March 31, 2005 The court of appeals' announcements for today are here. The court issued only unpublished decisions. March 30, 2005 The court of appeals will release the following unpublished decisions tomorrow: No.: 02CA1064 People v. George Lo March 28, 2005 Here are the supreme court's announcements for today. The court issued seven decisions, summarized below. The court granted cert. in one case, noted below. Records of assistance provided to domestic violence victim by domestic violence agency are within the scope of the statutory victim-advocate privilege, C.R.S. § 13-90-107(k)(I), and therefore are protected from disclosure to defendant. In light of this determination, the court held that the trial court abused its discretion in ordering the domestic violence agency to produce the records. In re People v. Turner In a 3-2 decision, Robert Harlan's death sentence is reduced to life without parole. The supreme court upheld the trial court's judgment vacating the death sentence, concluding that the presence and use of a Bible during jury deliberations may have influenced the verdict: "Based on the trial court's findings and competent evidence of jurors' use of the Bible during deliberations, we do not have confidence that the death penalty here was not influenced by extraneous information." Justice Rice, joined by Justice Kourlis, dissented, criticizing the majority's opinion for elevating form over substance. Justices Coats and Bender did not participate. People v. Harlan In a property tax appeal involving the valuation of oil leaseholds for real property tax purposes, the court holds that processing costs occurring on the leasehold site are properly deducted from the sale price of the oil in valuing the unprocessed material at the wellhead, as provided by Colorado Constitution art. X, sec. 3(1)(b) and CRS§ 39-7-101(1)(d). Washington County Board of Equalization v. Petron Development Co. District court had no authority to issue injunctive relief regarding a hearing officer's ruling made during an ongoing administrative hearing on fines levied against Envirotest. Envirotest was assessed over $800,000 in fines by the Department of Revenue for violations of regulatory requirements, and challenged that ruling. In the administrative hearing on that challenge, Envirotest asked the hearing officer to issue subpoenas to numerous witnesses. The hearing officer refused to issue about half the subpoenas, concluding that those witnesses' testimony would be irrelevant. Envirotest filed a complaint for injunctive relief in district court. The district court concluded that the hearing officer had abused her discretion in failing to issue the subpoenas and issued a temporary restraining order halting the administrative hearing until the court held a preliminary injunction hearing. In a C.A.R. 21 original proceeding, the supreme court held that the district court had no power to issue the restraining order because there was no final agency action yet. Envirotest Systems, Corp. v. Colorado Department of Revenue Colorado Statutory Rule Against Perpetuities (CSRAP), specifically CRS§ 15-11-1106(2) (which provides for a statutory reformation claim in certain circumstances where the common law rule against perpetuities would otherwise void an interest), does not provide an exception to common law principles of claim preclusion (res judicata). Therefore, res judicata barred a statutory reformation claim brought after an interest was voided in a quiet title action. The 4-member majority held that in the absence of the General Assembly's clear intent to abrogate common law principles of claim preclusion, CSRAP did not create an exception to those common law principles. In a strong, and frankly more persuasive, dissent, Justice Kourlis, joined by Justices Rice and Coats, concluded that the plain language of the statute created an exception to the doctrine of claim preclusion. Justice Kourlis correctly noted that the policy concerns about creating an exception to res judicata is a matter for the General Assembly, not the courts. And, she noted, the General Assembly in CSRAP expressed a "clear disfavor towards strict application of the rule against perpetuities." The plain language of the statute, if properly applied, clearly allowed the subsequent statutory reformation action. Argus Real Estate, Inc. v. E-470 Public Highway Authority Supreme court reverses Lisl Auman's convictions for felony murder and second degree burglary. In what is essentially a 4-1 decision (Justices Coats and Rice not participating), the court held that Auman's arrest did not terminate her liability for felony murder and that whether a co-participant's arrest terminates his or her immediate flight from the commission of a predicate felony while another participant remains in flight is a question for the jury to decide. But the court concluded that an error in the jury instruction for theft (part of the elements for burglary, the predicate felony for the felony murder) required reversal of the burglary conviction and therefore the felony murder conviction. The majority held that the theft instruction omitted the requirement that the defendant acted knowingly without authorization in taking the other person's property. (The People agreed that the instruction was erroneous.) The supreme court held that the error was plain error requiring reversal. Chief Justice Mullarkey dissented on that point, concluding that the error was not plain error and therefore reversal was not required. Auman v. People The State was entitled to an adjudication of its right to use the full amount of available nontributary groundwater underlying its lands, without making a threshold showing of a non-speculative, beneficial use; and because it complied with the procedural requirements for such an adjudication, the water court's order decreeing that use right was affirmed. East Cherry Creek Valley Water and Sanitation Dist. v. Rangeview Metropolitan Dist. The court also modified its decision, and denied rehearing in, Weil v. Dillon Companies, Inc. The modified decision, which made a fair number of changes to the opinion, is here. The court granted
cert. on the People's cross-petition in Brown v. People, No. 04SC587,
vacated the court of appeals' judgment, and remanded to the court of
appeals in light of People v. Muckle, 03SC775 (Colo. January 10, 2005).
