December 22, 2005 Here are today's court of appeals announcements. The court issued only unpublished decisions. December 21, 2005 The court of appeals will issue the following unpublished decisions tomorrow: No.: 02CA1027 People v. Tomas Mars Garcia December 19, 2005 The court of appeals' oral argument calendar for February 2006 is here. The supreme court has added another original proceeding to its docket, In re People v. Trujillo, No. 05SA318: Synopsis: Petitioner Cassandra Gomez seeks relief from the district court’s denial of her motions to quash a subpoena duces tecum requiring defense counsel to turn over privileged and confidential information. On December 15, 2005, the Court issued a rule to show cause why the relief requested should not be granted. Respondents Timothy Trujillo and Adrienne Greene, Deputy District Attorney, are directed to provide a written answer on or before January 17, 2006 why the requested relief should not be granted. Petitioner Gomez has thirty days from receipt of the answer within which to reply. Here are today's supreme court announcements. The court issued three decisions today, which I will summarize below. The court granted cert. in four cases, summarized below. The court also issued modified opinions in a few cases. All the case information will appear below. Also, I will be updating my December 15 post with summaries of the court of appeals' published decisions from that day. So by day's end, I hope to be all caught up. Thanks for your patience. Gov. Owens has appointed David Furman, a Denver District Court magistrate, to the court of appeals. Judge Furman will replace Judge Piccone, who is stepping down effective December 31. Congratulations to Judge Furman and I wish him many years of great service on the court of appeals. As a reminder, applications for the vacancy on the supreme court are due January 6, 2006. That vacancy will be filled by mid-February. Considering the doctrine of equitable subrogation and its interrelationship with Colorado’s Recording Act, C.R.S. § 38-35-109, the supreme court held that the doctrine may apply if the intervening lienholder is not prejudiced by such application, and, after considering the potential subrogee’s knowledge, negligence, and degree of sophistication, the equities weigh in favor of subrogation. In this case, the supreme court concluded equitable subrogation was appropriate, and affirmed the court of appeals' decision. Hicks v. Londre Prosecutor’s use of the word “lied” during closing arguments was improper, the reference to the defendant testifying untruthfully was proper when considered in context, commenting that the defense witnesses made up their stories was improper, and stating that the defendant’s case passed the State’s screening process was improper. The supreme court considered only the cumulative prejudice of the word “lied” due to the trial court’s sustained objection to its use and reviewed the other statements for plain error. Upon consideration of the entire record, the court held that the prosecutor’s improper remarks did not undermine the fundamental fairness of the trial and cast serious doubt on the reliability of the jury’s verdict. Justice Bender dissented, agreeing with the majority's legal framework, but disagreeing with its application to the case. Domingo-Gomez v. People C.R.S. § 8-41-401(1)(a), relieves a general contractor of its liability as an employer, for the death or injury of a person to whom it contracts out work, whenever that person is engaged in an independent trade, occupation, profession, or business and is free from the general contractor’s control and direction, without at the same time relieving the general contractor of liability for the subcontractor’s employees. Therefore, the employer was liable as Plaintiff's statutory employer but was immune from a personal injury suit. Frank M. Hall & Co. v. Newsom The court issued modified opinions in these cases (links are to the modified opinions) Archangel Diamond Corp. v. Lukoil Hopp & Flesch, LLC v. Backstreet The court granted cert. in the following cases: Schupper v. People, No. 05SC591, on this question
Whether the court of appeals erred in reversing the trial court order vacating the defendant’s judgment of conviction. Flakes v. People, No. 05SC593, on this issue Whether the direct file statute, C.R.S. section 19-2-517, is unconstitutional
on its face and as applied for requiring adult sentencing of 16-17 year
