August 31, 2005 The court of appeals will issue the following unpublished decisions tomorrow (no published ones): Unpublished Opinions No.: 02CA0481 People v. Angelo L. Diaz August 29, 2005 The supreme court's announcements for today are here. The court issued no new decisions and did not grant cert. in any cases. August 26, 2005 Below are the summaries of yesterday's published decisions from the court of appeals. I apologize for the delay in posting them. Trial court erred in excluding expert testimony concerning defendant's developmental disability. In so holding, the court of appeals concluded that the expert testimony, which addressed defendant's credibility, not an impaired mental condition defense, was not "mental condition" evidence under C.R.S. § 16-8-107(3)(b). Therefore, the trial court erred in excluding the evidence under that statute, and that error required reversal. People v. Flippo Reckless endangerment is not a lesser included offense of first degree assault on a peace officer and therefore the trial court did not err in refusing to instruct on it. But the trial court did err in instructing on reckless endangerment as both a lesser included offense of attempted first degree murder and a lesser nonincluded offense of first degree assault. By permitting the jury to be so instructed, the trial court allowed the defendant to be convicted twice for reckless endangerment arising out of the same conduct. That violated defendant's double jeopardy rights. Resentencing was not required, however, because the extra convictions did not affect the sentence imposed on defendant. The court also held that even if it was error to introduce "other acts" evidence, that error was harmless beyond a reasonable doubt as evidence of the defendant's guilt was overwhelming. People v. Delgado-Elizarras In a previously-decided
case, the court granted a petition for rehearing, withdrew its prior
opinion and issued a new decision.. The court held that the trial court
did not err in calculating prejudgment interest. The court disagreed
with Smith v. Mehaffy, 30 P.3d 727 (Colo. App. 2000), to the extent
that case used the discovery accrual rule of the statute of limitations
to determine when interest begins to run. Porter
Construction Services, Inc. v. Ehrhardt, Keefe, Steiner, and Hottman,
P.C. Defamation claims against newspaper defendants were properly dismissed because the allegedly defamatory statements were protected by the fair report doctrine (under that doctrine the reporter of defamatory statements is protected even if the reporter knew or believed the statements were false). The doctrine had only been applied previously to reports of judicial proceedings, but the court of appeals extended the doctrine to reports of other proceedings, in this case a meeting of the Montezuma County Hospital District Board of Directors. The court also rejected the plaintiff's defamation claims against the board and its attorney. Finally, the court awarded the defendants attorney's fees on appeal under C.R.S. § 13-17-201. Wilson v. Meyer Court of appeals upholds the denial of class certification for putative class action against an insurance company by policyholders. The trial court concluded that common issues of law and fact did not predominate, and the court of appeals held that to not be an abuse of discretion. Medina v. Conseco Annuity Assurance Company Although a bank held a perfected security interest in a car dealership's inventory, that interest terminated because the bank authorized disposition of the inventory, thereby leaving it with a security interest in the proceeds only. The court of appeals rejected the bank's argument that the Colorado Certificate of Title Act, C.R.S. § 42-6-101, requires third-party lenders, like the defendant credit union, to obtain title to the vehicle in order to obtain a security interest in the vehicle. The court held that under C.R.S. § 4-9-320 the credit union took free of any security interest the bank may have had in the vehicles. Valley Bank and Trust Company v. Holyoke Community Federal Credit Union Plaintiff's notice under the Governmental Immunity Act was untimely. Plaintiff argued that her claims for false arrest did not ripen until her attorney received discovery in her criminal case that showed she was innocent. The court of appeals disagreed that here notice was timely, holding that the notice needed to be filed within 180 days of the date of her allegedly false arrest, the day she knew of the injury. While her claims may not have been ripe then, the statutory notice period was triggered. Masters v. Castrodale Telephone Consumer Protection Act, 47 U.S.C. § 227, creates a private right of action that may be brought in state court. Therefore, the district court erred in dismissing the complaint for lack of subject matter jurisdictionConsumer Crusade, Inc. v. Affordable Health Care Solutions, Inc. August 25, 2005 The court of appeals announcements for today are here. The court issued 8 published decisions and many more unpublished ones. Summaries of the published decisions will appear soon (I hope). August 24, 2005 The court of appeals will issue the following decisions tomorrow, including 8 published decisions. I will try to summarize