September 28, 2007 The supreme court has recently issued rules to show cause in the following original proceedings: No. 07SA219 Weld County District Court Case No. 06CR1891 (Judge Gilbert A. Gutierrez) In Re: Plaintiff: THE PEOPLE OF THE STATE OF COLORADO, v. Defendant: ANDRE DANIEL CHAVEZ. Synopsis: Petitioner the People of the State of Colorado seek relief from the trial court, which sanctioned the People by ordering (1) a jury instruction stating that an investigative officer’s conduct had been unethical and unprofessional and constituted misconduct that the jury could consider in reaching its verdict, and (2) excluding the same officer from participating or testifying in the trial. That officer had videotaped a conversation between defense team members that was held at the police station but that the defense believed to be private, and may have contained work product. On July 26, 2007, the Court issued a rule to show cause why the requested relief should not be granted. Respondent, Andre Chavez, is directed to file a written answer on or before August 27, 2007. Petitioner, the People of the State of Colorado, has thirty days from receipt of the answer within which to reply.
No. 07SA249 El Paso County District Court Case No. 06CV1369 (Judge Timothy J. Simmons) In Re: Plaintiff: DAWN E. HOYAL, surviving spouse of Arbuth Jay Hoyal, and Dawn E. Hoyal, as Personal Representative of the ESTATE OF ARBUTH J. HOYAL, v. Defendant: PIONEER SAND COMPANY, INC.
On August 15, 2007, the Court issued a rule to show cause why the requested relief should not be granted. Respondent, Dawn E. Hoyal, is directed to file a written answer on or before September 14, 2007. Petitioner, Pioneer Sand Company, Inc. has thirty days from receipt of the answer within which to reply. September 27, 2007 The court of appeals' announcements for today are here. The court issued the following unpublished decisions (no published decisions this week): 05CA0349 People v. Mark Irlanda September 24, 2007 The supreme court had no case announcements today. But so you won't go away empty-handed, here are the summaries of last Thursday's court of appeals published decisions: Defendant's conviction and enhanced sentence for stalking were not unconstitutional. C.R.S. §§ 18-9-111(4)(b)(III) and (5)(b) are neither vague nor overbroad. The evidence supported the conclusion that the defendant engaged in a pattern of vexatious litigation by intentionally filing numerous lawsuits to the victim without notice to put her at a significant legal disadvantage, deprive her of her property without due process of law, and cause her serious emotional distress once she learned of the filings. People v. Richardson Trial court denied defendant's right to counsel by not appointing public defender, after public defender's office concluded defendant did not qualify. The evidence suggested the defendant should have qualified for the public defender's services. Defendant state that he made only $10,000 the previous year, below the guideline level. His public defender application indicated that he had no monthly income with monthly expenses of $1900; he had no equity in his home because the value of his house was less than the mortgage against it; and his listed assets were worth less than a few hundred dollars. The information on defendant's application showed that he was indigent. There is nothing else in the record to show that the information on defendant's application was incorrect. Thus, it appears on the basis of this record that defendant should have qualified for the public defender's services. People v. Steinbeck In Premises Liability Act case (C.R.S. § 13-21-115), trial court did not err in striking defendant's affirmative defenses comparative negligence or pro rata liability defenses (C.R.S. §§ 13-21-111 and 13-21-111.5). Neither the legislative history nor the plain language of a recent statutory amendment showed an intent to clarify; therefore, the presumption that the amendment was a change in the law was not rebutted. The result was that the landowner could not reduce its liability based on either the negligence of persons coming onto their land or the fault of nonparties. Justice Rovira, sitting by assignment, dissented on this point, concluding it was error to strike the affirmative defenses. Martin v. Union Pacific Railroad Company Court rejected defendant's argument for insufficiency of the evidence for his conviction for use of a stun gun. Defendant contended the prosecution's expert witness, whose testimony established an element of the offense, lacked adequate foundation and therefore the evidence was insufficient to convict. But the court of appeals concluded that since the defendant failed to object to the expert's testimony, he waived his insufficiency of the evidence argument. The court also concluded that looking at the term "use" in its statutory context, C.R.S. § 18-12-106.5 