The
court of appeals issued only unpublished decisions on Thursday, October
28. The case announcements from that day are here.
October 21, 2004 This blog celebrates its first anniversary Saturday. Thanks to everyone for reading it, commenting on it, supporting it, etc. To mark the humble occasion, I'm not doing any posts next week. But rest assured, I will update everything come November. Thanks again! The court of appeals' announcements for today are here. The court issued seven published decisions and many more unpublished ones. The published decisions are summarized below. Tax
refund statutes, which gave tax refunds of excess revenues only to full-year
state residents, did not violate the Privileges and Immunities Clause
of the United States Constitution, either facially or by impinging upon
the right to travel. The
court also rejected plaintiffs' arguments that the statutes violated
equal protection or the Commerce Clause.
Thorpe
v. State Crawford v. Washington does not alter the rules for probation revocation proceedings, and, therefore, defendant's probation could be revoked based on testimony of probation officer who lacked personal knowledge of defendant's alleged probation violations. People v. Turley Creditor who was also personal representative of the estate was required to comply with deadline for filing claims set forth in the published notice. Because creditor did not properly present her claims before the deadline, those claims were barred. Estate of Sheridan Statutory maximum sentence for purposes of Apprendi and Blakely is the maximum sentence in the presumptive range. A sentence in the aggravated range violates the Sixth Amendment right to jury trial "unless the facts found by the trial court to support the sentence, including the ultimate finding that these facts are extraordinary: (1) are reflected in the jury's verdict; (2) were admitted by the defendant for purposes of sentencing; or (3) involve prior criminality, to the extent permitted by Apprendi." On the facts, the court held that the defendant's aggravated sentence violated his Sixth Amendment right. People v. Moon Where insured was not prejudiced by insurer's brief assumption of a defense, which was later withdrawn, insurer was not estopped from denying coverage despite lack of reservation of rights letter. The court also held that coverage was excluded under an unambiguous exclusion in the policy. Management Specialists, Inc. v. Northfield Ins. Co. C.R.S.
§ 8-41-301(2)(b) does not require a claimant's award of mental
impairment benefits to be reduced by his award of temporary disability.
Sears
Distribution Center v. ICAO Court of appeals declines to exercise its discretion, under C.R.C.P. 23(f) and C.R.S. § 13-20-901(1), to hear an interlocutory appeal of a district court's denial of class certification. In deciding whether to hear the interlocutory appeal, the court applied the five-part test from Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266 (11th Cir. 2000). Applying that test, the court determined that interlocutory review should not be permitted, and, accordingly, dismissed the appeal. Clark v. Farmers Insurance Exchange October 18, 2004 Federal suit challenging Colorado redistricting plan (the one in place now, adopted by the state court after the legislature failed to act), which had been stayed while the state court redistricting decision worked its way up the court chain, will now go forward, according to this article in Saturday's Rocky Mountain News. The Denver District Court enjoined the Secretary of State from enforcing an election rule that provides that provisional ballots will not be counted if the voter applied for an absentee ballot. The court's decision is here. The court held that voters who appear in person at their correct polling place, but who requested absentee ballots, will nevertheless be permitted to cast provisional ballots upon their declaration that they have not returned the absentee ballot. The provisional ballot is then to be counted, once election officials determine that the voter did not in fact cast the absentee ballot. The supreme court will surely review this decision before election day. The supreme court announcements for today are here. The court issued two decisions and granted cert. in four cases. The decisions are summarized below, and the questions presented in the appeals in which cert. was granted appear below the summaries. Exemplary damages may be awarded in an action by a successor trustee against a former trustee to recover funds misappropriated by the former trustee. Justice Coats dissented, concluding that the majority, based on a mistaken reading of a comment to the Restatement of Trusts, erroneously created an exception to the proposition that trust litigation was historical equitable in nature. Justice Coats believes the decision will lead to an unjustified expansion of the rights to a jury trial and punitive damages. Peterson v. McMahon Where district court conducts a trial de novo of a matter tried first in the county court, the district court is operating within its authority as a trial court. Therefore, a defendant has an appeal of right to the court of appeals from the district court's trial de novo. The supreme court concluded that C.R.S. § 13-6-310 governs only the district court's appellate jurisdiction (where the district court bases its ruling on the county court record). Therefore, the court reversed the court of appeals' dismissal of defendant's appeal and remanded to the court of appeals for consideration of the merits of defendant's appeal. Bovard v. People The court granted cert. in the following four cases: Peterson v. People, No. 04SC18, on these questions: Whether the Crim. P. 37(a) requirement of filing a notice of appeal with a county court clerk is a jurisdictional prerequisite that must be fulfilled before a district court can review the merits of a county court decision.
