September 28, 2009 The supreme court had no case announcements today. On a programming note, my law firm will be moving down the street on Friday. So I will not be posting anything after Wednesday, until we are settled in our new space (which I hope will be by middle of next week). I hope to catch up by the end of the next week. Also, we are looking at changing our blogging platform, and I will let you know when we make a decision on that. September 24, 2009 Today's court of appeals announcements are here. The court issued only unpublished opinions. September 23, 2009 Here are Monday's supreme court announcements. The court issued no decisions and did not grant cert. in any cases. Here are the summaries of last week's court of appeals decisions. Following the summaries is the list of unpublished decisions the court will issue tomorrow. The facts in the record did not support the trial court’s finding that defendant “established” the relationship with the victim primarily for the purpose of sexual victimization. Therefore, the trial court erred in finding that he met the criteria of a sexaully violent predator under C.R.S. § 18-3-414.5. People v. Gallegos Two public employees are about to retire. The two have worked the same number of years, at the same rate of pay, for the same employer. Both have accrued four weeks of paid vacation. But they receive this benefit in different ways. Employee A works until the end of June. She then takes a four-week vacation and is paid for these weeks at the end of July. Employee B also works until the end of June. In lieu of vacation, she receives an additional sum (equal to four weeks’ salary) in her June paycheck. When the time comes to calculate their retirement benefits, may PERA treat these employees the same? According to the court of appeals, the answer is yes. Analyzing the PERA statutes, the court noted there was nothing in them that would prohibit PERA from treating plaintiff’s additional lump-sum payment as “salary” earned after her last day of work. The statutes simply do not address the issue. Hammond v. Public Employees’ Retirement Association of Colorado Defendant was in custody in Pueblo County for his conviction there. El Paso County obtained only temporary custody for defendant’s court appearance and did not hold him for the offense charged in that county. Accordingly, defendant was not entitled to a preliminary hearing under C.R.S. § 16-5-301(1)((b)(II). People v. Pena C.R.S. § 7-74-107 provides that an "action for misappropriation of a trade secret shall be brought within three years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered. For the purposes of this section, a continuing misappropriation constitutes a single claim." The court of appeals concluded the statute of limitations begins to run not when a plaintiff can positively and directly prove misappropriation rather than independent development, but simply when the plaintiff has knowledge of sufficient facts from which a reasonable jury could infer misappropriation. The question in this case was where a plaintiff alleges more than one misappropriation of a trade secret or related trade secrets by the same party, is there a single accrual date coinciding with the first misappropriation, or are there separate accrual dates coinciding with the dates of each misappropriation? The court of appeals construed the statute to provide for a single accrual date for multiple misappropriations of a single trade secret or of multiple, related trade secrets, coinciding with the first date a plaintiff has knowledge of sufficient facts from which a jury could reasonably infer misappropriation.The court noted that the statute expressly rejects the “continuing violation” theory under which continued disclosure or use of a trade secret could be regarded as permitting claims for misappropriations occurring within the limitations period, even if prior misappropriations are not actionable, or permitting a claim for all misappropriations so long as one occurred within the limitations period. Gognat v. Ellsworth Plaintiff asserted that C.R.S. §§ 38-4-102 and 38-5-105 grant it the power of eminent domain as a foreign pipeline company. Section 38-5-105 provides in part that "Such . . . pipeline company . . . is vested with the power of eminent domain, and authorized to proceed to obtain rights-of-way for poles, wires, pipes, regulator stations, substations, and systems for such purposes by means thereof." The court of appeals concluded that that because it was undisputed that Plaintiff "(1) is a foreign corporation, in good standing and authorized to do business in Colorado; (2) operates and maintains the six-inch pipeline on landowners’ properties; (3) conveys petroleum products through its pipelines; and (4) would be responsible for the construction, cost, operation, and maintenance of the ten-inch pipeline," it is a pipeline company for the purposes of section 38-5-105. Therefore, the plaintiff had the power of eminent domain and the power to condemn the defendants' property. Sinclair Transportation Company v. Sandberg Under C.R.S. 39-8-109(1), a refund of costs in a BAA appeal, including witness fees, is mandatory. But the amount of the award is discretionary. The court of appeals remanded the denial of costs because there were no findings of fact in support of the BAA’s order denying the award of any costs, and thus the court was unable to discern if the BAA denied Taxpayers’ motion for costs because it believed it had discretion whether to award costs, which would have been erroneous, or if it awarded costs in the amount of zero, which, depending on its findings, could have been in its discretion. Gerganoff v. Board of Assessment Appeals Terminated employee appealed the order of the State Personnel Board (the Board) upholding her termination by the Department of Human Services and the Colorado State Veterans Home at Fitzsimons (collectively DHS). The court of appeals reversed and ordered her reinstatement. The court noted that the Board had twice failed to articulate an explanation for reaching a conclusion contrary to that of the ALJ. Maggard v. Department of Human Services In an action concerning subsurface mineral interests currently leased by defendant, the issue was whether a “Declaration of Land Patent” filed by plaintiffs can alter or affect ownership of those mineral interests. Although there is no reported case in Colorado, numerous jurisdictions have held that such a “land patent” is a legal nullity which has no effect on existing ownership interests. The court of appeals agreed with those other jurisdictions and upheld the trial court's dismissal of plaintiffs’ complaint seeking enforcement of the land patent against defendant’s interests. Hamilton v. Noble Energy, Inc. Although a district attorney has broad discretion in determining what offenses to prosecute, by statute a judge may either order the district attorney to prosecute a case or appoint a special prosecutor to do so, upon finding that the refusal to prosecute was "arbitrary or capricious and without reasonable excuse." C.R.S. § 16-5-209. But the court of appeals concluded that the trial court must find clear and convincing evidence to support an order for a special prosecutor. The court of appeals concluded that the evidence here was not clear and convincing, and ordered the dismissal of the petition. J.S. v. Chambers The court of appeals will release the following unpublished decisions tomorrow: 06CA2068 People
v. Eddie M. Johnson September 16, 2009 The court of appeals will release the following decisions tomorrow, including 9 published decisions. I will try to post summaries by next Tuesday: Published Opinions September 14, 2009 The supreme court's announcements for today are here. The court issued two decisions and granted cert. in 5 cases. The case summaries and questions presented are below. Absent a showing of special circumstances, C.A.R. 3.4 provides adequate process for appellants to the court of appeals in dependency and neglect cases. An original proceeding was brought by the father of a minor child who is the subject of a pending dependency and neglect case. The father claims that the district court wrongfully denied him custody of the child after the Department of Human Services (“DHS”) failed to prove at trial that he was an unfit parent and he was dismissed from the dependency and neglect case. The supreme court issued a rule to show cause, but discharged it. The court concluded that asserted no circumstances that would render C.A.R. 3.4 review inadequate. The court noted that the father had two other remedies available, First, if the father disagreed with the trial court’s order, he should have appealed the order through the expedited appeals process applicable to cases for dependency and neglect adjudications established in C.A.R. 3.4. Instead, he waited until months after the deadline passed for seeking C.A.R. 3.4 relief and then filed a petition under C.A.R. 21. Second, the father can intervene in the pending dependency and neglect case and seek custody in that forum. Justice Martinez, joined by Justices Bender and Coats, dissented, noting, "The majority refuses to intervene in this case to prevent a juvenile court from proceeding without jurisdiction after a jury determination failing to find that A.H. was dependent and neglected. The basis of the majority’s refusal to intervene, that G.H. did not pursue an adequate legal remedy and can ask for custody in the pending case, misses the point. Regardless of whether G.H. failed to appeal or can request custody in the pending case, because the juvenile court is proceeding without jurisdiction, that case will now continue futilely, with the court entering orders concerning the care and control of A.H. that ultimately have no effect. Because jurisdiction can be raised at any time, when the issue is eventually revisited or reviewed -- and correctly decided -- those orders will be vacated and the dependency and neglect proceedings dismissed. In my view, we properly issued a rule to show cause in this case and should make that rule absolute after explaining that, in light of the jury determination failing to find by a preponderance of the evidence that A.H. was dependent and neglected, A.P.’s no-fault admission is not a proper basis for adjudication in this case." In re People in the Interest of A.H. Conspiracy to distribute a controlled substance, a violation of C.R.S. § 18-18-405(1)(a), is not an extraordinary risk crime as defined by § 18-1.3-401(10)(b). Section 18-18-405 (1)(a) enumerates a number of different ways to commit a violation, including conspiracy to distribute a controlled substance. In contrast, § 18-1.3-401(10)(b) does not include conspiracy to distribute a controlled substance and only applies to “unlawful distribution, manufacturing, dispensing, sale, or possession of a controlled substance with the intent to sell, distribute, manufacture, or dispense, as defined in section 18-18-405.” Because, by its terms, section 18-1.3-401(10)(b) does not apply to conspiracy to distribute a controlled substance, the court holds that a defendant convicted of conspiracy to distribute a controlled substance under § 18-18-405(1)(a) is not subject to enhanced sentencing as prescribed by section 18-1.3-401(10)(b). People v. Valenzuela The court granted cert. in these cases: No. 08SC961, Lehnert v. People, on this question: Whether the thirty-year enhanced and aggravated range sentence imposed pursuant to section 18-1.3-406, C.R.S. (2008) for Petitioner’s attempted murder conviction is illegal. No. 08SC1003, People v. White, on this question: Whether the court of appeals erred in reversing the district court’s decision that the challenged juror was a resident of the county where the trial took place. No.
09SC195, Nunn v. Mid-Century Insurance Company, on this issue: Whether the court
of appeals erred by holding that a Bashor agreement containing a covenant
not to execute on the insured’s personal assets, given in exchange
for the insured’s assignment of claims against its liability insurer,
precludes the insured’s assignee from recovering damages against
the insurer on the assigned claims, irrespective of the insurer’s
bad faith conduct. No. 09SC340, Hills v. Westminster Municipal Court, on these questions: Whether the court of appeals erred by holding that the process of declining a single proposed trial date constituted a waiver of speedy trial, reversing Tasset v. Yeager, 195 Colo. 190, 191, 576 P.2d 558, 559 (1978) and its progeny. Whether the Colorado
Court of Appeals impermissibly shifted the burden of compliance by holding
that the trial court and the prosecutor need not determine the availability
of alternative dates within speedy trial prior to setting the trial
outside of speedy trial over the objection of the defendant. No. 09SC384, Uribe-Sanchez v. People, on this issue: Whether the trial court erred in ruling that Petitioner “promoted the relationship primarily for the purpose of sexual victimization,” as required to classify him a sexually violent predator pursuant to section 18-3-414.5(1)(a), by using violence in committing the sexual assault, and whether the court of appeals erred in avoiding this legal issue and affirming based upon its own unsupported and inadequate factual findings. September 11, 2009 The supreme
court will issue two decisions on Monday, No. 08SC418, People v. Valenzuela,
and No. 09SA22,
In re: People in the Interest of A.H. The court of appeals' oral argument calendar for October is here. The court of appeals' case announcements from yesterday are here. The court issued the following unpublished decisions: 06CA1475 People v.
Michael D. Windsor September 9, 2009 The supreme court had no case announcements yesterday. But so you won't leave empty-handed, I've updated my September 3 post with the summaries of the 16 published court of appeals' decisions from last week. Also, here are recent Rule 21 actions in which the supreme court has issued rules to show cause: 09SA247, In
re: People v. Shirley (synopsis not available) 09SA182, In re: People v. Nichelson Synopsis: Nichelson seeks relief from an order of the Adam County District Court holding that it was not vested with the power to restore Nichelson’s right to a preliminary hearing after the case had been bound over from Adams County Court. Thus, the District Court did not determine whether Nichelson’s waiver of preliminary hearing in county court was rendered ineffective when a plea offer was subsequently withdrawn. On July 17, 2009, the Colorado Supreme Court issued a rule to show cause why the relief should not be granted. The People of the State of Colorado are directed to file an answer on or before August 6, 2009. Nichelson has 20 days thereafter within which to reply. 09SA179, In re: People v. Medina Synopsis: Petitioner Delano Medina seeks to compel Respondent the Department of Corrections to comply with the sentencing mittimus, which grants petitioner 325 days of presentence confinement time credit, rather than the 155 days the DOC is granting him. On July 15, 2009, the court issued an order to show cause why the requested relief should not be granted. The respondent is directed to provide a written answer on or before August 14; the petitioner has 30 days from receipt of the answer within which to reply. 09SA164, In re: Curtis v. Stokes Synopsis: Petitioners Carl and Linda Curtis seek relief from the trial court's orders denying their motion to amend the complaint to add exemplary damages and compelling the unrelated medical records of plaintiff Carl Curtis because the plaintiffs made a large claim for loss of essential services to their disabled child in this case arising out of a head-on collision between Mr. Curtis and Defendant Doris Stokes. On June 26, 2009,
the court issued a rule to show cause why the requested relief should
not be granted. Respondent Doris Stokes is directed to provide a written
answer on or before July 16, 2009. Petitioners have 20 days from receipt
of the answer within which to reply. September 3, 2009 The court of appeals case announcements for today are here. The court issued 16 published decisions, which will be summarized below (probably in bits and pieces over the next week). Defendant's
right to conflict-free counsel was violated when her trial counsel undermined
the attorney-client relationship by disclosing privilged conversations
and concealing that disclosure from defendant. During an in camera proceeding,
defendant’s attorneys discussed the district attorney’s plea
bargain offers to defendant. They revealed discussions in which they
had “advised [their] client to take [the offers] unconditionally,”
and explained that they had “met with [defendant] repeatedly and
were very adamant that [they] felt she should take [the district attorney’s
plea bargain]” to achieve “a [sentence] range of between four
to twelve [years].” Defendant’s attorneys also made the following
statements: (1) “[Defendant] led [us] – and we advised the
prosecution – to believe that she was going to take the deal,”
(2) “[W]e think that it’s folly for [defendant] to not have
taken the deal,” (3) “[H]er decision [not to accept the deal]
is flat out wrong,” (4) “[H]er choice is just a very, very
poor one,” and (5) “[W]e just feel it appropriate that we
make a record.” They also stated that they had advised defendant
“in full and on multiple occasions,” and that they had “steadfastly
advised [their] client to accept the plea disposition.” In response
to defendant’s attorneys’ statements, the trial court found
that defendant had “been advised on more than one occasion about
[her potential sentence]” and that she had chosen to “go forward
to trial.” Defendant claimed
the district court erred by ordering him to pay the costs of prosecution
related to his extradition from Texas on the initial charges because
the prosecution did not request payment of these costs until five months
after he pleaded guilty to the theft charge. The court of appeals disagreed,
concluding that C.R.S. § 18-1.3-701(1)(a) authorized the prosecution's
request for payment and that the five-month delay did not render the
request untimely. People
v. Scoggins Trial court did not erred in denying defendant's motion to suppress all in-court and out-of-court identifications of him by the victims. The photographic lineup was neither impermissibly suggestive nor inherently unreliable. People v. Plancarte Trial court properly refused to suppress defendant's custodial statements. Defendant was interrogated by foreign officials without receiving a Miranda warning. But unless the foreign officials are engaged in a joint venture with United States officials, Miranda warnings are not required. Since there was no joint venture here, the defendant's Fifth Amendment rights were not violated. Judge Jones specially concurred, noting "I concur in the majority’s resolution of defendant’s claims on appeal, though I consider the question whether the United States and Mexican officials were engaged in a joint venture for Miranda purposes to be somewhat close. Nonetheless, I would affirm the district court’s denial of defendant’s suppression motion for the reason the district court’s finding that there had been no interrogation is supported by the record. And even were we to assume that the statements defendant made to the Mexican officials at and shortly after his arrest should have been suppressed, I would conclude that any error in admitting those statements was harmless beyond a reasonable doubt." People v. Gomez-Garcia Trial court's comment that "we have some testimony that [defendant] was the initial aggressor"did not impermissibly shift the burden of proof to him or violate Crim. P. 30 (which provides that "[b]efore argument the court shall read its instructions to the jury, but shall not comment upon the evidence"). People v. Martinez Suppression of defendant's Spanish language statements made in presence of police was not required. While in custody, the defendant waived his Miranda rights. In a phone call to his mother on a detective's cell phone, the defendant said "They already know everything I did," and "Should I tell them everything or what?" The trial court properly ruled that the defendant had no objectively reasonable expectation of privacy in these statements because the detective was in the room during the call and he could overhear the statements. People v. Zamora In a class action,
Plaintiffs claimed that the insurers had a duty to advise them of the
effect of DeHerrera v. Sentry Insurance Co., 30 P.3d 167 (Colo. 2001),
that UM/UIM coverage "follows" the insured, and, as a result
of DeHerrera, they had received no benefit from the premiums paid for
UM/UIM coverage on more than one vehicle. They asserted that the coverage
sold to them was illusory. The district court severed the cases after
it determined that variations in how insurers offered and sold UM/UIM
coverage precluded one class action. The district court granted summary
judgment in favor of Allstate. The court of appeals affirmed, rejecting
Plaintiff's arguments that the Allstate policy was misleading and that
its multi-vehicle policy contravened public policy. Mullen
v. Allstate Insurance Company Defendant was
in custody awaiting disposition of pending charges in two separate cases,
one for escape and the other for theft and assault, when he assaulted
an officer working in the detention facility. He was then also charged
with second degree assault in violation of C.R.S. § 18-3-203(1)(f).
Defendant pled guilty to one count each of theft from a person, misdemeanor
assault, and second degree assault of a peace officer. The district
court sentenced defendant to concurrent terms of six years in the custody
of the Department of Corrections (DOC) and two years in jail on the
theft and misdemeanor assault convictions, respectively, and to six
years in the custody of the DOC on the second degree assault of a peace
officer conviction, to be served consecutively to the sentences for
theft and misdemeanor assault. The court noted that although it had
discretion whether to impose consecutive sentences in some cases, in
this instance section 18-3-203(1)(f) required that the sentences be
consecutive. Defendant argued on appeal that this conclusion was error.
The court of appeals concluded that the statute required the sentence
to be served consecutively, even though Defendant was not currently
serving a sentence when the assault occurred. People
v. Benavidez Colorado pattern civil jury instruction 15:4 states: "A physician does not guarantee or promise a successful outcome by simply treating or agreeing to treat a patient. An unsuccessful outcome does not, by itself, mean that a physician was negligent. An exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician was negligent." Plaintiffs argued that the instruction is antiquated and misleading, and assert that a growing number of other jurisdictions have rejected similar instructions on the basis that the language may immunize medical professionals from liability for any action that may be considered within their judgment. The court of appeals concluded that the instruction accurately reflects Colorado law and therefore rejected Plaintiffs' position. Day v. Johnson In a case concerning the assignability of a claim under an attorney fees shifting clause in a subcontract between plaintiff property owner, the general contractor, and defendant subcontractor, the court of appeals held that such a claim survives assignment and does not involve trust, confidence, or personal services. Regency Realty Investors, LLC v. Cleary Fire Protection, Inc. Dismissal of campaign finance complaint was error because when viewed in the light most favorable to Plaintiff, the complaint sufficiently alleged that a $350 payment was an illegal campaign contribution. Lambert v. Ritter Inaugural Committee, Inc. In a zoning enforcement action, the Board of County Commissioners of Elbert County obtained a judgment enjoining defendants from operating their commercial composting business. The court of appeals reversed because the Board was not able to locate and introduce a copy of the 1983 zoning map that was incorporated into the zoning regulation and established the zoning of the subject parcel. Board of County Commissioners of Elbert County v. Rohrbach C.R.S. § 38-5.5-107(1) strictly limits what counties may charge telecommunications providers for roadwork permits to run cable lines under public roads. Counties may impose only a “construction permit fee,” which must be “reasonably related to the costs directly incurred by the [county] in providing services relating to the granting or administration of permits.” Plaintiff challenged Washington County’s fee for permits allowing it to cut trenches in and then restore the roads in order to lay its underground cable. The County charged not only for the administrative costs of processing the permit but also for the anticipated future costs of repairing trenched roads. Applying the plain statutory language, the court of appeals affirmed the district court’s ruling that the County overcharged Plains for its permits. Plains Cooperative Telephone Association, Inc. v. Board of County Commissioners Alocal government that enacts its own avenue for appeal of a sales or use tax assessment under C.R.S. § 29-2-106.1(9) may not decline to hold a hearing requested by the taxpayer and issue a decision thereon, thus depriving the taxpayer of the right to appeal. The court of appeals held that where the local government has created its own avenue for appeal that establishes, as a prerequisite to appeal, a final decision rendered after a hearing, the local government may not rely on provisions of C.R.S. § 29-2-106.1(3) or (8) to deprive the taxpayer of a hearing, a decision thereon, and the ultimate right to appeal such decision. Asphalt Specialties, Co., Inc. v. City of Commerce City Juvenile appealed a restitution order entered in a juvenile delinquency adjudication based on his guilty plea admitting that he committed acts which, if committed by an adult, would constitute the offense of sexual assault on a child. The court of appeals held that the People failed to prove that the juvenile's delinquent conduct was the proximate cause of losses incurred by the victim’s parents when they sold their house so that the victim would no longer have to live near the juvenile, as the People presented no competent evidence establishing an ongoing and specific threat to the victim. Therefore, the court vacated the restitution order. People In the Interest of D.W. In a worker'd
comp. case, the ATP’s MMI determination and impairment rating did
not divest the ALJ of jurisdiction or relieve him of the obligation
to determine whether claimant sustained an injury that was causally
related to her modified work duties. Eller
v. Industrial Claim Appeals Office September 2, 2009 The court of appeals will release the following decisions tomorrow, including 16 published decisons: Published Opinions
August 31, 2009 The supreme
court will hear arguments on the following dates in 2009-10: September
22-24, October 20-22, December 1-3, 2009, January 19-21, March 2-4,
April 27-28, 30, June 8-10, 2010. Today's supreme court announcements are here. The court did not issue any decisions, but did grant cert. in the following cases: No. 08SC997, Ferrellgas, Inc. v. Yeiser, on these issues: Whether the court of appeals erred when determining petitioner was not entitled to the full value of a resolved subrogation interest. Whether the court of appeals erred when comparing petitioner’s statutory offer of settlement to the jury verdict instead of the final judgment awarded to respondent and further err when determining petitioner’s offer of settlement had to somehow include potential subrogated interests and, thus, err when denying costs to petitioner. Whether the court of appeals erred when determining interest should be awarded to respondent on the verdict for a period of time instead of awarding interest on the judgment. No. 09SC2, Clubhouse at Fairway Pines, LLC v. Fairway Pines Estates Owners Association, Inc., on these questions: Whether the court of appeals incorrectly concluded that the defendant did not waive its right to raise the need for indispensable parties by failing to raise the issue in a timely matter. Whether the court of appeals decision is not in accord with the basic intent of the Colorado Common Interest Ownership Act., e.g., section 38-33.3-311, CRS. Whether court of appeals incorrectly concluded that the interests of the homeowners were not adequately represented. Whether the court
of appeals decision that lot owners are indispensable parties is contrary
to public policy, unduly chilling the rights of litigants and rendering
cases excessively cost prohibitive. No. 09SC62, Shelter Mutual Insurance Company v. Mid-Century Insurance Company, on these issues: Whether an automobile insurance policy provision limiting coverage for permissive drivers of insured vehicles to the minimum limits of liability insurance required by state law is valid and enforceable under Colorado law. Whether the court of appeals erroneously determined that the notice of a limitation in coverage for permissive drivers in a renewal automobile insurance policy was not adequate to advise the named insured of the limitation. Whether Colorado’s compulsory insurance laws allow the insurer of a private vehicle to contractually shift the statutory obligation to provide minimum insurance coverage to a permissive driver’s insurer. Whether the operation of petitioner’s excess insurance clause and cross-petitioner’s excess insurance clause renders neither insurer primarily liable for damages caused by the insured such that each policy’s excess insurance clause is unenforceable and each insurer must respond as co-primary. No. 09SC183, Misenhelter v. People, on this issue: Whether the facts essential to the elements of a concurrent conviction are Blakely-exempt and may be considered by the trial court to aggravate a defendant’s sentence. August 27, 2009 The court of appeals' case announcements for today are here. The court issued only unpublished decisions. August 26, 2009 Monday's supreme court announcements are here. The court issued no decisions and did not grant cert. in any cases. The court of appeals will issue the following unpublished decisions tomorrow: 06CA1537 People v.
