October 31, 2007 Happy Halloween! The court of appeals will hear arguments on November 5 at The Colorado Court of Appeals will hear oral arguments in two cases on Monday, Nov. 5, 2007, at Liberty High School in Colorado Springs. Here is the court's information on the arguments, which are also open to the public: The visit is part of the Colorado Judicial Branch’s Courts in the Community – the outreach program the Colorado Supreme Court and Court of Appeals initiated on Law Day (May 1), 1986. The Courts in the Community program was developed to give Colorado high school students first-hand experience in how the Colorado judicial system works and illustrate how disputes are resolved in a democratic society. These are not mock trials. The court will hear actual arguments from which it will issue opinions. The court generally issues opinions within a few months of the arguments. A three-judge panel of the Court of Appeals – Judges Gilbert M. Roman, David Furman and Diana Terry – will hear oral arguments in these two cases: No. 06CA2650, Kathleen Savidge v. Air Wisconsin Airlines Inc., Insurance Company of the State of Pennsylvania, and the Industrial Claim Appeals Office of the State of Colorado: Ms. Savidge seeks review of the Industrial Claim Appeals Office’s denial of penalties against Air Wisconsin Airlines Inc. for termination of temporary disability benefits she received after suffering an injury at work. No.05CA2168, The People of the State of Colorado v. Jason L. Pecci: Mr. Pecci, who pleaded guilty to second-degree murder and was sentenced to 48 years in prison, seeks review of a trial court’s ruling denying him a hearing on his motion for post-conviction relief, in which he argued that his trial counsel was ineffective for failing to adequately investigate his theory of defense. The proceedings will begin at 9 a.m. Monday, Nov. 5, in the Liberty High School auditorium. A question-and-answer session, during which the students can ask questions of the attorneys, will follow the presentation of arguments in each case. At the conclusion of the second argument, the students also will be given the opportunity to participate in a question-and-answer session with the Court of Appeals judges. The court will issue the following decisions tomorrow, including 8 published opinions. Because of my schedule I will probably not have summaries posted until Tuesday: Published Opinions 05CA2137 Alliance for Colorado’s Families, a Colorado unincorporated
non-profit association v. Leland Gilbert and Division of Administrative
Hearings and Colorado Secretary of State Unpublished Opinions 04CA0353 People v. Steven Lee Forsyth October 29, 2007 Here are today's supreme court announcements. The court did not issue any opinions or grant cert. in any cases. October 25, 2007 Well, the Rockies are not off to a great start in the World Series. But frankly, I don't see them beating Josh Beckett, who is looking like a 21st century version of Sandy Koufax. Tonight could be a different story. Enough baseball. Here are today's court of appeals announcements. The court issued unpublished opinions only. October 24, 2007 The court of appeals will release the following unpublished decisions tomorrow: 03CA1460 People v. Andre M. Watkins October 22, 2007 For those of you who have given up, at least for the time being, on trying to buy World Series tickets, here's some appellate news. For free. Here are today's supreme court announcements. The court issued one decision, summarized below. The court also granted cert. in two cases. The questions in those cases appear below the summary. Finally, the summaries of last week's court of appeals decisions are below. A governmental water supply agency has the burden of demonstrating three elements in regard to its intent to make a non-speculative conditional appropriation of unappropriated water: (1) what is a reasonable water supply planning period; (2) what are the substantiated population projections based on a normal rate of growth for that period; and (3) what amount of available unappropriated water is reasonably necessary to serve that population for the planning period, above its current water supply. In addition, the governmental agency must show under the “can and will” test that it can and will put the conditionally appropriated water to beneficial use within a reasonable period of time. On the facts of the case, the supreme court determined that the water court had not made sufficient findings of fact for appropriate review of the water court’s judgment and decree. It therefore remanded the case for further findings. Justice Coats concurred in the judgment only, noting "While I agree that the judgment of the water court must be reversed and its conditional decree vacated, I do not agree with the majority’s rationale for doing so or its remand order. In my view, the water court’s error lies less in the inadequacy of its findings than in its failure to distinguish the reasonable time requirement of the 'can and will' test from the reasonableness of a municipality’s growth projections for purposes of the anti-speculation doctrine. Although the majority acknowledges, at least in principle, the independence of the 'can and will' standard, I fear that its explanation for reversing the judgment in this case can only perpetuate a fundamental misreading of Bijou and encourage governmental agencies and water courts alike to tie up the state’s water resources with conditional decrees long beyond the time reasonably required to complete a particular project and actually put the resulting water to a beneficial use." Justice Eid, joined by Justice Rice, specially concurred, concluding, "In my view, we should simply remand the case to the water court to make such findings. Because the majority goes beyond a simple remand -- instead giving a 'narrow construction' to our governing precedent of City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996), and imposing a de facto fifty year cap on water planning efforts in Colorado –- I respectfully concur in the result it reaches." Pagosa Area Water and Sanitation District v. Trout Unlimited The court granted cert. in these cases DeLaRosa-Ramirez v. People, No. 07SC159, on these issues: Whether the court of appeals erred by failing to consider petitioner’s challenge to the constitutionality of subsection (d) of the criminal impersonation statute, C.R.S. section 18-5-113(1), on grounds that the statute is both facially void for vagueness and unconstitutionally vague as applied to petitioner.
