguez
08CA0143 Rancho De Las Palomas, Inc., through its agent, Mytra Bond v. Clay Bader; et al.
08CA0185 People v. Darcie Elizabeth Esson
08CA0802 People v. Daniel Lee Schaal
08CA1059 People v. Lonnie Lee Randa
08CA1209 People v. Eric Kruger
08CA1613 People v. Isaac Apodaca
09CA0061 Richard Martinez v. Kevin Milyard, Warden, Sterling Correctional Facility
09CA0549 In re the Marriage of Gina De Vries and Arthur G. Burdick
09CA0597 PCL Construction Services, Inc. v. Protech Theatrical Services, Inc.
09CA0629 In re the Marriage of Kathy Conarro and Patrick Conarro
09CA0729 Shane Burden v. Colorado Department of Corrections and Warden HCCC
09CA0838 The Estate of Loretta Ramirez, Deceased v. Angelina Trujillo
09CA1607 People v. Frederick D. Robinson, III
09CA2014 People In the Interest of P.B., S.B., and A.B., Children and Concerning S.B.
09CA2103 Kevin M. Willis v. Industrial Claim Appeals Office of the State of Colorado and Pollick Construction
09CA2212 Kelly L. Czapla v. Industrial Claim Appeals Office of the State of Colorado and WellPoint Companies, Inc.
09CA2233 Phillip F. Lorenzo v. Industrial Claim Appeals Office of the State of Colorado and Aviation Service Supply Co.
09CA2252 People In the Interest of I.V., Child and Concerning L.V.
09CA2574 Ronald Reed v. Industrial Claim Appeals Office of the State of Colorado and Division of Employment
09CA2594 Alex E. Laszar v. Industrial Claim Appeals Office of the State of Colorado and SAKS Fifth Avenue
09CA2637 David K. Mc Mahon v. Industrial Claim Appeals Office of the State of Colorado and Cash America, Inc. of Colorado
09CA2661 Orlando Hernandez v. Industrial Claim Appeals Office of the State of Colorado and Cargill Meat Solutions Corporation

The court of appeals concluded that the terms "public property" and "public moneys" in the embezzlement statute means "all moneys under the control of or in the custody of governmental units" (C.R.S. § 11-47-103(12)) and also that under the Colorado Constitution, article X, section 13, a public officer commits a felony involving public money when he or she directly or indirectly makes a profit "out of state, county, city, town or school district money." Employing these definitions, the court concluded that the defendant's use of the manual labor of inmates to construct an addition to his home and cut firewood did not involve public moneys or public property because, contrary to the People's contention, the inmates were not public property. People v. Gallegos

Like the federal statute, C.R.S. § 16-15-102 requires that the attorney general or a district attorney specifically authorize a specific wiretap application, but that the elected official need not sign or personally submit the application. Here there was no specific authorization of a specific wiretap application, and nothing in the record to show that the district attorney specifically authorized the wiretap application. People v. O’Hara

A witness’s intoxication does not necessarily require the trial court to conduct a competency hearing. Under the facts of this case, the court of appeals concluded that it was proper for the trial court to admit the testimony and leave the jury to determine its proper weight. People v. Alley

Crim. P. 23(a)(5)(II) was intended to require that trial courts conduct on-the-record advisements to
defendants informing them of specific elements of their right to a trial by jury and of certain consequences if they waive that right. The court of appeals held that the trial court did not substantially comply with Crim. P. 23(a)(5)(II)(b), and that the omissions in the advisement were not merely a “slip-up.” Rather, the error was clear-cut and obvious, and could easily have been avoided by consulting the text of the rule. But the court rejected defendant’s contention that the advisement was deficient because the trial court did not advise him of the possible penalties upon conviction. The rule does not require such an advisement. The court remanded for the trial court to hold an evidentiary hearing to resolve the validity of the defendant's waiver. People v. Montoya