old juveniles based on the seriousness of the crime charged, despite
an acquittal of such crime, and a conviction of lesser charges outside
the scope of the direct file statute. ICAO v. Nu Horizon Windows Sys., Inc., No. 05SC757, on this issue
Whether section 8-40-201(19)(b), C.R.S. (2005), requires purchase of continuing health insurance coverage to have the cost of such coverage included in calculating the average weekly wage. K.D. v. People, No. 05SC808, on this issue
Whether the juvenile court improperly relied upon father’s criminal conviction, and the resulting incarceration, to work a forfeiture of his parental rights. December 15, 2005 The court of appeals' announcements for today are here. The court issued ten published decisions, which will be summarized below (eventually). Sexual assault
conviction did not merge into second degree kidnapping conviction. The
court rejected defendant's argument that U.S. Supreme Court's decisions
in Ring and Apprendi altered the supreme court's decision in People
v. Henderson, 810 P.2d 1058 (Colo. 1991), which had held that sexual
assault is not a lesser included offense of second degree kidnapping
involving sexual assault. The court also rejected defendant's sentencing
argument that Apprendi did not permit an aggravated sentence. The court
held that defendant's prior felony conviction was the event that Trial court
did not err in denying Plaintiff's motion to appoint a special prosecutor,
nor in denying C.R.C.P. 49(a) does not require a party to object to the inconsistencies in a jury’s answers to a special verdict before the jury is discharged in order to preserve its right to challenge the inconsistencies in a subsequent motion or on appeal. On the merits, the court concluded that the verdicts were not inconsistent and therefore affirmed. Morales v. Golston Trial court
misconstrued the Equine Activities Statute (EAS), C.R.S. § 13-21-119,
in instructing jury that the sponsor of an equine event would be liable
only if a claimant proves that the sponsor failed to make reasonable
efforts to determine both the participant’s ability to engage in
an activity and the participant’s ability to manage an animal.
The court of appeals concluded that (1) the EAS unambiguously imposes
a two-pronged duty upon a person who provides a horse to a participant
in an equine activity; and (2) the statutory construction adopted by
the trial court would lead to unjust and illogical results. The court
held that a sponsor or professional who "provided the animal"
remains subject to common law liability if the sponsor or professional
fails to inquire into the participant’s ability safely either to
manage the horse or to engage in the activity. Lien claimant, who was defendant in underlying action, failed to bring a timely action to foreclose mechanics' lien. The claimant asserted counterclaims and crossclaims for breach of contract, fraud, and racketeering activity, but it did not assert a counterclaim or crossclaim for foreclosure on the bond until nearly 3 years after initiation of the lawsuit. That was not within the 6-month periods allowed by C.R.S. §§ 38-22-110 and 38-22-133. Mountain Ranch Corp. v. Amalgam Enterprises, Inc. Conversion action not filed within 2-year statute of limitation where Plaintiff had been trying to get his property back from defendant for over 2 years when he filed the action. Plaintiff had knowledge of the facts necessary for a conversion action over 2 years before the action was filed, and therefore the Plaintiff's action was untimely. McGee v. Hardina City street light service charge does not constitute a tax under TABOR. Nor are cable television charges the City imposes on Adelphia, which are then passed on to consumers. Judge Roman, joined by Judge Vogt, wrote the majority opinion. Judge Graham dissented, concluding that the charges are actually involuntary taxes that violate TABOR. Bruce v. City of Colorado Springs Inmate suit challenging DOC's policy for distribution of cigarettes dismissed for failure to exhaust administrative remedies. Glover v. State of Colorado, Office of the Attorney General Evidence of
a parent’s prenatal substance abuse is sufficient to establish
there will be mistreatment or abuse if the child is placed with the
parent after birth. Upon the birth of the child, such evidence may also
support the filing of a petition in dependency or neglect under C.R.S.
§ 19-3-102(1)(a)(c). The court rejected the mother’s contention
that an amendment to § 19-3-102(1) required a different result.