Whether the court of appeals erred in holding that the trial court’s failure to instruct the jury on the meaning of the word “might” in the criminal impersonation statute did not require reversal of petitioner’s conviction.
Whether the court of appeals incorrectly concluded that the district court did not err in permitting irrelevant and prejudicial testimony to be introduced to the jury through a prosecution witness.
Whether the court of appeals erred in holding that the prosecution introduced sufficient evidence to prove the elements of criminal impersonation beyond a reasonable doubt. Roberts v. People, No. 07SC430, on this question: Whether the court of appeals erred in holding that a theft by deception continues to be committed until it is detected; and therefore in holding that the various amounts of money the defendant surreptitiously took from his employer on different occasions constituted a single theft, unaffected by the statutory six-month limitation on aggregating the value of property stolen from multiple thefts; and in holding that the defendant’s sentence was mandatorily aggravated because he was on probation for another offense by the time these particular takings were detected. Here are last week's court of appeals announcements. The published opinions are summarized below. Trial court's refusal to instruct on the affirmative defense of duress was reversible error. Because the evidence presented by the defendant permitted an inference that a real threat existed and not merely a 'veiled threat of unspecified future harm,' the defendant was entitled to have his defense considered by the jury. The court also concluded that TSA employees are not “compensated employee[s] of a public law enforcement agency” for the purposes of C.R.S. § 16-10-103(1)(k) and therefore need not be excused from jury service for cause. People v. Speer The
definition of “insured” in C.R.S. § 10-4-703(6) applies
to the mandatory offer of collision coverage in § 10-4-710(3).
Section 10-4-710(3) therefore must be read to include collision coverage
for all “insured” drivers, including, as in this case, those
using the vehicle with the named insured’s permission. American
National General Ins. Co. v. Rivera In a case arising out of a garnishment proceeding under Rule 103, the court concluded that while the judgment creditor demonstrated no genuine issue of material fact as to a new insurance policy, there was some evidence that some coverage was in effect, in light an insurance policy provision requiring forty-five days notice for cancellation and the communications between the garnishee-insurer's employees that show the policy was extended. Therefore, genuine issues of material fact exist as to who was insured and summary judgment was inappropriate. Struble v. American Family Ins. Co. Interpreting C.R.S. § 18-4-401(1), the court concluded that “obtains or exercises control” over real property includes the conveyance of real property through a quitclaim deed. In other words, a person may obtain or exercise control over real property by obtaining or retaining an interest in real property without authorization and with the intent to deprive another person permanently of the use or benefit of such real property. Physical control over real property is not required. Thus, one may commit theft of real property by obtaining, retaining, or exercising control over a quitclaim deed with the intent to permanently deprive the grantor of the quitclaim deed of his or her interest in the property, contrary to the parties’ agreement. People v. Jensen The court of
appeals construed 43 U.S.C. § 912, based on its plain language,
as requiring a claimant to establish title to the property underlying
the right-of-way. It expressly authorizes the transfer of whatever reversionary
interest was held by the United States to “any person, firm, or
corporation, assigns, or successors in title and interest to whom or
to which title of the United States may have been or may be granted
. . . .” 43 U.S.C. § 912. Under this language, claimants to
a reversionary interest can succeed only if they are the holder of title
conveyed by the United States, an assignee of such title holder, or