Whether substantial compliance will fulfill the requirements for the contents of notices of appeals from county court to district court under Crim. P. 37(b). Boyles v. Gordon, No. 04SC211, on these issues: Where extrinsic evidence of identity is necessary in order to determine that an alleged defamatory statement is of and concerning the plaintiff, is the claim one of defamation per quod?
Can a claim for negligent supervision be maintained against the employer of an employee alleged to have published a defamatory statement where (a) the statement is subject to the privilege regarding a matter of public interest and concern and/or (b) there is no evidence of antecedent knowledge of the employer of the propensity of the employee to cause harm to the person who is the subject of the alleged defamatory publication? Metropolitan
Builders, Inc. v. Eagle Ridge Condominium Ass'n,
No. 04SC273, addressing these questions: Whether the intertwining doctrine precludes arbitration of a signatory’s arbitrable claims if the claims are intertwined with a nonsignatory’s nonarbitrable claims.
Whether a nonsignatory to an agreement containing an arbitration clause may compel arbitration when a signatory to the agreement raises allegations of substantially interdependent and concerted misconduct by both the nonsignatory and affiliated signatory.
Whether Colorado should follow Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213 (1985), and reject the intertwining doctrine. People v. Weinreich, No. 04SC436, on these issues: Whether the three methods of committing child abuse defined in section 18-6-401(1)(a), 6 C.R.S. (2003), overlap sufficiently that a jury instruction may recite a different method than the charging document without impermissibly amending the document under Crim. P. 7(e).
Whether it was plain error, if error at all, to recite a different phrase of the statute defining child abuse, section 18-6-401(1)(a), 6 C.R.S. (2003), in the elemental jury instruction than in the information, even when that charge and the other charges gave defendant a fair opportunity to prepare his defense and protected him from double jeopardy.
October 15, 2004 The U.S. District Court has set a hearing on October 26th in the pre-election federal lawsuit challenging proposed Amendment 36. Briefing will take place next week. The supreme court will issue two decisions on Monday, both cases argued in September. Bovard v. People, on the following question: Where Petitioner's appeal from his county court conviction resulted in a trial de novo in district court due to loss of the record, whether the court of appeals denied Petitioner his right to appeal by holding that he may not pursue a direct appeal of the district court's judgment to the court of appeals and that his only remedy was to request a writ of certiorari from the supreme court. The other decision, Peterson v. McMahon, involves this question: Whether or not the court of appeals holding that allows punitive damages against a trustee for not guaranteeing a 20% return on investment is contrary to decisions of this court or existing law holding that actions in equity are not subject to punitive damages. October 14, 2004 A federal lawsuit was filed yesterday challenging the constitutionality of proposed Amendment 36, the Colorado citizen initiative that would change the way the state allocates presidential electors. The case name is Napolitano v. Davidson, Case No. 04-B-2114, assigned to Chief Judge Babcock. It'll be interesting to see how it plays out. The court of appeals' announcements for today are here. The court issued only unpublished decisions. October 13, 2004 The court of appeals will announce the following unpublished decisions tomorrow. The court will release no published decisions: No.: 01CA1138 People v. Juan E. Valdez October 12, 2004 The supreme court case announcements for today are here. The court issued no decisions, but did grant cert. in the following three cases, two that will take up the constitutionality of juries asking questions during criminal trials: Medina v. People, No. 04SC167, on the following question: Whether allowing questions from the jury during trial deprives a defendant of her federal and state constitutional right to a fair trial and to proof beyond a reasonable doubt.
Moses v. People, No. 04SC334, on this issue: Whether juror questioning in a criminal trial, under Colorado’s pilot program, violates defendants’ constitutional rights to fair trials by impartial juries.
People v. Miller, No. 04SC414, addressing these issues:
Whether the court of appeals erred when it held that it was plain error for the trial court not to specifically instruct the jury that it could consider evidence of defendant’s voluntary, self-induced intoxication to negate the “after deliberation” element of first-degree murder.