People
in the Interest of T.T. In an appeal from the termination of parental rights, the court held that by stipulating to the appropriateness of the treatment plan at the time of its adoption by the court, father acquiesced in any inadequacies of the plan. When a party acquiesces in the court’s error, he or she is precluded from challenging the issue on appeal. Therefore, although the treatment plan did not at its inception specifically address father’s mental health needs, by acquiescing in the plan, father is precluded from arguing that it was not appropriate. To the extent father argues the plan was rendered inappropriate by the manifestation of his mental health needs after the plan’s inception, but prior to the termination hearing, the court concluded that father’s failure to timely request modification of the plan bars him from now raising this issue: "It is a parent’s responsibility to secure compliance with and success of a treatment plan." People in the Interest of M.S. December 14, 2005 The court of appeals will release the following decisions tomorrow, including 10 published decisions: PUBLISHED OPINIONS No.: 03CA1741 People v. Dagoberto Ramirez UNPUBLISHED OPINIONS No.: 02CA1561 People v. Paul Romero December 12, 2005 The supreme court had no case announcements today. December 8, 2005 Here's the press release on the supreme court vacancy created by Justice Kourlis's resignation. Applications are due January 6. The Supreme Court Nominating Commission will interview selected applicants on January 31 and February 1, which means the three finalists should be forwarded to the governor on February 1 and 2. The governor will then have 15 days to make the appointment. This will be the first new appointment to the court since Justice Coats was appointed in 2000. I have a prediction on who will get the appointment, but I'm not sharing. Regardless of who gets the appointment, that justice will have big shoes to fill. The court of appeals' announcements for today are here. The court issued one published decision, summarized below. Defendant, who was 13 when he allegedly commited burglary, could be charged, at age 14, under the direct filing statute, C.R.S. § 19-2-517. The majority held that the statute did not require the defendant to be at least 14 at the time of the offense. Judge Webb wrote the majority opinion, and was joined by Judge Marquez. Judge Piccone dissented, concluding that the statute required the defendant to be at least 14 at the time of the offense. I suspect the supreme court may want to address this case. People v. Bostelman December 7, 2005 The supreme court has added some more original proceedings to its caseload. The original proceedings link is here. The new cases are People v. Weatherall, No. 05SA233: Petitioner Christopher Weatherall requests that his judgment of conviction and sentence be vacated because the Denver District Court failed to consider and rule on his Crim. P. 35(c) motion in a timely manner. In 2002, the Court of Appeals affirmed in part, reversed in part and remanded for an evidentiary hearing on Weatherall’s Rule 35 (c) motion. The Supreme Court denied certiorari, and the mandate issued from the Court of Appeals in August 2003. The Denver District Court appointed a lawyer for Weatherall in November 2004. When that lawyer withdrew, a new lawyer was appointed in January 2005. Since then, no action has been taken in the case and Weatherall has not received a response to his request for a status report on the case. On November 4, 2005, the Supreme Court issued a rule to show cause why the requested relief should not be granted. Respondent Judge Rappaport is directed to provide a written answer on or before December 5, 2005 why the relief requested in the petition should not be granted. Petitioner Weatherall has thirty days from receipt of the answer within which to reply. In re: People ex rel. Colorado General Assembly v. State Commission on Judicial Performance, No. 05SA330 (an Original Proceeding under Colorado Constitution Article VI, § 3 and C.A.R. 21) (Disclosure: my law firm represents Petitioners): Petitioners Andrew Romanoff, Speaker of the Colorado House of representatives, Joan Fitz-Gerald, President of the Colorado Senate assert that the Colorado Commission on Judicial Performance refused to seat legislative appointees Mr. Lance Sears and Mr. Brad Levin to the Commission on Judicial Performance and state that these appointees were: 1) appointed to the Commission by a previous Speaker and a previous President; 2) removed from the Commission prior to the expiration of their terms by the immediate predecessors to Romanoff and Fitz-Gerald; and 3) reappointed by Romanoff and Fitz-Gerald, who also extended their terms by one year. Petitioners seek relief in the form of a writ quo warranto to establish that the removals of Sears and Levin from the Commission were without effect or, in the alternative, a writ of mandamus to require that the Commission perform the ministerial duty of giving full effect to the appointments made by Romanoff and Fitz-Gerald. On November 21, 2005, the Court issued a rule to show cause why the requested relief should not be granted. Respondents State Commission on Judicial performance and Paul F. Miller; William Banta, Lance M. Sears, and Bradley A. Levin, in their official