Darlene Ann Spears August 20, 2009 Today's court of appeals announcements are here. The court issued 4 published decisions, which are summarized below. Under the Health Care Availability Act (HCAA), medical malpractice judgments awarding future damages with a present value above $150,000 may “be paid by periodic payments rather than by a lump-sum payment.” C.R.S. § 13-64-203(1). But there are exceptions. Some plaintiffs could “elect to receive the immediate payment … of the present value of the future damage award in a lump-sum amount in lieu of periodic payments.” § 13-64-205(1)(f). C.R.S. § 13-64-205(1)(f)(II)now extends election rights to “a person under disability who has a legal representative authorized to take action on his or her behalf.” See §§ 13-81-101(4) & -102(2)(b)(legal representative’s right to elect immediate payment of future damages on behalf of person under disability). Formerly, any election of a lump-sum payment had to be made “[w]ithin no more than three months after the entry of verdict by the trier of fact and before the court enters judgment for periodic payments.” But that requirement was eliminated in 2007. The trial court denied plaintiffs’ requests for a lump-sum payment, holding the then-existing statute required periodic payments. Plaintiffs appealed in April 2007. The statutory amendments took effect in August 2007. The court of appeals concluded that the amendment applied retroactively to Plaintiffs and that the retroactive application was not the application of unconstitutional retrospective law. Vitetta v. Corrigan Jury instructions on offenses stated that "if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty" and "if you decide the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt, you should find the defendant not guilty." The court of appeals concluded it was not plain error to use "should," and that the word did not lower the prosecution's burden. People v. Munoz In an appeal
of the district court's denial of defendant's postconviction motion,
defendant argued that she had proved trial counsel’s incompetence
with respect to the jury instructions and that, “if the jury instructions
had been handled more competently, the results of the trial would have
been different.” The court of appeals rejected her argument, concluding
that the allegations of incompetence are derivative of her claims on
direct appeal. "Although claims of ineffective assistance of trial
counsel can be sufficiently distinct from the claims on direct appeal
that the district court will not always be compelled to deny them under
Crim. P. 35(c)(3)(VI) (subject to exceptions, court shall deny any claim
raised and resolved in prior appeal or postconviction proceeding on
behalf of same defendant), they are not sufficiently distinct in this
case." The court noted that defendant alleged precisely the same
instructional errors that were raised and resolved in her direct appeal
and merely recast them under the constitutional theory of ineffective
assistance of counsel. The court noted that the "law does not allow
such perpetual review." Water and Sanitation
District instituted an action seeking to enjoin the Town of South Fork
from acquiring water rights or private water systems, because the Town
had not obtained the District’s consent to do so, as allegedly
required by C.R.S. 31-35-402(1)(b). In Town of Sheridan v. Valley Sanitation
District, 324 P.2d 1038 (Colo. 1958), however, the supreme court held
that the “veto power” granted by this statute must be exercised
in a reasonable manner for the benefit of the public health, safety,
and welfare. It is not an absolute power, but one that is conditioned
upon serving the public welfare. The trial court properly applied this
law in rejecting the District's position. South
Fork Water and Sanitation District v. Town of South Fork August 19, 2009 This post addresses Monday's supreme court announcements and set forth the cert. grants issued by the court. Following the cert. grants is the list of cases the court of appeals will issue tomorrow. Monday's supreme court announcements are here. The court issued no decisions, but did grant cert. in the following cases: Palizzi v. City of Brighton, No. 08SC1026, on this question: Whether the court of appeals erred when it held that, where dedication is required, evidence valuing the portion that would be dedicated as part of the whole parcel in accordance with the parcel’s potential future use as commercial property is inadmissible. Effland v. People,
No. 09SC70, on these issues: Whether the court of appeals erroneously confirmed the district court’s denial of petitioner’s motion to suppress his statements because the interrogating officers did not advise him of his Miranda rights or obtain a valid waiver of those rights. Whether the court of appeals erroneously confirmed the district court’s denial of petitioner’s motion to suppress his statements after petitioner proactively invoked his Fifth Amendment rights to silence and to counsel and the investigating officers told petitioner he was not entitled to legal representation because he was not in custody. Whether the court of appeals erred in finding the petitioner’s statements voluntary under the totality of the circumstances. Whether the court
of appeals erred in not finding prosecutorial misconduct when the prosecuting
attorney advised the interrogating officers that petitioner was not
entitled to counsel, which the officers then told petitioner when he
asserted his right to remain silent and to counsel. Washington v. People, No. 09SC128, on this issue: Whether a defendant
can assert an affirmative defense of self-defense against the specific-intent
crime of harassment and, if so, whether the defendant must admit to
the specific intent in order to assert self-defense as an affirmative
defense. Clark v. People, No. 09SC358, on this question: Whether the court of appeals erred in finding that crime scene DNA evidence, without further significant corroborative proof, is sufficient to indentify Mr. Clark beyond a reasonable doubt as the perpetrator in this case and therefore sustain his sexual assault conviction. Munoz v. Measner, No. 09SC421, on this issue: Whether the court of appeals properly reversed the trial court’s denial of attorney fees pursuant to section 13-17-102(4), C.R.S. (2008), because the trial court did not use the factors laid out in section 13-17-103(1), C.R.S. (2008), to assess whether attorney fees were warranted. The court of appeals will release the following decisions tomorrow, including four published opinions: Published Opinions 07CA0687 Andrew Vitetta
and Janine Vitetta, individually and as parents and next friends for
K.M.V., a Minor v. Kevin Corrigan, M.D. and Colorado Springs Health
Partners, P.C. and Fortis Insurance Company August 14, 2009 Here are yesterday's court of appeals announcements. The court issued only unpublished decisions. August 12, 2009 Here are the summaries of last week's published court of appeals' decisions. Below the summaries is the list of unpublished decisions the court will be issuing tomorrow. A jury instruction that tracked the language of the C.R.S. § 18-1-704(4) (a subsection of the statute on use of physical force in defense of a person) violated the defendant's right to due process in a prosecution for extreme indifference murder. The court disagreed with the People's contention that the state did not bear the burden of proof when defense of others is raised against a charge of extreme indifference murder. In that context, the People argued, defense of others is a mere circumstance for the jury to consider, and not an element-negating defense. The court rejected that position, and ordered a new trial. In its opinion, the court set forth a suggested jury instruction for retrial. People v. Lara Where there is a close temporal and spatial relationship between a killing and a subsequent felony, the defendant's intent to commit the underlying felony may be inferred from the circumstances. Therefore, the court of appeals rejected defendant's argument that his felony murder charge had to be vacated because there was no evidence that he had formed the intent to commit either robbery or burglary at the time he shot the victim. People v. Phillips Downloading
and saving sexually exploitative material in a share-capable computer
file does not constitutes the felony offense of sexual exploitation
of a child, as defined in C.R.S. § 18-6-403(3)(b). People
v. Mantos In a C.R.C.P. 106(a)(4) action, plaintiff appealed the trial court’s judgment affirming a prison disciplinary conviction. The court of appeals affirmed, concluding that plaintiff was not denied due process at his disciplinary hearing, that the evidence supporting his conviction was sufficient, that the search of his cell was valid, and that the trial court did not err in refusing to allow him to conduct discovery. Judge Taubman dissented, concluding that plaintiff was denied due process at his disciplinary hearing because he was not allowed to cross-examine the complaining officer about her alleged anti-semitism. Judge Tauman noted that "plaintiff’s proposed cross-examination was not irrelevant, repetitious, or harassing. Plaintiff questioned the complaining officer during the hearing, but was completely prohibited from asking her any questions about her alleged anti-semitism. As noted above, such a line of questioning would have been relevant. To the extent that there was a valid concern about such questioning being repetitious, the hearing officer could exercise his discretion to limit the extent and manner of such questions." Boles v. Bartruff In a personal injury case arising out of an automobile accident, the jury found that the defendant was not negligent in causing the accident, in which her pickup truck struck plaintiff's car. The court of appeals affirmed, concluding that the trial court properly gave the jury a “sudden emergency” instruction because there was competent evidence of a sudden emergency and did not err in failing to gave a res ipsa loquitur instruction. Addressing alleged juror misconduct, the court upheld the trial court's denial of a new trial, concluding that a juror who was an engineer and used her pre-existing, general knowledge of mathematics (and perhaps physics) to analyze the admitted evidence of relevant locations and distances and the speed of defendant's vehicle did not engage in misconduct. The court held that a juror’s pre-existing personal expertise or knowledge of a general nature – that is, not involving historical or otherwise substantive facts in the case – is not extraneous information which the juror may not use or communicate to other jurors in the course of deliberations. Kendrick v. Pippin A juvenile adjudicated delinquent chllenged his sentence, arguing that, because the trial court did not conduct a timely sentencing proceeding within forty-five days of the date it adjudicated him delinquent, the court erred by refusing to apply presentence confinement credit against his sentence. The court of appeals agreed in part, concluding that while the decision whether to award credit for confinement preceding the expiration of the forty-five-day post-trial deadline is a matter of trial court discretion, the juvenile had a statutory right to be sentenced within forty-five days of adjudication pursuant to C.R.S. §§ 19-2-804(3) and 19-2-906(3)(a), and thus was entitled to eighty-eight days of presentence confinement credit (the court did not sentence the juvenile until 88 days after the 45-day period expired). People In the Interest of J.R. Because claimant's petition was filed more than six years after her injury, it was untimely under C.R.S. § 8-43-303(1). Therefore, her claim could may be reopened only if her 2004 DIME was the kind of “medical benefit” that would restart the two-year limitations period under C.R.S. § 8-43-303(2)(b). The court of appeals, however, concluded that a DIME is not a “medical benefit” within the meaning of § 8-43-303(2)(b). Jones v. Industrial Claim Appeals Office While the Servicemembers Civil Relief Act, 50 U.S.C. app. § 522 (2008) (SCRA) does not exempt military service members from service of process, it may provide a reasonable excuse for a plaintiff’s failure to obtain service. The court of appeals agreed with the plaintiff that her delay in serving defendant was excusable on that basis. The court therefore reversed the trial court's dismissal with prejudice for failure to prosecute. Oversole v. Manci The court will release the following unpublished decisions tomorrow: 07CA0367 People v.
Carlos J. Montoya 09CA0831 People In the Interest of M.O.G. and L.G.G., Children Upon the Petition of the Denver Department of Human Services and Concerning C.A.S.
August 10, 2009 I'm back from vacation. I'm busy catching up on work, but I will get my posts caught up by the end of the week. The supreme court's announcements from August 3 are here. The court did not issue any opinions and did not grant cert. in any cases. The court did not issue case announcements this morning. The court of appeals' oral argument calendar for September is here. The court of appeals' announcements from last Thursday (August 6) are here. The court issued 8 published decisions, which I will summarize later this week. Below is the list of opinions the court issued: Published Opinions July 31, 2009 The court of appeals announcements from yesterday are here. The court issued unpublished decisions only. The supreme court will issue no decisions on Monday. July 29, 2009 The court of appeals will release the following unpublished decisions tomorrow: 07CA0120 People v. Kathy Jo Nelson July 24, 2009 The supreme court will not issue case announcements on Monday. The court of appeals' oral argument calendar for August is here. Yesterday's court of appeals announcements are here. The court issued the following decisions (summaries of the 8 published opinions follows the list): Published Opinions Prosecution failed to present sufficient evidence to show that the value of items taken was greater than $500, and therefore felony theft conviction had to be reduced to a misdemeanor. In so holding, the court of appeals noted while evidence of market value is necessary to sustain a theft conviction, the face value of some items, such as cash and coins, provides sufficient evidence of the value of those items. But for items without a face value, there must be some basis other than pure speculation for determination of the real value of stolen items. People v. Jamison Because defendant failed to timely appeal his sex offender classification, the parole board had the authority to impose sex offender conditions and treatment as part of his parole, as it would on any inmate classified as a sex offender. The trial court thus lacked jurisdiction to consider defendant's claims regarding the conditions of his parole because these claims were grounded upon his classification as a sex offender. People v. Jones Where a recording device fails , thus depriving the court of appeals of a trial transcript, a new trial in a civil case is warranted only if the appellant can satisfy this three-part test: (1) make a specific allegation of error; (2) show that the defect in the record materially affects the ability of the appeals court to review the alleged error; and (3) show that a C.A.R. 10(c) proceeding has failed or would fail to produce an adequate substitute for the evidence. Knoll v. Allstate Fire and Casualty insurance Because the public accepted the federal grant of a public right-of-way on the public domain under a federal statute, R.S. 2477, trial court properly quieted tile in County's favor for a road traversing mining claims owned by the Plaintiff. Camp Bird Colorado, Inc. v. Board of County Commissioners of the County of Ouray Defendant's drug conviction had to be reversed where the prosecution improperly suggested to the jury that defendant had an obligation to test the drugs at issue to determine whether they were crack cocaine. The prosecution thereby improperly placed a burden of proof on defendant. Judge Taubman dissented, concluding that the constitutional error was harmless beyond a reasonable doubt. People v. Santana In an issue of first impression in Colorado, the court of appeals concluded that a lessee did not owe a duty of reasonable care to the plaintiffs when snow naturally fell on an awning attached outside the leased premises and melted, resulting in water dripping onto the sidewalk and freezing. Woods v. Delgar Ltd. Sexual assault was not an "occurrence" under applicable insurance policy and thus was not covered by the policy. Mountain States Mutual Casualty Company v. Hauser In a land damages
class action arising from the release of asbestos during removal of
an underground oil pipeline previously owned by defendants, the court
of appeals granted defendants' petition under C.R.C.P. 23(f) and C.R.S.
§ 13-20-901 for interlocutory review of the trial court’s
order certifying two classes. The court of appeals concluded that the
trial court abused its discretion by declining to resolve which side’s
experts were more persuasive as to opinions potentially determinative
of class certification; by failing specifically to address the need
for individualized damages evidence; and by not performing a rigorous
analysis of defendant's affirmative defenses, which, like the experts,
the court mistakenly treated as an impermissible inquiry into the merits.
The court of appeals also concluded that the trial court did not apply
the correct burden of proof (the preponderance of the evidence standard).
The case was remanded for further proceedings on the certification issue.
Jackson
v. Unocal Corporation July 20, 2009 Here are today's supreme court announcements. The court issued no decisions, but did grant cert in one case, Tucker v. Volunteers of America Colorado Branch, No. 09SC20, on this issue: Whether the statutory Collateral-Source Rule, section 13-21-111.6,
C.R.S., requires or prohibits an award to a tort plaintiff for the amount
of medical expenses for which the plaintiff has no liability because
the expenses exceed the prices that are established under a private
contract between a health-care insurer and health-care provider. July 16, 2009 Here are today's court of appeals announcements. The court issued only unpublished decisions. July 15, 2009 The court of appeals will release the following unpublished decisions tomorrow: 07CA0207 People v. Windell Weaver July 14, 2009 The supreme court issued no case announcements yesterday. Here are the summaries of last Thursday's court of appeals decisions: In an appeal
of a conviction for felony child abuse, the court of appeals reversed,
concluding that an expert witness for the People was improperly permitted
to testify that the injuries to the child victim were caused by child
abuse. The trial court abused its discretion in admitting expert testimony
that the injuries resulted from child abuse because it did not hold
a Shreck hearing or otherwise determine the reliability and prejudicial
effect of the testimony under CRE 702 and 403. The trial court erred
in (1) not adequately inquiring and in not making specific findings
whether the expert's conclusion that the injuries resulted from child
abuse was based on reliable scientific principles, (2) admitting this
evidence without making findings under CRE 403 and (3) not instructing
the jury on the different definitions of medical and legal child abuse.
People
v. Rector In an appeal on the issue of whether one “pattern” of abuse of one victim may support multiple pattern convictions, the court of appeals held that Colorado statutes do not allow, and double jeopardy bars, more than one pattern conviction for a single pattern of abuse against one victim. Judge Casebolt dissented, concluding "that Colorado statutes allow, and principles of double jeopardy do not preclude, more than one pattern of abuse enhancement connected to separate charges and separate acts of sexual assault on a child by one in a position of trust." People v. Simon A defendant must provide some credible evidence tending to show the existence of the essential elements of a vindictive prosecution defense in order to obtain discovery from the prosecution on this issue. People v. Butler Third-Party
Plaintiff ("Plaintiff")
was the general contractor on a new condominium complex. The subcontractors
entered into a contract that included warranty provisions and an indemnification
clause. The homeowners association for the condominiums sued Plaintiff
for alleged construction defects, and Plaintiff filed third-party claims
for breach of warranty, breach of contract, and indemnification against
twenty-nine subcontractors. All but three of the subcontractors settled.
On the evening before trial, Plaintiff also settled with the homeowners,
agreeing to pay them approximately $23.4 million attributable to the
repair of the alleged defects. That sum was reached by allocating an
amount to each individual subcontractor based on the damages for which
they were responsible. Immediately after the settlement on the morning
of trial, Plaintiff requested a one to two week continuance to prepare
its case in light of the settlement and filed two supplemental disclosures
containing information about additional experts whom it intended to
call as witnesses. Alternatively, Plaintiff asked the trial court to
bifurcate the indemnity claims. The subcontractors objected, arguing
that Plaintiff had access to the homeowners’ witnesses before trial
and that a continuance would create significant scheduling problems
for their witnesses. The trial court granted the subcontractors’
motion to strike the information in the new disclosures, disallowed
evidence of the amount of the settlement or its terms, and denied the
request to bifurcate the indemnification claims. The court delayed the
trial for two days, but began selecting a jury on the second day, in
effect denying the request for a continuance. Following a lengthy trial,
the jury returned verdicts for the subcontractors on the breach of contract
and indemnification claims, but found for Plaintiff on the breach of
warranty claim, and awarded small damages. The court of appeals affirmed.
The court rejected the argument that the trial court abused its discretion
in excluding evidence of the settlement between Horton and the homeowners.
The court also concluded that Plaintiff did not preserve an objection
to a jury instruction on indemnification, noting that Plaintiff's counsel
"did not make it clear to the trial court that Horton was still
objecting to the court’s instructions regarding indemnification.
As we read the transcript, the trial court appears to have been trying
to accommodate counsel on this issue, and the parties appear to have
acquiesced in the court’s proposed instructions." The court
also rejected the argument that the trial court abused its discretion
in denying a motion for a new trial on damages. D.R.
Horton, Inc.-Denver v. Bischof and Coffman Construction, LLC In an appeal raising issues of subject matter jurisdiction under the Colorado Professional Review Act (CPRA), C.R.S. §§ 12-36.5-101 to -203, and immunity under the Health Care Quality Improvement Act of 1986 (HCQIA), 42 U.S.C. §§ 11101 to -11152, the court of appeals affirmed in part and reversed in part. The court held that since anticompetitive conduct was alleged by the plaintiffs, both doctors, they were required to present those claims to the state Committee on Anticompetitive Conduct before bringing them in court, so long as the claims arose out of the peer review process. See C.R.S. § 12-36.5-106(7). The court concluded that defamation and invasion of privacy claims not arising out of the peer review process did not have to be presented to the CAC, and therefore the trial court erred in dismissing those claims. The court of appeals remanded for the trial court to consider whether those claims were barred by the HCQIA. Lee v. Banner Health The district
court properly determined that Hiwan is a common interest community
because an owner of a unit in Hiwan (a homeowner) is (1) obligated by
a declaration (2) to pay for maintenance or improvement (3) of other
real estate. Therefore, Hiwan fell within the definition of "common
interest community" in C.R.S. § 38-33.3-103(8), which defines
the term to mean "real estate described in a declaration with respect
to which a person, by virtue of such person's ownership of a unit, is
obligated to pay for real estate taxes, insurance premiums, maintenance,
or improvement of other real estate described in a declaration.”
