April 28, 2005 I won't have any more posts for this month since I will be out of the office tomorrow (for pleasure not business). But I will have the supreme court's announcements and summaries of any decisions on Monday. Have a good weekend. The court of appeals' announcements for today are here. The court issued only unpublished decisions. Here's the list of decisions: Unpublished Opinions No.: 02CA0933 People v. Louis A. Romero April 25, 2005 The court of appeals' oral argument calendar for June is here. The supreme court's announcements for today are here. The court issued no new decisions, but did grant cert. in one case, Martinez v. People, No. 05SC73, on this issue: Whether the trial court’s instruction on “proximate cause” was erroneous, and in effect eliminated the jury’s duty to find that petitioner’s acts were the proximate cause of the injuries or deaths beyond a reasonable doubt and whether the Colorado Court of Appeals erred in following another court of appeals panel’s decision in People v. Lopez, 97 P.3d 277 (Colo. App.2004). April 21, 2005 Here are today's court of appeals announcements. The court issued 8 published decisions, summarized below. Equal protection not violated for defendant convicted of felony murder, which carries a greater punishment than aggravated vehicular homicide. Defendant, while fleeing a burglary, ran a stop sign and struck another car, instantly killing the driver. The court also rejected the defendant's argument that expert testimony by a CBI chemist on fibers was improperly admitted. People v. Prieto Consideration at sentencing of letters about victims' character did not violate defendant's confrontation rights or statutory rights. People v. Lassek Bankruptcy
Trustee had standing to bring a claim against debtor's attorneys for
aiding and abetting breach of fiduciary duty. The court also rejected
the attorneys' argument that they could not be liable because they did
not owe a duty to third-party creditors. The court did conclude, however,
that the attorney should not be held jointly liable with the debtors'
president, based on the jury instructions given, and therefore remanded
for a new trial on that issue. Anstine
v. Alexander Trial court did not err in holding Conoco liable for payment of municipal use tax on waste gas, despite the fact that waste gas was not sold at retail. The court also held the city was entitled to all the interest earned on funds escrowed pending resolution of the litigation. Conoco, Inc. v. Tinklenberg Wife
could not maintain independent action against husband for misrepresentations
about value of marital assets. Because achieving a fair and equitable
division of property is one of the primary objectives of a dissolution
proceeding, wife's independent claims could have been asserted in the
dissolution action. They were therefore barred by res judicata. Gavrilis
v. Gavrilis Voluntary consent search of home after earlier warrantless entry was not an unlawful search. The consent was sufficiently attenuated from the warrantless entry. The court court also rejected defendant's argument that double jeopardy barred his conviction for both possession of 8 ounces or more of marijuana and cultivation of marijuana. People v. Benson Former
chair of CU Neurosurgery Department sued fellow neurosurgery professors.
Defendants moved to dismiss on governmental immunity grounds. Trial
court denied that motion. On appeal, the court held that further proceedings
were required to determine whether the plaintiff properly complied with
the notice requirements under the GIA. In addition, the trial court
erred in holding that sovereign immunity was waived. The court concluded
that plaintiff's tort claims were not based on "the operation of
a public hospital" and therefore sovereign immunity was not waived. Adoption subsidy should not be considered a credit against noncustodial parent's child support obligation. In re Marriage of Bolding-Roberts April 20, 2005 The court of appeals will hold arguments in Colorado Springs on Monday, April 25, as part of Courts in the Community, the Colorado Supreme Court and Court of Appeals' educational outreach program initiated on Law Day (May 1) in 1986. The court will hear these two cases: Townsend v. Dager Estate: In this case brought by several plaintiffs severely injured in an auto accident, a jury in El Paso County found the driver who caused an accident, in which he died, was not negligent because a sudden emergency (probably a heart attack) had occurred. The suit was brought against the personal representative of the deceased driver. The plaintiffs contend that the court erred in instructing the jury on sudden emergency because the suspected heart attack is not a sudden emergency and the court misdescribed sudden emergency as an affirmative defense which would completely excuse the deceased driver. The plaintiffs also argue that the trial court erred in making them pay the defendant's costs in litigating the case.
Knight v. Stewart: The case debates whether a person designated as an irrevocable beneficiary of a life insurance policy, and jointly responsible for paying the premiums of the policy, forfeits their status as irrevocable beneficiary by failing to make the final premium payment before the death of the insured.