capacities as unseated appointees to the State Commission on Judicial Performance, are directed to answer, in writing, on or before December 12, 2005 why the relief requested in the petition should not be granted. Petitioners have ten days from receipt of the answer within which to reply. In re Ray v. Liberty Mutual Ins. Co., No. 05SA332: Petitioners Carnell and Theresa Ray seek to overturn two orders issued by the district court on November 2, 2005 1) compelling production of confidential and privileged attorney-client communications and attorney work product from Carnell Ray’s attorneys and 2) granting attorney’s fees as a sanction for failure to disclose confidential and privileged materials. On November 23, 2005, the Court issued a rule to show cause why the requested relief should not be granted. Respondent Liberty Mutual Insurance Company is directed to provide a written answer on or before December 13, 2005 why the relief requested in the petition should not be granted. Petitioners have twenty days from receipt of the answer within which to reply. The court of appeals will issue the following decisions tomorrow, including one published decision: PUBLISHED OPINION No.: 04CA1223 People v. Deitrich Franz Bostelman UNPUBLISHED OPINIONS No.: 03CA0100 People v. Lawrence M. Jiron December 5, 2005 Today's supreme court announcements are here. The court issued one decision, summarized below. The court granted cert. in two cases, though on the same question, which follows the case summary. In other supreme court news, Justice Kourlis has announced her resignation from the court, effective January 10. Here's her statement. No news yet on when applications for that vacancy will be due. I thank Justice Kourlis for her great service to the court and the state and wish her all the best in her next venture. In court of appeals, the three finalists for the vacancy that will be created by Judge Piccone's resignation were announced here. The Governor has 15 days from December 2nd to appoint one of the three. Where a purchaser
of real property is aware that the persons in possession of the property
are not the sellers, the property is conveyed by consecutive quitclaim
deeds, and the property remains subject to mortgages, the circumstances
are sufficient to put the purchaser on inquiry notice of defect in title.
And, where such an inquiry would have revealed the patent fraud of an
underlying option agreement, the subsequent purchaser is not a bona
fide purchaser for value. Martinez
v. Affordable Housing Network, Inc. The supreme court granted cert. in ICAO v. Ray, No. 05SC632 and ICAO v. Marsh, No. 05SC652, on this question: Whether a claimant
is required, pursuant to section 8-40-201(19)(b), C.R.S. (2005), to
purchase continuing health insurance coverage in order to have the cost
of such coverage included in calculating his or her average weekly wage.
December 2, 2005 The supreme
court will issue one decision on Monday, No. 04SC421, Martinez v. Skaggs.
The oral argument for that case can be found at this
link. December 1, 2005 Here are today's court of appeals announcements. The court issued 18 published decisions, which will be summarized below eventually. (Hey, 18 cases is a lot to summarize and still do my day job. Not to mention the fact that my son just got a pet tarantula, and I'm now having to learn all about the care of that gentle arachnid.) Trial court committed reversible error by admitting evidence of drug transactions as res gestae evidence because allowing that evidence, which was the subject of separate federal drug charges, impermissibly burdened the defendant's constitutional right to testify in his own defense. People v. Skufca Failure to disclose
a pending juvenile case against one of the prosecution witnesses was
a violation of Crim. P. 16, but required reversal of only one of defendant's
convictions. This case has many other criminal law and procedure issues
in it worth reading . People
v. Cevallos-Acosta Failure to register as a sex offender, C.R.S. § 18-3-412.5, is a continuing offense but not a strict liability offense. Instead, it requires proof of the mental state of “knowingly.” Judge Russel dissented in part, concluding that the crime is a strict liability offense. I anticipate this case will be reviewed by the supreme court. People v. Lopez Trial court improperly allowed opinion testimony of police officers (1) about the amount of pseudoephedrine required to manufacture methamphetamine, (2) that possession of large amounts of pseudoephedrine in combination with the other chemicals and supplies found in defendant’s truck indicated an intent to manufacture methamphetamine, and (3) describing how methamphetamine is manufactured and how the various precursor chemicals are used. That testimony was expert opinion testimony, not lay testimony, and therefore had to comply with CRE 702 before being admitted. Since the police officers were not qualified as experts, the testimony should not have been allowed, and a new trial was required. People v. Veren Trial court properly found defendant guilty of witness retaliation. The court of appeals concluded that the prosecution satisfied its burden of proof by showing that the defendant directed the threat toward the witness and her family even though the threat was delivered to a deputy district attorney and was not directly delivered or communicated to her by defendant. People v. McIntier Because trial was expected to last more than 3 days, trial court had discretion to excuse juror who claimed hardship for a business trip he had already paid for and which was not refundable. Therefore, the court was not limited to granting a challenge for cause for actual or implied bias under C.R.S. § 16-10-103. The court also rejected the defendant's arguments that the trial court erred by admitting a videotaped interview of the victim without requiring the prosecution to secure the presence of the interviewer, and by allowing the jury to view the videotape during deliberations. People v. Isom Trial court
