September 30, 2004 The court of appeals case announcements for today are here. September 29, 2004 The district court has issued its decision in the Colorado General Assembly's challenge to the Governor's exercise of the line-item veto. The order is here. The court of appeals will issue no published decisions tomorrow, but will issue the following unpublished decisions: No.: 01CA1182 People v. Robert Steven Mach September 27, 2004 The supreme court announcements for today are here. The court issued no decisions and did not grant cert. in any cases. September 24, 2004 The supreme court will issue no new decisions on Monday, only announcements on cert. petitions. If the court grants cert. in any cases, I'll let you know. Have a good weekend. September 23, 2004 The court of appeals announcements for today are here. The court issued 8 published decisions, which are summarized below. For
claims of constitutional error that are not objected to at trial, the
appellate court must first determine whether there was an error, and,
if so, whether it was plain, and whether it affected the defendant's
substantial rights. If the court concludes there was plain error that
affected substantial rights, it must then apply the correct standard
to determine whether reversal is required. The court upheld
most of the defendant's convictions but did reverse three convictions
for aggravated motor vehicle theft because the jury instruction at issue
not only defined the offense stated in the charging document, but also
incorporated an alternative element that defined an uncharged crime.
Because the constructive amendments added an uncharged crime, they were
not merely technical changes; they were substantive and prejudicial.
People
v. Petschow DOC's drawing of defendant's blood for use in an offender DNA database did not violate the Fourth Amendment: "When balanced against a prisoner's greatly reduced expectation of privacy and the minimally intrusive nature of a blood draw, the significant governmental interests identified above have been found sufficient to justify suspicionless collection and testing of DNA samples from prisoners." The court concluded that although the blood draw was not authorized by statute on the facts of the cases, the DOC acted in good faith and did not willfully violate the statute, and therefore suppression was not required. People v. Shreck General Assembly intended C.R.S. § 14-10-113(7)(b) to have retroactive effect, and statute is not unconstitutional retrospective legislation. The effect of the amended statute is that a revocable trust does not constitute an asset or property of a spouse in a dissolution of marriage action. In re Marriage of Balanson Denial of motion to intervene filed by attorneys-lienors did not affect their interests as lienors because they have not been precluded from collecting their judgment or initiating a collection action for the remainder of their fees. In re Marriage of Shapard and Concerning Jorgensen C.R.S. § 8-43-304(1) does not violates the taking clauses of the Colorado Constitution and the Constitution of the United States. Moland v. Industrial Claim Appeals Office Although a motion for change of venue under C.R.S. § 16-6-102 is committed to the sound discretion of the trial court, where the trial court denies a motion to dismiss asserting that original venue in a specific county was improper under C.R.S. § 18-1-202, the court's legal conclusion that the county was an appropriate venue is subject to de novo review. In addition, the court held that although Denver police officers were acting outside of their statutory authority under C.R.S. § 16-3-106 when they arrested defendant in Adams County, suppression of the evidence obtained was not required where the statutory violation was neither willful nor so egregious as to violate the defendant's constitutional rights. People v. Ray Insurance
policy required insurer to send a notice of cancellation to husband
as well as wife, and thus failure to send notice to husband rendered
purported cancellation ineffective. Geiger
v. American Standard Ins. Co. of Wisconsin Until state court receives actual notice of removal under 28 U.S.C. § 1446(d), the state court retains jurisdiction over the case and may proceed. Therefore, state court had jurisdiction to revive judgment against defendant, despite the fact that defendant had petitioned to remove the case to federal court, because state court did not receive actual notice until after order reviving judgment had entered. Invisible, Inc. v. Tillison September 22, 2004 Click here for the list of decisions the court of appeals will release tomorrow. The court will issue eight published decisions and many more unpublished ones. September 20, 2004 Here are the summaries of last Monday's supreme court decisions: It
was improper for the jury to consider information acquired through the
Internet during deliberations. The
supreme court upheld the court of appeals' decision ordering a new trial,
applying an objective test to determine whether the juror misconduct
affected the outcome of the trial. The relevant question is whether