The cross-petition question was: The court granted
cert. in People v. Huber, No. 05SC40, on these issues: March 25, 2005 The 2005 CBA Judicial Survey results are in and can be downloaded from this link. The supreme court will issue the following 7 seven decisions on Monday, including the much-anticipated decisions in the Lisl Auman case and the Robert Harlan case: 02SC885
Auman v. People I'll have summaries on Monday, though it may be later in the day since I am having my hot tub looked at Monday (hey, first things first, you know). March 24, 2005 Here are the court of appeals' announcements for today. The court issued eight published decisions, summarized below. Waiver of right to jury trial does not require extensive, on-the-record advisements of the sort set out in United States v. Robertson, 45 F.3d 1423 (10th Cir. 1995). Instead, a purported waiver must be made understandably, voluntarily and intentionally. The court found the defendant's waiver to be valid. In addition, the court concluded that the trial court, sitting as the fact-finder, did not err by examining the gun that had been admitted as physical evidence. (A key issue in the case was whether the defendant had attempted to fire the weapon at a police officer (the weapon did not in fact fire.)) The court of appeals rejected the defendant's contention that it was improper for the trial court to examine the weapon during its deliberations, concluding that examining the admitted physical evidence is not the same as improperly acquiring "additional evidence." People v. Thompson Collateral estoppel barred five of plaintiffs' claims, as the issues had previously been litigated to final judgment in the Oklahoma state courts. On the Plaintiffs' remaining claim for damages under C.R.S. § 18-8-708 for retaliating against a witness, the court affirmed summary judgment in favor of defendants, concluding that § 18-8-708 applied only to witnesses to or victims of a crime. Grynberg v. Arkansas Oklahoma Gas Corporation Trial court retained jurisdiction to try plaintiffs' claims against nongovernmental defendants while governmental defendant's interlocutory appeal challenging trial court's denial of governmental immunity (under CGIA) was pending. And trial court did not abuse its discretion by not granting a stay or continuance. Christel v. EB Engineering, Inc. In a liquor license suspension proceeding, a licensee is not held to strict liability under C.R.S. § 12-47-901(1)(a), and some level of knowledge by the licensee must be shown by the evidence. But under the facts, the Authority did not hold the licensee to a strict liability standard, instead finding the evidence sufficient to give the licensee's employee constructive knowledge of the violation (providing liquor to a minor). Therefore the Authority's suspension of the license was proper. Full Moon Saloon, Inc. v. City of Loveland Under C.R.S. § 13-80-111, if an original action is dismissed for lack of jurisdiction or improper venue, a second action brought within 90 day of the dismissal will be considered timely for statute of limitations purposes. But § 13-80-111 does not apply where the original action is dismissed for reasons other than improper venue or lack of jurisdiction. Because Plaintiff's first action was dismissed because its suspension by the secretary of state made it incompetent to transact business, § 13-80-111 did not apply. Since Plaintiff's claims in its second suit were untimely under the general statute of limitations, they were barred. SMLL, L.L.C. v. Peak National Bank Defendant fiduciary was not entitled to attorney fees incurred to defend against breach of fiduciary duty claim. The court held that the breach of fiduciary duty exception to the American Rule--which in certain circumstances entitles beneficiaries to recovery attorney fees for breach of fiduciary