A former fugitive claimed his attorney was ineffective in failing to perfect an appeal while he was on the lam. Defendant was allowed by the the trial court to remain free on bond pending appeal. Defendant’s attorney timely noticed an appeal, and he took initial steps to compile the appellate record. The People subsequently asked the trial court to revoke the appeal bond and issue an arrest warrant. The trial court revoked bond, issued a warrant, and set a bond forfeiture hearing. Defendant did not appear, and his counsel stated defendant apparently was a fugitive. Defense counsel filed a motion with this court seeking to withdraw from appellate representation. This motion was sent to defendant’s residence, but defendant filed no objection. The court of appeals granted counsel’s motion to withdraw. The appeal remained pending for several months. Some three months after counsel was allowed to withdraw, an order directed the pro se defendant to show cause why the appeal should not be dismissed for failure to complete the record. Defendant did not respond to this order, which had been mailed to his address. Two months later, in November 2004, the appeal was dismissed. Defendant intentionally remained a fugitive, with an outstanding warrant, for almost three years. He finally was apprehended in 2007. The court of appeals held that counsel had not performed deficiently because Defendant’s own flight from justice, not counsel’s performance, forfeited his right to an appeal. People v. Brown

Two charges under which Defendant was convicted and sentenced contained identical language. Both charges stated that he committed theft from the victim in an amount exceeding $15,000, in violation of “section 18-4-401(1)(a)(b), (2)(d), C.R.S.” Further, both charges stated that the thefts were committed “between and including September 1, 2005, and October 21, 2005.” Judged by the face of the charges, the two offenses are identical, and necessarily occurred within less than a six-month period. Accordingly, the two charges constitute a single unit of prosecution. Consequently, Defendant's multiple convictions and punishments for these counts constituted a double jeopardy violation. People v. Gardner

Indemnity clause unambiguously required defendant to indemnify plaintiff for plaintiff’s own negligence where plaintiff’s liability arose out of any incident which is at least partially the result of defendant’s acts or omissions. But in determining on summary judgment that defendant had breached the obligation, however, the trial court apparently thought it enough that the plaintiff in the personal injury case had alleged that defendant was at fault. The court of appeals held that this was error because defendants’s liability for indemnity was expressly conditioned on its fault in fact. Nothing in the clause indicated that a mere allegation of fault triggered liability. Lafarge North America, Inc.. v. K.E.C.I. Colorado, Inc.

The presumption of accuracy denoted in former C.R.S. § 42-2-126(9)(c)(II) (codified now at section 42-2-126(8)(e)(II)), did not apply to “persistent drunk driver” determinations. At the license revocation hearing, the hearing officer relied on a 0.18 BAC test, citing the presumption of accuracy defined in former section 42-2-126(9)(c)(II). Because petitioner’s BAC exceeded 0.17, he was deemed a “persistent drunk driver.” A person defined as a “persistent drunk driver” under section 42-1-102(68.5), must install an ignition interlock device and submit to additional alcohol and drug education and treatment programs. The court of appeals held that the district court erred in upholding the license suspension because the the presumption of accuracy applied only to revocation hearings and not to “persistent drunk driver” determinations. Wiesner v. Huber

In a case of adverse possession involving a shed, the court of appeals noted that the overwhelming majority of case law in this jurisdiction demonstrates that the traditional and preferred equitable remedy for a continuing trespass is a mandatory injunction requiring the removal of the encroachment. On the facts of the case, the court remanded for the entry of a mandatory injunction requiring the removal of the portion of the metal shed that encroaches on the owner’s property. Hunter v. Mansell

In an appeal affirming a mother's petition on appeal challenging the termination of her parental rights, the court of appeals first noted that the petition did not comport with C.A.R. 3.4(g)(3)(E) and (F). The court noted that C.A.R. 3.4(g)(3)(E) requires that the petition on appeal must include a concise statement of the legal issues presented for appeal. That rule specifically states that “general conclusory statements such as ‘the trial court’s ruling is not supported by the law or the evidence’ are not acceptable.” C.A.R. 3.4(g)(3)(F) requires that the petition also contain “[s]upporting statutes, case law, or other legal authority for the issues raised, together with a statement of the legal proposition for which the legal authority stands and a concise explanation of its applicability to the issues presented on appeal.” The court noted that the mother’s statement of her legal issue on appeal was simply, “The Petitioner failed to prove its case against R.D.M. by clear and convincing evidence.” She did not include any explanation or discussion of how this authority applies to the facts of this case, or even identify which of the termination criteria she asserts was not proved here. The court said, "This is not an acceptable way to advance an argument." The court noted that it could have declined to address the mother's petition on that basis, but chose to exercise its discretion to address the merits, and concluded that the termination decision was supported by the record. People In the Interest of G.R.N.M.