In the alternative, even if defendant’s conviction for first-degree murder was properly reversed, whether the court of appeals erred when it declined to specifically instruct the trial court that defendant could, after remand, be sentenced upon his felony murder conviction, which previously was merged with his first-degree murder conviction. October 11, 2004 The court of appeals' oral argument schedule for December is here. Today is a legal holiday for the state courts. So there will be no case announcements from the supreme court until tomorrow. And tomorrow, the court will issue no new decisions, only rulings on cert. petitions. If the court grants cert. in any cases, I'll post the questions presented. October 7, 2004 The court of appeals case announcements for today are here. The court, much to my chagrin, issued 20 published decisions, and many unpublished ones. So my work is cut out for me (a whole bunch of insurance cases and right during baseball playoffs, too). I will summarize all the published decisions but I'll release them in groups. If you don't see a summary for a case, check back later and it will be there (eventually). Victim's statements to fast-food restaurant training manager were not testimonial in nature and therefore were not barred under Crawford v. Washington. The court also held that the Ohio v. Roberts and People v. Dement analysis continues to apply to nontestimonial hearsay. On the facts of the case, the court upheld the district court's admission of the murder victim's hearsay statements and affirmed the defendant's convictions. People v. Garrison (earlier opinion withdrawn) Child hearsay statute, C.R.S. § 13-25-129, which permits admission of out-of-court hearsay statements by children under appropriate circumstances, does not require that the victim be a "child," as defined by the statute, at the time of the defendant's trial. People v. Gookins (modified, previous opinion designated unpublished) Vehicular
eluding and felon in possession of a firearm are "grave and serious"
offenses for purposes of habitual criminal proportionality review. People
v. Allen Term "confederate" is not highly technical and is within the comprehension of the jury. Therefore, trial did not err by refusing to instruct the jury on the definition of "confederate" as used in the aggravated robbery statute, C.R.S. § 18-4-302(1)(c). People v. Wilford Jury could properly conclude defendant was aware of drugs in car (and therefore knowingly possessed them), where the defendant was the driver and sole occupant of the car and where a digital gram scale and wallet with a lot of cash were also in the car. People v. Baca Trial court erred in taking judicial notice of a 1997 presentence report because the presentence report was not part of the court's own record and did not satisfy CRE 201(b). Discounting that report, the court of appeals concluded that one of the defendant's prior convictions had not been proved for purposes of an habitual criminal count, and therefore remanded for further proceedings. People v. Cooper (modified, previous opinion designated unpublished) Person employed by fire department, but acting as a paramedic, is a firefighter for purposes of statute prohibiting assault on a firefighter, C.R.S. § 18-3-203(1)(c). Therefore, defendant could be convicted of second degree assault on a firefighter for striking a paramedic from the West Metro Fire District. People v. Montoya In the fifth appeal in this protracted litigation, the court of appeals concluded that while the creditor could collect the principal, interest and attorney's fees only once, the debtor's proportionate share must be computed based on the original judgment, plus interest. Debtor's obligation is his proportionate share plus any attorney's fees allocated to him or awarded against him. A. Tenenbaum & Company, Inc. v. Colantuno "Limits of liability" provision in insurance policy was an occurrence limitation, not a prohibition on stacking of policies. (Note: this is one of three decisions today addressing stacking, so you may want to read all three together--and expect supreme court review in the near future.) In re Estate of Curry Because a rational jury could not have acquitted the defendant of second degree burglary and also convicted him of second degree criminal trespass, defendant was not entitled to an instruction on second degree trespass as a lesser included. People v. Larkins C.R.S. § 17-22.5-403(9)(a)-(f) does not violate double jeopardy or the separation of powers. The court concluded that the statute does not result in the parole board improperly encroaching on the power of the judiciary. People v. Jackson Protected person's caseworker and caseworker's supervisor were properly held in contempt where they acted to frustrate the guardianship proceedings. The court of appeals concluded that because the trial court had jurisdiction over the guardianship proceedings, the court had jurisdiction over the caseworker and her supervisor who interfered with those proceedings. The court of appeals did hold, however, that the trial court could not impose attorney's fees as part of a punitive contempt sanction (as opposed to a remedial sanction). In the Matter of Lopez, a protected person Anti-stacking provision in insurance policy was enforceable and summary judgment was therefore appropriate. Judge Webb dissented, concluding that a factual issue existed concerning plaintiffs' entitlement to uninsured motorist/underinsured motorist (UM/UIM) coverage. I would expect one or more of these stacking cases to land in the supreme court. (But I promise not to gloat