Hiwan
Homeowners Association v. Knotts Prejudgment interest under C.R.S. § 5-12-102(1) is recoverable in an insurer's equitable contribution action under former section 10-4-707(3) of the sunsetted Colorado No-Fault Act. Safeco Insurance Company v. Westport Insurance Corporation The trial court
erred in concluding that land annexed by plaintiff, the Board of Trustees
of the Town of Wellington was automatically removed from the Fort Collins
Regional Library District. The court of appeals concluded that land
properly included within the District's boundaries at the time of its
formation cannot be removed merely through annexation by a nonparticipating
municipality. The
Board of Trustees of the Town of Wellington, Colorado v. The Board of
Trustees of the Fort Collins Regional Library District July 9, 2009 Today's court of appeals announcements are here. The court issued 8 published decisions. I will try to summarize those by early next week. July 8, 2009 The court of appeals will release the following decisions tomorrow: Published Opinions July 7, 2009 This post will catch me up. The technical difficulties I've been having with the site have been traced to a problem with my hosting provider. The provider is working to fix them and make sure everything is clean. Thanks for your patience. Here are the supreme court announcements from yesterday. The court did not grant cert. in any cases, and issued not decisions. I don't expect the court to issue any decisions for at least several weeks summaries. Here are the summaries of last week's supreme court opinions. An order declining to revoke probation is not a final judgment within the meaning of C.A.R. 1, and therefore the the court of appeals lacked jurisdiction to entertain the prosecutor's appeal of the order. The judgment of the court of appeals was therefore vacated with directions to dismiss the People's appeal. Justice Eid, joined by Chief Justice Mullarkey, dissented, concluding that "a district court's denial of a complaint for revocation of probation -- a ruling akin to the dismissal of criminal charges -- is a final appealable order." People v. Guatney In a companion case to Guatney, the supreme court concluded that there is no appreciable difference between an order dismissing a petition to revoke probation and an order declining to revoke probation. Therefore, the trial court's order dismissing a petition to revoke probation is not a final appealable order, and the appeal must be dismissed. Lewis v. People In an original proceeding, the supreme court held that the district court abused its discretion in striking an answer brief as a sanction for discovery violations. The court held that striking an answer brief is tantamount to an entry of default judgment, and, in this case, was unduly harsh and not commensurate with the harm. Chief Justice Mullarkey, joined by Justice Bender, dissented, concluding that it was not an abuse of discretion to strike the answer brief, "because [that sanction] was only reached after a long discovery process involving multiple status conferences and pleas from the judges that the Defendant-Petitioners comply with the court's orders." In re Pinkstaff v. Black & Decker (U.S.) Inc. In an appeal from a suppression order, the supreme court held that the record did not support the trial court's conclusion that the mere act of a police check for outstanding warrants transformed a consensual encounter into an investigatory stop. But on remand, the trial court may consider additional evidence to determine whether the defendant was not free to leave when the officers conducted the warrant check. People v. Ealum A tenant in a federally-subsidized apartment sought review of the district court's judgment affirming an eviction order of the county court. Interpreting the owner's demand for compliance or possession, the county court found that its reference to criminal activity prohibited by a specified covenant in the lease satisfied the statutory notice requirement. The supreme court reversed, holding that a finding of unlawful detention by a lessee who holds over contrary to a condition or covenant of a lease agreement requires proof, by a preponderance of the evidence, of a violation of that condition. The supreme court held that the county court failed to determine that the tenant violated the lease agreement by actually engaging in prohibited criminal activity. Miles v. Fleming Here are the summaries of the court of appeals' published decisions from June 25. Following these summaries are the case announcements from July 2 and the list of the unpublished decisions released that day. Neither criminal tampering, menacing nor first degree criminal trespass is a lesser included offense of first degree burglary and therefore none of those offenses merged with defendant's burglary conviction. People v. Lucas Defendant was prosecuted for violation of a custody order by taking his minor daughter to Australia with the intent to permanently reside there, contrary to restrictions contained in the order. Defendant sought to introduce evidence that the child's welfare had been in danger going back to 2000. The trial court, however, limited that evidence to eight months before the defendant's abduction of the child in September 2004. The court of appeals concluded that the trial court did not abuse its discretion in limiting the evidence as it did. People v. BeilkeA defendant's claim of innocence does not disentitle a defendant to a lesser included offense instruction. But on the facts of this case, it was not error for the trial court to deny lesser included offense or voluntary intoxication instructions. Judge Jones specially concurred, concluding that whether defendant's reliance on a defense that he was not at all involved in the incident giving rise to the charges automatically disentitled him to instructions on lesser included offenses and voluntary intoxication was an issue that the court need not, and therefore should not, reach. People v. Brown In a declaratory judgment action, Plaintiff challenged the requirement that he register as a sex offender. Under a 1991 stipulation for a two-year deferred judgment and sentence, Plaintiff had pleaded guilty to a single count of sexual assault on a child. Plaintiff successfully completed the terms and conditions of the deferred judgment and sentence, and the court released him from probation. He later pled guilty to theft and was sentenced to probation. His probation was later revoked and he was sentenced to a term of imprisonment. As terms and conditions of his parole for that sentence, the Department of Corrections required him to register as a sex offender. On appeal, he contended that the General Assembly intended to exclude from sex offender registration any person who successfully completes the terms of his or her deferred sentencing agreement. The court of appeals disagreed. The court noted that the Colorado Sex Offender Registration Act requires all persons who commit an offense involving unlawful sexual behavior to register with local law enforcement authorities. C.R.S. § 16-22-103. Plaintiff's sex offense is one that requires registration under the Act. Because he received a deferred judgment and sentence for an offense for which the Act requires a defendant to register, the court concluded that Plaintiff was required to register as a sex offender. Dubois v. Abrahamson Trial court
did not violate defendant's right to due process or his Fifth Amendment
right against self-incrimination, nor interfere with his Sixth Amendment
right to counsel by requiring defendant to testify before his expert
witness. Although the court of appeals recognized "that a defendant
may obtain tactical advantages by exercising control over the timing
of his testimony, and . . . that a defendant has a constitutional right
to exercise such control," the court would not conclude "that
the trial court's ruling undermined defendant's ability to exercise
his Fifth and Sixth Amendment and due process rights." First, there
was no indication that the trial court would have required defendant
to testify first had the expert been available to testify on the afternoon
of the first day of trial (when the prosecution rested). Second, defendant
was not denied his right to testify. Third, defendant was not denied
his right to remain silent because he was not compelled to testify.
He made his decision to testify before there was any discussion about
the timing of his testimony, and thus the court's decision concerning
the timing of his testimony could not have influenced his decision.
Fourth, defendant was not denied his due process rights or his Sixth
Amendment right to counsel because defendant and his attorney had an
opportunity to evaluate the value of defendant's testimony without being
confronted by the prospect of a penalty if defendant did not testify
first. Fifth, defendant did not contend that his decision to testify
was contingent on whether, after hearing his expert testify, he was
satisfied with her performance on the stand, or that he might have changed
his mind had the trial court granted his request to testify after his
expert witness. Sixth, the court's decision was influenced by its concern
that the jury's time not be wasted, a legitimate reason supporting the
court's exercise of discretion over the order of Parents named as parties in a juvenile delinquency proceeding do not have a due process right to participate in the adjudicative proceedings. People in the Interest of J.P.L. In a case about the enforceability of a covenant not to compete, plaintiffs-employers appealed the trial court's order partially denying a motion for a preliminary injunction against a defendant-former employee. The court of appeals held that the trial court erred in concluding the former employee was not "management personnel" within the meaning of an exception to Colorado's statute voiding covenants not to compete, C.R.S. § 8-2-113(2). The trial court did not apply the plain language of the statutory exception for executive and management personnel. The court concluded that a manager is management personnel, and viewed executive and management personnel as two separate categories of employees. The court noted that the trial court erred in limiting the phrase "management personnel" to "key personnel at the heart of a business." Since the General Assembly did not define "management personnel," the court held that the plain meaning of the term applies. The court said that had the General Assembly intended to limit § 8-2-113 to key personnel at the heart of the business, it could have easily done so by defining the term or using different language. DISH Network Corp. v. Altomari Father appealed from an order adjudicating his daughter dependent and neglected. Father argued that the petition could not be sustained as to him because (1) his actions or omissions did not cause the child to lack proper parental care or render her environment injurious, and (2) the evidence was therefore insufficient to support an adjudication. The court of appeals agreed. The child's mother was arrested for drunk driving, with the child in the car. Father was called to come pick up the girl but failed to arrive within two hours. The district court found that (1) father was in control of deciding when he should retrieve his daughter but did not take immediate steps to secure her safety and well-being; (2) for whatever reason, he did not retrieve his child for a period of one and one-half to two hours; and (3) he arrived late at night without the means to transport the child, which resulted in the child's being taken into protective custody. The court then concluded that father's actions or omissions deprived the child of proper parental care and showed that he would deprive her of proper parental care in the future. The court of appeals reversed, concluding that the facts found by the district court were insufficient to support the court's dependency and neglect adjudication based on a lack of proper present or future parental care by father. The court of appeals noted that the incident "was a one-time incident in which father received an unexpected call at 8:30 p.m. to come retrieve the child because mother had been arrested for driving under the influence. Although it took father one and one-half to two hours to arrive, it is undisputed that a series of events occurred that were unknown to father and not within his control, and that may well have contributed to his delay in getting to his child. For example, it is undisputed that father had no reason to believe that mother would be driving under the influence with the child in the car. Moreover, the sheriff's deputy who asked father to come get the child was called away on another police matter and left the child with a good samaritan, thus moving the deputy's vehicle from where father was looking for it. The good samaritan then waited for father for a time and when father did not arrive promptly, took the child to the sheriff's department, thus moving the child from where father was told to come get her." It was error to adjudicate the daughter dependent and neglected as to the father in these circumstances. People in the Interest of S.G.L. The court of appeals' announcements from July 2 are here. The court issued the following unpublished decisions: 05CA0219 People v. Tam Nguyen June 29, 2009 Here are links to the supreme court's announcements for today, and the court of appeals' announcements from last Thursday. The supreme court issued five decisions, which may be the last decisions the court issues for awhile. The court did not grant cert. in any cases. The court of appeals issued eight published decisions. Due to a heavy work load and the upcoming holiday weekend, I will have to post summaries next week. Thanks for your patience and have a happy and safe Fourth of July. June 22, 2009 A few readers have alerted me that Google reported my blog "as an attack site” and in some cases blocked access based on the reader's security preferences. Thanks to all who reported the problem. Our IT department has worked to fix the problem, and we believe the offending computer code has been removed. But please feel free to email me if this problem recurs or if you have any other technical problems with the site. I'm not very technically-savvy, so all I can do is forward on any problems. Thanks again for alerting me. Today's supreme court announcements are here. The court issued two decisions, summarized below. The court also granted cert. in two cases. The issue in those appeals follow the summaries. Defendant in a criminal case appealed the court of appeals' decision affirming the admission of character evidence under CRE 404(b). The defendant was charged and convicted of felony menacing for pulling a gun against the driver of a van. The defendant claimed he acted in self-defense. The trial court admitted evidence of a prior act where the defendant, a deputy sheriff, was off-duty, wearing his service weapon, and yelled at an apartment manager -- causing her to feel intimidated. The supreme court reversed, concluding that the evidence did not satisfy the four-part test of People v. Spoto, 795 P.2d 1314 (Colo. 1990), and therefore was inadmissible under Rule 404(b). The error was not harmless, so the court reversed and remanded for a new trial. Justice Coats, joined by Justice Eid, dissented, concluding, "While it would also have been within the trial court’s discretion to exclude evidence of the defendant’s prior encounter with his landlord, I do not agree that admitting this evidence amounted to an abuse of discretion. The admission of uncharged misconduct is fundamentally a question of relevance, as to which a trial court must be entitled (at least in the absence procedural error) to considerable discretion. Because I believe the majority’s overly mechanical application of the standards we have developed for evaluating uncharged misconduct evidence not only infringes on that discretion but is also likely to mislead trial courts and unnecessarily deprive fact-finders of valuable, relevant evidence in future cases, I respectfully dissent." Yusem v. People In an interlocutory appeal of a suppression order, police advised defendant of his Miranda rights after taking him into custody. Although defendant invoked his right to remain silent in two separate interviews, police subjected him to further interrogation in both of those interviews and in a third interview.The supreme court affirmed the trial court’s suppression order, holding that under the totality of the circumstances, the police violated defendant’s constitutional right to remain silent by continuing to conduct custodial interrogation on three occasions after he had clearly invoked that right. Justice Eid, joined by Justice Coats, concurred in the judgment only, agreeing only that during the third interview, the detective sought to convince the defendant to abandon his earlier invocation of the right to remain silent by diminishing the importance of having an attorney present during questioning. People v. Bonilla-Barraza The court granted cert. in the following cases: Rodriguez v.
People, No. 09SC132, on these issues: Whether the removal of a defendant from the courtroom during the child victim’s testimony and the failure to provide a contemporaneous electronic method of communication between the defendant and her counsel during the testimony deprives the defendant of her federal constitutional right to counsel, right to be present at a critical stage of her criminal trial, and right to confront witnesses. Whether the court of appeals erred in analyzing as trial error rather than structural error the question of the constitutionality of removal of the defendant from the courtroom during the child victim’s testimony, and the failure to provide the defendant with a contemporaneous electronic method of communication between defendant and her counsel. Whether the court of appeals erred in holding that the trial judge’s comments and questioning did not so depart from the required impartiality of the judge such as to deny Petitioner a fair trial. Smith v. Executive Custom Homes, Inc., No. 09SC223, on these questions: Whether the court of appeals erred as a matter of law in holding that the petitioners’ claim for relief for personal injuries under section 13-80-104 of the Colorado Revised Statutes accrued approximately one year before the subject personal injuries were suffered. Whether the court of appeals erred in reversing the trial court’s grant of summary judgment for the respondent/cross-petitioner by finding that the repair doctrine equitably tolled the statute of limitations under section 13-80-104 of the Colorado Revised Statutes. June 19, 2009 The supreme
court will issue two decisions on Monday, No. 08SC526
Yusem v. People, and No. 09SA6 People v. Bonilla-Barraza. No. 09SA144, In re: Goodman Associates, LLC v. WP Mountain Properties: Petitioner Goodman Associates, LLC seeks relief from the Eagle County District Court's order setting aside the default judgment it previously had granted in favor of Goodman Associates and against WP Mountain Properties, LLC. On June 17, 2009, the court issued a rule to show cause why the relief requested should not be granted. Respondent WP Mountain Properties is directed to provide a written answer on or before July 7, 2009. Petitioner has 20 days from receipt of the answer within which to reply.
Petitioner, the People of the State of Colorado, requested that the court issue a rule to show cause why the district court did not abuse its discretion in granting defendant Malinda E. Spykstra's request for the issuance of a subpoena duces tecum requiring the named victim in the underlying sexual assault case and her parents to allow defendant's expert into the parents' home to inpsect their computers and to produce personal emails between the victim and her parents. On April 24, 2009, the court issued a rule to show cause why the relief requested should not be granted. Respondent Spykstra is directed to provide a written answer on or before May 26, 2009. The People have 30 days from receipt of the answer within which to reply. The court has solicited amicus briefs in this case. June 18, 2009 Here are today's court of appeals announcements. The court issued only unpublished decisions. June 17, 2009 The court of appeals will release the following unpublished decisions tomorrow: 05CA1480 People v. Farrell Greenlee June 15, 2009 Here are today's supreme court announcements. The court issued no decisions and did not grant cert. in any cases. June 11, 2009 Here are today's court of appeals decisions. The court issued nine published decisions, summarized below. Trial court’s findings based on a hearing to reconstruct the record, together with the record as a whole, were sufficiently reliable to permit the court of appeals to us to conduct an intelligent review of defendant’s contention on appeal. Moreover, defendant failed to establish any specific prejudice other than the mere fact that he could not review the actual transcript. The court therefore rejected defendant's challenge to the adequacy of his Arguello advisement. The court did remand the case on a recusal issue, however. On remand, the judge who tried this case must explain on the record why he recused himself before sentencing. If his explanation comports with any of the reasons set forth in Crim. P. 25, the sentence previously imposed will stand , subject to defendant’s right to re-initiate his appeal of that sentence. If the reasons given by the judge are not based on any of the grounds for recusal set forth in the rule, defendant’s sentence wil be vacated, and the judge who sat on defendant’s jury trial will resentence him. People v. Brewster District court erroneously denied defendant’s challenge for cause of a prospective juror employed by the Division of Youth Corrections (DYC), and therefore a new trial was necessary. The court concluded that the DYC is a public law enforcement agency within the meaning of C.R.S. § 16-10-103(1)(k), and therefore the the challenge for cause should have been granted. People v. Sommerfeld Although plaintiff was not convicted of a sex offense in a criminal proceeding, a DOC hearing panel in 2007 classified him as a sex offender, based on plaintiff’s alleged sexual assault of his ex-girlfriend. Plaintiff filed a complaint under C.R.C.P. 106(a)(4) asserting that the DOC abused its discretion when it classified him as a sex offender because he had not been convicted of a sex offense or an offense with an underlying factual basis of unlawful sexual behavior. The court of appeals concluded that the 2008 amendment to C.R.S. § 16-22-103(2)(d)(I) did not apply to the DOC’s May 2007 classification, and therefore the the DOC was not bound by the prosecution’s stipulation dismissing sexual assault charges. The court found no abuse of discretion by the DOC. Vondra v. Colorado Department of Corrections Continued employment does not create consideration for a noncompete agreement once an employee has begun working for an employer. Lucht’s Concrete Pumping, Inc. v. Horner Plaintiff was injured in an automobile accident when her vehicle was struck by a bus driven by defendant bus driver. She sued the bus driver and his employer, First Transit, Inc. The district court determined as a matter of law that the bus driver was also an employee of the Regional Transportation District (RTD), and therefore his potential liability was capped at $150,000 by virtue of the Colorado Governmental Immunity Act (CGIA). The court also determined that First Transit, which Plaintiff had sued solely on a theory of respondeat superior, could not be held liable for an amount greater than the bus driver’s potential liability. The court of appeals affirmed, concluding that as a matter of law the bus driver was an RTD employee as well, and therefore the CGIA caps applied. Henisse v. First Transit, Inc. Beneficiary deeds executed by decedent as trustee were invalid as a matter of law. C.R.S. 15-15-401 does not state or imply that a trust can be a grantor of a beneficiary deed, and the court declined to interpret the statute to allow for that. Fischbach v. Holzberlein C.R.S. § 13-40-110(1) and 13-40-115(2) expressly allow a landlord to recover past due rent in an FED action. Renco Associates v. D’Lance, Inc. District court’s order granting defendant’s petition for discontinuation of the requirement that he register as a sex offender and for his removal from the sex offender registry under C.R.S. § 16-22-113 was vacated and remanded for entry of an order denying the petition. Because defendant has more than one conviction for unlawful sexual behavior, he was ineligible for such relief by virtue of § 16-22-113(3)(c). People v. Atencio In a lien priority
dispute, Bent County appealed the declaratory judgment finding its lien
to be junior in priority to the lien of plaintiff bank. The trial court
based its determination of priority on C.R.S. § 38-30-104, the
after-acquired interest statute. The court of appeals reversed, concluding
the after-acquired interest statute was inapplicable because the deed
of trust (1) did not involve a transfer of title and (2) did not “purport
to convey an estate in fee simple absolute.” The court further
noted that even assuming the statute were applicable, it would conclude
that the trial court erred in altering the lien priority dates because
section 38-30-104 does not address or affect lien priority. The court
also noted that the statute had not been cited in over 80 years by a
Colorado appellate decision. Premier
Bank v. Board of County Commissioners of the County of Bent June 10, 2009 The court of appeals will release the following decisions tomorrow, including nine published opinions: Published Opinions June 9, 2009 This post will get me caught up. First are the supreme court announcements from yesterday. Following that are the court of appeals' argument calendar for July and the summaries of the court of appeals' published decisions from May 28. Here are yesterday's supreme court announcements. The court issued two decisions summarized below. The court did not grant cert. in any cases. A deputy sheriff and Alamosa County are entitled to restitution under C.R.S. § 18-1.3-602(4)(a) as "victims" of the defendant's crime of vehicular eluding, where the deputy was involved in a single car accident while en route to respond to another deputy's call for assistance. Because an essential element of the underlying crime of vehicular eluding of a peace officer requires the primary "victim" to be a police officer, the supreme court held that the deputy sheriff and Alamosa County fall within the meaning of "victim" for purposes of restitution. Dubois v. People In a case arising out of a serious collision between a train and a car, the supreme court held that the premises liability statute, when construed in context, did not mandate that the damages resulting from the railroad's negligence be assessed without regard to the negligence of the injured party or fault of a nonparty. Therefore, the judgment of the court of appeals was reversed and a new trial ordered. Union Pacific RR Co. v. Martin The court of appeals' oral argument calendar for July is here. A motion for new trial filed before a judgment of conviction has entered is a critical stage of trial to which the right to counsel attaches. In addition, the court held a defendant, whether indigent or not, is free to discharge his or her retained counsel without having to show cause, and an indigent defendant may subsequently request appointed counsel, so long as the discharge or request is not made for improper purposes and does not significantly disrupt judicial proceedings. On the facts, the court of appeal concluded that the trial court abused its discretion in failing to review the public defender's determination of nonindigency. The court remanded to determine whether the defendant's financial status at the time of her request entitled her to court-appointed counsel during post-trial proceedings. People v. Munsey Defendant's challenge to an instruction was not preserved because it was not raised at trial. The court of appeals held raising an objection for the first time in a new trial motion is too late to avoid the plain error standard. In addition, the court concluded that the prosecutor's references in closing argument to a witness's occupation as "a youth pastor" and "man of God" were improper. While the occupation was relevant background information, because it explained the context in which the witness had met the victim and eventually heard her claim of a sexual relationship with defendant, it had no legitimate bearing on the witness's credibility. But reversal was not necessary because the trial court sustained objections to the improper arguments. Further, the witness had no firsthand knowledge of the alleged crimes, and the case did not turn on his credibility. People v. McNeely Defendant was convicted of finding him guilty of leaving the scene of an accident. At trial, the prosecutor asserted the defendant violated the statutory prohibition against leaving the scene of an accident solely because he failed to identify himself as the driver at the scene. The court of appeals disagreed, concluding that the statutes under which defendant was charged and convicted, C.R.S. §§ 42-4-1601(1) and -1603(1), do not require the driver of a vehicle involved in an accident to identify himself as such. Because the evidence was otherwise insufficient to support defendant's conviction for leaving the scene of an accident, the court reversed and remanded with instructions to enter judgments of acquittal on all charges. People v. Hernandez In a commercial case, the court of appeals concluded that the parties did not enter into an enforceable settlement agreement. The court described the case as "a prototype for a purported offer that was 'on its face manifestly too good to be true.'" At issue was a mathematical calculation of interest. On the facts, the court concluded that an e-mail and erroneous charts from defendant raised a presumption of error because they were inconsistent with (1) the jury's award; (2) with prior discussions between counsel; and (3) other calculations in the same charts, in which defendant's consistently used the jury's allocations of fault. The court of appeals concluded that at a minimum, "these obvious inconsistencies gave rise to a duty on the part of plaintiffs' counsel to inquire before attempting to accept the purported 'offer.'" Without such an inquiry, there was no offer capable of acceptance. Sumerel v. Goodyear Tire & Rubber Company In C.R.S. §
7-80-107(1), the General Assembly did not expressly, or by clear implication,
manifest an intent to prohibit courts from using the common law doctrine
of piercing the corporate veil to hold an LLC manager personally liable
for the LLC's improper actions. The court also concluded that when an
LLC becomes insolvent, its manager owes a common law duty to the LLC's
creditors to avoid favoring personal interest over those of creditors.
Breach of this duty will result in the manager's personal liability
to those creditors (personal liability that is distinct from the personal
liability that may be imposed through the piercing-the-corporate-veil
doctrine) While engaged in a high speed chase with police, defendant was in a serious crash with another vehicle. That crash was a head-on collision with a vehicle driven by a woman who was then eight and one-half months pregnant. There was an eighty percent abruption of the placenta, which required an emergency cesarean section. The child was delivered alive, but died one hour and nine minutes later. The defendant was charged with serious felonies, including 7 related to the death of the child (first degree murder being among those 7 charges). The trial court granted defendant's motion to dismiss all charges relating to the unborn child. On appeal, the panel agreed that the language of C.R.S. § 18-3-101(2) precludes charging a defendant with homicide for causing death of an unborn child - regardless of whether death occurs in the womb or after birth as a result of fetal injuries. The majority, however, concluded that the non-homicide charges--reckless child abuse resulting in death, § 18-6-401(1)(a), (7)(a)(I); deadly vehicular eluding, § 18-9-116.5; careless driving causing death, § 42-4-1402; and under the influence vehicular assault, § 18-3-205(1)(b)(1)-could be brought. The court therefore reversed the dismissal of those charges. Judge Connelly, dissented on this issue, noting, "Because the legislature defined 'persons' in the homicide statute expressly to exclude the unborn, and because all criminal laws must be strictly construed, we should not adopt a broader construction in interpreting related statutes." People v. Lage The standard for approval of a settlement of a shareholder derivative action under C.R.C.P. 23.1 should be identical to the standard for evaluating a class action settlement under C.R.C.P. 23(e). A trial court's approval of a settlement of a derivative action is a discretionary determination, which, as in class action settlements under C.R.C.P. 23(e), will not be overturned absent an abuse of discretion. Thomas v. Rahmani-Azar In an appeal
from cease and desist order of the Colorado Securities Commissioner,
the court concluded that Commissioner's conclusion that respondents'
sale of unregistered securities violated C.R.S. § 11-51-301 was
supported by the record. The court also concluded that by employing
an unlicensed sales representative, the fund violated § 11-51-401(2).