those by the end of the week. (I have a mediation tomorrow and some pleadings to file, so summaries may be delayed. Thanks for your patience): Published Opinions No.: 02CA1831 People v. Larry G. Flippo Unpublished Opinions No.: 03CA1482 People v. Mark Joseph Ankrum August 23, 2005 The supreme court's oral argument calendar for September is here. The court will hear arguments September 13-15, including the following important cases: Colorado General Assembly v. Owens, addressing the scope of the governor's line-item veto power (September 15th, 1:30 p.m.) (Note: I am co-counsel for the General Assembly. One of my partners will argue the case.); In re Crowe v. Tull, an original proceeding in which the Plaintiff challenges the district court's dismissal of claims of breach of fiduciary duty and violations of the Colorado Consumer Protection Act, which the trial court concluded were duplicative of his legal malpractice claims (September 13th, 9:00 a.m.); Harris v. The Denver Post Corp., arising out of the Columbine shootings, addressing the definition of "criminal justice records" under the Criminal Justice Records Act, and also addressing whether privately-owned personal property seized from a private home by the government pursuant to search warrant is a "public record" subject to the Colorado Open Records Act (September 13th, 1:30 p.m.); Metropolitan Builders, Inc. v. Eagle Ridge Condo. Ass'n, which will address arbitration, specifically, whether the court should reject the intertwining doctrine (September 14th, 10:30 a.m.). August 22, 2005 The supreme court has not yet posted its argument calendar for its September sitting (September 13-15). I'll post it here as soon as the court posts it. (I'm hoping that counsel in cases to be argued have already been notified, since those arguments are only three weeks away.) The supreme court's announcements for today are here. The court issued no decisions, but did grant cert. in the following three cases: Hewitt v. Rice, No. 05SC81, on these questions:
Whether Colorado malicious prosecution law should be modified to exclude the element of favorable resolution when the claim is based upon the wrongful filing of a lis pendens.
Whether Colorado should adopt a “totality of the circumstances” test for determining if the proceeding giving rise to the claim of malicious prosecution was favorably terminated in a civil case. Scott v. Scott, No. 05SC199, on this issue:
Whether an order of the probate court may be appealed prior to resolution of all issues between parties. City of Golden v. Parker, No. 05SC282, on these issues: Whether real estate developers in this case have vested rights in their agreements with the City of Golden that require the City Council, in accordance with the implied covenant of good faith and fair dealings and consistent with Colo. Const. Article X, Section 20 (Amendment 1, 1992), to exercise its budget discretion annually to pay the monetary compensation provided by those agreements.
Whether the Court of Appeals erred when it concluded that the Developer/defendants did not have vested contract rights in agreements that were in place and executory when the initiated Charter Amendment was adopted.
August 19, 2005 The supreme court will have an announcement sheet on Monday, but will not release any new decisions. If the court grants cert. in any cases, I will let you know. August 18, 2005 The court of appeals' argument schedule for October is here. The court of appeals' announcements for today are here. The court issued unpublished decisions only. Unless an original proceeding results in a published decision, the supreme court does not include its actions in original proceedings in its case announcements. But where a rule to show cause issues, the court does include the outcome on its original proceedings link, which is here. The court has recently issued the following two rules to show cause: In re People v. Weiss, No. 05SA227: The People of the State of Colorado seek relief from the trial court’s order admitting for credibility and impeachment purposes evidence of the alleged victim’s prior reports of sexual abuse and requested that the Court issue a rule to show cause why the district court’s order should not be vacated and the evidence ruled inadmissible as irrelevant under § 18-3-407, C.R.S. The Court issued a rule to show cause why the relief requested should not be granted on August 15, 2005. Respondent Weiss is directed to provide a written answer on or before September 14, 2005; the People have thirty days from receipt of the answer within which to reply. In Re Estate of Thorvald Myers, No. 05SA231: Petitioners Donald Myers and Olsen & Traeger, LLP seek relief from the probate court’s order disqualifying Olsen & Traeger from serving as Mr. Myers’ counsel as a discovery sanction. They request that the Court reverse the probate court’s order. The Court issued a rule to show cause why the relief requested should not be granted on August 15, 2005. Respondent Marian Porter is directed to provide an answer on or before September 6, 2005; Petitioners have twenty days from receipt of the answer within which to reply. The court also
acted recently on two rules to show cause it issued back in the spring.