unambiguously creates a separate crime whenever a stun gun facilitates commission of the predicate offense, whether or not it is discharged. People v. Wheeler Under Blakely, the district court was not required to give the defendant an advisement that he had the right to have a jury decide whether he contacted and threatened the victim in violation of his conditions of probation. The court of appeals concluded that the defendant had no such right. So defendant's admission that he violated conditions of probation could be used by the trial court to demonstrate "extraordinary aggravating circumstances" justifying an aggravated sentence. People v. Villanueva In Rule 106 action, the trial court properly concluded that the board of county commissioners abused its discretion in approving a PUD because the PUD lacked year-around access to the state highway system. Therefore, the matter was properly remanded to the board for further proceedings. Wolf Creek Ski Corporation v. Board of County Commissioners of Mineral County Trial court erred in granting summary judgment in favor of insurer on a claim of violation of the No-Fault Act. Questions of material fact existed with regard to whether doctor's bills were reasonable proof of injured insured's expenses and whether the treatments and charges were reasonable. If the bills established proof of reasonable expenses otherwise recoverable under the No-Fault Act, insurer violated the Act by by refusing to pay them. The court rejected the insure'rs argument that the bills were unreasonable as a matter of law. The court also remanded for further proceedings on plaintiffs' request to certify a plaintiff class. Reyher v. State Farm Mutual Automobile Insurance Company In a case brought under the Colorado Whistleblower Act, C.R.S. §§ 24-50.5-101 to 107, the trial court did not err in instructing the jury that the University would be entitled to a verdict in its favor if it could prove that it would have reached the same decision regarding a salary increase for plaintiff even if plaintiff had not made the "whistleblower" disclosures. Taylor v. The Regents of the University of Colorado Although beneficiaries' claims related to trust instrument, they arose out of and related to account agreement that contained an arbitration provision. Therefore, they were arbitrable, and the district court erred in not compelling arbitration. Smith v. Multi-Financial Securities Corporation Process of elimination can be an acceptable scientific method. Therefore, expert testimony employing process of elimination to determine cause of fire was admissible. Farmland Mutual Insurance Companies v. Chief Industries, Inc. Principles of res judicata (claim preclusion) bar subsequent abatement-refund petition for the same property for the same tax years. Red Junction, LLC v. Mesa County Board of County Commissioners Storage tank on which plaintiffs were working fell within the statutory meaning of an improvement to real property as a matter of law, and therefore property owner qualified as plaintiffs' statutory employer. It was therefore immune from suit under C.R.S. §§ 8-41-102 and 8-41-402. Barron v. Kerr-McGee Rocky Mountain Corporation In an action under the now repealed No-Fault Act, the court concluded that that a pickup truck with a rated load capacity in excess of 1500 pounds qualified as a "nonprivate passenger motor vehicle" within the meaning of the applicable statute. Therefore, Farmers was allowed to bring a subrogation action against the truck's driver (who struck Farmers' insured). Farmers Insurance Exchange v. Allstate Insurance Company Trial court did not err in allowing county Department of Human Services to file a motion for summary judgment only twenty-one days before the adjudicatory hearing in a dependency and neglect proceeding. While C.R.C.P. 56(c) (as amended effective June 28, 2007) provides that, unless otherwise ordered by the court, any motion for summary judgment shall be filed no later than eighty-five days prior to trial, C.R.S. § 19-3-505(3) requires adjudicatory hearings to be held no later than sixty days after service of the petition for children under six. Thus, a social services department wishing to file a motion for summary judgment cannot comply with both the statute and the rule. Because there is a conflict between a statute and a rule of civil procedure, the rules "do not govern procedure and practice in any special statutory proceeding insofar as they are inconsistent or in conflict with the procedure and practice provided by the applicable statute." C.R.C.P. 81(a). Therefore, the timing of § 19-3-505(3) controlled. People In the Interest of A.C., III Mother had standing
under § 1914 of the Indian Child Welfare Act to petition to invalidate
the order terminating the parent-child legal relationship with her son,
notwithstanding the fact that the child was not in her physical care.