The court rejected respondents' contentions the Commissioner erred in
finding a violation of § 11-51-501 because (1) there was no evidence
or finding that respondents made the omissions with scienter, that is,
with intent to defraud; (2) no statement was rendered misleading by
respondents' omission to disclose the sales rep's licensure status and,
in any event, his licensure status was not a material fact; and (3)
the licensure status was public information, and therefore its disclosure
was not required. In this Equal Pay Act (EPA) case, 29 U.S.C. § 206(d), plaintiffs, appeal the amount of the trial court's attorney fees and costs award against defendant. The court affirmed the fee award, but reversed the trial court's order refusing to award any costs under C.R.S. § 13-17-202. The court of appeals concluded that costs for a witness's airfare could be "reasonable travel expenses" under § 13-17-202(1)(b), even if the airfare exceeds the mileage reimbursement rate provided in § 13-33-103 depending on the circumstances that led the witness to travel by air and the type of arrangements chosen. The court also concluded that because the expenses of a traveling companion are "similar" to "reasonable travel expenses" and this phrase is not limited to such expenses of a witness, under unusual circumstances traveling companion expenses could be awarded under § 13-17-202(1)(b). The court held, though, that section 13-17-202(1)(b) neither loan interest nor witnesses' lost wages are not recoverable, as those are not "similar" to the items of "actual costs" listed in section 13-17-202(1)(b). Catlin v. Tormey Bewley Corp. The Farmers Reservoir and Irrigation Company (FRICO) appealed the district court's judgment entered following a bench trial authorizing the City of Boulder to construct an under-highway path spanning a portion of an irrigation ditch operated by FRICO, and ruling against FRICO on its counterclaims against Boulder and on its third-party complaint against the Colorado Department of Transportation. The court of appeals reversed the portion of the judgment allowing Boulder to construct the under-highway path, concluding that the district court clearly erred in finding that the proposed trail extension would not adversely affect FRICO's maintenance rights. City of Boulder v. Farmer's Reservoir and Irrigation Company In a workers' comp. case, the court of appeals concluded that the 2007 amendment to C.R.S. § 8-43-406(2), which increased the aggregate amount a workers' compensation claimant may receive in one or more lump sums, permitted the claimant, who previously received a lump sum payment before the amendment, to receive an additional lump sum payment equal to the difference between the amended aggregate amount and the amount she previously received. Nelson v. ICAO In a case involving exclusion of a municipality from a special district, petitioners, Cherry Hills appealed the order of the district court directing them to pay a "transfer amount" of $9,660,838 to the South Suburban Park and Recreation District, as a condition of the exclusion of Cherry Hills from the District. In a prior appeal addressing, among other things, the propriety of the transfer amount, the court of appeals had concluded that the trial court had misinterpreted one of the statutes governing exclusion of municipalities from special districts. City Council v. S. Suburban Park & Recreation Dist., 160 P.3d 376, 381 (Colo. App. 2007). On remand, the trial court properly reconsidered and explained its rationale for requiring Cherry Hills to make the transfer payment to the District. The court of appeals therefore affirmed. The City Council of the City of Cherry Hills Village v. South Suburban Park and Recreation District In a quiet title action, the court of appeals concluded that the trial court properly quieted title in Beaver Creek Ranch based on adverse possession. The court held, however, that the trial court erred in awarding prejudgment interest. Prejudgment interest in actions that do not involve personal injury is governed by C.R.S. § 5-12-102. Subsection (1)(b) provides a statutory rate of interest for money or property wrongfully withheld: "Interest shall be at the rate of eight percent per annum compounded annually for all moneys or the value of all property after they are wrongfully withheld or after they become due to the date of payment or to the date judgment is entered, whichever first occurs." "Wrongful withholding" means "that the aggrieved party lost or was deprived of something to which she was otherwise entitled." The party that lost the adverse possession claim believed that it owned the disputed property at all times until the judgment was entered. Therefore, Beaver Creek Ranch only became entitled to royalties after it obtained a judgment from the court quieting title to the disputed property. Beaver Creek Ranch, L.P. v. Gordman Leverich LLLP The court of appeals reversed the district court's judgment dismissing for lack of jurisdiction a petition seeking judicial review of an administrative order revoking petitioner's driver's license. The court found no error in the district court's determination that the petitioner was a resident of Nevada, as initially alleged in her petition, and not a resident of Larimer County. But the court noted that the petitioner was not a resident of Larimer County, or of any other Colorado county. Therefore, the court turned to the Administrative Procedure Act (APA), specifically section 24-4-106(4), and determined that The plain language of sections 24-4-106(4) and 42-2-135(1) leads us to conclude that, absent a specific statute such as section 42-2-126(9)(a), the proper venue for the licensee's petition for review was the Denver District Court. The court therefore remanded with directions to change venue to Denver District Court. Hastie v. Huber In an appeal raising issues of first impression under Revised UCC Article 8 (Investment Securities), the parties who had or claimed interests in the bond were: (A) the original owners of the bond; (B) the entity that was entitled to purchase the bond if the original owners failed to close on the underlying property development; and (C) the party who purchased the bond from the original owners. The original owners fraudulently transferred the bond to the purchaser of the bond. The purchaser relied on UCC's "protected purchaser" provision to claim he acquired greater interests than the original owner had and thereby trumped the entity's interests. But because the purchaser had notice of the entity's property interests in the bond, he was not a protected purchaser. The entity therefore was entitled to the bond. Meadow Homes Development Corp. v. Bowens The trial court
aggravated defendant's sentences under a statutory provision that did
not require the court to impose a sentence to incarceration. This statutory
provision mandated the court to aggravate defendant's sentence only
if it sentenced defendant to incarceration. See C.R.S. § 18-1.3-401(8)(a)(III).
Because the plain language of that section did not require a sentence
to incarceration or imprisonment in the DOC, the court's authority to
suspend defendant's sentence was not limited by to section 18-1.3-401(11)
was not applicable. Therefore, the district court's imposition of defendant's
suspended sentences was authorized by statute and was not illegal. Insurance company had not duty to defend insured who was sued for giving the victim a "date rape drug" and sexually assaulting her. The policy excluded from coverage "bodily injury, property damage or personal injury which . . . is either caused intentionally by or at the direction of an insured; or . . . results from an occurrence caused by an intentional act of any insured where the results are reasonably foreseeable." Therefore, summary judgment for the insured was appropriate. Fire Insurance Exchange v. Sullivan June 4, 2009 Today's court of appeals announcements are here. The court issued the following unpublished decisions: Unpublished Opinions June 2, 2009 Yesterday's supreme court announcements are here. The court issued two decisions, summarized below. The court did not grant cert. in any cases. I will not be able to post the court of appeals summaries until later this week, as I have an unexpected work matter to deal with. In an original proceeding arising from a medical malpractice action alleging lack of informed consent and negligence, the plaintiffs subpoenaed the doctor for all documents associated with a Board of Medical Examiners’ investigations of his professional conduct. In filing his privilege log listing specific documents, the doctor asserted that C.R.S. § 12-36.5-104(10) and § 12-36-118(10)created a privilege against discovery. The supreme court concluded that § 12-36.5-104(10) did not apply because the BME is not a peer review committee. The court also concluded § 12-36-118(10) does not directly govern civil discovery requests for the doctor’s records. But when considering whether documents the doctor provided to the BME or received from the BME are discoverable, the trial court may consider any expectation of confidentiality the doctor asserts for records listed in the privilege log. The supreme court held that the trial court abused its discretion in this case by ordering the doctor to produce all of the documents listed in his privilege log without first reviewing the documents in camera and conducting a Martinelli analysis. In Re DeSantis v. Simon In a water court appeal, the supreme court held that an applicant for conditional water storage rights in certain reservoir sites failed to demonstrate by a preponderance of the evidence that there was a substantial probability that it can and will gain access to the disputed sites. Therefore, the water court proprerly dismissed, on summary judgment, the applicant’s claims for conditional water storage rights in those sites. City of Aurora v. ACJ Partnership May 29, 2009 The supreme
court will issue two decisions Monday, No. 08SA321,
In Re DeSantis v. Simon, and No. 08SA222, City of Aurora v. ACJ Partnership. May 28, 2009 This post includes summaries of this week's supreme court decisions and summaries of the court of appeals' decisions from May 14. So please scroll down. Today's court of appeals' announcements are here. The court issued 17 published decisions, which I hope to summarieze by next Tuesday. The court released the following decisions: Published Decisions 04CA1405 People v. Nancie Munsey The supreme
court announcements from Tuesday are here.
The court issued three decisions, summarized below. The court granted
cert. in one case, No. 08SC907, The Colorado Intergovernmental Risk
Sharing Company v. Northfield Insurance Company, on this issue:
In an original proceeding, the supreme court addressed which statute of limitations applied to the charges brought against defendant. The defendant was charged with thirty-two counts of sexual assault on a child, sexual assault on a child by one in a position of trust, sexual assault on a child -- pattern of abuse, and criminal attempt to commit sexual assault on a child. The acts were allegedly committed during two separate time periods -- one period from August 1, 1992, to August 31, 1993, and one period from August 1, 1995, to June 30, 1996. The felony complaint charging defendant with those crimes was filed April 6, 2007. Defendant moved to dismiss the charges against him, contending that they were all barred by the statute of limitations. The statute of limitations in effect at the time of the alleged crimes was ten years. But the General Assembly amended the statute of limitations in 2002, tolling the ten-year statute of limitations for sexual assault on a child until the child victim reaches the age of eighteen. The trial court denied defendants' motion to dismiss, holding that the newly- amended statute of limitations applied to defendants' case and that it had not yet run. The supreme court noted that the statute itself contains two contradictory limitations provisions (C.R.S. §§ 18-3-411(2)(b) and 5(1)), each compelling a different result in this case. Because of the conflicting statutory language, and because the court was unable to discern the legislative intent behind the statute, the court concluded that it could not determine which limitations period applied. As a result, the court concluded that it was forced to apply the rule of lenity to hold that the charges against the defendant were barred by the ten-year statute of limitations in effect when the crimes were allegedly committed. In so holding, the court overruled the court of appeals' recent decision in People v. Boston, --- P.3d ---, No. 07CR2186, 2009 WL 400073 (Colo. App. Feb. 19, 2009). Justice Coats concurred in the judgment, finding it unnecessary to resort to the rule of lenity. Justice Eid dissented, concluding that the interpretation that better preserves the statute as a whole controls -- that is, that the tolling provision applies to all crimes that were committed on or after July 1, 1992 for which the statute of limitations had not already run. She concluded that since there was "no 'tie' to be broken, resort to the rule of lenity [was] inappropriate." In re People v. Summers In a C.A.R. 21 proceeding, the supreme court held that the untimely expert disclosure was substantially justified because the expert was a treating physician brought into the case at a late date through the natural course of Plaintiff's medical care. Plaintiff's request to add this expert after the deadline was also justified by the critical nature of the testimony in question. The untimely disclosure was harmless because a trial date has not been set and because Defendant's opportunity to defend against the evidence has not been compromised. Therefore, the supreme court held that the trial court erred when it barred the expert witness. Justice Eid dissented, concluding that under the circumstances the trial court did not abuse its discretion in excluding the expert. In re Berry v. Keltner While defendant's direct appeal of his convictions was proceeding in the court of appeals, the child victim indicated that her testimony of sexual abuse by the defendant was fabricated. After a series of evidentiary hearings, the district court denied defendant's motion for new trial, and he was permitted to join an appeal of that ruling with the appeal of his convictions. Although the court of appeals reversed portions of the judgment of conviction, it found no abuse of discretion in the district court's denial of his motion for new trial. The supreme court affirmed, holding held that because the district court was not reasonably convinced that the victim's testimony at trial was probably false, it did not abuse its discretion in denying defendant's motion for new trial. Justice Bender, joined by Chief Justice Mullarkey and Justice Martinez, dissented, concluding that the "majority holds that a recantation 'can justify a new trial only to the extent that it not only impeaches the prior testimony but does so by contradicting it with a different and more credible account.' Maj. op. at 14. Such a conclusion overstates our precedent. The appropriate standard that should be applied here is that newly discovered impeachment evidence is sufficient to justify a new trial when it, taken together with all of the other evidence for and against the defendant, is of such consequence that it probably would result in an acquittal on retrial. In this case, the parties agree that there was no evidence other than the victim's trial testimony to support the defendant's conviction. The trial court found that the victim's trial testimony had 'substantial credibility issues.' Given this set of circumstances, I conclude that the addition of the victim's recantation would bolster the defense argument for reasonable doubt and probably result in an acquittal on retrial. In my view, justice requires that the defendant receive a new trial." Farrar v. People Here are summaries of the the court of appeals' decisions from May 14: Where the trial
court was not called upon to make any factual findings relevant to the
self-representation issue, the court of appeals reviews the issue de
novo. The court concluded that Informant's statements referencing a drug transaction arrangements, describing the two suppliers and giving their street names, and identifying them upon arriving at the scene were all introduced for the nonhearsay purpose of showing their effect on the listening officers (to show why the officers chose to go to that particular location and stop, arrest, and search defendant and the car in which he was traveling). The evidence did not run afoul of CRE 403, and it thus was not error to admit it. People v. Robinson A four-month delay in issuing a search warrant did not make the supporting affidavit stale. The information provided probable cause to believe that at least some of the stolen property would be located in defendant's residence four months after the crime. People v. Mapps Trial court did not commit reversible error by allowing the jury, during deliberations, unfettered access to a videotaped interview of the victim that had been admitted into evidence. The majority concluded that the under the supreme court's decision in Frasco v. People, 165 P.3d 701 (Colo. 2007), the trial court did not err. Judge Bernard, joined by Judge Jones, wrote the majority opinion. Judge Dailey dissented, concluding that "Here, unlike in Frasco, the trial court did not (1) give a limiting instruction with respect to the victim's videotaped statement; (2) wait for a jury request to review the videotape; or (3) obtain counsel's agreement to allow the jury to have access to the tape. Indeed, with respect to the videotape of the second interview, the trial court here did not exercise any discretion to the end identified in Frasco: without even considering whether the jury might give undue weight to that videotape, the court allowed the jury access to it, without even so much as providing the jury with a cautionary or limiting instruction." People v. DeBella Evidence supported jury's verdict, in abuse of process counterclaim, that plaintiff used the judicial proceedings for the ulterior purpose of retaliation for defendants' cooperation in a federal investigation of plaintiff (which led to plaintiff pleaded guilty to a federal crime). Plaintiff filed the lawsuit after he entered his guilty plea and was sentenced, but before he began serving his sentence, alleging that defendants lied to federal law enforcement authorities. Defendants testified that they believed that this was a "vindictive" lawsuit filed for "retaliatory purposes." The Assistant United States Attorney who prosecuted plaintiff testified that he was "shocked" plaintiff was suing defendants. The court also concluded that the statutory cap set forth in C.R.S. § 13-21-102.5 does not apply to limit a defendant's liability based upon the number of plaintiffs. Otherwise, a defendant could injure many people by the same tortious conduct and in essence receive a "group discount." Such an interpretation of section 13-21-102.5(3)(a) would have absurd consequences, and therefore was rejected. Palmer v. Diaz Rental car driver led police on a high-speed chase that severely injured defendant and killed defendant's son. The insured pleaded guilty to five felonies: second degree murder, first degree assault-extreme indifference, possession of a controlled substance with intent to distribute, vehicular homicide, and vehicular assault-reckless. The insured assigned all of his claims, if any, against the insurer to the defendants. The rental car insurance company brought a declaratory judgment action seeking a determination of no liability for it. The trial court granted summary judgment. The court of appeals affirmed. The court rejected defendant's argument that the insurance policy's crime exclusion was void for violating the insured's "reasonable expectations," and that the crime exclusion violated public policy or was unconscionable. Lincoln General Insurance Co. v. Bailey In a CCIOA case, the court concluded that reading C.R.S. § 38-33.3-312(3) and (4) together, the "contract" referred to in § 38-33.3-312(4) must be ratified by the unit owners, otherwise the contract is unenforceable. Platt v. Aspenwood Condominium Association Inc. Claimant, the recipient of an award of permanent partial disability (PPD) benefits, sought review of the part of the ICAO final order that upheld the denial of his request for a protective order to block a division-sponsored independent medical examination (DIME) and the exclusion of evidence offered to show the DIME physician's apparent or actual conflicts of interest. The court of appeals affirmed the conclusion that no actual conflict of interest existed, but held that the issue of whether an apparent conflict existed had to be reconsidered. The physician selected to perform the DIME was a member of the SelectNet physician referral system operated by Pinnacol Assurance, the insurance carrier in the case, and received approximately twenty-five percent of his income from such referrals. The physician also provided services as a medical advisor for insurer one-half day per month. Ruff v. ICAO Parents' marital status is irrelevant and does not preclude a child support action in the juvenile court under C.R.S. §§ 19-6-101 to -106. Because the Children's Code does not contain language restricting the juvenile court's jurisdiction to cases regarding parents who are not married or cases where paternity is contested, the juvenile court erred by dismissing the child support action for lack of subject matter jurisdiction. People In the Interest of S.E.G Defendants were
held in contempt and remedial contempt sanctions of $5,000 a day was
ordered until Defendants complied with the trial court's contempt order.
Defendant's appeal was dismissed for failure to timely file a notice
of appeal. Under C.R.C.P. 107(f) and C.A.R. 4(a), the appeal of the
Contempt Order had to be filed within forty-five days after the Contempt
Order entered, and Defendants did not file within that period. The court
also concluded that the trial court abused its discretion in awarding
a 2.5% "client fee" to Plaintiff as costs. The affidavit of
costs indicated that the client fee was a flat 2.5% 'general costs'
surcharge that reflects the cost of in-house copying and long distance,
but was not "merely overhead." The court of appeals concluded
that the affidavit thus indicated that at least some portion of the
charge was for firm overhead. Therefore, it should not have been awarded
as a cost. Madison
Capital Company, LLC v. Star Acquisition VIII May 22, 2009 The supreme court will issue the following three decisions on Tuesday: No. 08SA169, In Re: People v. Summers; No. 09SA5, In Re: Berry v. Keltner; No. 07SC983, Farrar v. People. I was unable
to summarize last week's published court of appeals decisions. I will
try to get those up next week. May 21, 2009 The court of appeals' oral argument calendar for June is here. Here are today's court of appeals announcements. The court issued the following unpublished decisions (no published decisions). 05CA1159 People v. Joseph Edwards May 19, 2009 Due to other commitments, I'm a bit behind on my blogging. I hope to post summaries of the court of appeals' published decisions from last week by the end of the week. But the supreme court's decisions from yesterday are summarized in this post. Yesterday's supreme court announcements are here. The court issued two decisions and granted cert. in one case. In an appeal of a suppression order, the supreme court held that defendant was sufficiently advised of and validly waived his Miranda rights after receiving three separate advisements and stating he wished to speak to police after each advisement. Defendant's alleged intoxication did not render him cognitively incompetent. Nor did societal or other subjective pressures to cooperate with police render his waiver involuntary. The court also concluded that a defendant has no constitutional right to call a family member before police interrogation. Although C.R.S. § 16-3-402 requires police to allow a suspect to call family upon arrival at a police station, suppression of evidence is not the proper remedy for an alleged violation of the statute. People v. Clayton Travelers took a cruise vacation to Panama, and while there were injured in a train wreck during a train ride along the Panama Canal. They sued the travel company, and the train's operators, among others. The court of appeals concluded that the borrowing statute C.R.S. § 13-80-110, applies to the claims and therefore subjected the action to Panama’s one-year statute of limitations, not Colorado's two-year statute of limitations. The court therefore upheld the trial court's summary judgment in favor of defendants. The supreme court affirmed but on different grounds. The court noted that the borrowing statute and the Uniform Conflict of Laws –- Limitations Act, C.R.S. §§ 13-82-101 to -107, applied to petitioners’ action, and each assigned a different statute of limitations. Under the borrowing statute, Panama’s one-year statute of limitations applies, while the limitations act assigns Colorado’s two-year statute of limitations. Resolving the conflict between the two statutes, the supreme court held that since the borrowing statute was enacted after the limitations act, and thus is more recent, it controlled. Justice Hobbs, joined by Chief Justice Mullarkey, dissented. Justice Hobbs concluded that the fairness provision of C.R.S. § 13-82-106 should apply to this case to effectuate the General Assembly’s policy that a two-year statute of limitations is the shortest period required for filing a personal injury lawsuit. Justice Hobbs noted that "the fairness provision allows a court to apply Colorado’s limitation period when another state’s substantially different limitation period has not afforded a fair opportunity to sue or imposes an unfair burden in defending against the claim." Jenkins v. Panama Canal Railway Co. The court granted cert. in No. 08SC1073, Wolf Ranch, LLC v. The City of Colorado Springs, on this issue: Whether the court of appeals erred in ruling that the Regulatory Impairment
of Property Rights Act, C.R.S. sections 29-20-201 to 205 is not applicable
when a governmental body legislatively adopts a uniform fee, but then
determines on an individual and discretionary basis whether or not to
apply the fee to specific properties. May 13, 2009 The court of appeals will release the following decisions tomorrow: Published Opinions 05CA1083 People v. Aymen A. Abdu May 12, 2009 Here are yesterday's supreme court announcements. The court issued one decision, summariezd below, and granted cert. in three cases. the questions in those cases follow the case summary. The supreme court has concluded that under the doctrine of equitable subrogation, a putative subrogee may be barred from enforcing its subrogation rights on grounds of prejudice if another party detrimentally changes its position in reasonable reliance on the record state of title. Land Title Ins. Corp. v. Ameriquest Mortgage Co. The court granted cert. in these cases: No. 08SC650,
Doumbouya v. The County Court of the City and County of Denver, on this
question: No. 08SC756, Pineda v. People, on this issue: Whether, in light of the recently decided U.S. Supreme Court case Arizona v. Gant, No. 07-542 (U.S. April 21, 2009), the court of appeals erred in affirming the trial court’s denial of a motion to suppress contraband found in Petitioner’s vehicle during a warrantless search incident to arrest conducted while Petitioner was handcuffed and secured in a police cruiser. No. 08SC972, MDC Holdings, Inc. v. Town of Parker, on these issues: Whether the court of appeals erred in concluding that letters written by outside legal counsel for the respondents constituted “final decisions” in accordance with section 29-2-106.1(2)(c), C.R.S. (2008), that commenced petitioner Richmond's thirty-day period for filing an appeal notwithstanding that the letters specifically stated the respondents' position that the matters were not yet ripe for final decisions. Whether the court of appeals erred in allowing the respondents to benefit
from municipal procedures which conflict with the uniform statute and
their own characterization regarding the finality of the decision contained
in the letters. May 7, 2009 The court of appeals' announcements for today are here. The court issued only unpublished decisions. May 6, 2009 The court of appeals' oral argument calendar for May is here. The court of appeals will release the following unpublished decisions tomorrow: 06CA0841 People v. Daniel Terence Stuart May 1, 2009 The supreme court will issue no case announcements on Monday. Here are the summaries of the supreme court's decisions from Monday. The court of appeals summaries follow them. Trial court did not abuse its discretion in decertifying class, where the plaintiff advanced no theory of class-wide causation sufficient to maintain a class action. The supreme court held that, under the circumstances of this case, the fraud on the market theory could not be applied to maintain an insurance class action brought under the Colorado Consumer Protection Act. Farmers Insurance Exchange v. Benzing The court of appeals had declared illegal Petitioner's three-year sentence to community corrections and remanded for imposition of her previously suspended four-year sentence for robbery. The court of appeals held that because probation was imposed as a condition of a suspended sentence, the sentencing court did not have the option to resentence her to three years in community corrections upon finding a violation, but was instead required to simply re-impose the four-year sentence it had suspended. The supreme court reversed, holding that C.R.S. § 18-1.3-401(11) must be understood to permit the suspension of a sentence in conjunction with, rather than in contradistinction to, the imposition of a statutorily-prescribed alternative to imprisonment. Therefore, the sentencing court’s resentencing options upon revocation were dictated by the statutory provisions governing revocation of probation. Because C.R.S. § 16-11-206(5) permits, upon revocation of probation, the imposition of any sentence that might originally have been imposed, the supreme court reversed the court of appeals. Justice Eid concurred in the judgment, noting that "under both the suspension and probation provisions, the district court judge is not bound by the suspended sentence, and instead has the authority at resentencing to impose any sentence that could have been imposed originally." Fierro v. People Here are the summaries of yesterday's court of appeals decisions: In Nathan Dunlap's appeal of the sentence imposed on remand following reinstatement of his original convictions for second degree kidnapping, aggravated robbery, and theft, the court of appeals concluded that his sentence was illegal to the extent it did not reflect consideration and fixing of restitution. Therefore, the court remanded with directions to the trial court to consider and fix restitution and amend the mittimus accordingly. But the court rejected Dunlap's arguments that the illegality of the sentence means that his conviction has never been final and that he may appeal anew his conviction and sentence despite the fact that his conviction was affirmed on direct appeal in 1998, and his request for collateral relief was finally resolved in 2005. The court concluded that the illegality of his sentence did not affect the finality of his conviction nor the denial of relief on collateral review in this case. People v. Dunlap In an important decision on the economic loss rule, the court of appeals held that the doctrine can apply to fraud or other intentional tort claims based on post-contractual conduct. With respect to fraud claims, the applicability of the economic loss rule depends on whether the alleged fraud arises from duties implicated by a party’s performance of contractual terms or whether the alleged fraud concerns a matter extrinsic to the contract. Where the alleged fraud arises from duties implicated by a party’s performance of contractual terms, the claim is barred by the economic loss rule. The court concluded that applying the economic loss rule to claims for post-contractual fraud does not contravene public policy where the alleged fraud relates to the performance of the contract, since the parties to a contract can allocate the risk of intentional concealment or misrepresentation in the performance of a contract. Because the implied covenant of good faith and fair dealing prohibits fraud in the performance of contractual obligations as to which one party has discretionary authority, the covenant may preclude a fraud claim arising out of the party’s performance of contractual terms. The court concluded that the duty Plaintiff alleged clearly arose out of the parties’ interrelated contracts. Hamon Contractors, Inc. v. Carter & Burgess, Inc. The CCIOA creation
provision states that a common interest community is created “only
by recording a declaration executed in the same manner as a deed.”