In In re Marriage of Stookey, No. 05 SA124, the court dismissed the
rule to show cause as improvidently granted. The court discharged the
rule to show cause it issued for In re People v. Fregoso-Perez. August 17, 2005 The court of appeals will release the following unpublished decisions tomorrow (no published ones this week): Unpublished Opinions No.: 02CA0612 Marriage of Gary L. Phillips and Michelle D. Phillips,
a/k/a Michelle Parker and Concerning J.P., through Thomas Vockrodt,
Guardian Ad Litem August 12, 2005 There will be no case announcements from the supreme court on Monday, August 15. So barring any other appellate news to report, I won't have a post on Monday. Have a good weekend. Here are the summaries of yesterday's court of appeals' announcements. Sentencing is not final until restitution is ordered (absent a finding that the victim suffered no pecuniary loss). Therefore, trial court had jurisdiction to enter restitution order after notice of appeal was filed. Notice of appeal was premature since restitution had not been addressed when the notice was filed. The court also concluded that the restitution order did not violate double jeopardy by increasing the punishment after defendant began serving it. People v. Rosales Mechanics liens are excluded from the Spurious Liens and Documents statute (C.R.S. § 38-35-201). Mechanics liens are not within the definition of "spurious liens" and therefore cannot be challenged as spurious. Tuscany, LLC v. Western States Excavating Pipe & Boring, LLC Search incident to arrest was proper where stop and arrest were lawful (based on defendant's traffic violations). Evidence discovered during inventory search was admissible, even though officer's subjective intent in contacting and arresting defendant was not to enforce traffic laws but to create a basis for searching the vehicle, because the inventory search followed the standards and policies of the police department. The court rejected the defendant's other challenges to his conviction, but did remand for an extended proportionality review, concluding that defendant's sentence gave rise to an inference of gross disproportionality necessitating the extended review. People v. Patnode Doctor participating in residency program at DGH was a public employee for purposes of the Governmental Immunity Act. In addition, second doctor, who was in private practice, but whose employing corporation received compensation for any services provided by a resident when the resident was supervised by the employee-doctor, was also a public employee under the GIA. But the court, disagreeing with the trial court, held that neither the GIA nor the Wrongful Death Act (C.R.S. § 13-21-201, et seq.) limited the Plaintiffs' recovery to $150,000. Sereff v. Steedle Trial court did not abuse its discretion, under C.R.C.P. 42, in refusing to bifurcate unlawful detainer claim (regarding mobile home) from tenant's counterclaims for tortious interference and intentional infliction of emotional distress. In addition, the trial court did not err in directing a verdict for the tenant on the unlawful detainer claim. Under the Mobile Home Park Act, a landlord may terminate a lease only for one of the reasons set forth in C.R.S. § 38-12-203. Here the landlord terminated the lease under C.R.S. § 13-40-104, contending the lease had expired and was not renewed. Because that reason, however, is not one set forth in § 38-12-203, the tenant was entitled to a directed verdict. Duhon v. Nelson Trial court erred in excluding testimony from counselor who had met with victim. The victim testified in detail about statements she made in the counseling sessions and therefore waived the psychologist-patient privilege. The court of appeals concluded that the defendant had not yet established that the error was of constitutional dimension. The court concluded that under the record, the case had to be remanded for further proceedings to determine if the error was of constitutional dimension and if not, whether the error was harmless under the ordinary harmless error standard. People v. Krutsinger An employee's counterclaim qualifies as a "civil action" "commenced" under the Wage Claim Act's attorney fee provision, C.R.S. § 8-4-114. Therefore, as the prevailing party in that wage claim, employee was entitled to fees for the prosecution of that claim. Remote Switch Systems, Inc. v. Delangis In a private action under C.R.S. § 8-2-104, a plaintiff must prove the same elements as a claim for common law fraud. That statute prohibits inducing workers to change from one place of employment to another, or to bring workers to Colorado, by means of false or deceptive representations. The court rejected plaintiff's argument that there is a distinction between a "false or deceptive representation" and "false pretenses." The court said a false pretense is a "false representation" made with knowledge of its falsity and the intent to defraud and deceive. In upholding summary judgment against plaintiff, the court concluded that the representations made to plaintiff were not actionable. Nelson v. Gas Research Institute Plaintiffs were employees of the