March 1, 2010

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

Reviewing the district court's decision before judgment in the court of appeals, under C.A.R. 50, the supreme court clarified the duties of court-appointed counsel when the client exercises an appeal by right and yet cannot identify a meritorious legal argument to support a claim for relief. The court held that the process outlined by the United States Supreme Court in Anders v. California, 386 U.S. 738 (1967), which provides for safeguards where court-appointed counsel withdraw from the case after determining their clients’ appeals are wholly frivolous, is inapplicable in Colorado. Rather, the court concluded that an indigent parent’s rights to an appeal and to counsel are better served -- and the interests of due process and equal protection better protected -- where a court-appointed lawyer does not withdraw from the representation, but rather remains her client’s advocate throughout the entirety of the proceedings. Justice Eid, joined by Justice Rice, dissented, concluding that "the majority’s 'my client would like to prevail' approach places the appointed attorney in the untenable position of making wholly frivolous arguments, and provides little corresponding benefit for the respondent parent whose wishes to prevail are expressed to the court." A.L.L. v. People

The court granted cert. in these cases:

No. 09SC915, Hassler v. Account Brokers of Larimer County, Inc., on this issue:

Whether the district court erred in upholding the county court magistrate's order finding that the six-year statute of limitations set forth in section 13-80-103.5(1)(a), C.R.S. (2009), began to run the day after the sale of a repossessed vehicle rather than the day after the default of the contract to purchase the vehicle occurred.

No. 09SC652, Townsend v. People, on these questions:

Whether reversal is required where the jury instructions encouraged a jury verdict based on parole violations that do not constitute escape as a matter of law.

Whether section 17-27.5-104, C.R.S. is unconstitutional because it is vague as applied.

Whether section 17-27.5-104, C.R.S. is unconstitutional because it violates the separation of powers and nondelegation doctrines of the Colorado Constitution.

February 25, 2010

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

February 24, 2010

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

07CA1345 People v. Monir Shontae Wood
07CA1626 People v. Joseph D. Lujan
07CA1951 People v. Raymond E. Stalie
07CA1958 People v. Clementus C. Williams
08CA0306 People v. William Bradley Eatchel
08CA0318 People v. Brian Edward Patrick O’Connell
08CA1466 People v. Charles Smith
08CA1537 People v. Scott McNally
08CA2069 In re the Marriage of Jarrod E. Gavito and Rebekah Gavito
08CA2199 William J. Hunsaker, Jr. v. Warden of the Sterling Correctional Facility
08CA2352 Stacy Luster and Walter Luster, individually, and as parents and Next Friends of Alyssa Luster, a Minor v. Judith M. Brinkman, M.D., and Colorado Springs Health Partners, P.C.
09CA0150 People v. Anthony Charles White
09CA0187 People v. Dunston Sidner
09CA0235 Cielo Holdings, LLC v. Young Cheal Kim, Larry A. Penix, James Lee, Ki Young Park, See Kee Yeoung, Hein Trieu, Yuen Tung Chong, and EBI International, Inc., d/b/a Kasai Japanese Steakhouse and Sushi, LLC
09CA0328 People v. James Myers
09CA0452 Gregory Paul Allen v. Roxy Huber, Executive Director of the Colorado Department of Revenue, Motor Vehicle Division
09CA0523 The Estate of Dennis Scoggins, a minor child, by and through H. Wayne Wilson, Conservator v. Encompass Insurance Company and Glens Falls Insurance Company
09CA0575 Park Lake Resources, LLC; Wright Trust; and Estate of Ben L. Wright, Jr., deceased, Jude Meyer, Personal Representative v. Park County Board of Equalization and Board of Assessment Appeals for the State of Colorado
09CA0726 Celeste C. Grynberg v. Burnsed Oil Company
09CA0779 Gary Alexander and Maureen Alexander and Paul Gordon, LLC and Paul Gordon v. Patricia Jo Stone and Patricia Jo Stone, P.C.
09CA0845 Holly Hand v. Industrial Claim Appeals Office of the State of Colorado; Petersen Contractors & Excavation, Inc.; AMS Staff Leasing; GI Global Insurance; Colorado Insurance Guaranty Association; and Western Guaranty Fund Services

February 23, 2010

Here are the supreme court's announcements from yesterday. The court issued one decision, Dallman v. Ritter (the Amendment 54 case). The court also granted cert. in three cases.