The proceedings
will begin with opening remarks at 9:15 a.m. A question and answer session
will follow the presentation of each case allowing the students to ask
questions of each of the attorneys. At the conclusion of the second
argument, the students will also be given the opportunity to participate
in a question and answer session with the Judges. The court of appeals will issue 8 published decisions tomorrow as well as many unpublished ones. Here's the list of tomorrow's decisions: Published Opinions No.: 02CA2093 People v. Victor Prieto Unpublished Opinions No.: 02CA1478 People v. David Joseph DeHerrera April 19, 2005 Here are the summaries of yesterday's supreme court decisions: Owner of dry cleaning business not liable for negligent supervision of employee who sexually assaulted a 12-year-old girl. The employee had brought the girl to the dry cleaners, without the employer's authorization, at a time when the business was closed for business. The assault occurred then. The supreme court holds that in order to be liable for negligent supervision, the plaintiff must prove that the defendant knew that his employee posed a risk of harm to the plaintiff and that the harm that occurred was a foreseeable manifestation of that risk. Under the circumstances, the court concluded that the harm was not foreseeable. Chief Justice Mullarkey dissented, concluding that the majority took an unreasonably narrow view of the employer's duty of care, that was "contrary to the law and to the facts." The Chief Justice noted that the trial court had found that the employer had notice of the employee's propensity for sexual harassment and assault on young women. Keller v. Koca Prosecution may not seek the death penalty against defendant under C.R.S. § 18-1.4-102(1)(e), because that section is special legislation that violates article V, sec. 25 of the Colorado Constitution. The statute was passed in the wake of the United States Supreme Court decision in Ring v. Arizona. Canister was convicted of a class 1 felony two weeks after Ring (Ring was actually decided during Canister's trial), but before the statute was passed. The statute permitted a jury to be impaneled to decide sentencing in cases like Canister (of which there are two, Canister's and People v. Hagos (see next summary)). The purpose of the legislation was to make sure that there was no hiatus in the imposition of the death penalty as a result of Ring. The supreme court held, 5-2, that the statute violated the state constitutional prohibition on "special legislation." Justice Coats, joined by Justice Kourlis, dissented, concluding that the legislation was not special legislation and criticizing the majority for "bypassing" the "well-established ex post facto analyses of both the federal and state constitutions," and relying instead on an "obscure" provision in the state constitution. People v. Canister In the companion case to Canister, the supreme court held 5-1 (Justice Kourlis dissenting, Justice Coats not participating) that the prosecution could not seek the death penalty, for the same reasons set forth in Canister. Justice Kourlis dissented for the same reasons set forth in the dissent in Canister. People v. Hagos Information charging defendant with attempted third degree sexual assault was not deficient. The information charged that the "defendant did attempt to to unlawfully, feloniously and knowingly, with or without sexual contact, induce or coerce a child . . . to expose intimate parts." The jury instructions for that offense, on the other hand, defined third degree sexual assault (on which the attempt offense was based), as knowingly subjecting a person to any sexual contact. Defendant argued that the difference between the information and jury instruction forced him to answer a charge not contained in the charging document, in violation of his constitutional rights. The supreme court, 4-2, rejected that argument, concluding that the information was sufficient to allow the defendant to prepare a defense and to be protected against double jeopardy. Justice Bender, joined by Justice Martinez, dissented, concluding that the defendant's constitutional rights were violated when he was charged with doing one criminal act but convicted of another. The court unanimously reversed the defendant's conviction for attempted patronizing a prostituted child. The court held that offense to require something of value to be exchanged--that is, a commercial transaction is required. Since there was no evidence the defendant attempted to give the victim anything of value, the defendant could not be convicted. People v. Madden April 18, 2005 Here are this morning's supreme court announcements. The court issued four decisions, which will be summarized below (eventually--I'm preparing for a court of appeals argument today). The court modified its opinion in People v. Harlan and denied rehearing. The modified opinion is here. The court also denied rehearing in the Auman case. The court did not grant cert. in any cases. April 15, 2005 The supreme court will issue these four decisions on Monday (which I will try to summarize then, but which I may not get to until Tuesday following a court of appeals argument I have): Keller
v. Koca ("Whether defendant, the owner of a dry
cleaners, owed plaintiff, a family friend of the manager of the dry
cleaners, a duty to prevent the manager from sexually assaulting plaintiff
on a Sunday morning, when the establishment was closed for business,
and defendant did not know the manager was bringing plaintiff to the
establishment.") People v. Hagos ("Did the district court err in ruling that the statute authorizing a capital-sentencing hearing before a newly impaneled jury is inoperative and violates the ex post facto clause, and that the prosecution may not seek a sentence of death in this case?") People v. Madden ((1) "Whether submitting to the jury an alternative method of committing a crime, instead of the method charged in the information, constitutes per se reversible error"; (2) "Whether the evidence was insufficient to support the conviction for attempted patronizing a prostituted child and whether the court of appeals erred in holding that there is no requirement that the child be acting as a "prostitute" for a conviction of attempted patronizing a prostituted child.") April 14, 2005 Here are today's court of appeals' announcements. The court issued only unpublished decisions. April 11, 2005 The supreme
court's oral argument calendar for May is here.