a successor in title to such a person or entity. Trial
court did not err in refusing to allow plaintiff a reasonable opportunity
to develop through discovery facts which would have created one or more
material issues of fact for the trier of fact to resolve. The matters
plaintiff identified for discovery -- all of which pertained to the
circumstances surrounding his initial acquisition of insurance -- were
immaterial, in light of the fact that the insurer could, and did, subsequently
cure any deficiencies in the manner in which the insurance was initially
offered. Jewett
v. American Standard Ins. Co. of Wisconsin In an appeal in a dependency and neglect action, the court concluded that service pursuant to C.R.C.P. 5(b)(2)(D) of order terminating parental rights was the functional equivalent of service by mail for purposes of determining whether C.A.R. 26(c), the appellate counterpart to C.R.C.P. 6(e), applied to extend the deadline for filing a notice of appeal pursuant to C.A.R. 3.4(b). The express provision in C.A.R. 3.4(n) that C.A.R. 26(c) applies to the computation of filing deadlines set forth in C.A.R. 3.4, and the lack of a reference in C.A.R. 3.4(b) to C.A.R. 26(c), led the court of appeals to to conclude that three days must be added to the deadline for filing a notice of appeal pursuant to C.A.R. 3.4(b) when the order appealed is served on the parties by mail. Therefore, the appeal was timely. On the merits, however, the court affirmed the termination of parental rights. People In the Interest of S.M.A.M.A. October 17, 2007 The court of appeals will issue the following decisions tomorrow, including seven published opinions. I hope to have summaries of those posted by Monday. Published Opinions 05CA0206 People v. Tremaine D. Speer Unpublished Opinions 01CA0243 People v. Reynoldo Luna Flores October 15, 2007 Go Rockies! After a soaking wet but thoroughly enjoyable night at Coors Field, here are today's supreme court announcements. The court issued two decisions, summarized below. The court also granted cert. in two cases. The issues in those appeals are below the summaries. A physician subject to peer review of his treatment of patients at a private hospital must exhaust all peer review administrative remedies detailed in the Colorado Professional Review Act, sections 12-36.5-101 to -203, C.R.S. (2007), before seeking relief in court. The exhaustion requirement in subsections 12-36.5-106(7) and (8) applies even when a physician brings an action seeking money damages for common law claims allegedly arising out of the peer review process, rather than challenging the hospital governing board’s final decision. Because the governing board had yet to reach its final decision on the physician’s peer review, the physician had not exhausted his administrative remedies and his case was therefore not ripe for judicial review. In re Crow v. Penrose-St. Francis Defendant raised operational preemption as a defense in a summary judgment motion, but did not amend its answer. Raising the issue did not, in and of itself, constructively amend the answer. Because the plaintiff would would have been prejudiced by the untimely defense, the trial court did not abuse its discretion in not allowing defendant to proceed with the defense at trial. The operational preemption defense was waivable because it did not challenge the subject matter jurisdiction of the trial court. Town of Carbondale v. GSS Properties LLC The court granted cert. in No. 07SC583, Resources One, LLC v. Fera, on this issue: Whether the court of appeals erred in holding that Rule 16-10(F) of the workers’ compensation rules of procedure, 7 Colo. Code Regs. section 1101-3 (2007), and section 8-43-304(1), C.R.S. 2007, permit a claimant to pursue a claim for penalties against an employer for “unreasonableness” in denying prior authorization of medical treatment where the denial was made pursuant to the procedural requirements of Rule 16-10. The court also granted cert. in No. 07SC742, C.C. v. People, on these questions: Whether the “self-inflicted injury” limitation on standing applies in Colorado.
If the self-inflicted injury limitation on standing applies in Colorado, whether it should have been applied in Petitioner’s case.