if one does!) Roberts v. American Family Mutual Ins. Co. A Colorado sentence imposed to run consecutively to an out-of-state sentence is not required to begin to run on the date of sentencing. The court of appeals rejected the defendant's argument that C.R.S. §§ 16-11-308(1) and 17-22.5-102 required the Colorado sentence to begin running as of the date of sentencing. People v. Mackey In the final stacking case of the day, the court of appeals unanimously concluded that the policy at issue prohibited stacking of UM/UIM coverage. Bush v. State Farm Mutual Automobile Ins. Co. In a class action for recovery of overtime compensation, the court of appeals reversed summary judgment in favor of the employer, concluding that material issues of fact existed on whether the class employees were exempt from overtime requirements. Chase v. Farmers Ins. Exchange Property description was sufficient to give plaintiff constructive notice despite the fact that the description did not include the block number. A recorded deed of trust was sufficient to put the plaintiff on notice. Guaranty Bank and Trust Co. v. LaSalle National Bank Association Term "verified report," in C.R.S. § 42-2-126(3)(b), means a report that is notarized or sworn to before another person. The police officer's report in this case was not notarized and therefore was not a verified report. Accordingly, the Department of Revenue lacked jurisdiction to revoke the petitioner's commercial trucking license. Hibbs v. Colorado Department of Revenue Insurance
company failed to comply with C.R.S. § 10-4-609(2) before including
step-down endorsement in the policy. Therefore, the endorsement was
unenforceable. School district could withhold compensation of teacher who resigned, in order to offset the district's expenses in finding a replacement teacher. The teacher's contract incorporated by reference C.R.S. § 22-63-202(2)(a), which permits recover of such expenses. Klinger v. Adams Co. Sch. Dist. No. 50 October 6, 2004 The court of appeals will issue the following decisions tomorrow (which I will summarize as time permits): Published Opinions No.: 01CA0527 People v. Charles Allen Garrison Unpublished Opinions No.: 02CA2205 People v. Emma Chavez The supreme court's oral argument calendar for October is here. The court will hear arguments October 25, 26 and 28. October 4, 2004 Congratulations to Walter Sargent and Jean Dubofsky for their election to the American Academy of Appellate Lawyers. They are the first two Colorado lawyers to become fellows of the Academy. Membership in the Acedemy is by invitation only and is a high honor indeed. They both richly deserve the honor. The supreme court case announcements for today are here. The court issued three decisions and granted cert. in one case. The decisions are summarized below, and below that are the questions presented in the case the court agreed to hear. The economic loss rule requires the court to focus on the contractual relationship of the parties, rather than their professional status, in determining whether an independent duty of care exists. A subcontractor sued a licensed engineer in tort for economic loss suffered in connection with a bridge construction project. The supreme court held that the tort claims were based on duties imposed by contract, and therefore were barred by the economic loss rule. BRW, Inc. v. Dufficy & Sons, Inc. Theft from an at-risk adult is an enhanced form of general theft. Therefore, the discovery tolling provision of the statute of limitations, C.R.S. § 16-5-401(4.5)(c), which applies to general theft, also includes theft from an at-risk adult. Thus, the period within which a prosecution for theft against an at-risk adult must be commenced does not begin to run until the victim discovers the criminal act. People v. McKinney The
trial court had personal jurisdiction, under the Uniform Interstate
Family Support Act (UIFSA), over the husband-father in a dissolution
of marriage and child support proceeding. C.R.S.
§ 14-5-201(5), the UIFSA's long-arm provision, provides that in
a proceeding to establish, enforce, or modify a child support order
or to determine parentage, a Colorado court may exercise personal jurisdiction
over a nonresident if the child resides in this state as a result of
acts or directives of the individual. The majority concluded
that jurisdiction was appropriate because the father's acts of domestic
violence caused the mother to reside, and give birth to the couple's
child, in Colorado. The majority then held that the exercise of jurisdiction
was consistent with due process. Justice Coats, joined by Justices Martinez
and Bender, dissented, concluding that the majority's decision erroneously
focused solely on the effects or "consequences" of the father's
conduct, rather than on whether "purposeful availment" was
present. The dissent concluded that the exercise of jurisdiction violated
due process. In
re Marriage of Malwitz The court agreed to hear In the Matter of the Estate of Klarner, No. 04SC214, on the following questions:
Whether the court of appeals properly held that the decedent’s estate could not recover from the QTIP Trust a proportionate share of the state taxes paid by the estate.
Whether the court of appeals properly awarded attorney’s fees in this case. The court of appeals'
decision in Klarner is here. October 1, 2004 The
supreme court will issue three decisions on Monday, In
Re Marriage of Malwitz, BRW Inc. v. Dufficy & Sons, and People
v. McKinney.
I'll have summaries of those opinions on Monday. Have a good weekend.
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