C.R.S. § 38-33.3-201(1). In a negligence
case, the court held that the trial court should have afforded a hearing
before increasing the jury's punitive damages award to three times the
compensatory damages awarded. Defendant pled guilty to misdemeanor sexual assault. The district court found he was a “sexually violent predator” (SVP), subject to lifetime registration and community notification requirements. On appeal the court rejected Defendant's argument that the SVP statute does not cover misdemeanors, concluding that the SVP statute applies to misdemeanor sexual assaults in violation of C.R.S. § section 18-3-402(1)(e). But eh court agreed with Defendant that court’s findings were insufficient, and remanded for the trial court to make “specific findings of fact” as required by the SVP statute. People v. Tuffo C.R.S. § 42-2-126(1)(a) requires the Colorado Department of Revenue to revoke the licenses of suspected drunk drivers who refuse blood or breath testing. The district court held the statute does not allow revocation unless a test request is made within two hours of driving a vehicle. The court of appeals reversed, concluding that the statute requires only that a request be made within a reasonable time, and therefore that the Department properly revoked Petitioner's license. Stumpf v. Colorado Department of Revenue, Motor Vehicle Division A water line providing service to Plaintiff’s property broke. The water district hired contractors to fix the break, and assessed Plaintiff the cost of the repair under C.R.S. § 32-1-1101(1)(e). Plaintiff disputed his obligation to pay and filed an action seeking a determination that he was not liable for the expense of the repair. The case was tried to a jury, which returned a verdict in favor of the district. After trial the district filed a motion for foreclosure and an award of attorney fees under C.R.S. § 31-35-402(1)(f). The trial court entered a decree of foreclosure and awarded attorney fees. On appeal, the court affirmed. The court rejected Plaintiff's argument that a jury trial was improper. The court of appeals concluded that trial court’s characterization of the declaratory judgment action as legal was not contrary to law, since the district would have had to sue for damages had Plaintiff not brought his action. Stuart v. North Shore Water & Sanitation District In a Medicaid
benefits case, the court of appeals concluded that that the Medicaid
Act sections on which plaintiff relied do not contain rights-creating
language essential to enforcement under 42 U.S.C. § 1983 and that
her claim under C.R.S. § 24-4-106 claim was untimely. Therefore,
the court affirmed the trial court’s judgment dismissing her 1983
claims and her claim for judicial review of administrative action. Bates
v. Henneberry The People appealed a trial court’s order, entered at a preliminary hearing, reducing two class three felony sexual assault charges against defendant to class four felony charges and dismissing five other sexual assault charges against defendant. The court noted that the trial court had concluded that evidence that a defendant’s body weight prevented a victim from escaping a sexual assault is categorically insufficient to constitute the actual application of physical force or physical violence under C.R.S. § 18-3-402(4)(a). That was a conclusion of law, and thus subject to de novo review. The court of appeals concluded that evidence that a defendant’s body weight caused the victim to submit against his or her will is sufficient to establish probable cause to believe that the defendant applied the physical force required under § 18-3-402(4)(a). Applying the correct legal standard, the court reversed some of the dismissals and reductions, but upheld others. People v. Keene Mother appealed
the termination of her parental rights, asserting the juvenile court
failed to comply with the Indian Child Welfare Act (ICWA). The court
of appeals concluded that the Denver Department of Human Services erred
by not filing ICWA notices or the return receipt cards with the court
and such errors were not harmless because there was no evidence in the
record that the tribe knew mother was an enrolled tribal member or had
lived on the reservation, andthat later notices sent by the department
did not comply with the ICWA. The court therefore vacated the judgment
and remanded for proper notices to be provided. The court noted that
if on remand, the tribe does not seek to intervene or indicate that
the child is eligible for enrollment, then the juvenile court would
not need to apply the substantive ICWA standards. People
In the Interest of N.D.C. April 30, 2009 Sorry for the lack of posts this week. I've been tied up on work and other things and have not been able to get to blogging. This post contains this week's case announcements from the supreme court and court of appeals. I hope to post summaries tomorrow. Monday's supreme court announcements are here. The court issued two decisions and granted cert. in the following cases: No. 08SC783, Wells Fargo Bank, N.A. v. Kopfman, on these issues: Whether the court of appeals erred in holding that a judgment creditor who has domesticated a foreign judgment and established a judgment lien on Colorado real property under section 13-52-102, C.R.S., (2008), must revive that judgment in the foreign court, re-domesticate that judgment, and record a new transcript of judgment issued by a Colorado court. Whether the court of appeals erred in adopting a strict compliance standard for Colorado’s judgment lien and recording statutes and should have instead adopted a substantial compliance standard. No. 08SC945, People v. Gabriesheski, on these questions: Whether the Court of Appeals erred in concluding that conversations between a child and her guardian ad litem in a dependency and neglect case are confidential communications protected by attorney-client privilege. Whether the Court of Appeals erred in concluding that section 19-3-207(2), C.R.S. (2008), which governs the admissibility in criminal proceedings of statements made to treating professionals in dependency and neglect proceedings, precluded a social worker’s testimony in a criminal case about pressure placed on the child-victim to recant allegations of sexual abuse. Whether the Court of Appeals erred in concluding that section 13-90-107(1)(g), which bestows a privilege on communications between social workers and their clients in psychotherapy sessions, applies to a social worker who neither directed nor participated in psychotherapy with the child-victim and her family. Whether jurisdiction is proper under section 16-12-102(1), C.R.S. (2008), as an appeal limited to a question of law or as an appeal from an order dismissing one of more counts of a charge. Here are today's announcements from the court of appeals. The court issued the following decisions: Published Opinions April 24, 2009 The supreme court will issue the following two decisions on Monday: No. 07SC483, Farmers Insurance Exchange v. Benzing No. 07SC788,
Fierro v. People April 23, 2009 Here are today's court of appeals decisions. The court issued only unpublished decisions. April 22, 2009 The court of appeals will release the following unpublished decisions tomorrow: 01CA1252 People v. Toney L. Brown, April 21, 2009 The supreme court's announcements from yesterday are here. The court issued two decisions, which are summarized below, and granted cert. in one case. Following the supreme court announcements, are summaries of last week's published decisions from the court of appeals. In a declaratory judgment action in the water court, the supreme court concluded that the Water Right Determination and Administration Act of 1969 defines "beneficial use" as "the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made." C.R.S. § 37-92-103(4). Under the language of the Act, the coalbed methane process "uses" water -- by extracting it from the ground and storing it in tanks -- to "accomplish" a particular "purpose" -- the release of methane gas. Consequently, the extraction of water to facilitate coalbed methane production is a "beneficial use" as defined in the Act and a "well" as defined in the Colorado Ground Water Management Act. Therefore, the court concluded that coalbed methane production is subject to regulation under both acts. The court rejected the argument that water used in coalbed methane production is merely a nuisance rather than a "beneficial use." Instead, the use of water in coalbed methane production is an integral part of the process itself. The presence and subsequent controlled extraction of the water makes the capture of methane gas possible. Justice Coats concurred in part and dissented in part, concluding that although "I agree that the extraction of groundwater in the coalbed methane production process falls within the administrative responsibilities of the state and division engineers, I do not agree that this process, in itself, amounts to a 'beneficial use' of the water extracted, for either constitutional or statutory purposes." Vance v. Wolfe In a tax case, respondents purchased property as tenants in common and subsequently donated the property as a conservation easement. The two couples split the value of the donated easement in half and claimed tax credits totaling $154,700 under the Conservation Easement Tax Credit Act. The Colorado Department of Revenue issued notices of deficiency to the two couples on the ground that their tax credits exceeded the $100,000 limit. The supreme court agreed with the Department of Revenue. The Conservation Easement Tax Credit Act limits the “amount of the credit allowed [to] one hundred thousand dollars per donation.” Thus, although each couple may claim a tax credit, the statute expressly limits the amount of the credits claimed to an aggregate total of $100,000 per donation. Because the tax credits claimed by respondents exceeded $100,000, the court holds that the Department correctly issued the notices of deficiency to the respondents. Huber v. Kenna The court granted
cert. in No. 09SC68, Board of County Commissioners of the County of
Boulder, Whether it was error for the district court and court of appeals to find that section 30-28-110(1) of the County Planning and Building Code exempts a fire protection district -- which is planning to obtain ownership of and develop an outlot in a subdivision within a planned unit development -- from the requirements of section 24-67-106(3)(b) of the Planned Unit Development Act. Here are the summaries of last week's court of appeals decisions: Securities fraud in the course of business, C.R.S. §11-51-501(1)(c), contains different elements from the securities fraud counts under 11-51-501(b) on which defendant was acquitted. Thus, defendant could be acquitted of the counts of securities fraud under section 11-51-501(1)(b) because the jury found he did not make any untrue statement of material fact or omit to state a material fact and still be convicted on the count of securities fraud in the course of business under section 11-51-501(1)(c) because the jury found he willfully engaged, directly or indirectly, in any course of business that operated as a fraud or deceit upon any person. The court, however, reversed defendant's computer crime conviction for insufficient evidence. The court concluded that the People were required to prove beyond a reasonable doubt that defendant personally "used" a computer as that term is defined in the computer crime statute, rather than simply aided and abetted others who may have actually used a computer in the sales process. People v. Robb When the prosecution
seeks to admit any evidence which suggests that the defendant is a person
of bad character, it must be prepared to explain why the logical relevance
of that evidence does not depend on the inference that the defendant
acted in conformity with his bad character. Under this standard, the
district court did not abuse its discretion in admitting defendant's
notebook entries in her murder trial. The notebook entries indicated
that defendant, a black woman, believed that (1) white people are detestable
and are a threat to her and other black women, and (2) therefore, she
is justified in ignoring the law and killing them. Because the victim
was white, the entries were relevant to establish defendant's culpable
mental state and to rebut her assertion that she had acted accidentally
or in reasonable self-defense. This theory of relevance did not depend
on the inference that defendant acted in conformity with her bad character
generally. In a case of first impression in Colorado, the court of appeals concluded that where a defendant's mental disease or defect renders him incompetent to decide whether or not to exercise his right to testify in his own defense, he is incompetent to stand trial. Defendant's trial could not properly proceed if his mental disease or defect prevented him from deciding rationally whether to exercise his fundamental and personal right to testify in his own defense in a manner consistent with the Dusky standard (requiring both a present factual and rational understanding of the proceedings). If defendant's mental disease or defect rendered him incapable of deciding rationally whether to testify, then, because of the nature of that right, he necessarily lacked the sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and the requisite factual and rational understanding of the proceedings against him. The trial court applied the wrong legal standard, and therefore a remand was necessary. People v. Mondragon Defendant was
convicted on five counts of attempted first degree extreme indifference
murder. The trial court erroneously denied defendant's request to provide
the jury with the option of convicting him of a lesser non-included
offense involving reckless discharge of a firearm. The error required
reversal of three of the five attempted murder convictions, but not
two convictions involving child victims actually struck by gunfire because
the jury was instructed on analogous lesser assault offenses as to those
two victims. For those two counts, the lesser non-included assault offense
instructions served the same purpose that would have been served by
lesser non-included firearms offense instructions. Defendant was able
to argue that the jury should convict him of assaulting but not attempting
to murder the two girls. For the other three counts, however, there
was no comparable lesser offense on which the jury could have convicted. In a medical negligence case involving acts or omissions during surgery, the jury should be instructed, under the captain of the ship doctrine, that a surgeon is vicariously liable for the negligence of subordinate hospital employees from the time the surgeon assumes control of the operating room until the surgeon concludes the procedure. The court rejected the surgeon's argument that he had no right to control how the nurses counted the sponges. The court also rejected the surgeon's argument that plaintiff's release of the nurses precluded the surgeon from being held vicariously liable for their negligence. On the plaintiff's cross-appeal, the court held that C.R.S. § 13-64-302(2) includes prefiling interest -- but not prejudgment interest -- within the $250,000 cap on noneconomic damages. Therefore, calculating prejudgment interest on prefiling interest in excess of the cap would be contrary to section 13-64-302(2). Ochoa v. Vered C.R.S. § 8-43-303(1) & (2)(a) permit reopening of a workers compensation award on grounds of "overpayment." Therefore, employer and current insurer were entitled to credit fo overpayment of claimant's benefits. Under Avalanche Industries v. Clark, 198 P.3d 589 (Colo. 2008), workers compensation claimant was entitled to have his permanent total disability benefits capped at ninety-one percent of the state average weekly wage (AWW) that was in effect at "the time of his disablement." Contrary to claimant's contention, the issue is one of fact that the ALJ must determine, because claimant could have become disabled at the time of his initial accident, or at some point thereafter, depending on the facts and circumstances. Accordingly, the court of appeals remanded to determine the time of claimant's disablement under Avalanche Industries, and the state AWW that was in effect at that particular time. Simpson v. Industrial Claim Appeals Office Trial court properly denied motion to suppress arising from passenger involved in a traffic stop. The court of appeals concluded that the officer lawfully could ask for her identification during the traffic stop without reasonable suspicion of criminal activity on her part. The court noted that the officer did not ask defendant any questions beyond her name and date of birth. Nor was the encounter improperly prolonged by requiring defendant to step out of the car and remain at the scene. No testimony suggested that either officer touched defendant or retained anything that might have prevented her from leaving the scene as the car was being searched. Therefore, her continued presence after the traffic stop ended was consensual. People v. Bowles In proceeding to terminate father's parental rights, evidence of polygraph examinations should not have been admitted, and the trial court should not have listened to, or considered, the opinions of any experts based, in whole or in part, on the polygraphs. The error was prejudicial. Inadmissible evidence of polygraph examinations formed the basis for the opinions and recommendations from all of the expert witnesses that father's parental rights should be terminated. The court therefore remanded the case for further proceedings. People In the Interest of M.M., Jr. Denver police
officer challenged his ten-month suspension for tactical errors preceding
his fatal shooting of a developmentally disabled fifteen-year-old boy
who had been wielding a knife. Denver's Civil Service Commission, reversing
an administrative hearing officer, upheld the suspension. The officer
sought discrict court review under C.R.C.P. 106(a)(4). The district
court affirmed. Though the shooting itself was not alleged to have violated
the department's use-of-force policy, the officer was suspended for
violating a provision requiring that officers "maintain the highest
standard of efficiency and safety." The commission disagreed with
the hearing officer's determination that this provision could not constitutionally
be applied to the officer. The commission upheld the suspension because
the officer had "disregarded the opportunity to de-escalate"
the situation prior to the shooting. On appeal, the officer contended
the "highest standard of efficiency and safety" provision
is unconstitutionally vague, and that the commission exceeded its authority
and applied the wrong legal standard, among other errors. The court
of appeals affirmed the suspension. The majority concluded that a provision
requiring officers to adhere to the "highest standard of efficiency
and safety" can be applied to evaluate the reasonableness of officers'
actions in light of their training, and therefore survives a vagueness
challenge. Judge Roy dissented, concluding that the Denver Police Department
Operations Manual § 3.13 was void for vagueness and violated the
officer's rights to substantive due process. CDOT was not statutorily authorized to condemn mineral interests when it condemned land for highway purposes, regardless of the nature of the title it took otherwise. The court noted that its interpretation of the plain meaning of C.R.S. § 38-1-105(4) was clarified by SB 08-041, which revised several of the condemnation statutes. SB 08-041 clarified that the legislature does not, and never did, intend for CDOT to condemn mineral interests, other than those needed for subsurface support, when it acquires land for highways. Therefore, the trial court erred in granting summary judgment in favor of CDOT. Gypsum Ranch Co., LLC v. Board of County Commissioners of the County of Garfield Any person who would otherwise be entitled to workers' compensation benefits may not receive and is not entitled to such benefits for any week following conviction during which he or she is confined in a jail, prison, or any Department of Corrections facility. See C.R.S. § 8-42-113(1). Under section 8-42-113(2), when a person is released from confinement, he or she must be "restored to the same position with respect to entitlement to benefits" as he or she "would otherwise have enjoyed at the point in time of [his or her] release from confinement." Claimant contended that this provision tolls the running of the six-year period during which an administrative law judge may review and reopen an award. The court of appeals rejected that argument, concluding that nothing in either Article 42 or 43 provides authority for tolling the limitation periods provided in section 8-43-303 while a claimant is in prison. Landeros v. Industrial Claim Appeals Office In a campaign finance case, the court of appeals concluded that an ALJ, proceeding under a privately-filed complaint under Article XXVIII, section 9 need not be "the appropriate officer" described in section 10 in order to have the authority to impose a sanction. The ALJ found an issue committee had violated C.R.S. § 1-45-108 by failing to fully disclose all the committee's contributions and expenditures in its reports and failing to establish a bank account required under section 3(9) of Article XXVIII, and she imposed a civil penalty from the date the committee first filed its inaccurate report. The court concluded the ALJ had authority to impose that sanction. The court also concluded that the ALJ has the discretion to choose to impose no sanction or penalty if the ALJ reasonably concludes one would not be appropriate. Section 10(2)(b)(1) of Article XXVIII authorizes the ALJ to set aside or reduce a penalty for good cause. "Set aside" clearly contemplates imposing no sanction whatsoever. "Reduce" logically implies a lessening, even to zero. Therefore, while section 9 of Article XXVIII requires the ALJ to include in the decision an appropriate order, sanction, or relief as authorized, the ALJ has discretion to impose no sanction at all. Patterson Recall Committee, Inc. v. Patterson Juvenile court erred when it denied motion for acquittal because there was a "fatal variance" between the petition and the evidence presented at trial. The "fatal variance" was that while the petition charged him with rendering assistance to one Norris knowing that Norris was charged with a crime, the theory on which the prosecution proceeded, and upon which juvenile was adjudicated delinquent, was that he rendered assistance to Norris knowing Norris had committed a crime. That variance required reversal and entry of judgment of acquittal. People In the Interest of H.W. Workers compensation claimant contended ALJ erred by denying permanent total disability benefits based on her refusal to undergo surgery, which the ALJ found to be unreasonable. She claimed that surgery refusal is an affirmative defense that employer failed to endorse for hearing. The court of appeals found no reversible error, noting that the order also contained extensive evidentiary findings supporting the ALJ's additional determination that claimant had failed to prove she has no ability to earn wages. Thus, the findings and conclusions regarding claimant's refusal to undergo surgery were neither essential nor integral to the ALJ's finding that she did not carry her burden of proof. Aviado v. Industrial Claim Appeals Office Letter from
Division of Insurance plainly requested that insurer send a highlighted
copy of the policy to homeowner and to the Division and insurer's response
was incomplete. Thus, the insurance commissioner's decision upholding
the Division's decision to levy a fine was affirmed. Trial court erred by requiring adoptee to use a confidential intermediary in order to gain access to certain adoption records. C.R.S. § 19-5-305(2)(a) entitles adoptees to access their adoption records and the names of their birth parents without limitation if their adoptions were finalized before July 1, 1967, and adoptee's adoption was finalized in 1965. In the Matter of the Petition of J.N.H. Because a lis pendens can be a "spurious document," the trial court could award attorney fees and costs under C.R.C.P. 105.1(d) and C.R.S §§ 38-35-109(3) and 38-35-204, for plaintiff's spurious lis pendens. The court also rejected plaintiff's argument that the trial court lacked personal jurisdiction. Although plaintiff did not file a response to the petition as required by C.R.C.P. 105.1(c), the trial court held a show cause hearing, which plaintiff attended. Therefore, service under C.R.C.P. 4(e) or (g) was not required. The court of appeals concluded that because a show cause hearing was held and plaintiff did not refute that the lis pendens was spurious, the court had jurisdiction to enter judgment in favor of defendants and against plaintiff for defendants' costs and attorney fees under C.R.C.P. 105.1(d). Shyanne Properties, LLC v. Torp Sir Mario Owens was convicted of two counts of capital murder and sentenced to death. In addition, he was convicted of lesser felonies, which he appealed to the court of appeals, asking the court to determine whether it had jurisdiction over the appeal of those lesser felonies. The court of appeals dismissed the appeal, in light of the unitary review statute vesting the supreme court with exclusive appellate jurisdiction in death penalty cases. People v. Owens April 15, 2009 The court of appeals will release the following decisions tomorrow, including 18 published decisions: Published Opinions April 14, 2009 This post gets me caught up. Thanks for your patience. The supreme court's oral argument schedule for the 2009-10 term is here. The court will hold arguments September 22-24, October 20-22, and December 1-3, 2009, and January 19-21, March 2-4, April 27, 28, and 30, and June 8-10, 2010. The supreme court recently issued a rule to show cause in the following original proceeding: No. 09SA59, In re: People v. Body: Kenneth Lee Body, Jr. requests that the Colorado Department of Corrections be compelled to award him earned-time credit for the last eighteen years that he has served. He contends that the DOC has improperly withheld the credit based on its erroneous interpretation of the governing statute. On March 19, 2009, the court issued an order to show cause why the requested relief should not be granted. Respondents the DOC and the Denver District Attorney's Office are directed to file a written answer no later than April 8, 2009 why the relief requested should not be granted. Petitioner Mr. Body has twenty days from receipt of the answer within which to reply. Here are the summaries of the court of appeals' published decisions from April 2: Defendant contended that the mens rea of "knowingly" applies to every element of the charge of methamphetamine possession, including the amount of methamphetamine, and the trial court erred in instructing the jurors that the defendant did not need to know the amount he possessed. The court of appeals rejected that argument. The court concluded that C.R.S. sec. 18-18-405 creates two felony levels of offenses for possession of a schedule II controlled substance: a class 4 felony if the offense "involve[s]" more than one gram; and a class 6 felony if the offense "involve[s]" one gram or less. But these subsections do not expressly include a mens rea requirement with respect to the amount. People v. Sheffer In an appeal
by the People dismissing criminal charges, the court of appeals concluded
that the trial court abused its discretion in dismissing the charges
because it misapprehended the legal standard that governs the amount
and type of hearsay that may be presented in a preliminary hearing.