The supreme court affirmed the trial court’s order imposing a preliminary injunction on the campaign finance restrictions of Amendment 54. The court held that the plaintiffs are likely to succeed on the merits of their claim that Amendment 54 is unconstitutional under the First Amendment. The court concluded that provisions of Amendment 54 are unconstitutionally overbroad, vague, and violate equal protection. After striking the unconstitutional portions of Amendment 54, the supreme court held that the remaining provisions do not constitute a meaningful legislative enactment, and therefore the entire Amendment must be purged from the Colorado Constitution. The decision was 4-1. Justice Rice wrote the majority opinion. Justice Martinez dissented. Justice Coats and Justice Eid did not participate. The majority concluded that that Amendment 54's prohibition of all contributions from sole source government contractors in is overbroad because it extends to any elected official of any political subdivision of the state. It also held that the union PAC prohibition violated equal protection. Justice Martinez, dissenting, agreed with these conclusions, but unlike the majority, believed that the "constitutionally offensive" provisions could be severed, leaving the rest of Amendment 54 in tact. Dallman v. Ritter

The court granted cert. in these cases:

No. 09SC527, Bailey v. Lincoln General Insurance Company
Summary of Issues:
Whether the court of appeals was correct in concluding that the crime exclusion to supplemental liability insurance in the rental car agreement was not unconscionable and did not violate the doctrine of reasonable expectations.
Whether the lower courts erred in finding that the SLI exclusions are not contrary to public policy because the policy of fair compensation for innocent victims should override the crime exclusion under the circumstances of this case.

No. 09SC534, Qwest Services Corporation v. Blood
Summary of Issues:
Whether the punitive damages award against Qwest violates the Due Process Clauses of the federal and Colorado constitutions as interpreted in Philip Morris USA v. Williams, 549 U.S. 346 (2007).
Whether the court of appeals erred in affirming the punitive damage award against Qwest on de novo review, applying Due Process principles and Colorado requirements for willful and wanton conduct.

No. 09SC615, People v. Hernandez
Summary of Issue:
Whether in order to fulfill the mandatory disclosure requirements of the leaving the scene of an accident statute, a driver involved in an accident must identify him or herself as the driver.

The court of appeals' announcements from last Thursday are here. The court issued seven published decisions, summarized below.

In challenging the trial court's refusal to suppress DNA evidence that had been obtained in connection with a criminal case in Missouri, the defendant argued that the failure of Missouri authorities “to inform [him] that he was providing incriminating evidence that would be used not only for comparison with evidence in the robbery case, but would also be placed on local and national databases and compared with unsolved crimes was a form of undue influence that invalidated his consent.” The court of appeals rejected that argument and held that, under the totality of the circumstances, defendant’s consent was not rendered involuntary merely because the Missouri authorities did not expressly inform him that his DNA sample might be used to implicate him in other crimes. People v. Collins

Police officers reasonably entered defendant’s home without a warrant, where the daughter had reported a physical altercation involving her mother and defendant. Daughter's report established probable cause that a domestic violence crime had occurred or was occurring in the home, and justified warrantless entry into home. The trial court therefore properly denied defendant's motion to suppress a sawed-off shotgun seized by the officers. People v. Chavez

In ruling on a motion to modify, the trial court erred in failing to consider a 2003 stipulated child support order requiring father to pay $500 per month, and instead relying on a hypothetical child support guideline amount that was neither contemplated nor entered in 2003. In re Parental Responsibilities of M.G.C-G.

Plaintiffs-franchisees asserted that defendants sought to exploit a failed business model by selling franchises but fraudulently not disclosing that most of the company stores were unprofitable and the parent company had suffered significant financial losses each year. On appeal, the court of appeals vacated the judgment dismissing a claim against the defendants to the extent that it alleged fraudulent nondisclosure of the parent company’s historic losses, concluding that the trial court erred in treating integration and nonreliance clauses (the exculpatory clauses) in the transactional documents as precluding plaintiffs’ reliance on nondisclosure of the losses. The court concluded that the CCPA claim was properly dismissed. Judge Connelly specially concurred as to the CCPA claim, stating, "I would hold simply that the trial court did not clearly err in finding as a matter of fact that plaintiffs had not proven the public impact required under the CCPA. In my view, plaintiffs’ proof fully sufficed as a matter of law to get this case to a trier of fact. But the proof of public impact was not so incontrovertible as to preclude a finding against plaintiffs. Accordingly, while I cannot agree that plaintiffs’ proof was legally insufficient, neither would I overturn the trial court’s rejection of that proof as a matter of fact." Colorado Coffee Bean, LLC v. Peaberry Coffee Inc.