duty--did not apply to fiduciaries who successfully defend against such claims. Moore v. Edwards When claimant is rendered unconscious by allegedly tortious conduct, the 180-day notice period under the Governmental Immunity Act does not begin to run until the claimant discovers or should have discovered the injury. Thus, where the plaintiff is incapacitated, the period does not begin to run until an individual, with knowledge of the injury that may be imputed to plaintiff, is appointed to act for the incapacitated person. Because notice was filed within 180 days after the appointment, it was timely. The court rejected the defendants' argument that plaintiff was not considered incapacitated until she was adjudicated as such. Visser v. Mahan The court of appeals declines to modify Will Hoover's appeal bond. The trial court granted Hoover a $1 million appeal bond, but specified that it be "cash only." Hoover asked the trial court to modify the bond to allow him to post bond secured by sureties. After the trial court denied that request, Hoover petitioned the court of appeals to modify the bond. The court of appeals denied his request, rejecting his contention that the trial court lacked the authority to order a "cash only" bond. The court held that the ability to select the security for the bond lies within the trial court's power to "[i]mpose any other condition deemed necessary to assure the defendant's appearance" under C.R.S. § 16-4-203(3). The court also rejected Hoover's argument that the bond violated the "excessive fines" clause of the Eighth Amendment and Art. II, § 20 of the Colorado Constitution. Since the bond was an appeal bond, it could be denied altogether. People v. Hoover March 23, 2005 The court of appeals will announce the following decisions tomorrow, including 8 published ones: Published Opinions No.: 03CA1017 People v. Michael Lee Thompson Unpublished Opinions No.: 02CA1934 People v. Lawrence Edward Fehling March 22, 2005 Judge Nieto of the court of appeals has announced his retirement, effective June 30. Information on the vacancy created by his retirement can be found here. March 21, 2005 The court of appeals' oral argument calendar for May 2005 is here. The supreme court's announcements for today are here. The court issued one decision, summarized below. The court denied rehearing but issued a slightly modified opinion in Wolford v. Pinnacol Assurance. The court granted cert. in three cases, and the questions presented in those cases are set forth below the case summary. LLC had contractual rights to delivery of water, not water rights in the traditional sense. Therefore, the nature of those delivery rights were defined by reference to the contracts, and since the contracts were ambiguous, the court looked to extrinsic evidence to aid interpretation. The court affirmed the water court's conclusion that the contracts created restrictive rights to receive a certain amount of water for the purpose of irrigating identified lands. Those delivery rights could not, therefore, support a change of use and change of place diversion proceeding. Justice Hobbs, no stranger to water law himself, dissented, describing the majority's result as "shocking, unconscionable, and contrary to Colorado law." He said, "While all others on the ditch are free to realize modern-day market value of their water, the owners of first priority are made to be last in realizing that value." East Ridge of Fort Collins, LLC v. The Larimer and Weld Irrigation Co. The court granted cert. in these cases: Martinez v. Skaggs, No. 04SC421, on these issues:
Whether the grantee acquired an interest in petitioner’s home by a quitclaim deed notwithstanding an agreement to hold the deed in escrow.
Whether investors who took a subsequent quitclaim deed to the home from this grantee were bona fide purchasers.