The court of appeals concluded that the prosecution satisfies the minimum
requirement for nonhearsay if it (1) presents some competent nonhearsay
addressing essential elements of the offense, and (2) presents hearsay
testimony through a witness who is connected to the offense or its investigation
and is not merely reading from a report. The court concluded that the
prosecution met these requirements and therefore the case should not
have been dismissed. Colorado Open Records Act (CORA) did not require Governor Ritter to allow requestor to inspect information redacted from a memorandum sent to the Governor's legal counsel. The court concluded that the redacted content was confidential "work product" exempted from public disclosure under CORA, and therefore affirmed the district court's order. The memorandum in question concerned draft legislation considered by former Colorado State Representative Rosemary Marshall. Ritter v. Jones In a dispute over the terms of a charter school contract, plaintiffs, a public charter school and parents of three of the school's students, appealed the dismissal of their complaint against the state Board of Education and the Pueblo School district. The court concluded that under the political subdivision doctrine, the charter school lacked standing to sue the district or the board. Moreover, C.R.S. sec. 22-30.5-107.5 does not permit judicial review of a board decision concerning the governing policy provisions of charter school contracts. As for the parents' appeal, the court of appeals affirmed the district court's dismissal of the parents' claims that lack of specific long-term facility funding violated their rights under the Colorado Constitution. The court held that the "thorough and uniform" clause of the Colorado Constitution did not require funding for long-term charter school facilities in parity with those of noncharter schools. The court also held that the choice to attend a charter school is not a constitutional right. Dolores Huerta Preparatory High v. Colorado State Board of Education Following the refusal of the Westminster Municipal Court to dismiss criminal charges against him, petitioner brought a C.R.C.P. 106 proceeding in the district court. The district court ordered the municipal court to dismiss the charges, finding that the municipal court had violated Hills' right to a speedy trial. The court of appeals reversed, concluding that defense counsel's rejection of a new trial date within the speedy trial time period extended the speedy trial deadline. Judge Gabriel dissented, disagreeing with the legal premise on which the majority's decision was based, and concluding instead that the delay was due to the municipal court's congested docket and not to any action or request of the petitioner. Hills v. Westminster Municipal Court Claim against physician did not relate back to date patient filed medical malpractice claim because patient failed to establish (1) that he made a mistake concerning the doctor's identity as a proper party or (2) that the doctor should have known that, but for such a mistake, plaintiff would have named him as a defendant in the complaint. Since the amended complaint was untimely and did not relate back, it was dismissed on statute of limitations grounds. Lavarato v. Branney In an underinsured motorist (UIM) benefits action, the notice-prejudice rule applies to insureds' failure to notify insurer of, and obtain its consent to, a settlement with a tortfeasor, in violation of a provision of the insurance contract requiring such consent. The court concluded the notice-prejudice rule applies, but that insureds' failure to provide notice and obtain consent before settling is presumptively prejudicial. Insureds, however, must have the opportunity to rebut this presumption, and if they are successful, the insurer must then establish that it actually was prejudiced by the settlement. The court therefore remanded for further proceedings regarding the notice-prejudice rule. Lauric v. USAA Casualty Ins. Plaintiff filed a tort action against defendants, asserting claims for assault, false imprisonment, and involuntary servitude. Plaintiff lives in Colorado, according to the complaint, but she is not a United States citizen. Because of her non-citizen status, defendants filed a motion to require plaintiff to post a cost bond as a nonresident of Colorado. The trial court granted the motion and ordered plaintiff to post a $20,000 bond. When she failed to do so, the trial court dismissed the complaint. The court of appeals reversed, concluding that the trial court erred in ruling that plaintiff's non-citizen status alone precluded her from qualifying as a resident for purposes of C.R.S. sec. 13-16-101, and in requiring that she post a cost bond on that basis. On remand, the trial court must apply the proper criteria to determine whether plaintiff is a resident. If the trial court then determines that plaintiff is a nonresident, it may require her to post a bond. Munos-Hoyos v. Munoz de Cortez Plaintiff appealed a summary judgment for defendant on the ground that prior federal court litigation precluded his claims. The court of appeals reversed. Defendant is a multi-state law firm practicing primarily in the field of debt collection. In 2006, plaintiff filed a complaint against defendant in the United States District Court for the District of Colorado, alleging that a series of debt collection telephone calls made to plaintiff's cell phone by agents of defendant violated the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, entitling him to monetary relief. In May 2007, the parties settled the FDCPA claims. Approximately one week after entering into the settlement agreement, plaintiff moved for leave to amend his complaint to assert violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. When a dispute arose concerning compliance with the settlement terms, defendant moved the U.S. District Court to enforce the settlement agreement. Following an evidentiary hearing before a magistrate judge, the U.S. District Court granted defendants motion to enforce the settlement agreement in October 2007. In its order granting defendant's motion, the U.S. District Court denied plaintiff's motion for leave to amend his complaint because the request was untimely and plaintiff failed to show "good cause to amend the Scheduling Order to allow him to assert new claims at this juncture." But the court noted in its order that "[a]s to claims under the Telephone Consumer Protection Act, the settlement agreement explicitly does not resolve such claims and does not prevent Mr. O'Neil from asserting such claims in the future." In December 2007, plaintiff filed his complaint in state court case, asserting claims under the TCPA. The district court granted summary judgment on claim preclusion grounds. The court of appeals reversed, concluding that the final judgment in the federal case did not encompass plaintiff's TCPA claims and thus did not preclude plaintiff from asserting them in state court. O'Neil v. Wolpoff & Abramson, L.L.P. In the Interest
of T.M.W. and S.A.W.--The
court's link to this decision
is not working. I have contacted the court about it. Once it's fixed,
I'll post a summary here in place of this note. April 13, 2009 Today's post will update the supreme court decisions from last week and today. I hope to get the court of appeals' decisions from April 2 summarized and posted tomorrow. Here are today's supreme court announcements. The court issued two decisions summarized below. The court also granted cert. in three cases. The questions in those cases follow the summaries. The summaries of the court's March 30 decisions follow that. Defendant challenged
his conviction on the basis that he received ineffective assistance
of counsel during plea negotiations and, as a result, refused an offer
he otherwise would have accepted. His attorney fundamentally misunderstood
the sentencing statute involved and, as a result, advised defendant
to reject the district attorney’s offer. This offer would have
significantly reduced defendant ’s sentencing exposure. The supreme
held that the ineffective assistance of counsel standards in Strickland
v. Washington, 466 U.S. 668 (1984), apply throughout plea negotiations.
Under the Strickland standard, the court concluded defendant received
constitutionally deficient assistance of counsel during plea negotiations
and, as a result, suffered prejudice which calls the fairness of the
trial into question. This prejudice was shown through objective testimony
that corroborated the defendant’s own self-serving statements.
Justice Coats dissented, concluding that "[u]nlike the majority,
I consider it clear that the Supreme Court has not thus far extended
its remedy for ineffective assistance of counsel to include ineffective
plea negotiating; and in light of its existing jurisprudence, I do not
look for it to do so. In any event, I would not anticipate the Supreme
Court’s extension of its ineffective assistance materiality Under C.R.S. § 13-21-101, a personal injury judgment creditor is entitled to post-judgment interest from the date judgment is entered against the judgment debtor until the date the judgment is satisfied. The court rejected petitioner's argument that under section 13-21-101, both as written by the General Assembly and re-written by the court in Rodriguez v. Schutt, 914 P.2d 921 (Colo. 1996), a personal injury judgment creditor is entitled to post-judgment interest from the date the action accrued until the date the judgment is satisfied. The court holds that Petitioner’s suggested reading of the statute is contrary to the common understanding of the term “post-judgment interest” and does not serve the statutory goal of section 13-21-101. Therefore, the court affirms the court of appeals’ decision that a judgment creditor is entitled to post-judgment interest under section 13-21-101 from the date judgment is entered until the date judgment is satisfied. Justice Eid, joined by Justice Rice concurred in the result, noting that the "problem presented by this case highlights the fact that the interest statute is in need of legislative attention. Until the legislature acts, however, I believe we should avoid engaging in “interpretive” efforts such as the majority’s that further redraft the statutory language. Instead, I would reach the same result as that reached by the majority on the narrow ground that Sperry did not seek prejudgment interest in her complaint and therefore cannot collect it now. Maj. op. at 11. The language of section 13-21-101(1) states (in a portion not altered by Rodriguez) that “it is the duty of the court” to add “interest” to the judgment “[w]hen such interest is so claimed.” (emphasis added.) Here, Sperry did not claim prejudgment interest and therefore cannot collect it under the statute." Sperry v. Field The court granted
cert. in these cases: No. 08SC63,
Cash Advance v. State of Colorado, ex rel. John W. Suthers, Attorney
General, on these issues: Whether the court of appeals erred in holding petitioners do not have tribal sovereign immunity from Colorado trial court orders compelling them to produce information regarding their eligibility for tribal sovereign immunity. Whether the court of appeals contravened Congress’s plenary power over Indian tribes by implementing its own test to determine if a tribe’s commercial enterprise is sufficiently connected to the tribe such that the enterprise is protected by tribal sovereign immunity. Whether the court of appeals erred by stating that tribal officers are not protected by tribal sovereign immunity when acting outside state authority. Whether the court of appeals erred by stating petitioners may have waived sovereign immunity against Colorado’s enforcement actions by including arbitration clauses in loan agreements with Colorado consumers. Whether the court of appeals erred in reaching the question of sovereign immunity in an investigative subpoena enforcement proceeding. Whether the court of appeals erred in allocating the burden of proof to the state when sovereign immunity is an affirmative defense, not a challenge to the court’s subject matter jurisdiction. Whether the court of appeals erred in holding the state’s burden of proof is “preponderance of the evidence” when the burden of proof in an investigative subpoena enforcement proceeding is “cause to believe.” No. 08SC667, Tumentsereg v. People, on this question: Whether the court of appeals erred in not finding that even if petitioner's convictions are upheld, he was nonetheless entitled to resentencing because (a) the district court erroneously classified the sexual assault conviction as a class two felony, and (b) the court erroneously believed the minimum possible sentence was the midpoint of the presumptive range. No. 08SC784,
Joondeph v. Hicks, on these issues: Whether the court of appeals' refusal to apply the doctrine of derivative subrogation -- the right of property owners to transfer equitable subrogation rights, by way of warranty deed, to subsequent purchasers -- improperly deprives property owners of their equitable subrogation rights and unjustly results in the conveyance of a diminished estate. Whether, if this court declines to follow the doctrine of derivative subrogation, this court should abandon the rule that a lender’s actual knowledge of intervening liens prevents that lender’s ability to enforce the obligation it satisfied under the doctrine of equitable subrogation. Whether, if the court abandons this rule, petitioners may equitably subrogate to the senior lien position on the property. Here are the summaries of the supreme court decisions from March 30: County judge was properly authorized to issue pre-trial rulings. The pretrial hearings took place in the district court, which possessed the proper jurisdiction over felony criminal matters. In addition, the county judge was properly qualified to preside over the district court because he met the requirements of C.R.S. § 13-6-218 and was appointed to serve as a district judge by his chief judge. Thus, assuming that county judge did not receive written authority before the pretrial hearings, the lack of an appointment order in the record did not invalidate his pretrial rulings. The Chief Judge's nunc pro tunc order documented the county judge's authority. Therefore, no error occurred. People v. Sherrod Catholic Health
Initiatives Colorado challenged the imposition of a sales and use tax,
claiming exemption under the Pueblo municipal code. The applicable portions
of the municipal code exempt “charitable organizations” from
payment of sales and use tax incurred “in the conduct of their
regular religious or charitable functions or activities.” The supreme
court held that operation of a facility for the care and housing of
the elderly did not fall within the definition of “charitable organization”
as used in the City of Pueblo code. The court held that the code complied
with the constitutional requirements of the Establishment Clause, because
it sets forth broad secular standards necessary to qualify for exemption,
which either religious or secular organizations may satisfy. Nor did
the imposition of sales and use tax on Catholic Health violate the Free
Exercise In an original proceeding under C.A.R. 21, the court held that the trial court abused its discretion in disqualifying the entire State Public Defender’s Office from representing the defendant where some individual attorneys from the Public Defender’s Office had previously represented three of the prosecution’s witnesses. The court concluded that no direct conflict of interest existed because neither individual public defender representing the defendant was involved in the prior representation of the witnesses. Conflicts that may have existed with regard to other public defenders within the statewide office could not be imputed to the individual attorneys in this case under RPC 1.11. Justice Bender dissented, noting, "Although I agree in large part with the majority’s analysis of the relevant Rules of Professional Conduct, I disagree with its conclusion that the trial court abused its discretion when it disqualified the public defender’s office. I would hold that the trial court could rationally conclude that, in view of the public defender’s prior representation of three of the prosecution’s key witnesses, the office’s continued representation of the defendant gives rise to an appearance of impropriety warranting disqualification. I would arrive at this conclusion even though I agree with the majority that, under the circumstances of this case, such representation would not constitute a literal violation of the Colorado Rules of Professional Conduct." In re People v. Shari April 10, 2009 The supreme court will issue the following decisions on Monday, No. 07SC478, Carmichael v. People, and No. 08SC438, Sperry v. Field. Yesterday's court of appeals announcements are here. The court issued unpublished decisions only. I will post summaries of recent cases next week. April 6, 2009 I'm back. I was out of town on vacation. I have an argument this week, so I won't being doing any other updates before Friday. I do hope to get fully updated by this Friday or next Monday. Here are today's announcements from the supreme court. The court did not issue any decisions, and did not grant cert. in any cases. Here are the announcements from the supreme court on March 30. The court issued three decisions, which I will summarize later. The court granted cert. in the following case: No. 08SC451,
People v. Loveall on these issues: Whether the court of appeals properly analyzed the alleged violation of the defendant’s limited due process right to confront and cross-examine adverse witnesses at his probation revocation hearing. Assuming arguendo that there was a denial of the defendant’s limited due process right to confrontation, whether the court of appeals erred by relying on out-of-state authority and reversing the revocation instead of following Colorado precedent permitting the court to uphold the revocation on an independent ground or remand the matter for further findings by the trial court. Whether a pro se defendant can enter into a deferred sentence under section 18-1.3-102, C.R.S. (2008), which requires the consent of the district attorney, defendant, and defendant’s “attorney of record.” Whether a deferred sentence is prohibited by section 18-1.3-1004, C.R.S. (2008)’s requirement to sentence sex offenders to an indeterminate term. Here are last Thursday's court of appeals announcements, which includes the following decisions: Published Opinions Here are are the court of appeals announcements from March 26. The court issued only unpublished decisions. March 23, 2009 Here are today's supreme court announcements. The court did not issue any decisions, but did grant cert. in the following two cases: No. 08SC936, People v. Bergerud, on these issues: Whether criminal defendants have a fundamental constitutional right to direct their counsel to present an “innocence-based defense,” irrespective of counsel’s professional judgment. Whether, if there is such a constitutional right, what procedures should this Court devise to ensure that defendants are aware of said right, any waiver of it is done in a knowing, voluntary, and intelligent manner, and that counsel is acting pursuant to the defendant’s directions and not on the basis of his own professional judgment. No. 08SC970, Boles v. Sun Ergoline, Inc., on this question: Whether the public policy of Colorado allows enforcement of an exculpatory
agreement purporting to release a manufacturer from liability for possible
future injuries caused by the manufacturer’s defective products. March 19, 2009 Here are today's court of appeals announcements. The court issued 10 published decisions, summarized below. Reckless
endangerment conviction should have merged with defendant's conviction
for attempted Trial court
did not abuse its discretion in disqualifying defendant's counsel, where
counsel testified. The court concluded that the testimony would not
have related to an uncontested issue in the case and therefore it was
not an abuse of discretion to conclude that the first exception to Colo.
RPC 3.7(a) did not apply. In addition, there was an adequate basis in
the record to support the trial court’s conclusion that preventing
counsel from testifying would not be a substantial hardship on defendant.
People
v. Pasillas-Sanchez Where the only direct evidence connecting an accused person to the crime is the presence of DNA at the scene of a crime, the evidence, to be legally sufficient to sustain a conviction, must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the DNA was deposited at a time other than that of the crime. Such other circumstances may include the source material of the DNA and its susceptibility to transfer, the location of the DNA, the character of the place or premises where it was found, the accessibility of that place or premises to the general public, and the object upon which the DNA was found. Here, defendant’s semen was on a sweatshirt and headband recovered from the scene of an assault. The victim testified that she purchased the sweatshirt several days before the attack. If believed, her testimony thus provided the jury with a narrow window of time in which defendant’s semen was likely deposited. Taken in the light most favorable to the prosecution, the narrow window of time during which the victim had owned the sweatshirt, combined with her mother’s denial and the defendant’s initial denial of any consensual sexual encounter, suffice to reasonably exclude the hypothesis that the DNA was deposited at a time other than that of the crime. People v. Clark In 2002, defendant pleaded guilty to felony theft. He failed sentences both to a diversion program and to probation, and thus was sentenced in 2004 to two years imprisonment. During the 120-day time limit provided by Crim. P. 35(b), defendant moved to reduce his sentence to probation, based primarily on his performance in a regimented inmate training “boot camp” while in prison. At a hearing on the motion, defendant requested that he be sentenced to intensive supervision probation (ISP). The district court granted his motion and resentenced him to three and one-half years of ISP. Defendant also failed at ISP, and the court subsequently resentenced him to three and one-half years in a community corrections program. After he was terminated from that program, the district court resentenced him to three and one-half years imprisonment in the DOC. On appeal, defendant contended that because he had already begun serving his two-year prison sentence, the district court violated his constitutional right against double jeopardy when it ultimately increased that sentence to three and one-half years. The court of appeals disagreed, concluding that defendant took advantage of the suspension of finality afforded by Rule 35(b) to successfully argue that his sentence should be changed and reduced to probation, thus voluntarily accepting the relevant probation statute authorizing the possibility of a more severe sentence for a subsequent revocation. People v. Castellano Magistrate was correct when he decided that a child’s disability payments should not be included in mother’s gross income. The phrase “actually received” in C.R.S. § 14-10-115(7)(a)(I)(A) and (16.5) refers only to the disabled parent’s own disability benefits, and does not include disability benefits the disabled parent receives on behalf of a child. Such benefit payments are not included in mother’s gross income for the purposes of calculating her child support obligation. In re the Marriage of Anthony-Guillar The BAA erred in dismissing its abatement and refund claims. Taxpayer had a viable basis for its abatement and refund claims under the statutory scheme on the ground of overvaluation, to the extent that taxpayer could prove that its personal property was overvalued by the inclusion of any value attributable to nonexistent assets. The majority perceive no basis under the statutory scheme for barring these authorized abatement and refund claims under the equitable defenses asserted by the BOCC. Judge Bernard dissented, noting that there was "no suggestion in this case that Boulder County did anything wrong in collecting personal property taxes from HealthSouth. Rather, the payment of personal property taxes at issue here was based on HealthSouth’s intentional misrepresentations in documents that it submitted to the County. The County did not invent fictitious personal property; HealthSouth did. The County did not give this fictitious personal property a value; HealthSouth did. As a result, I would conclude that HealthSouth is not entitled to pursue the administrative remedy of abatement and refund of its taxes because it bases its claim for relief on its own misconduct." HealthSouth Corporation v. Boulder County Board of Commissioners Plaintiffs own farmland and irrigation wells near the South Platte River. On June 2, 2006, plaintiffs received letters from Water Division No. 1 of the state engineer stating that plaintiffs’ wells were part of an augmentation plan in a pending water court case, and consequently, the wells could not pump water until the water court had entered a decreed plan for augmentation. Plaintiffs were ordered to “immediately cease and desist diverting water in violation of the above referenced law, decree, and/or permits.” Plaintiffs did not challenge the validity of the cease and desist orders, instead filed a complaint against defendants in district court alleging that the cease and desist orders constituted takings in violation of Colorado Constitution article II, section 15, and the Fifth and Fourteenth Amendments of the United States Constitution. Their claims were dismissed for lack of subject matter jurisdiction. On appeal, Plaintiffs contend the district court had jurisdiction to hear their complaint because they own vested water rights for irrigation. The court of appelas concluded that the substance of relief sought requires a determination that plaintiffs had the right to use water for irrigation without interference from others, and therefore there was no jurisdiction over the claims. Exclusive jurisdiction rested with the water court. Kobobel v. State of Colorado, Department of Natural Resources, Division of Water Resources Decedent's farm equipment fell within the exception to the joint tenancy presumption set forth in C.R.S. § 15-11-805(1)(c), as he engaged in the farming business. His gun collection, however, did not overcome the joint property presumption created under section 15-11-805(1) and thus the proceeds from the sale of the gun collection were the property of defendant’s wife. In re Estate of Whittman Worker's comp. claimant sustained a compensable back injury while employed at a scientific research station in Antarctica. He contended that he was entitled by statute to an increase in his average wekkly wage for room and board and that the ALJ erred by determining that the absence of comparable market forces in Antarctica precluded him from proving a reasonable sum to support an increase. The court of appeals agreed and remanded for a determination of the value of the room and board provided by employer. Iler v. Industrial Claim Appeals Office In a workers’
compensation proceeding, employer sought review of the final order issued
by the Panel upholding the fine imposed for employer's failure to carry
workers’ compensation insurance. The court of appeals concluded
that the procedure utilized by the Division of Workers’ Compensation
did not violate employer’s due process rights, and therefore affirmed.