Whether section 19-3-503(8)(b), C.R.S. (2006), which provides for service by publication of a single notice in child welfare cases, is unconstitutional on its face and as applied to Petitioner. October 12, 2007 The supreme court will issue the following two decisions on Monday. No. 05SC749, Town of Carbondale v. GSS Properties LLC No. 06SA323, In re Crow v. Penrose-St. Francis October 11, 2007 Here are today's court of appeals announcements. The court issued unpublished opinions only. The court of appeals' oral argument calendar for December is here. It appears from the list, however, that the only cases under consideration are ones for which oral argument was waived. Thus, it appears the court will not arguments in December. The supreme court has recently issued rules to show cause in the following two cases: No. 07SA296 District Court, City and County of Denver Case No. 06CV9591 (Judge John W. Madden, IV) In re: Appellant-Defendant: RENEE BRYANT, v. Appellee-Plaintiff: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. Synopsis: The petitioner, Renee Bryant, seeks relief from orders of the Denver County and District Courts denying her leave to proceed on appeal without posting an appeal bond to secure a money judgment against her despite her indigent status. On October 1, 2007 the Court issued a rule to show cause why the requested relief should not be granted. The Respondent, State Farm Mutual Automobile Insurance Company, is directed to file a written answer on or before October 31, 2007 and the defendant has thirty days from the receipt of the answer within which to reply. No. 07SA274 Gunnison County District Court Case No. 05CR69 (Judge J. Steven Patrick) In re: Plaintiff: THE PEOPLE OF THE STATE OF COLORADO, v. Defendant: RAVEN MACDONALD-BOULTER. Synopsis: The defendant, Raven MacDonald, seeks relief from a sentence the court imposed, after MacDonald violated the terms of his probation, requiring him to serve both a jail sentence that was suspended as a condition of probation and a new sentence to community corrections. On September 10, 2007 the Court issued a rule to show cause why the requested relief should not be granted. The Respondent, the People of the State of Colorado, is directed to file a written answer on or before October 1, 2007 and the defendant has twenty days from the receipt of the answer within which to reply. October 10, 2007 The court of appeals will release the following unpublished decisions tomorrow: 01CA2412 People v. Timothy J. Fenner October 9, 2007 Today's supreme court announcements are here. The court issued one decision, summarized below. The court granted cert. in one case. Bad
faith tort claims accrue independently of a workers’ compensation
proceeding. The court held that the claimant’s bad faith tort claims
were barred by the statute of limitations, and no facts supported equitable
tolling of those claims. The court also concluded that no fiduciary
or quasi-fiduciary relationship exists between a workers’ compensation
insurer and the insured. The court further held that the insurer’s
denial of treatment was a statement of a legal opinion, not a misrepresentation
of fact required to support a fraud claim. Finally, the court concluded
that the public nature of the workers’ compensation program does
not satisfy per se the public impact requirement for a claim under the
Colorado Consumer Protection Act. On this record, the facts did not
support a finding that the CCPA public impact element had been satisfied
in this case. Justice Martinez wrote the opinion for the court. Chief
Justice Mullarkey, joined by Justice Hobbs, concurred in part and dissented
in part, concluding that the fraud claims may have been actionable.
She concluded that the statements in the insurer's denial letter were
factual misrepresentations and would remand this case for further consideration
of the fraud claim. The court granted cert. in No. 07SC420, Yaekle v. Andrews, on these issues: Whether the Dispute Resolution Act, sections 13-22-301 to 13-22-313, C.R.S. (2007), requires that a settlement agreement reached through mediation be in writing and signed by all parties in order to be enforceable.
Whether the Dispute Resolution Act controls the enforceability of a settlement agreement formed by the parties’ actions subsequent to mediation or whether courts can rely on common law contract formation principles to enforce such an agreement.
October 5, 2007 The supreme court's oral argument calendar for October is here. The court will hold arguments October 23-25. The supreme court will issue one decision on Tuesday (Monday is a legal holiday), No. 06SC499 Brodeur v. American Home Assurance Company. I have finished the summaries of yesterday's published decisions from the court of appeals. The summaries are in yesterday's post. October 4, 2007 Here are today's case announcements from the court of appeals. The court released the following decisions. The nine published decisions will be summarized below the list within a few days: Published Decisions 04CA0514 People v. Bobby L. Baker Unpublished Decisions 02CA1358 People v. Charles A. Farrar The
extreme indifference first degree assault statute, C.R.S. § 18-3-202(1)(c),
contains no requirement that universal malice be proved, and therefore
a conviction for extreme indifference first degree assault may be upheld
where the defendant’s conduct is directed only at a single individual.
People
v. Baker Trial
court erred in restricting defendant's testimony and cross-examination
of the victim regarding intimate relationship between defendant and
victim. Such evidence was not barred by the Rape Shield Statute. Part
of the evidence the court said should have been allowed was testimony
of a so-called "rape fantasy." The court concluded that evidence
of the victim’s alleged rape fantasy, including her statements
to defendant concerning the fantasy, is not covered by the statute,
is material and relevant, and should have been admitted. Judge Vogt
specially concurred, concluding that the issue whether sexual fantasies
are deemed sexual conduct is an issue on which the courts have differed,
and that it was not necessary to decide that question at this time.
Judge Bernard specially concurred, concluding that the victim's statements
to the defendant about rape fantasy "are included within the scope
of sexual conduct, as that term is used in the Rape Shield Statute,"
but those statements come within an exception to the shield and are
admissible. People
v. Garcia Scope of officer’s
and deputy’s questions exceeded the proper scope of the public
safety exception and therefore questioning violated Miranda, and defendant's
statements should have been suppressed. The error was not harmless beyond
a reasonable doubt, so the court remanded for a new trial. People
v. Allen Plaintiffs lacked standing for their class action complaint alleging that alcohol advertisements encouraged underage children to use “family assets” illegally to purchase or consume alcoholic beverages. Kreft v. Adolph Coors Company Defendant contended the trial court violated his federal and state constitutional rights to be free from double jeopardy by imposing a sentence to incarceration on remand that doubled the length of the sentence originally imposed on that count from twelve years to twenty-four years. The court of appeals rejected that argument because the aggregate period of incarceration was not increased, but was reduced from forty-eight years to twenty-four years. People v. Woellhaf County lacked
standing to seek judicial review of a low-level radiation materials
license granted by the Colorado Department of Public Health and Environment.
