September 29, 2006 The supreme court will issue the following four decisions on Monday: 05SC203 People v. Manzo 05SC57 Roberts v. American Family 05SA318 In re Trujillo (no orals) 05SC812 City of Florence v. Booth Pepper Manzo was argued
in May, Roberts in January and the City of Florence case was argued
in June. Trujillo is a C.A.R. 21 proceeding seeking to quash a subpoena
duces tecum requiring defense counsel to turn over privileged and confidential
information. I will have summaries of those cases sometime on Monday. September 28, 2006 Court of appeals upholds preliminary injunction against Secretary of State, enjoining the secretary from enforcing Rule 1.14(b), recently adopted by the secretary. That rule, if implemented, would force labor and other covered organizations to get written permission before using an individual’s dues or contributions to fund political campaigns. At issue was whether the district court applied an incorrect legal standard and abused its discretion in determining that plaintiffs, various affected organizations and indiviudals, had shown a reasonable probability (1) that the Secretary of State exceeded her rulemaking authority in enacting Rule 1.14(b); (2) that Rule 1.14(b), as applied in this case, violates the First and Fourteenth Amendment rights of association of plaintiffs, and (3) that plaintiffs were entitled to a preliminary injunction prohibiting the Secretary of State from enforcing the new rule until further order of the court. The court of appeals concluded that the district court correctly applied the law and did not abuse its discretion, and therefore affirmed. The court kept in place a stay of the injunction until 4 p.m. Monday, and ordered that any additional request for a stay be filed in the supreme court. Expect this case to be appealed to the supreme court by Monday. Sanger v. Dennis (Disclosure: my firm represents the plaintiffs) Sanger was the only published decision issued today, and it was issued today because it was an expedited appeal (the appeal was filed September 19, the Opening Brief was filed September 22, the Answer Brief was submitted September 25, and oral argument was September 26). The rest of today's court of appeals announcements are here. Here is the list of unpublished decisions the court issued today: Nos.: 04CA2145 & 05CA0240 Jack J. Grynberg v. Sorrento West Properties,
Inc., et al. September 25, 2006 No supreme court announcements today. But so you won't go home empty-handed, here are last Thursday's announcements from the court of appeals. I didn't get them posted because I was out of town on business. The court issued 5 published decisions, summarized below. Defendant's acquittal of theft over $15,000 under the higher beyond a reasonable doubt standard does not collaterally estop the trial court from ordering restitution in an amount over $15,000 if it finds by a preponderance of the evidence that defendant stole property worth over $15,000. Estoppel did not apply because the burden of proof for proving restitution was only a preponderance of evidence. In other words, the acquittal on the theft charge does not mean that theft could not be proved by a preponderance of evidence for restitution purposes. People v. Pagan Court of appeals concludes, joining the majority of jurisdictions that have considered the issue, that juvenile adjudications fall within the Apprendi prior conviction exception, despite the lack of a right to jury trial in delinquency proceedings. Consequently, a sentencing court may determine, without the benefit of a jury finding, facts regarding juvenile adjudications and use them as a basis to impose an aggravated range sentence. People v. Mazzoni Covenant not
to compete held unenforceable. The majority concluded that the latency
period of the contract rendered it unreasonable. Judge Jones specially
concurred, concluding that the latency period was not unreasonable,
but held unreasonable the length of the period during which competition
was prohibited (three years) and the size of the geographic area in
which competition was prohibited during that three-year period. Reed
Mill & Lumber Co., Inc. v. Jensen Under the principle that prejudgment interest is damages, the prejudgment interest awarded must be reduced to a sum certain before the judgment containing the award becomes final for purposes of appeal. Under the facts of the case, the notice of appeal was timely filed, and the court therefore denied a motion to dismiss. Grand County Custom Homebuilding v. Bell A party seeking
review of a magistrate's decision must raise a particular issue in the
district court so that the district court may have an opportunity to
correct any error that may have been made by the magistrate. If a party
does not raise an issue before the district court in a petition for
review, but raises the issue on appeal for the first time, the party
seeks to have the court of appeals correct an error that could have
been corrected by the district court in a petition for review. If the
district court had an opportunity to correct such an error, then an
appeal might not have been necessary. Therefore, because father in dependency
and neglect case failed to present issue to district court for review
of magistrate's order, the issues was not properly preserved for appeal.