The issue was whether an employer is denied its right to procedural
due process by not timely requesting a prehearing conference. The court
concluded that it is reasonable to condition the occurrence of an administrative
hearing on an employer’s timely request to participate in a prehearing
conference. Because the prehearing conference provides an opportunity
to speedily resolve or simplify issues, as well as resolve discovery
matters and evidentiary disputes, it also provides an opportunity to
determine whether any factual issues are in dispute and, thus, a need
for an evidentiary hearing. March 18, 2009 The court of appeals will release the following decisions tomorrow, including 10 published decisions: Published Opinions March 16, 2009 Here are today's supreme court announcements. The court issued three decisions, summarized below. The court granted court in several cases, and the issues in those appeals follows the summaries: In the long-awaited mill levy case, the supreme court reversed the trial court’s judgment finding unconstitutional the amendments to the School Finance Act made by SB 07-199 that allowed local school districts to collect and expend revenues in excess of the property tax revenue limitations of TABOR. The supreme court concluded that SB 07-199 violated none of TABOR's requirements. The local school districts are the relevant taxing authority with respect to the revenue at issue in this case, and voters in those school districts validly waived the property tax revenue limit imposed TABOR. Nothing in TABOR requires an additional vote directing the use of revenue received as the result of a valid waiver, and SB 07-199 did not require a second vote in addition to the local school district waivers. Because there was no change in state revenues, a statewide election was not required. Thus, SB 07-199 did not violate TABOR and was a constitutional legislative enactment. Justice Coats concurred in part and concurred in the judgment in part, noting that he "would not address either the validity or scope of the various attempts by local school districts to waive local spending or revenue limits," but that he agreed with the restof the majority opinion and the judgment. Justice Eid dissented because, in her view "the majority deprives the people of their right to vote on SB 07-199 and the $117 million tax increase it permits." Mesa County Board of County Commissioners v. State of Colorado Copper Mountain, Inc. and Amako Resort Construction (U.S.), Inc. signed an American Institute of Architects form contract for Amako’s construction work on a ski lodge owned by Copper. While aAmako’s subcontractor was performing welding work, a fire broke out, causing significant damage to the lodge. The trial court held that two clauses in the AIA contract between Copper and Amako barred Copper’s claims against Amako and the subcontractor for damages to property that was not part of the contractually defined work. The court of appeals affirmed, holding that a clause in the contract barred Copper’s claims for damages to non-work. The supreme court reversed, concludingin that the contract did not bar Copper’s claims against Amako and the sub for damages to property that was not part of the contractually defined work, despite the fact that Copper insured the damaged property under an existing policy covering the work. Justice Martinez, joined by Justice Coats, dissented, noting that "a majority of jurisdictions" had interpreted the waiver provision of the AIA contract to bar an owner’s claims for damage to non-work property to the extent the owner’s insurance policy covering the work also covers the non-work property. Copper Mountain v. Industrial Systems Rebuttable presumptions
of undue influence and unfairness do not continue after they are sufficiently
rebutted. The rebuttable presumptions of undue influence and unfairness
(1) shift the burden of going forward to the party against whom they
are raised, and (2) if that burden is not met, establish the presumed
facts as a matter of law. But if the burden is met, then the presumptions
do not continue in the case, and a trial court properly rejects jury
instructions on them. Nonetheless, after a rebuttable presumption is
rebutted, a permissible inference remains. A trial court maintains discretion
regarding whether to instruct the jury on a permissible inference, and
does not abuse its discretion in failing to so instruct a jury unless
the omission caused substantial prejudice to the requesting party. Here,
the trial court did not abuse its discretion because the omission did
not substantially prejudice the requesting party. Krueger
v. Ary The court granted cert. in the following cases: No. 08SC748,
In re Marriage of Schelp, on these issues: Whether the court of appeals erred when it reversed the trial court and held that C.R.C.P. 16.2(e)(10) gives the trial court five years of continuing jurisdiction to retroactively reopen divorce cases when a post-degree motion alleging improper asset disclosure was filed after the rule’s effective date of January 1, 2005 even though the underlying divorce case was filed before the new rule was in effect. Whether the court of appeals erred in concluding that retrospective
application of C.R.C.P. 16.2(e)(10) to dissolution of marriage cases
filed and concluded prior to January 1, 2005 was constitutional. No. 08SC749, In re Marriage of Roberts, on this question: Whether the court of appeals erred when it reversed the trial court and held that C.R.C.P. 16.2(e)(10) gives the trial court five years of continuing jurisdiction to retroactively reopen divorce cases when a post-degree motion alleging improper asset disclosure was filed after the rule’s effective date of January 1, 2005 even though the underlying divorce case was filed before the new rule was in effect. No. 08SC884, Crumb v. People on this issue: Whether a trial judge’s participation in plea discussions, in violation of section 16-7-302(1), C.R.S. (2008), and Crim. P. 11(f)(4) is harmless error where the defendant had rejected previous plea offers and had only agreed to plead guilty after the trial judge advised him of the sentence that would be imposed if he was found guilty at trial and compared that with the sentencing consequences of pleading guilty. No. 08SC887, In re Marriage of Barnett, on this question: Whether the court of appeals erred when it reversed the trial court and held that C.R.C.P. 16.2(e)(10) gives the trial court five years of continuing jurisdiction to retroactively reopen divorce cases when a post-degree motion alleging improper asset disclosure was filed after the rule’s effective date of January 1, 2005 even though the underlying divorce case was filed before the new rule was in effect. The suprme court granted cert., vacated, and remanded the following case for reconsideration: No. 08SC498,Vered v. Ochoa, remanded to the Colorado Court of Appeals for reconsideration in light of Morris v. Goodwin, 185 P.3d 777 (Colo. 2008) on this issue: Whether the award of prejudgment interest should be reduced where: (1) interest was based on the full amount of the jury’s award, before application of the statutory cap on noneconomic damages and (2) the court of appeals held that the base amount for calculating prejudgment interest should have been increased by adding pre-filing interest on the uncapped jury award. March 12, 2009 Here are today's court of appeals announcments. The court issued unpublished decisions only. March 11, 2009 The summaries of last week's published decisions from the court of appeals are belew. Following the summaries is the list of unpublished decisions the court will release tomorrow. Defendant appealed
his conviction of unlawful possession of a schedule II controlled substance
and possession of chemicals or supplies to manufacture a schedule II
controlled substance. He contended that sheriff’s deputies acting
without a warrant unlawfully entered the backyard of the house in which
he lived, and that the trial court erred when it denied his motion to
suppress the fruits of that unlawful search. The court of appeals agreed,
concluding that the warrantless entry into and movement within the backyard
was not justified under any recognized exception to the Warrant Clause.
Judge Connelly dissented, concluding that the intrusion into the backyard
curtilage was outweighed by officer safety interests. People
v. Brunsting Defendant was properly convicted of criminal impersonation where he used a Social Security number that he knew was not his own with intent to gain the benefit of a loan to purchase a car. Defendant impliedly asserted his power or fitness to obtain the loan, and his ability to work legally in this country, and thereby repay it. Because defendant knew that the information was false, and because he furnished it to obtain a benefit he could not otherwise have obtained, he violated the portion of the statute that prohibits the assumption of a false or fictitious capacity. Judge Jones dissented, concluding that defendant’s mere use of a Social Security number not belonging to him along with substantial other information accurately identifying him was not sufficient, under the circumstances of this case, to prove beyond a reasonable doubt that he “knowingly assume[d] a false or fictitious identity or capacity” as is required to sustain a conviction under C.R.S. § 18-5-113. People v. Montes-Rodriguez In a worker's comp. case, whether a deviation from covered employee travel is substantial enough to break the chain of causation is generally a question of fact for the ALJ. The court adopted the general test for deviation from employment in Colorado (whether the deviation is substantial) for deviations from travel for work-related medical treatment. The court concluded that substantial evidence supported the ALJ’s findings that claimant's deviation was substantial, and therefore the court affirmed the denial of benefits. Kelly v. Industrial Claim Appeals Office In an appeal from the denial of a Crim. P. 35(c) motion, defendant contended that the postconviction court erred when, after concluding that the evidence raised a presumption that he was improperly subjected to an interrogation style held unconstitutional in Missouri v. Seibert, 542 U.S. 600 (2004), it denied relief on his outrageous governmental conduct claim because it concluded that Seibert was not retroactively applicable to his case. The court of appeals disagreed, concluding that his outrageous conduct claim was procedurally barred and that Seibert did not apply retroactively. People v. McDowell Error in jury instruction concerning wrongful means in intentional interference case was harmless. Because the jury found the defendants liable for conversion and breach of fiduciary duty, wrongful means were established. The jury was free to consider conversion and breach of fiduciary duty as the wrongful means necessary to find that the defendants improperly interfered with the company’s contractual relations. Harris Group, Inc. v. Robinson Clear and convincing evidence did not establish that father intentionally abandoned his child , but rather showed that he sought to exercise parental rights and supported her. Abandonment is primarily a question of intent. The court may not find abandonment unless the totality of the circumstances shows the natural parent has left the child willfully without an intent to return. The court of appeals concluded that the trial court erred in finding abandonment, concluding that some of the magistrate's findings were not supported by the record evidence. In the Matter of the Petition of J.A.V. Where plaintiff did not object to defendant insurer’s alleged failure to comply with Rule 9(b) in pleading rescission until after insurer's motion for summary judgment was at issue, plaintiff waived any right to claim insurer failed to comply with Rule 9(b) in asserting its affirmative defense of rescission. But the court did reverse summary judgment concluding that genuine issues of material fact as to whether insurer was estopped to rescind the policy. Silver v. Colorado Casualty Insurance Company Plaintiff alleged that the insurer induced him to purchase UM/UIM coverage by failing to disclose that purchasing UM/UIM coverage on one vehicle provides coverage for persons named on the policy and their resident relatives and regardless of an owned-but-not-insured exclusion in the policy. The trial court granted summary judgment , concluding that C.R.S. § 10-4-609 does not require insurers issuing multi-vehicle policies to offer separate UM/UIM coverage on each vehicle insured for liability. The court of appeals reversed, concluding that genuine issues of material fact remain as to whether the insurer charged additional premiums for UM/UIM coverage on additional vehicles insured under its multi-vehicle policies. The court further concluded that that an insurer that includes an OBNI exclusion in its policies fails to satisfy its disclosure obligations under § 10-4-609. Briggs v. American National Property and Casualty Company The court of
appeals recognized the existence of a claim of medical malpractice claim
based on the failure of a doctor to prevent the birth of an unwanted
child. The court therefore reversed the trial court's grant of a motion
to dismiss that failed to recognize that claim. Judge Connelly specially
concurred, noting that while he agreed that plaintiff has stated a valid
claim for negligent failure to terminate her pregnancy, "because
a child’s existence cannot constitute a legally cognizable injury,
and because the normal costs of rearing a child are inextricably intertwined
with that existence, I would hold now that plaintiff is not entitled
to damages for raising her healthy child." Surety appealed a district court judgment forfeiting a $20,000 bond posted for a criminal defendant later determined to have been in the country illegally. The case involved C.R.S. § 16-3-503(1)(c), which took effect on June 1, 2007. The court held that the statute limits forfeiture to fees collected by professional bonding agents, rather than the entire posted bond, where a non-appearing defendant later is determined to have been present illegally in this country; but the statute does not apply retroactively to this case because it substantively changed prior law. Therefore, the court affirmed the forfeiture. Judge Taubman dissented in part, concluding that the statute did apply retroactively because "the statute is procedural, not substantive, and it is not retrospective in its application." People v. Chavarria-Sanchez The court of appeals rejected adoption of the "make whole" doctrine, under which an insurer has no right to subrogation unless the insured was made whole by the underlying settlement. In the court's view the doctrine would not comport with the policy of encouraging the settlement of lawsuits. DeHerrera v. American Family Mutual Insurance Company In a personal injury case the district court did not err in prohibiting plaintiff from presenting evidence of past medical expenses or in denying her request for a continuance of the trial to seek additional medical treatment and the recovery of damages therefor. But the court erred by applying the repealed Colorado Auto Accident Reparations Act (No-Fault Act), by instructing the jury to subtract from plaintiff’s claimed damages for lost earnings fifty-two weeks of wage-loss reimbursements she received under the personal injury protection (PIP) benefits of her automobile insurance policy. The court of appeals reversed in part and remanded for a new trial on claimed lost earnings. Miller v. Brannon Defendants did not defendants violated C.R.S. § 17-1-203(1)(c) by removing plaintiff from the general prison population before the final resolution of a disciplinary proceeding against him. The statute governs private prison contractors and provides: “The contractor may remove an inmate from the general prison population during an emergency, before final resolution of a disciplinary hearing, or in response to an inmate’s request for assigned housing in protective custody.” The court concluded, contrary to defendants’s construction of section 17-1-203(1)(c), that the statute, through the use of commas, delineates three separate circumstances in which a prison inmate may be removed from the general population. The use of the term “before” does not convert the clause “before final resolution of a disciplinary hearing” into a subordinate clause modifying the phrase “during an emergency.” Gatrell v. Kurtz Plaintiffs
filed a complaint against defendants seeking to quiet title in certain
real property and asserting several other claims for relief. The complaint
asserted claims against one of the defendants for allegedly filing spurious
lien documents and for violating the good faith provision of the Colorado
Common Interest Ownership Act, C.R.S. § 38-33.3-113. That defendant
moved to dismiss and sough sanctions. The next day Plaintiffs filed
an amended complaint that contained more specific allegations concerning
the spurious documents claim. The trial court dismissed and awarded
sanctions, concluding the amended complaint was improper because it
was filed after the other defendants had answered. The court of appeals
reversed, concluding that since the defendant against whom the spurious
documents claim was brought moved to dismissed rather than answer, Plaintiffs
were entitled to amend their complaint as of right under C.R.C.P. 15(a),
as the motion to dismiss was not a responsive pleading. Grear
v. Mulvihill The court will release the following unpublished decisions tomorrow: 03CA2479 People v. Joshua Vigil Torres March 9, 2009 Here are today's supreme court announcements. The court issued no decisions and did not grant cert. in any cases. March 6, 2009 The supreme court will issue no decisions Monday, but will issue rulings on cert. petitions. I'll have those announcements Monday. March 5, 2009 Today's court of appeals announcements are here. The court issued 14 published decisions. I will try to get summaries up as soon as possible, but it likely won't be for a week or so. March 4, 2009 The court of appeals will release the following decisions tomorrow, including 14 published opinions. Published Opinions March 3, 2009 This is my "catch-up" post. Yesterday's supreme court cases are summarized, then the court of appeals' decisions from February 19. Here are the supreme court announcements from yesterday. The court issued three decisions, summarized below. The court also granted cert. in one case, and the issue in that appeal appears below the summaries. A jury found defendant guilty of a single count of theft, in which he was charged with unlawfully taking more than $15,000, over a 27-month period, from 7-Eleven; and it returned a special finding that the theft involved a total of $27,169.14 and occurred on the day all of the losses were ultimately discovered. The court of appeals upheld both the defendant's conviction of class-three-felony theft and his mandatorily aggravated sentence, reasoning that the evidence supported the commission of a single offense of "theft by deception," which continued, and included everything taken before the deception ended, by which time the defendant was already on probation for another offense. The supreme court held that the court of appeals erred with regard to both the time the theft was committed and the value of the property involved in a single offense because the consolidated theft statute in this jurisdiction, C.R.S. § 18-4-401, does not create a separate and continuing crime of theft by deception. But the supreme court affirmed, concluding that there was sufficient evidence to support the conviction of class-three-felony theft by a person already on probation and because any error committed by the trial court in instructing the jury was harmless. Roberts v. People In an appeal from a water court decision, the supreme court affirmed the water court's order affirming the state and division engineers'authority to implement a fixed water year to administer the irrigation district's storage rights. Colorado law imposes a one-fill limitation on water storage rights, restricting each reservoir to one annual filling, according to its decreed capacity. The Engineers implemented a fixed water year, from November 1 to October 31, in order to track how much water the district diverts during a one-year period. After the district obtains one annual fill of its decreed rights, the Engineers will not honor calls until the administrative water year begins anew on November 1. The irrigation district argued that the fixed water year interferes with its decreed water rights by forcing the district to delay diversions or restrict them to a particular season. The district also argued that the November 1 water year conflicted with the historical administration of its water rights. The supreme court held that any limitation on the district's ability to divert water is lawfully imposed by Colorado's one-fill rule, not the Engineers' fixed water year. The court concluded the Engineers must distribute water according to judicial decrees, not custom, and that because the storage decrees were silent on the issue of how diversions are to be accounted for under the one-fill rule, the Engineers have the authority to implement a fixed water year for the purpose of administering the district's storage rights. North Sterling Irrigation District v. Simpson In an appeal from the Water Court, the supreme court held that the water court did not abuse its discretion in dismissing with prejudice several applications for adjudication of water rights and a plan for augmentation. The applicant failed to comply with the disclosure requirements of the Colorado Rules of Civil Procedure or provide any information related to his applications other than that contained in the applications themselves. The Opposers to the applications had no information before them with which evaluate the applications or prepare for trial. Just over one month before the scheduled trials, the Opposers had still received no information from the applicant. Accordingly, several Opposers filed a motion to dismiss for failure to prosecute which the trial court granted. In this situation, the water court did not abuse its discretion in determining that the applicant's failure to comply with the disclosure requirements constituted a failure to prosecute. Justice Rice, joined by Justice Coats, dissented, concluding that while the trial court did not abuse its discretion in dismissing the case, it did abuse its discretion in dismissing it with prejudice, since less drastic sanctions were available. Cornelius v. River Ridge Ranch The court granted cert. in No. 08SC698, Board of County Commissioners v. ExxonMobil Oil Corp. on this issue: Are materials and equipment that are used in the extraction and processing
of natural gas "construction and building materials" subject
to the use tax that local governments may impose pursuant to section
29-2-109(1), C.R.S. (2008). Here are the summaries of the court of appeals' published decisions from February 19: Where no witness had been sworn in a habitual criminal proceeding and no exhibits had been admitted when the trial court dismissed the charges, jeopardy had not yet attached. Therefore, the trial court's reinstatement of habitual criminal charges did not violate double jeopardy. People v. Barnum By granting defendant use-and-derivative-use immunity to compel his testimony at a codefendant's trial, the People undertook a heavy burden of proving affirmatively that the trial evidence derived from sources wholly independent of the immunized testimony. The trial court did not find, and on this record could not properly have found, that the People carried this heavy burden. Accordingly, while we reject defendant's remaining challenges, we remand for hearings and findings on defendant's immunity claim. People v. Stevenson Defendant's suppression motion was properly denied because the chemicals seized from a room in his residence were in plain view of an officer who entered the residence with the consent of Defendant's wife to search the entire premises, despite Defendant's earlier efforts to exclude her from that room. People v. Shover Defendant appealed the denial of his motion to dismiss, in which he argued his conviction must be vacated because the state did not bring him to trial within the limitations period specified in the Interstate Agreement on Detainers (IAD), C.R.S. § 24-60-501. The court of appeals concluded that Defendant's request for disposition of the charges complied with the IAD, and therefore the failure to bring him to trial within the limitations period required the case to be dismissed. People v. Harter A selective prosecution claim is an objection based on a defect in the institution of the prosecution, and therefore a defendant's failure to raise the objection in a timely motion constitutes a waiver of the claim. People v. Gallegos Trial court did not abuse its discretion by precluding medicatl expert's testimony since the trial court's order was based on both the failure to provide expert's prior testimony and the continuing failure to produce his file. Under these circumstances, the sanction of preclusion of the expert witness was not disproportionate, and the court of appeals concluded that the supreme court's decision in Trattler v. Citron, 182 P.3d 674 (Colo. 2008) did not require reversal. Clement v. Davies Part 5 of the Charter Schools Act, C.R.S. §§ 22-30.5-501 to -516 does not violate article IX, sections 1, 2, or 15, or article V, section 35 of the Colorado Constitution. Judge Criswell dissented in part, concluding that the amendments to the Charter Schools Act "infringe upon the 'local control' provisions of article IX, sections 15 and 16 of the Colorado Constitution." Judge Criswell concluded that the amendments "usurp the local school districts' authority under those constitutional provisions, and they are, therefore, facially invalid." Boulder Valley School District RE-2 v. Colorado State Board of Education
Under C.R.S.
Section 16-3-309(5), "Any report or copy thereof or findings of
the criminalistics laboratory shall be received in evidence in any court,
preliminary hearing, or grand jury proceeding in the same manner and
with the same force and effect as if the employee or technician of the
criminalistics laboratory who accomplished the requested analysis, comparison,
or identification. Insurer defended
insured subcontractor against a third-party construction defect complaint.
Insurers that insured the sub-subcontractors had no duty to defend the
subcontractors because there was "occurrence" alleged in the
underlying complaints of the construction defect litigation. The trial
court granted summary judgment and the court of appeals affirmed, concluding
that claims of defective workmanship, standing alone, did not constitute
an "occurrence." Nor did broad allegations of "other"
or "consequential" damages give rise to a duty to defend.
Because husband had no retirement benefits from his years of military service and would have received nothing if he had been separated from the military without a disability, all of his benefits under Temporary Disability Retired List were necessarily disability benefits. Therefore, wife was not entitled to such benefits as a matter of law under 10 U.S.C. § 1408(a)(4)(C), and the trial court properly denied her motion to divide the TDRL benefits under the permanent orders. In re Marriage of Williamson In an action to recover a the trial court's properly dismissed the complaint and denied plaintiff's arbitration demand. By agreement, defendant engaged plaintiff to find and introduce defendant to"individuals and/or parties who may have an interest in acquiring, investing or becoming financially involved with" defendant. The agreement provided that if plaintiff introduced an individual or company to defendant and that party became "financially involved in any matter," plaintiff was entitled to a finder's fee of five percent of all proceeds resulting from the sale of the project. Neither plaintiff nor defendant was a licensed Colorado real estate broker at any relevant time. The trial court found that plaintiff's principal was acting as a real estate broker as defined in C.R.S. section 12-61-101(2). Therefore, the court determined the agreement was illegal and unenforceable, and the court of appeals affirmed. Amedeus Corp. v. McAllister The trial court abused its discretion when, based on the entirety of the lawsuit, it denied attorney fees under C.R.S. section 13-17-102(4). The court of appeals held that when, as here, a trial court is requested to evaluate each claim or defense individually, as substantially frivolous or groundless, to determine whether attorney fees should be awarded under section 13-17-102(4), the statute requires the trial court to evaluate each claim or defense individually. Further, because an award of costs for claims dismissed for failure to prosecute is mandatory under section 13-16-113(1), the trial court erred in failing to award those costs. Munoz v. Measner The twenty-day rule in C.R.S. sec. 8-43-210 requires that "[a]ll relevant medical records, vocational reports, expert witness reports, and employer records shall be exchanged with all other parties at least twenty days prior to the hearing date." (Emphasis added.) While the plain language mandates a twenty-day rule for the exchange of the enumerated records and reports, the immediately preceding provision states, that once the hearing begins, "the administrative law judge may, for good cause shown, continue the hearing to a date certain to take additional testimony, to file an additional medical report, to file the transcript of a deposition, or to file a position statement. Except upon the agreement of all parties or for good cause shown, a continuance to complete a hearing shall not exceed thirty calendar days. C.R.S. § 8-43-209(3)." The ALJ's strict reading of the twenty-day rule was unwarranted. Exceptions are clearly contemplated by the allowance of continuances to file additional reports in appropriate circumstances. But on this record, the ALJ's misinterpretation of the statute did not require a different result. Ortega v. ICAO Hunters were charged with hunting on private property without permission in violation of C.R.S. sec. 33-6-116. They ultimate pled guilty to lesser charges of criminal trespassing, and their hunting licenses were suspended. They challenged as unconstitutionally vague the term "related activity," contained within the phrase "hunting, trapping, fishing, or engaging in a related activity." C.R.S. § 33-6-106(1)(c). The court of appeals rejected that argument, concluding that a person of ordinary intelligence would know that if his criminal conviction "has a close and logical connection to [his] hunting, trapping, or fishing activity, such conduct falls within the ambit of potential license suspension under section 33-6-106." Woodrow v. Wildlife Commission In an appeal by the People of the dismissal of charges of sexual assault on a child by one in a position of trust, the victim alleged defendant sexually assaulted her numerous times between January 1, 1987 and December 31, 1992, but she did not report the incidents to the police until June 19, 2007. Defendant was charged November 7, 2007. Defendant moved to dismiss on statute of limitations ground. The People stated the victim's birthday was October 21, 1980 and argued the statute of limitations contained in H.B. 02-1396, which amended C.R.S. sections 16-5-401 and 18-3-411, permitted the charge of sexual assault on a child by one in a position of trust to be brought within ten years after the victim's eighteenth birthday, or until October 21, 2008. The court of appeals agreed and concluded that the effective date clause of H.B. 02-1396, section 5(1) did not conflict with the substantive amendments extending the statute of limitations for ten years after the victim's eighteenth birthday for offenses committed on or after July 1, 1992 because the intent of the General Assembly in enacting that clause was to: (1) show when the act took effect; and (2) immunize the bill from attack through the referendum process. People v. Boston A ballot measure was designed to exempt a fire protection district from TABOR. Before the election, the district's board of directors spent money on printing and other preparation costs and on postage associated with a letter sent to registered voters within the district. The letter made statements in favor of passage of the ballot measure. Petitioner alleged that the district violated C.R.S. sec. 1-45-117(1)(a)(I)(C), by spending public money to urge electors to vote in favor of a ballot issue. The ALJ agreed but imposed a fine of only $400, citing her authority under Colorado Constitution article XXVIII, section 9(2)(a) to impose an "appropriate order, sanction or relief." On appeal, Petitioner argued that the ALJ's discretion to impose a sanction was limited to imposing a sanction of at least double the amount of the violation. The court of appeals disagreed, concluding that C.R.S. sec. 1-45-117, not section 9(2)(a) of Article XXVIII, was the applicable section for imposing the sanction. Under 1-45-117, the ALJ had the discretion to impose only a $400 sanction. Sherritt v. Rocky Mountain Fire District In a medical malpractice action, the defendant's answer was filed in May 7, 2007, and Plaintiff replied to the affirmative defenses on May 30, 2007. The parties did not file any other document with the district court before the court sua sponte dismissed the case on March 27, 2008, for failure to prosecute with due diligence under C.R.C.P. 121 section 1-10. The court of appeals reversed noting that compliance with the notice requirements of C.R.C.P. 41(b)(2) and 121 section 1-10 is required before a court may dismiss an action. A court errs when it sua sponte dismisses a complaint without providing the parties with thirty days written notice and an opportunity to show cause in writing why the action should not be dismissed. The court held that the delay reduction order did not suffice to provide the notice required under C.R.C.P. 121 section 1-10. Koh v. Kumar February 26, 2009 The court of appeals' oral argument calendar for April is here. On April 9th, the court will be holding arguments at DU. Here are today's court of appeals announcements. The court issued only unpublished decisions. I still need to do summaries of last week's court of appeals decisions. I was hoping to get that done this week, but that is looking very unlikely due to my workload. I will post summaries by next Tuesday, along with any decisions the supreme court may issue on Monday. February 25, 2009 The court of appeals will release the following unpublished decisions tomorrow: 02CA2023 John A. Nasious v. Colorado Department of Corrections, Sterling
Correctional Facility, Bob Furlong, Tim Chase, Colorado Care Givers,
Pam Tyson, Judy Bullard, Judy Cain, C.M. Crussel, Ken Salazar, and Don
Canfield February 23, 2009 Here are today's supreme court announcements. The court issued two decisions, summarized below. The court did not grant cert. in any cases. In an interlocutory appeal of a suppression order, the supreme court reversed. Th ec ourt concluded that the defendant was not in custody when he made his initial confession, so thte trial court should not have suppressed his statements. Defendant invited investigators to his home, voluntarily led them to where he had buried his wife after killing her, and confessed to the murder. Following this initial confession, he gave three more statements to police after receiving proper Miranda advisements. Since defendant was not in custody when he made the first statement and received proper Miranda warnings before giving the other statements, the statements should not have been suppressed. People v. Hankins In an interlocutory
appeal reviewing the district court's order disqualifying the Office
of the District Attorney for the Eighteenth Judicial District from prosecuting
the defendant Alejandro Perez in a death penalty case, the supreme court
reversed in a 4-3 decsion. The trial court concluded that “special
circumstances . . . would render it unlikely that the defendant would
receive a fair trial” under C.R.S. § 20-1-107(2), and cited
four grounds to support its disqualification of the entire Office: First,
Special Deputy District Attorney Dan Edwards’ previous representation
of Perez as a private defense attorney on a motion challenging a second-degree
murder conviction that the prosecution, in the instant cases, used as
a death penalty aggravator; second, the involvement of another prosecutor,
Robert Watson, who previously represented Michael Snyder, an inmate
witness and possible alternate suspect; third, the prosecution’s
inaccurate and inadequate witness list; and finally, the funding arrangement
between the District Attorney’s Office and the Department of Corrections.