Dominguez-Gomez v. People, No. 04SC690, on this issue: Whether the prosecutor’s closing argument, in which she repeatedly stated [among other things] that petitioner and other defense witnesses lied, testified untruthfully and/or made up their stories, violated petitioner’s constitutional right to a fair trial by an impartial jury. Klinger v. Adams County Sch. Dist. No. 50, No. 04SC724, on this question:
Whether the term “expenses” used in section 22-63-202(2)(a), C.R.S. (2004), for purposes of limiting the damages which a school district can recover to secure the replacement of a teacher who gives late notice of resignation, excludes recovery for the school district’s fixed salary overhead for overtime-exempt staff involved in securing the teacher’s replacement. March 18, 2005 The supreme court will issue one decision on Monday (another water case), East Ridge of Fort Collins, LLC v. The Larimer and Weld Irrigation Co. The issues in that case can be found here on the December 2004 oral argument calendar (scroll down to the December 7th 1:30 p.m. argument). I'll summarize that case and have the court's other announcements on Monday. Have a good weekend. March 17, 2005 Here
are today's court of appeals announcements. The court issued only unpublished
decisions. March 16, 2005 Thanks to Susan Clark for the modified design for this blog--a lot less wasted space and a cool gavel. The court of appeals will issue the following unpublished decisions tomorrow (no published ones this week): No.: 01CA0300 People v. Thomas P. McKenzie March 14, 2005 Here are the supreme court's announcements for today. The court issued only one decision (summarized below), and did not rule on any petitions for certiorari. Both the Colorado Water Conservation Board (CWCB) and the water court erred in granting a recreational in-channel diversion (RICD) conditional water right to the Upper Gunnison River Water Conservancy District. The supreme court held that SB 01-216 established a procedure for the adjudication of instream diversions by local government entities for recreational uses. As part of that procedure, CWCB has initial, limited fact-finding authority on enumerated factors as applied strictly to an applicant's claimed stream flow and intended recreation experience. By considering stream flow amounts and recreation experiences other than those intended by the applicant, the CWCB exceeded this authority. SB 216 charged the water court with adjudication of an RICD application, requiring it to apply five factors-compact impairment, stream reach appropriateness, access availability, instream flow rights injury, and maximum utilization-and treat the CWCB's factual findings presumptively. If a party produces evidence contrary to the CWCB's findings, the presumption is rebutted and the water court must weigh the evidence before it under the preponderance standard. In addition, the water court must determine whether an RICD application is limited to the minimum stream flow necessary for an objectively reasonable recreation experience in and on the water because any appropriation in excess of the minimum stream flow for a reasonable recreation experience in and on the water does not put water to a beneficial use. Here, the water court erred because it did not consider whether applicant's intended in-channel recreational diversion was in fact an RICD under SB 216, when it awarded a decree in the claimed stream flow amounts. Therefore, the case was remanded to the water court with directions to remand to the CWCB for further proceedings. Colorado Water Conservation Board v. Upper Gunnison River Water Conservancy District March 11, 2005 I will be out of the office on Monday, so I may not get the supreme court announcements up or get the cases summarized until Tuesday (which is the Ides of March, by the way). March 10, 2005 Here are today's court of appeals announcements. The court issued 7 published decisions, summarized below, as well as many unpublished decisions. Trial court erred in limiting cross-examination of victim by excluding evidence, under rape shield statute, C.R.S. § 18-3-407, of whether the victim was in a committed romantic relationship with a roommate at the time of the alleged assault. The excluded evidence was offered to show that the victim lied about whether she had consensual sex with the defendant. The court concluded that statements acknowledging a relationship are not evidence of sexual conduct or sexual orientation for purposes of the rape shield statute. People v. Golden Trial court did not err in refusing jury's request to reread to them the parties' stipulated facts. Nor did the court err in permitting lay opinion testimony of police officers that defendants commonly (1) deny committing the offenses; (2) falsely accuse the police of brutality; and (3) falsely claim they don't understand their Miranda rights. But the court vacated a conviction for reckless endangerment on the ground that it is a lesser included offense of first degree assault with intent to cause serious bodily injury, for which the defendant was also convicted. People v. Tallwhiteman Landowners were
not entitled to recover fees they incurred in successfully pursuing
sanctions against county. Such fees are only available if the trial
court finds that the defense to the motion for fees under C.R.S. 13-17-102
lacked substantial justification. The trial court made no such finding.