People
In the Interest of K.L-P. September 20, 2006 The court of appeals will release the following decisions tomorrow, including five published opinions: Published Decisions Nos.: 04CA0527 & 04CA0873 People v. Ervin Lee Pagan Unpublished Decisions No.: 03CA1282 People v. Mark A. Santini September 15, 2006 The supreme court will not issue case announcements next week. So I will not be posting again until next Wednesday. September 14, 2006 Today's court of appeals announcements are here. The court issued only unpublished decisions. The supreme court has added the following original proceeding to its original proceedings page: No. 06SA258 Arapahoe County District Court Case No. 05CV5350 (Judge Vincent White) In re: Plaintiff: RICHARD BILEDDO v. Defendant: VIVIAN YIP. Synopsis: Petitioner Vivian Yip seeks relief from the trial court’s order compelling her to supplement her Rule 26 disclosures with information and documents from her insurer’s liability insurance claim file, including insurance reserve and settlement authority information. Yip contends that production of these documents will cause harm that cannot be remedied upon appeal. On August 24, 2006, the court issued a rule to show cause why the requested
relief should not be granted. Respondent Richard Bileddo is directed
to provide a written answer on or before September 13, 2006. Petitioner
Yi may file a reply within twenty days of receipt of the answer. September 13, 2006 I'm back. I was at the 10th Circuit Bench & Bar Conference last week and have been tied up so far this week. I hope to get fully updated in the next couple of days, though. The conference was great, and I got to hear Justices O'Connor, Breyer and Alito speak. All were very good, and Justice Alito was knee-slapping funny. I'll be posting the supreme court summaries and cert. grants below, followed by a list of tomorrow's court of appeals decisions, and below that summaries of last week's court of appeals decisions (i.e., the published decisions from September 7). Here are Monday's supreme court announcements. The court issed 4 decisions, summarized below. The court also granted cert. in two cases, though it vacated and remanded one of those to the court of appeals for further consideration. The supreme court affirmed a decision transferring an attorney to disability inactive status, finding the record supported that determination by clear and convincing evidence. In its decision, the court noted that C.R.C.P. 37 permitted the PDJ, as a sanction for the attorney-respondent's failure to cooperate with an IME, to enter a sanction order allowing an adverse inference to be drawn. In the Matter of Bass In a water case involving the Taylor Park Reservoir, the supreme court affirmed a water court's decision dismissing, on summary judgment, on the basis of issue preclusion. The court noted that the issues of whether the proposed use of Taylor Park Reservoir was feasible and whether Natural Energy Resources Company (NECO) was likely to obtain the necessary permits to effectuate the conditional decree were finally adjudicated on the merits. And NECO, or a party in privity with NECO, had a full and fair opportunity to litigate these issues. The use of Taylor Park Reservoir as a forebay and afterbay and the pumping plant installation are necessary features of the original conditional decree. Thus, NECO was barred by issue preclusion from establishing that it "can and will" complete its project with diligence and in a reasonable amount of time because NECO cannot demonstrate that these features will be attained. Natural Energy Resources Company v. Upper Gunnison River Water Conservancy District The supreme court holds that the rule of Blakely v. Washington, 542 U.S. 296 (2004), does not apply to cases that were pending on direct review at the time the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000), but only to those cases that were pending on direct review at the time Blakely itself was decided. The court applied the U.S. Supreme Court's retroactivity analysis and concluded that Blakely announced a new constitutional rule of criminal procedure after Respondent Johnson's conviction became final, that the rule does not fall under the exception to the general rule of nonretroactivity of new procedural rules, and that Johnson is therefore not entitled to the benefit of the Blakely rule. People v. Johnson In response
to questions certified to it by the 10th Circuit, the supreme court
held that by specifying the amount of underinsured motorist coverage
an insurer must offer the named insured, as well as the conditions under
which the insurer may restrict its liability for injuries caused by
underinsured motorists to the limits of a single policy covering the
insured, subsection (2) of C.R.S. § 10-4-609 is integral to the
meaning of the phrase, "limits for uninsured motorist coverage
under the insured's policy," in subsection (4), and therefore to
the determination whether a motor vehicle is in fact underinsured. Considered
as a whole, § 10-4-609 indicate that a tortfeasor's motor vehicle