there is a reasonable possibility that the extraneous information affected
the verdict to the detriment of the defendant. The defendant need not
show actual prejudice. People
v. Wadle General Assembly, in C.R.S. § 43-1-208(3), granted CDOT implied authority to condemn lands needed for construction of a parking and transit facility bearing a sufficiently direct and functional relationship to a state highway improvement project. Dept. of Transportation v. Stapleton Under CRS § 37-92-305(9)(b), the "can-and-will" statute, a conditional water right may be granted where the current denial to access to property is not final and the proposed reservoir enlargement is technically feasible despite the existence of contingencies. On the facts of the case, the discrepancy between the location of the proposed reservoir enlargement in the application for conditional rights and the actual location of the reservoir site was "immaterial" and did not require republication of an initial application where the interested parties were provided with adequate inquiry notice. Application for Water Rights/Black Hawk v. Central City CRS § 16-5-205.5 does not grant a party named in a grand jury report the right to inspect the grand jury record. The majority concluded that neither the language of the statute nor procedural due process principles required otherwise. Justice Martinez, joined by Justice Bender, dissented, concluding that when a grand jury report fails to specify the evidence underlying its conclusions, parties may need more information to respond adequately to the report. In such cases, the dissent said, some discovery should be allowed. Grand Jury Concerning City of Black Hawk A party cannot amend its complaint to raise a new claim after all of the issues have been raised on appeal and the case is remanded for an award of costs to the prevailing party. The court held that when the only issue remaining for the trial court to decide is costs, there is a final judgment and the case is effectively over. Once there is a final judgment, the parties may pursue appellate review, but the trial court may not entertain a motion to amend. Civil Service Commission v. Carney
The supreme court case announcements for today are here. The court didn't grant cert. in any cases. September 17, 2004 The supreme court will issue no decisions next Monday. If the court grants cert. in any cases, I will let you know. Also, I promise to post summaries of last Monday's supreme court decisions by the end of next Monday. I apologize for the delay. September 16, 2004 The court of appeals' announcements for today are here. The court issued only unpublished decisions. September 15, 2004 The list of cases the court of appeals will release tomorrow is here. The court will issue unpublished decisions only. September 13, 2004 The supreme court case announcements for today are here. The court issued five decisions. Links to those decisions follow below. Summaries will be added when my schedule permits, which is likely to be late in the week and possibly next Monday. The court also granted cert. in 4 cases. The questions presented in those appeals are listed below as well. People
v. Wadle The court granted cert. in these cases: Whitman Farms, LLC v. Encana Energy Resources Inc., No. 03SC652: Whether the court of appeals erred by holding that the burden of proof is on the lessor to show breach of the implied covenant of reasonable development in an oil and gas lease.
Whether the court of appeals erred in holding that this Court’s ruling in Gerrity Oil and Gas Corporation v. Magness, 946 P.2d 913 (Colo. 1997), was inapplicable to instances in which an owner of the surface also owns the underlying mineral estate.
Whether the court of appeals erroneously found that the existence of a pooling agreement abrogates the obligations of a working interest owner to honor the implied covenants which are inherent in all oil and gas leases. Sooper Credit Union v. Sholar Group Architects, P.C., No. 04SC206:
Whether the arbitrator had the authority to correct his award to remedy an evident misdescription or “evident miscalculation of figures” where he acknowledged a miscalculation resulting in a “double recovery” to plaintiffs.
Whether the court of appeals erred in its interpretation of C.R.S. section 13-22-211 by adding a requirement that an ambiguity be evident in the face of the initial award.
Whether the arbitrator exceeded his power because he properly redetermined the merits when he corrected his initial award to eliminate his admitted miscalculation. Keller v. Koca, No. 04SC204: Whether defendant, the owner of a dry cleaners, owed plaintiff, a family friend of the manager of the dry cleaners, a duty to prevent the manager from sexually assaulting plaintiff on a Sunday morning, when the establishment was closed for business, and defendant did not know the manager was bringing plaintiff to the establishment. Board of Directors, Metro Wastewater Reclamation Dist. v. City of Thornton, No. 04SC527:
Whether the trial court erred in dismissing Metro’s petition for lack of subject matter jurisdiction.