In a constitutional challenge under section (4)(a) of the Colorado Taxpayer Bill of Rights (TABOR), Colo. Const. art. X, § 20(4)(a), the plaintiffs challenged the Department of Revenue’s right to implement a pre-TABOR statute that formulaically adjusts the coal severance tax rate based on a general economic index. Plaintiffs contended a taxpayer vote was required because the Department’s decision (after a fifteen-year hiatus) to use the statutory formula caused a “tax rate increase.” The court of appeals agreed and held that TABOR precluded increasing the coal severance tax rate without voter approval. Colorado Mining Association v. Huber

Whether petitioner was an employee for purposes of receiving PERA service credits, which is the remedy that petitioner sought, is within PERA’s jurisdiction. Petitioner sought a declaration that she was acting as a common law employee of the state and, thus, should have been certified as a classified employee within the state personnel system. While the State Personnel Board has exclusive jurisdiction over matters relating to the state personnel system, the Board may not make decisions that bind the PERA board with respect to a determination as to who is entitled to PERA benefits or service credits. Therefore, the court concluded that the remedy sought would amount to nothing more than an advisory opinion. Taylor v. State Personnel Board

In a dispute over deductions of postproduction costs from royalty payments, defendant, BP appealed the district court’s order certifying a class of approximately 4,000 royalty owners who entered into leases or royalty agreements with BP or its predecessors entitling them to royalty payments on natural gas produced and sold by BP or its predecessors from wells located in Adams or Weld Counties. The court of appeals concluded that the district court did not abuse its discretion in certifying the class. The court agreed with the district court that the clas was defined with sufficient precision such that each class member could be identified through the application of objective criteria that do not require an individualized determination as to whether BP is liable to that particular class member. The court rejected BP’s contention that the class definition was overly broad because it contained members who could not ultimately establish their claims. The court also rejected BP's argument that the named plaintiffs had failed to satisfy the typicality requirement. Finally, the court rejected BP's contention that individual issues concerning fraudulent concealment predominate over issues common to the class. Patterson v. BP America Production Company

February 17, 2010

The court of appeals will release the following decisions tomorrow, including 7 published decisions:

Published Opinions

06CA1235 People v. Bobby Collins
07CA2136 People v. Jose Reyes Chavez
08CA1118 In re the Parental Responsibilities of M.G.C-G., Child, Thomas J. Cabello, Jr. and Jennifer Gomez, n/k/a Jennifer Garcia
09CA0130 Colorado Coffee Bean, LLC, et al., v. Peaberry Coffee Inc., et al.
09CA0132 Colorado Mining Association, et al., v. Roxy Huber, in her capacity as Executive Director of the Department of Revenue, State of Colorado; the Colorado Department of Revenue; and the State of Colorado
09CA0744 Laura Taylor v. State Personnel Board and Colorado Department of Public Health and Environment
09CA1943 David Patterson, Philip McCoy, William Schaefer, and Beverly Schaefer v. BP America Production Company, f/k/a Amoco Production Company