is underinsured whenever the limits of liability against which its use
is insured are less than the sum of the underinsured motorist coverage
declared in the injured party's policy and the underinsured motorist
coverage declared in all other applicable policies. In
re State Farm Mut. Auto Ins. Co. v. Progressive Mut. Ins. Co. The court granted
cert. in Steedle v. Sereff, No. 05SC811, on this issue: The court also granted cert. in French v. People, No. 06SC64, on whether the court deprived Defendant of his rights to due process and a jury trial when it imposed a sentence beyond the presumptive range based on the trial court's finding that aggravated circumstances were present. The court vacated the judgment of the Colorado Court of Appeals and remanded in light of People v. Isaacks, 133 P.3d 1190 (Colo. 2006), and People v. Huber, 139 P.3d 628 (Colo. 2006). The court of appeals will issue the following unpublished decisions tomorrow: No.: 04CA1287 People v. Bradley G. Busch Here are the court of appeals announcments from last Thursday, September 7. The court issued 16 published decisions, which I will summarize below. It was plain error for the trial court to impose an aggravated range sentencing for felony menacing based on its own finding that the defendant shot victim in the ankle. The jury did not find that fact and the defendant did not admit that fact, so the sentence was clearly improper under Blakely. People v. Elie Reversal required where defendant was denied the right afforded under Crim P. 24(d)(1) to additional peremptory challenges in class 1 felony cases. While the supreme court and the court of appeals have held that the requirement of additional peremptory challenges in C.R.S. § 16-10-104 in "capital cases" is inapplicable to first degree kidnapping cases where the victim had been liberated alive and the death penalty was thus statutorily unavailable, that is not the case with Crim. P. 24(d). The rule contains a provision not found in the statute. Crim. P. 24(d)(1) states: "For purposes of Rule 24 a capital case is a case in which a class 1 felony is charged." The court concluded that it could not decline to give effect to the plain language of this supreme court rule on a theory that the language was the result of oversight. Therefore, since the crime was charged as a class 1 felony, additional peremptory challenges were required under Crim. P. 24 and the trial court's failure to permit them was reversible error. Judge Russel specially concurred, concluding that there is a conflict between Rule 24 and § 16-10-104, and that because the issue was one of procedure, not substance, the rule prevailed over the statute. People v. Reynolds Trial court
erred in granting defendant’s motion for summary judgment and in
concluding that In case involving
termination of Medicaid Home and Community-Based Services for the Elderly,
Blind, and Disabled (HCBS) benefits, the court reversed the department
of health's termination of benefits. The ALJ had restored benefits,
but the department reversed the ALJ. The court of appeals, though, rejected
the department’s argument that the ALJ’s factual findings
(which supported continuation of benefits) were the result of a misinterpretation
and misapplication of the law and that the office of appeals was not
bound by such findings when reversing the initial decision on legal
grounds. Reiff
v. Colorado Department of Health Care Policy and Financing Assignee of recipients of unsolicited fax advertisements from defendants lacked standing to bring suit on behalf of fax recipients under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b). The court concluded that "an action based upon the receipt of unsolicited faxes by individuals in violation of the TCPA is not assignable because such an action is in the nature of a violation of the right to privacy." McKenna v. Oliver Analysis set forth in the workers’ compensation cases on the scope of employment and the going-and-coming rule should not be applied in the respondeat superior context. Therefore, plaintiff could not recover on respondeat superior theory from employer whose employee injured plaintiff in a car accident that occurred outside the employee's service area (i.e., the area in which he drove his car on behalf of his employer) on employee's way home from work. Stokes v. The Denver Newspaper Agency, LLP Only a party’s challenge to the factual, evidentiary findings of the ALJ must be supported by transcripts made available for the agency’s review. No transcript is necessary when a party challenges the ALJ’s conclusions of law and findings of ultimate fact. The Department of Health reversed both factual findings and legal conclusions of the ALJ in determining that Plaintiff was no longer eligible for HCBS benefits. The district court reversed holding that since the department reversed findings of fact, a transcript was required. The court of appeals agreed, concluding that because the department did not have transcripts of the ALJ hearing before it, the dpeartment it could not reverse the factual findings and therefore could not reverse the initial decision awarding benefits. Rigmaiden v. Colorado Department of Health Care Policy and Financing Under the circumstances