Whether the trial court erred in finding undisputed facts. September 11, 2004 The court of appeals' oral argument calendar for November is here. September 10, 2004 The supreme court will issue the following five decisions on Monday: People
v. Wadle, No. 03SC340 I will try to do summaries as soon as possible, but unfortunately I've got a big brief in a criminal appeal that may delay my blogging for several days or more. Your patience is appreciated. I will, however, be sure to post links to the decisions so at least you can get at them easily. Of course, if you all promise to read the cases, I won't have to summarize at all. That would give me time in the near future to scrape the barnacles off my golf game. September 9, 2004 The court of appeals case announcements for today are here. The court issued 12 published decisions and many unpublished ones. The published decisions will be summarized below. I'll have to summarize them in groups, so please check back if you don't see all the summaries. They'll be there, as my uncooperative work schedule permits. Thanks. Nathan Dunlap's Burger King robbery case: Dunlap, who was sentenced to death for the Chuck E. Cheese murders, was tried and convicted of aggravated robbery, kidnapping, and theft in connection with a robbery of a Burger King before the Chuck E. Cheese crimes. On a Crim. P. 35(c) motion, the district court had vacated Dunlap's sentences for two counts of second degree kidnapping after concluding that the instructions and verdict forms did not adequately instruct the jury that the sentencing enhancers must be proved beyond a reasonable doubt. The court of appeals reversed. While the court agreed that the instructions and verdict form did not adequately inform the jury that it must find the enhancement factors beyond a reasonable doubt, the court held that there was no plain error because under the factual record there was no danger of a mistaken conviction. The court of appeals affirmed the district court's rejection of Dunlap's various ineffective assistance of counsel claims. People v. Dunlap Admission at trial of testimony concerning arrest warrant was plain error, requiring reversal of conviction. On the record, where the evidence of guilt was not overwhelming and the defense was self-defense, the improper testimony, along with misstatements by the prosecutor, sufficiently undermined the court's confidence in the reliability of the judgment of conviction. People v. Mullins Elements of adverse possession were not met where vendee entered a contractual relationship that recognized superior title. Allowing adverse possession would be tantamount to allowing breach of duty of fidelity and avoidance of contractual recognition that vendee held the property for the benefit of the vendors. Sleeping Indian Ranch, Inc. v. West Ridge Group HIV is capable of causing injury or harm to another person for purposes of the felony menacing statute. Therefore, conviction for felony menacing was upheld where evidence showed that defendant stated he was HIV positive, pinched and scratched the victim, and attempted to bite him. People v. Shawn Trial court erred in failing to apportion settlement proceeds between economic and non-economic damages and in failing to recognize insurer's subrogation rights. Where a settlement is reached with a third-party tortfeasor, the insurer's subrogation interest extends to the settlement proceeds. On remand, the trial court must determine the actual amounts of economic and non-economic damages and apportion the settlement proceeds accordingly. Reliance Insurance Co. v. Blackford (previously released as an unpublished decision). Partial assignment of breach of warranty claim to title insurer did not prohibit assignor from bringing separate action against seller. Claim was assigned only to the extent assignor was compensated by title insurer. Bedard v. Martin Where plaintiff failed to request specific findings by the jury regarding past and future damages and failed to demonstrate on appeal that her damages are subject to C.R.S. § 5-12-102, the trial court did not err in refusing to award prejudgment interest. In addition, the court held that a statutory offer of judgment served by fax was proper under C.R.C.P. 5. Dillen v. HealthOne, L.L.C. Court of appeals vacates sentence in aggravated range and remands for further proceedings in light of Blakely v. Washington, concluding that defendant had not waived her right to a jury determination of the aggravating factors by pleading guilty to the charged offense. I expect there will be many more Blakely cases coming down in the near future. People v. Solis-Martinez Trial court erred in granting summary judgment against plaintiff in attorney malpractice action. The plaintiff asserted that, on advice of counsel, she declined, on Fifth Amenmdnet grounds, to cooperate with her employer (the Arapahoe County Sheriff) in an investigation of her allegedly tampering with medical records. Her (public) employer had agreed that her statements would not be used against her, and therefore she had no Fifth Amendment privilege not to cooperate. Accordingly, an issue of fact existed on whether her lawyer's advice fell below the reasonable standard of care. Backstreet v. Hopp & Flesch, LLC Court of appeals declines to recognize a public policy exception to Full Faith and Credit. Craven v. Southern Farm Bureau Casualty Insurance Company ALJ may assess penalties against an injured worker for refusing to abide by the PALJ's order pending review by the ALJ. Kennedy v. ICAO Where
there were two separately ratable impairments for the same industrial
accident, the ALJ correctly determined that C.R.S. § 8-42-107(7)(b)(II)
precluded conversion of the scheduled disability rating to a whole person
impairment rating. September 7, 2004 The supreme court case announcements for today are here. The court issued no decisions, but did grant cert. in two cases: Argus Real Estate,
Inc. v. E-470 Public Highway Authority, No. 04SC100, addressing this
issue September 3, 2004 Have a happy, fun and safe Labor Day weekend. If you're driving, don't drink. And if you're drinking, don't drive. The supreme court has posted a calendar of its oral argument days for 2004-05. The calendar can be found here. The court will hold arguments on three days in the following months: September, October, December 2004, and January, March, May, June 2005. Argument days are generally Mondays, Tuesdays, and Thursdays, except September 2004 (Monday, Tuesday, Friday) and May 2005 (Monday, Wednesday, Thursday). If the supreme court issues case announcements on Tuesday, September 7, I will have them here for you and will summarize any decisions. The court of appeals case announcements from yesterday are here. The court issued unpublished decisions only.
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