Unpublished Opinions

06CA1880 People v. Michael William Pierson
07CA0692 People v. Paul Peiffer
08CA0429 Christine F. Stauffer, M.D., a/k/a Christine F. Stauffer and John Dale Stauffer, Jr. v. Karen E. Hayes, D.O.
08CA1001 People v. Anthony Anderson
08CA1197 Ronald Cordova v. Lt. T. Ritter, R. Steinbeck, Maj. T. Filer, Maj. E Jaramillo, Nurse D. Howe, and Att. General John Suthers
08CA1397 People v. Stanimir G. Pavlov
08CA1436 People v. William Sonny Vigil
08CA1616 People v. Joshua C. Wright
08CA1851 John Dale Stauffer, Jr. v. Karen E. Hayes, D.O.
08CA2122 People v. Georgia Eva Lufkins
08CA2504 Angelina Trujillo v. Jesse Ramirez
08CA2611 Sarah Jane Gessele v. Colorado Department of Revenue, Motor Vehicle Division
09CA0043 People v. Shannon Washington
09CA0055 In re the Marriage of Mary Scott and John Scott
09CA0173 Aggregate Industries-WCR, Inc. v. City of Commerce City, Colorado; and Roger Tinklenberg, in his official capacity as Director of Finance, City of Commerce City, Colorado
09CA0199 In the Matter of the Petition of C.A.O. for the Adoption of G.M.R.-B., Child and Concerning M.T.R.-B.
09CA0213 Ryan M. Fedelski v. Roxy Huber, Executive Director of the Colorado Department of Revenue, Motor Vehicle Division, State of Colorado
09CA0438 People v. Kenneth Montgomery
09CA0507 David S. Gurtler v. California Casualty Indemnity Exchange
09CA0735 People v. Tyson Richard Clark
09CA1005 In re the Marriage of Dominic E. Sandoval and Elaine X. Yang-Ruff
09CA1559 People In the Interest of Thomas Benavidez
09CA1879 Terry D. Cook v. Industrial Claim Appeals Office of the State of Colorado and Manpower International, Inc.
09CA1916 Carlo R. Bonilla v. Industrial Claim Appeals Office of the State of Colorado and Division of Employment Benefit Payment Control
09CA2151 People In the Interest of T.F., a Child and Concerning S.F. and R.F.
09CA2156 Sandra A. Bruning v. Industrial Claim Appeals Office of the State of Colorado and Best-Way Concrete Company
09CA2492 Dominic I. Dsouza v. Industrial Claim Appeals Office of the State of Colorado and Advance America Cash Advance Ctr., Cash Advance Centers of Colorado

February 16, 2010

Sorry for my silence, but I had some unexpected absences from the office that took me away from blogging. But I think this post will catch me up.

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

Evidence of a sexual relationship is not necessary to establish the existence of an intimate relationship for the purpose of the domestic violence statute. Intimate relationships can be sexual, but they need not be. To impose a domestic violence sentence enhancer, a court must find that an intimate relationship exists or existed between the perpetrator and the victim, and should consider such factors as the length of time the relationship existed, the type of relationship, and frequency of interaction between the parties. The supreme court reversed the lower court’s refusal to order a domestic violence sentence enhancer after the defendant was convicted of harassing a woman with whom he had an exclusive dating relationship. People v. Disher

No. 09SC323,People v. Brunsting
Summary of Issue:
Whether the court of appeals erred in concluding that no exigent circumstances existed to justify the warrantless entry and search in this case.

No. 09SC697, Citizens for Responsible Growth v. RCI Development Partners, Inc.
Summary of Issues:
Whether the time for filing an appeal of a quasi-judicial decision by a board of county commissioners begins to run when the board executes the final resolution, even if the fact or date of the final decision is not public or known, or whether the time begins to run only when the final decision is made public.
Whether a party aggrieved by a decision of a board of county commissioners has the burden in a C.R.C.P. 106(a)(4) action to prove when the final decision was made by the board, if the date of the final decision is exclusively in the possession of the county and the procedures of a Rule 106 action preclude discovery and prohibit the introduction of extrinsic evidence.

The supreme court's announcements from February 8 are here. The court issued 2 cases, summarized below, and granted cert. in three new cases. The issues in those appeals follow the case summaries.

The Denver District Court’s denied injunctive relief sought by the Towns of Castle Rock and Parker to prevent the Executive Director of the Colorado Department of Revenue from hearing a taxpayer’s appeal from each Town’s denial of a use tax refund request. Petitioner, a homebuilder in both Towns, requested and obtained an informal hearing by the Towns to review the denial of MDC’s use tax refund requests. Following the informal hearing, the Towns insisted that MDC request a formal hearing before their Finance Directors, as a pre-condition to exercising MDC’s right of appeal under C.R.S. § 29-2-106.1 to the Executive Director. The supreme court held that the state statute provides for only an informal hearing at the local level and supersedes provisions of the Towns’ codes that require the taxpayer to submit to a formal hearing. The court concluded that the Executive Director has jurisdiction to hear the use tax refund appeals because petitioner properly exhausted its local remedies in accordance with § 29-2-106.1. Justice Coats, joined by Chief Justice Mullarkey and Justice Eid, dissented, concluding that he the taxpayer failed to exhaust its local remedies within the meaning of § 29-2-106.1. MDC Holdings, Inc. v. Town of Parker