Board
of County Commissioners v. Kraft Building Contractors Sale of movie ticket by movie theater created a license to view the movie, but did not create contractual duties obligating the defendant to provide safe facilities or to warn him of dangerous conditions. The plaintiff's tort claim for negligence was filed after the statute of limitations had run. The court did reverse the award of attorney fees to defendant under CRS § 13-17-201, concluding that because the Plaintiff's lawsuit sounded in contract, the statute did not apply. Sweeney v. United Artists Theater Circuit, Inc. Trial court lacked jurisdiction over husband's request for maintenance, where the request was made after the conclusion of permanent orders, where maintenance was waived and the trial court did not retain jurisdiction to consider it. Judge Davidson concurred in part and dissented in part, concluding that the court should not have reached the merits of husband's argument because of a prior appeal that had affirmed the trial court's determination at permanent orders that husband had waived maintenance. In re Marriage of Ebel Trial court properly denied grandmother's request under CRS 19-3-501 for an investigation of abuse of her grandchild. An investigation had been undertaken by the department of social services, but no further action was taken. The court held that § 19-3-501 does not require a court to undertake its own investigation or hold a hearing. The court also concluded that the grandmother lacked standing to pursue her petition for allocation of parental responsibilities under CRS §14-10-123(1). In the Interest of L.F. March 9, 2005 The court of appeals will issue the following decisions tomorrow. The court will issue 7 published decisions, which I will summarize. Published Opinions No.: 03CA0191 People v. Calvin Stewart Golden Unpublished Opinions No.: 02CA1136 In re the Marriage of Jeanne M. Anderson and Gary L.
Phillips March 7, 2005 Several appellate rule changes have recently been adopted by the supreme court. The list of recent rule changes, with links to the changes, is here. Among the rule changes is the adoption of a new rule C.A.R. 3.4, which governs appeals in dependency and neglect proceedings (and has a shorter time in which to file a notice of appeal). That rule change is effective now. The biggest change, in my view, is the amendments to C.A.R. 28, 32, 40, and 53, effective July 1, 2005. The court has adopted word limits for briefs and petitions. Unfortunately, the court did not choose round numbers, so here are the limits: Principal briefs: 9,500 Reply briefs: 5,700 Petitions for rehearing: 1,900 Cert. petitions and oppositions: 3,800 Cert. replies: 3,150 If you do the math, like I did, you'll discover that the court is basically allotting 316.66 words per page under the old page limits. But the court has now also changed the font size. New rule 32 requires 14-point type or larger, except that the caption can be 12-point if necessary to fit on one page. There is also a requirement for a certificate of word count. The link to these rule changes is here. The changes will make it easier on the eyes, and will eliminate the woeful practice of "footnote-cramming," but will definite require a greater paper supply. Here are today's supreme court announcements. The court issued one decision, summarized below. The court also granted cert. in one case. The questions in that case follow the case summary. A "blanket lien" that included fewer than all of the properties benefited under the same contract was not invalid. Colorado law permits a mechanics' lien to include and be enforced against more than one but fewer than all of the properties benefited under a contract, as long as apportionment of the debt can be made. Justice Bender dissented, concluding that the majority misinterpreted the mechanics' lien statutes. Compass Bank v. The Brickman Group, Ltd. The court granted cert. in No. 04SC657, Candelaria v. People, on these issues: Whether the court of appeals erred when it vacated only one set of verdicts rather than vacating both sets and remanding for a new trial where the jury returned verdicts for both murder after deliberation and extreme indifference murder of a single victim, as well as conspiracy and attempt to commit murder based on both those theories.
Whether a jury should be permitted to render verdicts on competing theories of attempted first degree murder where different funds of evidence established both theories. March 4, 2005 The supreme court will issue one decision on Monday, Compass Bank v. The Brickman Group, Ltd., No. 03SC632, which considers this question: Whether a mechanic's lien can be selectively enforced against less than all of the property within a condominium development when the work was performed on common areas and, thus, cannot be apportioned. I will have a summary at some point on Monday (after I finish up an opening brief that's due that day). March 3, 2005 Here are today's court of appeals announcements. The court issued only unpublished decisions. March 2, 2005 The court of appeals will issue the following unpublished decisions tomorrow (no published ones): Unpublished Opinions No.: 99CA0961 People v. Kimiai
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