Addressing the sufficiency of notice under the ICWA, the court of appeals
noted that the father's advisement to the court that he was one-quarter
Apache and his belief that he was entitled to enroll in an Apache tribe
was sufficiently reliable to require further inquiry regarding father's
tribal heritage and notice to Apache tribal authorities regarding the
disposition and termination hearing. Under applicable guidelines notice
of the Colorado proceedings had to be sent to the BIA office in Albuquerque,
New Mexico, not the BIA office in Washington. Therefore, the notice
to the BIA in this case did not sufficiently comply with the ICWA. People
In the Interest of J.O. September 21, 2007 The supreme court will issue no announcements on Monday. The court of appeals' announcements from yesterday are here. The court issued 15 published opinions. I hope to have summaries posted on Monday or Tuesday. September 19, 2007 The court of appeals will issue the following decisions tomorrow, including 15 published opinions. Due to my schedule, I won't be able to get summaries up until Friday or Monday: Published Opinions 04CA2121 People v. Lewis Paul Richardson Unpublished Opinions 04CA0971 People v. Joshua J. Vigil September 17, 2007 Here are today's announcements from the supreme court. The court issued no new decisions and did not grant cert. in any cases. September 13, 2007 Here are today's court of appeals announcements. The court issued unpublished opinions only. September 12, 2007 The court of appeals' oral argument calendar for November is here. The court of appeals will issue the following unpublished decisions tomorrow: 04CA2266 People v. Jimmy Joseph Vasquez September 11, 2007 Here are yesterday's supreme court announcements. The court issued five decisions and granted cert. in three cases. Summaries and questions presented appear below. Summaries of last week's court of appeals published decisions appear below those. C.R.S. §24-10-103(2) of the governmental immunity act defines an "injury" as including "death." In a wrongful death action, the operative injury is the wrongful death itself. Therefore, § 24-10-114(1)(a) of the CGIA limits damages to $150,000 in a wrongful death case to which it applies. The supreme court noted that if death were not the operative injury for actions brought under the Wrongful Death Act, then the word "death" in the CGIA statutory definition of "injury" would be rendered meaningless. Steedle v. Sereff The supreme
court Court holds that a lab report is a testimonial statement subject
to Crawford v. Washington, 541 U.S. 36 (2004). Lab reports are prepared
in preparation for prosecution of a crime, and thus belong to the core
class of testimonial statements made under circumstances “which
would lead an objective witness reasonably to believe that the statement
would be available for use at a later trial.” The court then upheld
the constitutionality of C.R.S. § 16-3-309(5), holding that the
procedural requirements in the statute do not deny the right of confrontation.
The procedure provided in the statute for ensuring the presence of the
lab technician at trial simply requires that the opposing party decide
prior to trial whether he will conduct a cross-examination. On the facts
of the case, the court held that the defendant waived his right to confront
the technician who prepared the report at trial by failing to comply
with § 16-3-309(5). The court said that defense counsel may waive
a defendant’s right to confront the technician who prepared a lab
report by not complying with the procedural requirements of section
16-3-309(5). Justice Rice wrote the majority opinion. Justice Martinez,
joined by Justice Bender, dissented. Justice Martinez agreed that lab
reports are testimonial statements subject to Sixth Amendment protections.
But he disagreed with the majority’s holding that § 16-3-309(5)
can be constitutionally applied without a proper waiver of the right
to confront. He noted that the majority eliminated the requirement of
a voluntary, knowing, and intentional waiver, and thereby eliminated
the condition upon which the constitutionality of § 16-3-309(5)
was predicated. Hinojos-Mendoza
v. People Applying Hinojos-Mendoza (see the immediately preceding summary), the supreme court held that by failing to comply with § 16-3-309(5), defense counsel may waive the defendant's rights. Justice Martinez, joined by Justice Bender, dissented as they did in Hinojos-Mendoza. Coleman v. People The supreme
court affirmed the judgment of the water court holding that the unambiguous
language of the canal company’s bylaws extended liability to stockholders
seeking a change of water right only for the legal and engineering expenses
incurred by the board in determining whether and upon what conditions
to approve the stockholders’ requested changes, and not for additional
costs and fees incurred in defending the board’s decision in subsequent
legal proceedings. Fort
Lyon Canal Company v. High Plains A&M LLC The supreme court upheld the water court’s conclusion that the Upper Eagle Regional Water Authority’s application for augmentation and exchange resulting in out-of-priority depletion would cause no injury. The court concluded that the water court properly relied on projected depletion rates based on estimates rather than actual rates. Upper Eagle Regional Water Authority v. Simpson The supreme court granted cert in these cases: Lomard v. Colorado Outdoor Educ. Center, Inc., No. 07SC166, on these questions: Whether the Colorado Premises Liability Act, section 13-21-115, C.R.S., abrogates the common law principle of negligence per se in the premises liability context.
Whether courts may presume that landowners have knowledge of the particular provisions of building codes, or other similar codes, in a premises liability case. Henderson Heavy Haul Trucking, Inc., No. 07SC210, on this issue: Whether the court of appeals’ analysis of the “regular business” test conflict with established Colorado precedent in determining the existence of a statutory employer-employee relationship. Sch. Dist. No. 12, Adams County v. Security Life of Denver Ins. Co., No. 07SC340, on these issues: Whether a landowner is entitled to damages in a condemnation case when all of the landowner’s property is acquired and the landowner did not assert a claim for damages at trial.