Denver Department of Human Services who filed employment classification requests with the Denver Career Service Authority Board, seeking classification to a higher pay grade. Their requests were rejected or not acted on by the Board and they requested administrative review with the Personnel Director. The director either rejected or did not act on their requests, so the employees appealed to the Board Hearing Office. While their requests were pending, the Career Services Rules that had permitted such appeals were amended so that classification decisions could not be appealed. The hearing officer dismissed the plaintiffs' appeals on that basis. The district court rejected the plaintiffs' C.R.C.P. 106 challenge, and the court of appeals affirmed. The court concluded that the rule amendments were the result of quasi-legislative action that may be reviewed under C.R.C.P. 57, but could not be reviewed under Rule 106. The court also concluded that retroactive application of the amended rules by the hearing officers was reasonable and warranted by the record. Therefore, the court would not upset that application. The court rejected the plaintiffs' argument that the application of the amendments to them was an unconstitutional retrospective application of the rules. Abromeit v. Denver Career Service Board Husband's tort
claims against wife, which are legal in nature, should not be joined
in dissolution action, which is equitable in nature, because the joinder
would inject extraneous issues that are difficult to address in the
unique context of marital dissolution. Husband was not barred, however,
from seeking equitable relief for wife's alleged actions. Marriage
of Mockelmann In the related tort case, the court of appeals affirmed
the dismissal of the husband's tort claims, concluding that the claims
should be pursued in the dissolution court which had continuing jurisdiction.
The upshot of the cases read together is the husband's relief seems
limited to equitable relief sought in the dissolution court. Mockelmann
v. Mockelmann ICAO erred in concluding that a division-sponsored independent medical examination physician's uncontested finding of maximum medical improvement cannot be reopened under C.R.S. § 8-43-303(1) based on a mistake of fact. Misdiagnosis, discovered only when claimant had surgery, justified reopening. Berg v. ICAO C.R.S. § 43-4-506(1)(h)(II)(B), which requires an award of attorney's fees to landowners in eminent domain proceedings when the final value of the property as determined by a court is 130% or more than the public body's last written offer before the filing of the condemnation action, does not permit public entity to submit a new last offer in connection with the filing of an amended petition in the condemnation action. Therefore, landowners were entitled to fees. E-470 Public Highway Authority v. Kortum Investment Company, LLLP Employer's initial referral of injured employee to a corporate provider, rather than a specific physician, was not invalid under C.R.S. § 8-43-404(5)(a). Therefore, it was not error for ALJ to rely on evidence from that provider, and the denial of permanent impairment benefits was justified. Andrade v. ICAO Order adjudicating child as dependent and neglected is necessary to vest the court with dispositional remedies. Therefore, where child was not adjudged dependent and neglected, court lacked the power to order mother to comply with a treatment plan. People in the Interest of U.S. August 11, 2005 The court of appeals' announcements for today are here. The court issued 15 published decisions, which I will summarize and post tomorrow. August 10, 2005 The court of appeals will announce the following decisions tomorrow, including 15 published decisions (which I will try to summarize tomorrow): Published Opinions No.: 03CA0077 People v. Daniel Luque Rosales Unpublished Opinions No.: 01CA0633 People v. Nicholas David Martinez August 9, 2005 Sorry for the late post, but I was out of town yesterday. The supreme
court's announcements for Monday, August 8, 2005, are here.
The court issued no new decisions, but did grant cert. in one case,
Vensor v. People, No. 05SC193, on these questions: August 5, 2005 The supreme court will issue no new decisions on Monday, but will have an announcement sheet. If the court grants cert. in any cases, I'll let you know. August 4, 2005 The court of appeals' announcements for today are here. The court issued unpublished decisions only. August 3, 2005 The court of appeals will release the following unpublished decisions tomorrow (no published ones): Unpublished Opinions No. 02CA2498 Tugba Koca, a minor child, by and through her legal guardian,
Paula Alpar v. Donald Keller, individually and d/b/a Continental Cleaners August 1, 2005 The supreme court's announcements for today are here. The court issued no decisions, but did grant cert. in one case, No. 05SC237, People v. Aarness, on this issue:
Whether the court of appeals erred in concluding that the police officers’ entry into the respondent’s home was unlawful under Payton v. New York, 445 U.S. 573 (1980).
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