of this case, the court of appeals concluded, as a matter of law, that
filing The phrase “appeared in the action” as used in C.R.C.P. 55(b) requires that a defendant communicate with the court in a manner that demonstrates to the court that the defendant is aware of the proceedings and intends to participate in them. Settlement discussions with opposing counsel is not sufficient to constitute "an appearance." Therefore, defendant was not entitled to Rule 55(b)'s 3-day notice, as that requirement was not triggered. The court of appeals did vacate and remand for further proceedings on the court's denial of the motion to set aside the default judgment. The trial court’s order did not address the defendant's allegations that the default judgment should be set aside on the basis of fraud, misrepresentation, or other misconduct of an adverse party. Plaza del Lago Townhomes Association, Inc. v. Highwood Builders, LLC Where Board’s sole purpose in conducting two executive sessions was to enforce its personnel policies, and did not need to exercise its discretion, but only follow the plain language of the personnel rules, Board's actions were administrative not quasi-judicial. Therefore, plaintiff was not entitled to judicial review of the Board’s decision under C.R.C.P. 106, but instead was entitled only to review by the district court of the hearing officer’s decision, and review by the court of appeals of the district court’s order affirming the hearing officer. Bourgeron v. City and County of Denver Court rejects plaintiff's argument that C.R.S. § 13-17-201 was inapplicable to her case. The court rejected the plaintiff's claims that when it dismissed plaintiff’s complaint, the trial court effectively determined that plaintiff’s action was grounded, not on tort law, but on the federal laws governing collective bargaining agreements and that § 13-17-201 is itself preempted by federal law. The court did conclude that the trial court erred in awarding interest from the date of dismissal: "We conclude that, within the meaning of § 5-12-102(4), the pertinent “judgment” was issued not on July 16, 2002, when the underlying action was dismissed, but on April 14, 2005, when the trial court issued its final appealable order determining the amount of fees and costs." Kennedy v. King Soopers Inc. While the failure
properly to maintain a vehicle may be fairly characterized as incidental
to the operation of the vehicle, the conduct associated with negligent
entrustment and negligent hiring, Trial court
properly admitted testimony even though defendant did not comply with
the procedures of the rape shield statute, C.R.S. § 18-3-407(1).
The testimony from the victim's mother was that the mother had previously
told her daughter about her own prior sexual abuse and urged the daughter
not to make the mistake of failing to tell anyone about it. The court
of appeals held the trial court did not err in allowing it: "the
trial court here properly concluded that the rape shield statute did
not bar evidence of the mother’s statement to her daughter about
her own prior sexual C.R.S. §
14-10-131(1) does not apply to a motion for modification of parenting
time. And absent a previous motion of the type described in § 14-10-129(1.5),
father’s motion was not subject to the two-year rule set forth
in that subsection. Because father’s motion to modify parenting
time was Based on the plain language of C.R.S. § 8-43-404(5)(a) and the cases interpreting that subsection, the statute allocating the right of first selection to employer precludes an award of medical benefits to claimant for the treatment received by decedent before he filed his claim. Bunch v. Industrial Claim Appeals Office Hearing officer
and the Panel erred by treating claimant's her transfer as a separation
from employment and her tenure with employer as separate periods of
employment with different employers. The claimant’s interstate
transfer was not a separation from her employer and employment. Therefore,
the hearing officer and the Panel erred in entering a disqualification
under C.R.S. § 8-73-108(5)(e)(IV). Dewhurst
v. Industrial Claim Appeals Office September 6, 2006 Here's the list of decisions the court of appeals will announce tomorrow, including 16 published decisions. I won't be able to summarize the published decisions until next week, and won't have any more posts this week: PUBLISHED OPINIONS No.: 04CA0940 People v. Sheldon Elie UNPUBLISHED OPINIONS No.: 02CA1208 People v. Duane Edward Trujillo September 5, 2006 The supreme court issued no announcements today. The court of appeals will issue published decisions on Thursday, but I will be unable to post that day because, ironically, I will be moderating a panel on legal blogging. I will post summaries early next week.
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