Whether the amount of damages, if any, to Parcel B, and the “after condition” value of Parcel B, can be retried without retrying the value of Parcel A.
Whether the last written offer prior to filing a petition in condemnation, as to one parcel, and a written offer made prior to filing an amended petition in condemnation, as to the portion of property added to the condemnation in the amended petition, constitute a “last written offer” under the applicable attorney fees statute, section 38-1-122(1.5), C.R.S. (2006).
Whether the court of appeals correctly decided that the trial court amended the jury verdict, changing its substance as opposed to its form. Here are the summaries of last week's court of appeals decisions: Violation of dog-at-large ordinance could not constitute negligence per se and therefore, district court did not err by not instructing the jury that the violation of the ordinance constituted negligence per se. Fisherman v. Kotts Catholic Health
Initiatives Colorado appealed the trial court’s judgment denying
it a City of Pueblo sales and use tax exemption for its retirement community
because it was not engaged in a The court of
appeals reversed in part the district court’s denial of class certification
against an insurance company. The court held that denial as it relates
to the insured class members was proper under C.R.C.P. 23(a)(1), but
not as to the provider class members. The court remanded to the district
court to determine whether the action meets the requirements of C.R.C.P.
23(b) as to Trial court abused its discretion in valuing marital property, specifically, the value of husband's interest in a partnership. The trial court erred in concluding that wife had no standing to challenge the valuation of the partnership interest by the chief financial officer of the partnership. Because the trial court had jurisdiction to divide the partnership interest equitably, wife had a legally cognizable interest in its value. By contesting the partnership’s valuation, wife contended the partnership’s valuation injured her legally cognizable interest. This contention is a claim of an injury in fact, which conferred standing. The case was remanded for the district court to re-evaluate the property value. In re Marriage of Nevarez Cattle were allowed to graze on land in violation of court's possession order. Defendants were held in contempt. On appeal, the court held that only the owners of the cattle, who controlled them, could be held in contempt. Defendants who had no possession, ownership, or control over the animals, could not be in contempt. Hartsel Springs Ranch of Colorado, Inc. v. Cross Slash Ranch, LLC Under the plain
language of the Colorado No-Call List Act, if a person subscribes to
a residential telephone service and has added that telephone number
to the Colorado no-call list, that telephone number is protected from
receiving telephone solicitations, even if it is also used for business.
The statute contains no exceptions or qualifying language whereby a
residential subscriber home telephone number loses the protection of
the Colorado No-Call List Act if that telephone number is also used
for business purposes or published as the contact telephone Further proceedings were necessary to determine whether defendant's circumstances constituted “justifiable excuse or excusable neglect” under C.R.S. § 16-5-402(2)(d), and thereby justified his late-filed Crim. P. 35(c) motion. The record indicated the trial court concluded defendant had raised issues of arguable merit about his guilty plea, but the record did not indicate whether the public defender determined those claims had arguable merit. The court of appeals concluded the trial court failed to apply the proper legal standard to the issue whether the public defender’s inaction was prejudicially ineffective, thus denying defendant’s limited statutory right to counsel in a postconviction proceeding. People v. Chang In a stepparent adoption proceeding, the trial court properly dismissed the stepmother's petition to adope the the child, who is an Indian child. Stepmother's petition failed because she did not prove that active efforts were made to prevent the breakup of the Indian family, a prerequisite to the termination of parental rights under the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901 to 1963. Therefore, the court of appeals affirmed the dismissal of the petition. In the Matter of the Petition of N.B. September 7, 2007 The supreme court will issue the following five decisions on Monday 05SC811 Steedle
v. Sereff Because of my schedule Monday, it will be unlikely that I will get summaries posted until Tuesday. But I will have summaries of the new supreme court decisions and yesterday's court of appeals' decisions up sometime Tuesday. Thanks for your patience and have a good weekend. September 6, 2007 Here are the court of appeals' announcements for today. The court issued the following decisions, including 8 published decisions (summaries to appear later): Published Opinions 05CA1887 Vicky Fisherman v. Nickolas Kotts and Judith Kotts Unpublished Opinions 04CA0386 People v. Jesse Costillo September 4, 2007 Here are today's supreme court announcements. The court issued no new decisions and did not grant cert. in any cases. The court of appeals' announcements from last Thursday are here. The court issued the following unpublished decisions (no published decisions): 99CA1553 Robert M.
McClure v. Laser Products, Inc.
|
|||||||||||||||||||||||||