The court concluded that the county did not have a legally protected
right in the license and, therefore, CDPHE’s actions did not constitute
injury-in-fact. Board
of County Commissioners of the County of Adams v. Colorado Department
of Public Health and Environment Court of appeals
remanded the denial of a preliminary injunction for further proceedings.
The court concluded that based on its review of the record, it was unable
to determine whether the district court’s finding that plaintiffs
failed to establish irreparable harm was the result of a rejection of
case law in support of plaintiffs’ irreparable harm proposition
or whether it is the result of a lack of evidence. In providing guidance
for the remand, the court concluded that loss of a contractual right
to manage and control a business may constitute irreparable harm; that
monetary damages are an inadequate remedy for such a loss; and that
a contractual right to participate in the management and control of
a business has intrinsic value in and of itself that may not be adequately
compensated by monetary damages. Gitlitz
v. Bellock District court erred in concluding that nearby landowner lacked standing to challenge city's approval of an application for a land use development project. Landowner, under the city's land use and municipal codes, had an independently-created legally-protected interest in ensuring that the City’s decision complied with applicable zoning regulations. Therefore, landowner had standing to seek judicial review under those codes. Reeves v. City of Fort Collins In another case involving a challenge to a waste permit by a county, the court of appeals affirmed the dismissal of the county's challenge for lack of standing. While the county had statutory to seek review with regard to a certificate of designation, it did not seek review of that certificate but instead sought review of the permit. It had no standing to do so because it has no legally-protected interest in the permit. Board of County Commissioners of the County of Adams v. Colorado Department of Public Health and Environment October 1, 2007 GO ROCKIES! Here are today's supreme court announcements. The court issued three decisions, summarized below, and granted cert. in one case. Plaintiff was injured by a fall at one of defendant’s retail stores. Because defendant is self-insured, it conducted the investigation of plaintiff’s claim and ultimately denied it. Plaintiff then brought a personal injury lawsuit against defendant. Plaintiff moved to compel the production of witness statements made to defendant’s claims adjuster during the course of defendant’s investigation. The trial court denied plaintiff’s motion. The supreme court concluded that was error. Because the witness statements were made to defendant’s claims adjuster during the ordinary course of defendant’s claim investigation, the court held they were not protected by the attorney work-product privilege. The court also held that the witness statements did not fall within the scope of the attorney-client privilege, as defendant’s attorneys were not involved in the investigation that produced the statements. In re Compton v. Safeway Answering a certified question from the United States District Court for the District of Colorado, the supreme court concluded that Colorado’s choice of law standard with regard to both a tort action and an award of prejudgment interest is the most significant relationship to the occurrence and parties test expressed in Restatement (Second) of the Conflicts of Laws §§ 145, 171 (1971). In re AE Inc. v. Goodyear Tire The trial court abused its discretion in denying plaintiff'’s motion for an extension of the deadline for Rule 26(a)(2) expert witness disclosures without conducting an inquiry into the harmlessness of plaintiff’s untimeliness. The supreme court reiterated its holding in Todd v. Bear Valley Village Apartments, which states that a trial court has a duty to sanction parties who fail to comply with certain discovery deadlines, “unless the party’s failure to comply is either substantially justified or harmless.” 980 P.2d 973, 975 (Colo. 1999). The record revealed that the trial court denied plaintiff's motion based solely on plaintiff's lack of substantial justification for missing the deadline. The court noted that this case may be an example of a harmless failure to comply, considering that opposing counsel obtained some information about plaintiff’s intended witnesses before the disclosure deadline. Thus, the court remanded for a determination of whether plaintiff’s untimeliness was in fact harmless. In re: Cook v. Fernandez-Rocha The court granted cert. in No. 07SC263, Goodyear Tire & Rubber Co. v. Holmes, on this issue:
Whether the court of appeals erred in allowing a plaintiff in a property-damage product-liability case to recover prejudgment interest on replacement costs from the date of the purchase of the product, which was nearly a decade before the replacement costs were incurred, more than doubling his recovery.
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