Petitioner sought review of a summary judgment in favor of respondent, the manufacturer of a tanning booth in which petitioner was injured. The district court found that petitioner’s strict products liability claim was barred by a release she signed as a condition of using the tanning facilities. The court of appeals affirmed, concluding that the district court correctly applied the four-part test prescribed by the supreme court for determining whether exculpatory agreements releasing service providers from liability for their simple negligence comport with public policy. The supreme court reversed, concluding that the district court erred in analyzing the release question as if petitioner’s claim were one for damages alleging simple negligence. Instead, the supreme court held that an ordinary consumer’s agreement to release a manufacturer from liability for injuries caused by its product cannot, consistent with public policy, extend to claims for strict products liability. Boles v. Sun Ergoline, Inc.

No. 09SC455, Warren v. People
Summary of Issue:
Whether a district court should toll speedy trial when a defendant is in custody and fails to appear for a trial readiness conference, yet no delay resulted from defendant’s non-appearance and the matter remained on the district court’s calendar for a previously scheduled trial date.

No. 09SC963, Gognat v. Ellsworth
Summary of Issue:
Whether the trial court and court of appeals correctly concluded that there were no genuine issues of material fact regarding the accrual of Gognat’s trade secret misappropriation claims.

No. 09SC986, Delano v. Busch
Summary of Issues:
Whether, as a matter of law, two officers of the same corporation can engage in a conspiracy with each other to commit a tort while acting within the scope of their authority and in furtherance of the corporation’s interests.
Whether the court of appeals erred in reversing the trial court’s findings of fact and in holding that Busch and Jeffers were acting within that scope of their authority when making the false representations.

The court of appeals' oral argument calendar for April is here. Its March calendar is here.

The court of appeals' announcements from February 11 are here. The court issued the following unpublished decisions:

09CA1235 People v. James R. Hulsing
07CA1876 People v. Gilberto Cruz
07CA2371 People v. Robert Rodriguez
07CA2514 People v. Charlie Sneed
08CA0436 People v. Clinton M. Bryant
08CA0438 & 08CA1035 Gary Alexander and Maureen Alexander v. Patricia Jo Stone and Patricia Jo Stone, P.C.
08CA0632 People v. Robert Fedd
08CA0939 Petitioners for the Organization of Beaver Lakes Estates Metropolitan District v. Anne Moyer, individually and as trustee of the Maxine Reddy Trust
08CA0983 Co-West Telluride, LLC v. Kevin Kell and Cheryl R. Kell and Stuart Brown
08CA0999 People v. Curtis W. McCullough
08CA1180 People v. Marshall Walker
08CA1494 People v. Reggie Keyes
08CA1596 In re the Marriage of Linda Cumming and Paul D. Phillips
08CA2001 People v. Rogelio Espinoza
08CA2309 People v. David K. Jenner
08CA2589 Chad Martinez and Larry King v. Colorado Department of Human Services and Otero County Department of Social Services
09CA0071 People v. Atorrus Rainer
09CA0078 Dale Cahill Betterton v. Carie Rutherford, Kristi L. Kleven, Maryann Hicks, Leslie McGrew, and Larry Desbien
09CA0157 In re the Barbara J. Mikovec Living Trust. Carolyn Weidman, as Trustee of the Barbara J. Mikovec Living Trust v. Marian Stanton
09CA0340 Raul Remuy Calderon v. The Warden of the Sterling Correctional Facility and the Executive Director of the Colorado Department of Corrections
09CA0363 People v. Don V. Garcia
09CA0445 Gill L. Ford v. Industrial Claim Appeals Office of the State of Colorado and Regional Transportation District
09CA0479 People v. Anthony Gomez
09CA0762 Erik Decherd v. Steven Larios
09CA0882 Alice Watson, f/k/a Alice Watson-Cox v. Industrial Claim Appeals Office of the State of Colorado; Colorado Casino Resorts, Inc., d/b/a Double Eagle; and Pinnacol Assurance
09CA1819 Kiku Corporation v. Industrial Claim Appeals Office of the State of Colorado and Tiffany J. Plumlee

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 suppres7sing 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.