February 28, 2005 Here are the supreme court's announcements for today. The court issued five decisions, summarized below. The court granted cert. in two cases, and the questions in those appeals are set out below. The failure to obtain or seek postconviction relief is not a bar to bringing a malpractice claim against trial counsel. Smith v. Truman Obtaining postconviction relief is not a prerequisite to filing a malpractice suit against trial counsel. But if postconviction relief is sought and denied on the merits, the denial may have preclusive effect in the malpractice suit in appropriate circumstances. On the facts of the case, since the appeal of the denial of postconviction relief was pending, the trial court properly stayed the malpractice suit pending the outcome of the appeal in the postconviction proceeding. Rantz v. Kaufman A landlord wrongfully retains a security deposit by failing to return the deposit or account for its retention within the statutory period of C.R.S. § 38-12-103(1) of Colorado's Wrongful Withholding of Security Deposits Act. A landlord who wrongfully retains a security deposit forfeits all rights to withhold it under CRS § 38-12-103(2), and is subject to treble damages under CRS § 38-12-103(3)(a). In addition, where a tenant serves a seven-day demand notice under 38-12-103(3)(a), a landlord can avoid wrongful retention only by returning the security deposit within the seven-day period and not by accounting for its retention because the landlord has forfeited all rights to withhold the deposit. The tenant's seven-day notice does not give the landlord a second opportunity to account for a wrongfully retained and forfeited deposit. Justice Kourlis dissented in part. Mishkin v. Young Conviction under CRS § 8-43-402, which basically makes it a felony to willfully make a false statement to obtain workers' comp. benefits, only requires forfeiture of the compensation that was obtained as a result of false statements. Wolford v. Pinnacol Assurance Health plan was ambiguous on whether self-inflicted injuries were excluded from coverage. Therefore, the court resolved the ambiguity in favor of coverage. Justice Kourlis, joined by Justice Bender, dissented, concluding that the policy unambiguously excluded self-inflicted injuries. In a separate dissent, Justice Coats reached that same conclusion. Cary v. United of Omaha The court granted cert. in these cases: Hicks v. Londre, No. 04SC741, on these questions:
Whether the court of appeals erred in holding equitable subrogation applies in this case. Whether the trial court correctly applied the presumption of notice contained in section 38-35-109. Colorado Dep't of Revenue v. Hibbs, No. 04SC759, on this question: Whether the court of appeals erred in holding that failure to notarize all the documents submitted to the Colorado Department of Revenue pursuant to section 42-2-126(3)(b), C.R.S. (2004) was a statutory violation that deprived the department of jurisdiction to hold a license revocation hearing. February 25, 2005 The supreme court will issue the following five decisions on Monday: 04SA190
Smith v. Truman February 24, 2005 The court of appeals' oral argument calendar for April is here. Here are the court of appeals' announcements for today. The court issued 11 published decisions, summarized below. A
certificate of review is required in professional negligence actions
only where the claims require expert testimony to establish a prima
facie case. In a case of first impression in Colorado, the court concluded
that no certificate of review was necessary where the claimed malpractice
was the failure to file a case within the statute of limitations period.
Giron
v. Koktavy Theft from victim's shopping cart that occurred when victim was a substantial distance from the cart was not an "invasion of the victim's person," and therefore the theft was not theft from the person of another as defined in C.R.S. § 18-4-401(5). The court vacated the theft conviction and also vacated the defendant's aggravated-range sentence for vehicular assault, based on Blakely. Judge Webb specially concurred on a separate jury instruction issue. The majority had applied the harmless-beyond-a-reasonable-doubt standard, but Judge Webb believed that plain error analysis applied because the defendant did not object to the instruction at trial. (Both the majority and Judge Webb found that any error was harmless.) People v. Smith
Aggravated sentence that rested only on defendant's prior convictions did not violate Blakely and Apprendi. The court noted that prior convictions are excepted from the Blakely/Apprendi requirement that aggravating facts must be found by the jury. (This exception makes perfect sense since the defendant already has either pled guilty to or been found guilty of such aggravating facts.) People v. Orth Successor corporation properly held liable for back rent under "mere continuation " exception to the general rule that a corporation that acquires the assets of another corporation is not liable for the other corporation's debts. The court held that the mere continuation exception does not require that all or substantially all of the assets be transferred before the exception will apply. CMCB Enterprises, Inc. v. Ferguson On remand from the supreme court in light of Anderson v. Longmont Toyota, Inc., 102 P.3d 323 (Colo. 2004), the court of appeals concludes that the claimant in this workers' compensation case was entitled to temporary total disability benefits because an industrial injury, not his voluntary separation from his employment, caused his inability to work. Grisbaum v. ICAO Court of appeals affirms denial of Crim P. 35(c) motion, concluding that the trial court did not err in denying the motion without a hearing when the record clearly showed that defendant was not entitled to relief. The court rejected defendant's arguments that the trial court erred in accepting his Alford plea. People v. Venzor Estate of deceased workers' comp. claimant was not entitled to death benefits under C.R.S. § 8-42-116(1) where the industrial injury was not the proximate cause of the decedent's death and the deceased had no dependents. The court agreed with the Estate, however, that it was not required to reimburse the lump sum payment made to the decedent before her death. Cooper v. ICAO Homeowners' association's super priority lien under CRS § 38-33.3-316 may include debts other than delinquent monthly assessments. First Atlantic Mortgage, LLC v. Sunstone North Homeowners Association Trial
court violated the anti-assignment clause of the Social Security Act
by listing husband's Social Security benefits among the marital property.