The court will hear arguments on May 2nd at Centennial High School in
Pueblo. The court will hear arguments on its home court on May 4th and
5th Here are the supreme court's announcements for today. The court issued no decisions, but did grant cert. in these 3 cases: Raleigh
v. Performance Plumbing and Heating, Inc., No. 04SC695, on these issues: Arnold v. O'Neill,
No. 04SC761, on these questions: The case between the legislature and the governor involves the scope of the governor's line-item veto power in light of the legislature's power of appropriation, and thus is a case fundamentally about the separation of powers between the executive and legislative branches in Colorado. (Disclosure: I am co-counsel for the General Assembly. I am also counsel for co-Respondents in the Arnold v. O'Neill case. So it's been a mixed-news morning for me.) April 8, 2005 The supreme court will issue no new decisions on Monday, but will issue rulings on cert. petitions. April 7, 2005 Here are the court of appeals' announcements for today. The court issued 12 published decisions, which will be summarized below (though it may take awhile). I did notice late last night, slightly after midnight, that the announcements were already online. So perhaps the court will now be posting its announcements after midnight instead of 8 a.m. If so, I guess I can update in the middle of the night. (But I won't.) Landlord not liable under premises liability statute for injuries to victim of dog bite by tenants' dog. The Landlord had transferred control of the premises to the tenants (in the residential lease) and therefore was no longer a "person in possession" under the premises liability statute. Accordingly, he could not be liable under the statute. Wilson v. Marchiondo Defendant could be convicted of escape, despite the fact that he did not succeed in getting completely free from the detention facility in which he was held. People v. Padilla Trial
court properly applied C.R.S. §§ 14-10-129 and 131(2)(b.5)
to determine whether changes in parenting time and decision-making responsibilities
were warranted, and in ordering father to be primary residential parent
after mother relocated to Missouri. The trial court's decision did not
infringe on mother's constitutional right to travel. In
re the Marriage of Graham Blakely applies retroactively to the date that Apprendi was decided for collateral attacks on convictions entered after Apprendi. Applying Blakely, the defendant's sentence could not stand. (Note: the defendant proceeded pro se). People v. Johnson Candidate committee was not required to report unexpended campaign contributions as contributions from a political party and therefore did not violate C.R.S. § 1-45-106(5) or art. XXVIII § 3(3)(e) of the Colorado Constitution. The court also held that the candidate could use the unexpended contributions to pay legal fees where those fees were related to the candidate's official duties. Williams v. Teck Where evidence supported jury's a determination that a transaction was a sale of real property, not an equitable mortgage, trial court properly denied motion for judgment as a matter of law. Woznicki v. Musick Restitution award for attempted extortion victim's moving expenses, lost wages, and charges incurred for terminating a lease early, was not improper--the victim's losses were not so attenuated from the defendant's criminal conduct as to not be proximately caused by that conduct. In addition, the court held that "lost wages" is not the same as the "loss of future earnings"--for which restitution cannot be ordered--but instead, lost wages are past damages that can be awarded as restitution. People v. Bryant In a dispute over grandparent visitation, the wishes of adoptive parents are entitled to the same consideration as those of natural parents. Where magistrate failed to give "special significance" to the wishes of the parents in granting grandparent visitation, the order reinstating grandparent visitation had to be vacated. In the Matter of the Petition of R.A. Hospital was required to file a motion or obtain an order before it could take a specialist's deposition in a workmen's compensation proceeding. Because it failed to do so, it was properly subject to a penalty imposed by the ALJ. Pioneers Hospital of Rio Blanco County v. ICAO HB 03-1256, which authorizes the state to enter into lease-purchase agreements to finance two state construction projects (the new CU Health Sciences Center at Fitzsimmons and a new prison) did not violate TABOR or the single-subject requirement of the Colorado Constitution. Colorado Criminal Justice Reform Coalition v. Ortiz Under
C.R.S. 8-73-110(3)(a)(I)(A), Division of Employment properly offset
claimant's unemployment compensation benefits by half the amount of
his Social Security disability benefits, thereby rendering claimant
ineligible for any unemployment benefits. The court rejected the claimant's
argument that the offset violated the Americans with Disabilities Act.
Cericalo
v. ICAO Trial court erred in conducting hearing on mother's motion for full allocation of parental responsibilities. Mother attempted to serve the motion on the father, but did not serve it on his attorney. Under C.R.C.P. 5(b), where a party is represented by an attorney, all notices required to be given in the matter must be given to the attorney of record. On the facts of the case, the failure to give proper notice was not harmless error. In re the Marriage of Cooper April 4, 2005 I have to correct my earlier post today. It's not a thoroughly disappointing day. I noticed this weekend that the supreme court's website has some new, useful material available. (I confess I don't know how long it's been there, so exactly how new it is is uncertain.) Here the court has a link for Original Proceedings. Presently, there is one original proceeding up at that link, No. 04SA385, In re Crowe v. Tull. The court has granted an order to show cause and the parties have briefed the petition. Links to the various pleadings and appendices are also available at the above link. The court also has a link to information for law clerk applicants here. These links are great additions to the court's website. A thoroughly disappointing Monday--no case announcements from the supreme court and the inevitable circadian rhythm difficulties caused by the time-shift. But the long-term benefits of the "extra" hour of daylight, i.e. at least 4 more holes before it's too dark to golf, outweigh today's passing malaise.
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