did not err in concluding that sand and gravel were not minerals subject
to a mineral Attorney was entitled to hearing on his motion for sanctions, under C.R.C.P. 11 and 37, C.R.S. § 13-17-102, against counsel for malpractice plaintiff. The trial court's failure to hold a hearing required a remand for a hearing. Brown v. Silvern C.R.S. § 38-26-105 is a specific provision that applies to actions to recover payment under a public works contractor’s performance bond. Its statute of limitation controls over the general civil action statute of limitation of C.R.S. § 13-80-101(1)(a). Since the plaintiff did not bring its claim within the 6-month statute of limitation, a directed verdict in favor of the defendant was proper. Pat’s Construction Service, Inc. v. Insurance Company of the West Workers comp. claimant’s acceptance of a lump sum does not imply acceptance of a Final Admission of Liability (FAL) and therefore does not constitutes a settlement or waiver of the right to challenge the FAL. Judge Casebolt, joined by Judge Piccone, wrote the majority opinion. Judge Dailey dissented, concluding that the claimant had waived her right to challenge the FAL. Leprino Foods Company v. ICAO The No-Fault
Act does not allow subrogation claims against the owners of public school
buses. But the court reversed the dismissal of the complaint because
the allegations of the complaint were sufficient to state a claim for
subrogation against the school district because the operator of the
tow truck that was towing the school bus at the time of the accident--a“nonprivate
passenger motor vehicle”--was negligent. The trial court erred
in concluding that the tow truck was an extension of the school bus
and therefore insulated from subrogation claims. Titan
Indemnity Company v. School District No. 1 in the City and County of
Denver Remedial costs
that have been advanced for probation need not be refunded if the conviction
that led to the probation is vacated. The court concluded that because
the purpose of probation is Defendant was not entitled to an extended proportionality review to determine whether his sentence violated the Eighth Amendment because an abbreviated proportionality review--a threshold comparison of the offense and sentence imposed--yielded no inference of gross disproportionality. Therefore, an extended review was not necessary. People v. McNally Failure to repair sidewalk did not give rise to claim of negligence per se. The court extended Bittle v. Brunetti, which had decided that issue in the context of snow removal. Foster v. Redd A finding of imminent danger is a prerequisite only to the issuance of a temporary protection order under C.R.S. § 13-14-102, not to the issuance of a permanent protection order. To issue a permanent protection order, the court must find that the person to be restrained committed acts against the protected person which constitute grounds for issuance of an order under § 13-14-102(1.5), and that these prohibited acts will continue in the absence of a protection order. No finding of imminent danger is required. Marriage of Fiffe Contempt citation against court reporter upheld. The court reporter, who had not completed necessary transcripts for criminal appeals when she quit her job for the Arapahoe County District Court, was ordered to complete the transcripts. When she failed to do so, she was held in contempt. The court of appeals rejected her argument that the trial court lacked authority to order her to assist in preparing the transcripts because she no longer works for the state system, concluding that the trial court had inherent authority to issue the order requiring her to complete the transcripts. The court of appeals then rejected the court reporter's argument that the contempt sanction violates the Thirteenth Amendment's prohibition on involuntary servitude (also found in Art. II, § 26 of the Colorado Constitution). People v. McGlotten, et al. and Concerning Valeri Barnes Employer and
its insurer Union Carbide are solely liable for workers’ compensation
death benefits. The court rejected the employer's argument that the
Subsequent Injury Fund (SIF) should share in that liability. Before
1994, the last employer was liable for only the first $10,000 of benefits,
and any remaining benefits were paid from the SIF. In 1993, the General
Assembly amended C.R.S. § 8-41-304(2), effective April 1, 1994,
to delete any reference to the SIF, thereby Court of appeals upholds termination of parental rights for mother with history of substance abuse. People in the Interest of K.T.
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