The case was therefore remanded for a new division of the marital property.
The court noted, however, that trial courts may consider the Social
Security benefits in determining whether to make an unequal distribution
of property. What the courts may not do is distribute marital property
to offset the computed value of Social Security benefits. The court upheld the termination of parental rights, rejecting a mother's arguments that the termination was improper because the trial court based its decision on two statutory grounds. The court rejected the argument that CRS § 19-3-604(1) requires that a termination order be based on only one statutory ground. People in the Interest of D.C-M.S. February 23, 2005 The court of appeals will announce 11 published decisions tomorrow, as well as many unpublished ones. Below is the list of decisions that will come down tomorrow. Published Opinions No.: 02CA0617 Lupita A. Giron v. Douglas D. Koktavy, Esquire, et al. Unpublished Opinions No.: 02CA1312 People v. Gintear Howard February 22, 2005 Here are today's supreme court announcements. The court issued two decisions, summarized below. The court also granted cert. in three cases, although it remanded one of those to the court of appeals. C.R.S. § 16-5-402, which places limitations on collateral attacks on convictions, depending on the classification of the crime, does not expressly abrogate the common law doctrine of laches. Therefore, it was not error for the trial court to apply laches to bar the defendant's collateral attack of his 1958 first degree murder conviction (despite the fact that § 16-5-402 provides that there is no time limit for filing a collateral attack to a class 1 felony conviction). Justice Kourlis wrote the majority opinion in this 4-3 decision. Justice Rice dissented, joined by Chief Justice Mullarkey and Justice Bender. Justice Rice concluded that the express plain language of the statute evidenced the legislature's intent to abrogate the laches doctrine as applied to collateral attacks on class 1 felony convictions. Robbins v. People In an interlocutory appeal from a suppression order, the court affirmed the suppression order. The supreme court had previously remanded the case for the trial court to make specific findings of historical fact upon which it based its suppression order. The district court did so, and the supreme court then affirmed the original suppression order. The trial court found the officer's conduct to be threatening (the officer pushed the defendant down and held him at gunpoint while questioning him, without giving Miranda warnings). The supreme court rejected the People's argument that the trial court erred in finding the defendant's testimony to be credible. The supreme court reminded that credibility determinations are for the trial court, and concluded that the trial court's findings were not clearly erroneous. People v. Vazquez The court granted cert. in the following cases: Board of Assessment Appeals v. Teller County Board of Equalization, No. 04SC266, was remanded to the Colorado Court of Appeals for reconsideration in light of Board of Assessment Appeals v. Sampson, No. 03SC451, 2005 WL 38934, (Colo. Jan. 10, 2005). Hopp & Flesch v. Backstreet, No. 04SC697, on this issue: Whether it was error for the court of appeals to reverse the trial court’s determination of law that it was not malpractice for an attorney to advise his client that any statements made by the client in the context of a Sheriff’s Department employment civil investigation regarding the client’s alleged misconduct would not be protected by the Fifth Amendment and could be used against the client in the pending criminal investigation. Murray v. People, No. 04SC763, on this question: Whether the court of appeals erred in concluding that People v. Arguello, 772 P.2d 87 (Colo. 1989) provides a “narrow exception” that would excuse a trial court’s failure to advise a defendant about the perils of self-representation and failure to explore whether the defendant’s mental condition affected his understanding of the consequences of waiving counsel. February 21, 2005 Happy Presidents' Day (though I must confess I'm still rooting for Homer Simpson to get Lincoln and Washington's birthdays back as separate holidays). No news from the courts since today's a legal holiday and the courts are closed. As I'm sitting here writing a brief, I'll quote Napolean Dynamite to describe my feelings towards the court and its employees today: "Lucky!" (And if you haven't seen Napolean Dynamite, do so. Immediately. Many times.) On a more serious note, the court of appeals' oral argument schedule for April has not been posted on the court's website yet, but it should be posted any day now. I received in Saturday's mail a notice of oral argument for an April argument, so I know the calendar has been set. I'll post the calendar as soon as it's up. February 18, 2005 The
supreme court will issue two decisions on Tuesday (Monday's a legal
holiday), No. 04SA199, People v. Vazquez, and No. 03SC563, Robbins v.