The supreme court held that no “special circumstances” that
would “render it unlikely that the defendant [Perez] would receive
a fair trial” under section 20-1-107(2), and therefore reversed
the trial court’s order disqualifying the entire District Attorney’s
Office. The inquiry into whether an entire district attorney’s
office should be disqualified depends on whether confidential information
gained from the prior representation has been or could be passed from
the individual prosecutor with the conflict to other members of the
office who continue to prosecute the case. Here, there was no showing
that either Edwards or Watson ever possessed confidential information
from their prior representations. Therefore, no confidential information
was passed, or could have been passed, to other members of the Office.
The majority also held that neither the allegedly inadequate witness
list, nor the funding arrangement constituted a “special circumstance”
that would prevent a fair trial. Justice Bender, joined by Chief Justice
Mullarkey and Justice Martinez, dissented, in a lengthy opinion. Justice
Bender wrote that the "majority misapplies precedent and fails
to acknowledge the unique circumstances and key facts that led the trial
judge to take the highly unusual step of disqualifying the entire office. February 20, 2009 The supreme court will issue two decisions Monday, No. 08SA343, People v. Hankins, and No. 08SA130, People v. Perez. February 19, 2009 Here are the court of appeals' announcements for today. The court released the following decisions , including 18 published decisions. I will not get a chance to post summaries until next week. Published Opinions February 17, 2009 Here are today's supreme court announcements. The court issued one decision, summarized below. The court also granted cert. in two cases. The issues in those appeals follow the case summary. The supreme
court hedl that a jury instruction based on C.R.S. § 18-3-203(1)(a),
the second-degree assault statute repealed in 1994, rather than the
current and controlling statute, § 18-3-203(1)(b), (g), constituted
reversible error. The supreme court held that the erroneous instruction
lessened the prosecution’s burden of disproving the defendant’s
claim of self-defense, thus constituting plain error and requiring reversal.
The instruction defined second-degree assault as either The court granted cert. in these cases: Adkins v. People, No. 08SC654, on these issues: Whether the court of appeals erred when it held that the defendant's evidence of the alternate suspect's prior similar arrest was inadmissible. Whether the court of appeals erred when it held that evidence of a
prior similar act was admissible against the defendant. In re Marriage of Thornhill, No. 08SC777, on these questions: Whether the appellate court erred by refusing to extend the holding of Pueblo Bancorporation v. Lindoe, Inc., 63 P.3d 353 (Colo. 2003), to divorce proceedings, thereby allowing the application of a marketability discount in valuing a closely held corporation operated as a going concern at the time of the parties’ divorce proceeding. Whether the court of appeals erred by reversing the district court’s
ruling, which upheld the magistrate’s temporary maintenance award
to wife, when it failed to consider the particular facts and circumstances
of the parties’ marriage within section 14-10-113(3)’s threshold
requirements of “reasonable needs” and “appropriate employment.” February 12, 2009 It's Abraham Lincoln's (and Charles Darwin's) 200th birthday. To mark the occasion, the United States Mint is releasing the first of the new pennies today. Here's a picture and description. Here are today's court of appeals announcements. The court issued unpublished decisions only. Here are the summaries of last week's published court of appeals' decisions: The trial court did not err by summoning a second jury panel after the original jury was sworn. The second panel was necessary to fill the alternate position and to replace two jurors who were excused for cause before trial began. After the jury was sworn, the trial court discovered that only twelve jurors, but not the alternate, had actually been sworn. In light of this oversight, the parties and the trial court agreed another juror would be selected through voir dire of six additional potential jurors. Defense counsel agreed to the process but reserved the right to object. In affirming the trial court, the court of appeals noted that the panel of jurors was exhausted, and twelve jurors were initially sworn before the court and the parties discovered that the agreed-upon alternate had not been sworn. The trial court ordered the issuance of a venire for six, and later twelve, additional jurors, out of which three were impaneled for Moore’s case, thus constituting a full jury of twelve plus one alternate. Under the circumstances, and given the broad discretion of the court to manage a trial, the court of appeals concluded that C.R.S. §§ 16-10-102 and 16-10-105 provided the court with appropriate statutory authority to follow the jury selection procedure utilized. On another issue, the court held that there was insufficient evidence to convict defendant of a class 3 felony of theft by receiving (which requires the value to be $15,000 or more). The court noted that the vast majority of the testimony of value of the items take was based on speculation, guesses, assumptions, purchase prices many years old, and evidence not admitted at trial. Under these circumstances, even applying the very deferential standard of review for assessing the sufficiency of evidence, the evidence was simply not sufficient to support the jury’s finding that the value of the items was $15,000 or more. People v. Moore Stock options
presented a mere expectancy and no enforceable property right until
after the parties were married. Therefore, the stock options were marital
property in their entirety. The trial court abused its discretion in denying defense motion for funds to hire an expert who would have testified about the likelihood of physical evidence being present if victim was sexually assaulted as he said he was. The trial court effectively determined that defendant had made the requisite showing to obtain state-funded expert witness services. But the court denied the request because, in its view, no mechanism existed under the law to provide the necessary funds. The trial court was mistaken since CJD 04-04 § IV(D)(c) authoirzed payment from the Judicial Department’s budget. The error was not harmless and the conviction was reversed. People v. Orozco In an appeal from a trial court’s order revoking probation, Defendant claimed was denied due process because the original revocation complaint did not specify that it was based on his conviction for a murder he committed while on probation. The court of appeals rejected that argument, concluding Defendant received constitutionally sufficient written notice in a motion to continue the revocation hearing that explicitly identified the murder conviction as a ground for revocation. People v. Robles Defendant contended his burglary conviction should be reversed based on his reliance on the common law bonding agent’s privilege. The court held that a common law bonding agent’s privilege exists in Colorado, but the privilege did not justify Oram’s entry into the home at issue. Therefore, the court affirmed the conviction. Judge Connelly concurred in part and dissented in part. He would have reversed the burglary conviction, noting "Whatever else may be said of these two bounty-hunting defendants, they were not proven burglars." He asserted that Colorado's burglary statute requires "proof defendants knew the unlawfulness of their entry." He noted that Colorado's statute is atypical, requiring scienter while other states do not. Under the facts of the case, Judge Connelly concluded the burglary conviction could not stand. People v. Oram The trial court properly (1) applied rulings in a prior appeal to limit plaintiff’s negligence claims; and (2) proceeded with an alternate juror when a regular juror failed to return in the middle of trial. On the first issue, the Plaintiff sought to proceed with theories of negligent surgical performance. Defendant argued the appellate ruling precluded any theories of negligence relating to the surgery itself. The trial court ruled that Plaintiff could not challenge the surgery itself but could challenge post-surgery care. The court of appeals held that de novo review applied to law of the case issues involving trial court compliance with prior appellate rulings. The court then concluded that the trial court properly interpreted the remand order. On the juror issue, a sitting juror, who lived forty minutes from the courthouse, failed to return from a lunch break after informing the court he “was sick” and “wasn’t coming back.” The trial court heard the positions of both sides: plaintiff argued the court should suspend trial until the next morning to see if it was just a “24-hour bug” or at least should try to contact the juror; defendant responded that trial had to proceed that afternoon because a critical defense witness would be leaving town. The trial court decided not to delay the trial but to replace the absent juror with an alternate. The court of appeals held that the replacement was not an abuse of discretion. Hardesty v. Pino The court of
appeals held that a police officer may properly search a locked glove
compartment incident to the lawful arrest of an occupant of a vehicle.
The defendant had been driving the car, but was not the owner of the
car and the glovebox was locked. People
v. Perez Collateral estoppel applied where issues relating to common law fraud and negligent misrepresentation claims in a federal action were identical to those relating to Plaintiff’s claim under the Colorado Securities Act and other elements of collateral estoppel were met. On Plaitniff's claim for civil theft, the trial court properly entered summary judgment where stock options had not vested as of the date of the alleged theft and were therefore not property for purposes of a civil theft claim. Huffman v. Westmoreland Coal Company Defendant home
builder constructed a home in Highlands Ranch. Plaintiff was a sole
proprietor and an independent contractor who did trim work on the home
under a contract with a subcontractor that had agreed to do the work
for the home builder. Although the contract with required Plaintiff
to obtain workers’ compensation insurance, he neglected to do so. Plaintiff asserted that that the trial court erred in awarding attorney fees under C.R.S. § 13-17-201 because (1) application of that statute in this case conflicts with the federal Telephone Consumer Protection Act, and therefore the award violates the Supremacy Clause, (2) § 13-17-201 provides for an award of attorney fees only when a “state tort claim” is dismissed for failure to state a claim and does not apply to a TCPA claim, and (3) the attorney fees provision of § 6-1-113(3) rather than § 13-17-201, governs the award of attorney fees for dismissal of Colorado Consumer Protection Act claims. The court of appeals rejected those claim, concluding that the TCPA is silent on attorney's fees and therefore does not preempt 13-17-201; that 13-17-201 is not limited only to state tort claims; and that § 6-1-113(3) and § 13-17-201 serve different purposes and can be applied without conflicting with each another. US Fax Law Center, Inc. v. Henry Schein, Inc.
The question in this case was what taxpayer knew, and when did it know it, regarding the existence of a combined-consolidated income tax return filing option for certain Colorado corporations. The court of appeals concluded that taxpayer was deemed to have had knowledge of the filing option before the deadline for filing its 2001 tax return, and therefore the Department of Revenue did not violate taxpayer's due process rights. Judge Connelly specially concurred, noting that taxpayer's "claim rests on the premise that state taxing authorities have a constitutional obligation, rooted in due process, to provide affirmative notice of potentially favorable tax code strategies. The majority opinion accepts this premise but concludes the Colorado Department of Revenue (DOR) provided sufficient notice to satisfy due process. Because I would reject the premise, I concur in the result but not in the majority’s reasoning." Cendant Corporation & Subsidiaries v. Department of Revenue Under the Federal Arbitration Act, there is a general presumption that the issue of arbitrability should be resolved by the courts. But where the parties explicitly incorporate rules that empower the arbitrator to determine issues of arbitrability, that incorporation constitutes clear and unmistakable evidence of intent to delegate those issues to the arbitrator. Therefore, by incorporating the AAA Commercial Arbitration Rules into their agreement, the parties authorized the arbitrator to decide arbitratbility issues. Ahluwalia v. QFA Royalties, LLC In 2005, Plaintiff slipped and fell on ice on the front walkway of her residence. She had purchased the residence from Defendant in 2001, shortly after construction was completed. The home is located in a retirement community of “patio homes” developed by Defendant. The district court dismissed the case as untimely. The court of appeals reversed concluding that (1) the trial court correctly interpreted C.R.S. § 13-80-104 to determine that homeowners’ complaint had been filed beyond the two-year statute of limitations, but that (2) the trial court erred in granting summary judgment on the question of whether the statute was tolled under the repair doctrine. Smith v. Executive Custom Homes, Inc. Where document coding expenses were “reasonably incurred in this particular case,” they could properly be included in a cost award. GF Gaming Corporation v. Taylor In an appeal
form the dismissal of a pro se prisoner complaint under C.R.C.P. 106,
the court of appeals remanded for further proceedings to determine whether
the facility at which plaintiff was incarcerated had a legal mail system,
and, if so, whether or when the envelope containing the complaint was
deposited with that system. If there was no such legal mail system,
or the envelope was deposited with the legal mail system on or before
March 17, 2008, the complaint must be reinstated; otherwise, the order
dismissing the complaint is affirmed. Wallin
v. Cosner February 11, 2009 The court of appeals will release the following unpublished decisions tomorrow: 04CA2072 People v. Gerald Dwayne Lewis February 10, 2009 The court of appeals' oral argument calendar for March is here. I will post summaries of last week's court of appeals decisions later this week. February 9, 2009 Here are today's supreme court announcements. The court issued two decisions summarized below. The court did not grant cert. in any cases. In an attorney discipline case, the supreme court held that, under the Colorado Rules of Professional Conduct as they existed in 2007, the Hearing Board did not err when it found: (1) Respondent violated Colo. RPC 1.1 and 1.3 (2007) when he failed to take action aimed at securing his client retirement benefits in a federal pension program; and (2) Respondent violated Colo. RPC 1.8(a) and (j) (2007) when he obtained a promissory note secured by a deed of trust in his client’s home in a dissolution of marriage action. The court applied a clearly erroneous standard of review to Respondent’s appeal. In the appeal by Attorney Regulation Counsel, the court concluded the Hearing Board did not err when it failed to find Respondent violated: (1) Colo. RPC 1.7(b) (2007) when he took a promissory note secured by a deed of trust in his client’s residence; and (2) Colo. RPC 3.3(a), 3.4(c), and 8.4(c) (2007) when he failed to disclose the promissory note and deed of trust to the trial court handling his client’s dissolution of marriage case. The court concluded that when reviewing appeals brought by Regulation Counsel of Hearing Board decisions finding no violation, the court will overturn the Board’s determination only if it cannot find any reasonable explanation for the determination, and concludes that no reasonable fact finder could be unconvinced of a violation by a standard of clear and convincing evidence. Justice Eid, joined by Chief Justice Mullarkey and Justice Rice, dissented from the part of the opinion that denied Regulation Counsel’s cross-appeal and affirmeds the Board’s determination that Respondent did not violate certain other Rules of Professional Conduct. The dissent noted, that the "majority acknowledges that the Board provided little guidance as to why it found no violation with regard to these allegations. . . . Yet it affirms the Board’s decision based on the fact that it is able to 'articulate a reason the Board could have been unconvinced of a violation.'" Justice Eid said that the court "should not affirm a 'no violation'determination by the Board simply because we can articulate a possible justification for that result. Instead, when the Board’s rationale is sufficiently unclear so as to hinder our review of its 'no violation'determination, we should remand the case to the Board." In the Matter of Fisher In sexual assault
cases, a sleeping victim may be deemed “incapable of appraising
the nature of the victim’s conduct,” depending on the evidence.
In this case, the prosecution presented I'll post summaries of last week's court of appeals decisions later this week. February 6, 2009 The supreme court will issue two decisions on Monday, No. 07SA383, In the Matter of Robert Scott Fisher, and No. 07SC573, Platt v. People. The supreme court recently issued rules to show cause in the following original proceedings: No. 09SA22, In re: People in the Interest of A.H. G.H. seeks relief from an order of the Juvenile Court adjudicating the child dependent and neglected, and continuing the removal of the child from his home, based on an admission by A.P. that the child is neglected "through no fault" of hers and notwithstanding a jury determination that there was insufficient evidence that G.H. neglected the child. On January 30, 2009, the court issued a rule to show cause why the relief should not be granted. The El Paso Department of Human Services, the Guardian ad Litem, and A.P. are directed to file an answer on or before February 19, 2009. G.H. has 15 days within which to reply. No. 09SA16, In re: People v. Ruch: Petitioner Carl Ruch seeks relief from the district court's order remanding him to custody following his conviction on a class five felony stalking violation until such time as Mr. Ruch agrees to sign a waiver of confidentiality that the probation department requires in order to complete its presentence investigation. Mr. Ruch contends that the order forces him to waive his federal privacy rights and is unlawful because it is not reasonably necessary to accomplish preparation of the presentence report of a psychosexual evaluation, and is not otherwise supported by law. He requests that the order remanding him to the custody of the sheriff's department be vacated, and that the court order his release and reinstate his bond pending resolution of the action. On January 29, 2009, the court issued a rule to show cause why the requested relief should not be granted. Respondents, the Honroable Paul King, the Arapahoe County District Attorney's Office, and the 18th Judicial District Probation Department, are directed to provide a written answe ron or before February 12, 2009 why the requested relief should not be granted. Petitioner Ruch has ten days from receipt of the asnwer within which to reply. The court further reversed the order remanding Ruch to the custody of the sheriff's department, and directed that upon consent of surety the previous bond shall be reinstated with all prior conditions imposed, at which time the sheriff's department shall release petitioner. The court ordered that the mandatory protection order pursuant to 18-1-1001, C.R.S., remains in effect.
No. 09SA19, In re: Pinkstaff v. Black & Decker: Petitioners Black & Decker (U.S.) Inc. and Baldwin Hardware Corporation, along with Steven M. Gutierrez, counsel for the defendant companies, seek relief from the district court's order striking their answer. Petitioners contend that the order was an abuse of discretion and that it was based on inaccurate information, an inappropriately harsh sanction not commensurate with the alleged improper conduct and disproprotionate to the prejudice, if any, caused to the other party, and an unfair reward to the also-culpable other party. They request reversal of the district court's order. On January 22, 2009, the court issued a rule to show cause why the requested relief should not be granted. Respondents Marcia Pinkstaff and the Honorable Connie Peterson are directed to provide a written answer on or before February 23, 2009. Petitioners have thirty days from receipt of the answer within which to reply. February 5, 2009 Here are today's court of appeals announcements. The court issued 16 published decisions. I will post summaries as soon as I can. February 4, 2009 The court of appeals will release the following decisions tomorrow, including 16 published decisions: Publihsed Opinions February 2, 2009 Happy Groundhog Day! As you may know from reading this blog, I have a soft spot for the groundhog, also known as the North American woodchuck (Marmota monax is the species name). Here are some interesting groundhog facts. The supreme court's announcements for today are here. The court issued no decisions and did not grant cert. in any cases. Also, the look of the courts' websites were updated over the weekend. The structure seems unchanged. January 29, 2009 Here are today's court of appeals announcements. The court issued only unpublished decisions. January 28, 2009 The court of appeals will release the following unpublished decisions tomorrow: 06CA1809 People v. Merle E. Eaton January 26, 2009 The supreme court's announcements for today are here. The court issued no decisions and did not grant cert. in any cases. The court recently issued a rule to show cause in this original proceeding: No. 09SA5, In re: Berry v. Keltner Larimer County District Court Case No. 07CV743 (Judge Jolene Blair) Plaintiff: Michelle K. Berry v. Defendant: Jennifer Keltner Synopsis: Petitioner Michelle Berry seeks relief from the trial court's order denying her motion for leave to endorse her treating physician as an expert witness in this personal injury case. Berry contends that it was an abuse of discretion for the court to prohibit her from endorsing, as an expert witness, a treating physician who began treating her after the expert disclosure deadline, and who therefore was endorsed after the expert disclosure deadline, but before the discovery cut-off date. On January 14, 2009, the court issued a rule to show cause why the relief requested should not be granted. Respondent Jennifer Keltner is directed to provide a written answer on or before February 3, 2009. Petitioner Berry has 20 days from receipt of the answer within which to reply. January 23, 2009 The supreme court will issue no decisions on Monday, but will rule on cert. petitions. I will have those announcements on Monday. January 22, 2009 Here are today's court of appeals decisions. The court issued 2 published decisions, summarized below. Juvenile charged with committing an unlawful sexual offense was not entitled to a jury trial because he was not charged with causing bodily injury to the victim, nor charged with using threats, intimidation, or force. As alleged, the charge would not constitute a crime of violence as defined in C.R.S. § 18-1.3-406. therefore he was not entitled to a jury trial under C.R.S. § 19-2-107(1). People In the Interest of A.B.-B. Defendant's
twenty-five-year sentence for child abuse did not violates Apprendi
and Blakely. The court of appeals rejected the argument that the trial
court relied on factors not admitted by him or found by a jury in imposing
the aggravated sentence. In entering his guilty plea, defendant admitted
the facts essential to establish the elements of aggravated incest pursuant
to the constitutional safeguards of Apprendi, Blakely, Lopez, and Isaacks.
Thus, the trial court could properly rely on them in imposing the aggravated
sentence for child abuse. The trial court essentially aggravated the
sentence for negligent child abuse based on defendant’s simultaneous
conviction for aggravated incest. That did not violate Apprendi and
Blakely. People
v. Misenhelter January 21, 2009 The court of appeals will release the following decisions tomorrow, including two published decisions: Published Decisions | ||||||||||||||||||||||||