People. I'll have summaries on Tuesday. February 17, 2005 Here are today's court of appeals announcements. The court issued only unpublished decisions. February 16, 2005 The supreme court oral argument calendar for March is here. The court will hear arguments on March 7 and 9. The court of appeals will issue the following unpublished decisions tomorrow: Unpublished Opinions No.: 01CA2101 Lynn Goodwin v. Dan H. Morris, M.D. February 14, 2005 Happy Valentine's Day. Here are today's supreme court announcements. The court issued one published decision and granted cert. in one case. The court also modified its decision, and denied a petition for rehearing, in Application for Water Rights for Park County Sportmen's Ranch LLP. The modified opinion is here. The court's decision today: Plaintiffs' son, a partner in the firm representing plaintiffs, was properly disqualified because he is likely to be a necessary witness in the plaintiffs' case. His dual role as advocate and witness would likely confuse the jury and taint the trial process in contravention of Colorado Rule of Professional Conduct 3.7. But the court remanded to the trial court for further proceedings to determine whether disqualification of the law firm was required. The court noted that RPC 3.7 does not require automatic disqualification of the law firm, but instead requires the court to look at Rules 1.7 and 1.9 (the conflict of interest rules for present and former clients). On the current record, the court concluded that the trial court, on remand, needed to determine the scope of the law firm's disqualification in pretrial activities and whether the firm should be disqualified from representing the plaintiffs at trial. In re Fognani The court granted cert. in the following case: Dillen v. HealthOne, No. 04SC392, on the following issues: Whether the court of appeals erred in affirming the district judge’s order granting defendant HealthOne costs against petitioner Dillen.
Whether the court of appeals erred in affirming the district judge’s order denying petitioners their costs of trial. February 11, 2005 The
supreme court will announce one decision on Monday, Fognani v. Young,
No. 04SA303 (no orals). I will summarize that decision in Monday's post.
Have a good weekend. February 10, 2005 Here are the court of appeals' announcements for today. The court issued 5 published decisions and many more unpublished ones. The published decisions are summarized below. C.R.S. § 19-2-511(2)(a)(III), which allows admission of statements, made during custodial interrogation, by a runaway juvenile from a state other than Colorado, does not violate equal protection. The court rejected the argument that strict scrutiny applied, and concluded that there was a rational basis to distinguish between out-of-state and in-state runaways. People v. Blankenship Defendants were not immune under the Governmental Immunity Act for personal injury suffered by plaintiff. Plaintiff, a CSU student, was involved in an automobile accident while driving a truck that had attached to it a trailer containing the CSU mascot (the Ram). Plaintiff was a volunteer with the "Cam the Ram" program at CSU. The court concluded that the trailer, when connected to the truck, constituted a "motor vehicle" under the GIA. Grabler v. Allen Administrative
subpoena served on accounting firm was lawful, and therefore the trial
court properly enforced it (with modifications). Arthur Anderson argued
that because it was no longer a licensee of the Board, it could not
be subject to discipline by the Board, and therefore the subpoena was
beyond the Board's power. The court of appeals rejected that argument,
concluding that the Board has authority over more than just current
licensees, and also concluding that even if the Board could not discipline
a former licensee, its investigative powers were not so limited. Colorado
State Board of Accountancy v. Arthur Andersen LLP Court could not hear grandmother's petition for visitation where there had been no judicial intervention into the marriage of the children's parents, no judicial placement of the children outside their family, and no death of the grandparent's child. See C.R.S. § 19-1-117. Only those events trigger the trial court's power to entertain a grandparent visitation petition. In the Matter of D.C. A
nursing home does not constitute a hospital for purposes of the Governmental
Immunity Act. Therefore, Plaintiff's wrongful death claim (brought after
her husband received a lethal overdose of medication in a nursing home)
was barred under the GIA. Montoya
v. Trinidad State Nursing Home February 9, 2005 The court of appeals will release the following decisions tomorrow: Published Opinions No.: 03CA0665 People v. Kevin L. Blankenship Unpublished Opinions No.: 02CA1742 People v. Joseph Paul Baca February 4, 2005 The supreme court will have no case announcements on Monday, February 7. So there will be no post on Monday. February 3, 2005 Here are the court of appeals' announcements for today. The court issued only unpublished decisions. February 2, 2005 Happy Groundhog Day! I have a soft-spot for groundhogs, though I prefer to call them by their more common name, the North American woodchuck, or if you want to get scientific, the species name is Marmota monax. Before I went off to law school, I spent three years in basic science research, and one of my areas of study was the Woodchuck Hepatitis Virus (WHV), which serves as a great animal model for the human Hepatitis B virus and associated liver cancer that occurs with great frequency in both infected woodchucks and humans. So though the woodchuck may be disliked for predicting, against its will, six more weeks of winter (an unfair task given the timing of the vernal equinox), the little creature should be viewed fondly, if not as a hero, for its contributions to the prevention and treatment of Hepatitis B. The court of appeals will issue the following unpublished decisions tomorrow (no published decisions): No.: 02CA0361 People v. Joseph Lee Williams
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