February 28, 2007 I just noticed that the court of appeals withdrew a published opinion it issued on February 22, and reissued a published opinion in that case on February 23. The case is Yaekle v. Andrews. The link to the case on the February 22 announcements is gone. I didn't see any noticeable difference between the opinions, but since I don't have a copy of the withdrawn opinion, I can't say if there are any substantive differences or not. The court of appeals will release the following unpublished decisions tomorrow: No.: 03CA1296 Lexico Resources International Corporation v. L. Lex
Dolton February 26, 2007 The supreme court's announcements for today are here. The court issued two decisions, summarized below. The court also granted cert. in four cases, and the questions presented in those cases follow the case summaries. The
sentencing provisions of the direct-file statute (C.R.S. § 19-2-517)
limit mandatory adult sentences to enumerated offenses. But where a
juvenile is guilty of unenumerated offenses, the district court may,
at its discretion, sentence a juvenile as an adult or as a juvenile.
The court also held that before imposing an adult sentence for unenumerated
offenses, the trial court must make findings similar to those of a court
conducting a transfer hearing. Once a district court has decided how
to sentence the juvenile, it must impose that sentence in accordance
with the relevant Okay, before
I summarize this, I'm going to give the lineup of the Justices. Justice
Bender delivered the judgment and an opinion in which Chief Justice
Mullarkey and Justice Martinez joined. Justice Coats concurred in the
judgment only. Justice Eid, joined by Justice Rice, dissented. Justice
Hobbs did not participate. The court held that the trial court erred
when it The court granted cert. in the following cases: No. 06SC521, Kinney v. People, on these issues:
Whether, when evidence of a prior bad act is admitted under CRE 404(b), the jury should be informed that the defendant was acquitted of the alleged prior act.
Whether petitioner’s confrontation rights were violated when the district court precluded him from questioning a prosecution witness about a pending misdemeanor case. No. 06SC586, Romero v. People, on this question:
Whether the court of appeals erred in ruling that the imposition of a longer community corrections term upon revocation of the original term violates neither double jeopardy nor section 18-1.3-301(1)(e), C.R.S., so long as the defendant is afforded a hearing. No. 06SC698, Clancy Sys. Int'l, Inc. v. Salazar, on this issue:
Whether the court of appeals erred in holding that the Uniform Commercial Code, specifically C.R.S. section 4-8-401, does not preempt common law claims or remedies relating to the registration of a transfer of stock, including the issuance of a stock certificate. No. 06SC780, In the Matter of J.C.T., on these issues: Whether the court of appeals erred by holding that a probate court exceeded its jurisdiction in directing a guardian ad litem to find a permanent guardian for a ward and considering the potential for an eventual adoption in its evaluation of the best interests of the ward.
Whether the court of appeals erred when it held that the appointment of the guardian ad litem as temporary guardian divested the probate court of jurisdiction and vested jurisdiction with the juvenile court under section 19-3-102, C.R.S. (2006). February 23, 2007 The supreme
court will issue two decisions on Monday, No. 05SC593
Flakes v. People, and No. 06SC66
Clyncke v. Waneka. February 22, 2007 Today is the 275th anniversary of George Washington's birthday. If you're in the D.C. area check out his home at Mount Vernon. Happy birthday, George. Here are today's court of appeals announcements. The court issued 12 published decisions, summarized below. The court of appeals framed the issue in this appeal as follows: "A trial court has ruled that a defendant must serve prison sentences and terms of parole in a particular order. This ruling is not appealed. Later, the court learns, through a Crim. P. 35(a) motion filed by the prosecution, that its ruling was erroneous. May the court correct its error by granting the prosecution’s Crim. P. 35(a) motion?" The court of appeals noted that the question has not been answered by the supreme court, but it had been addressed by a division of the court of appeals in People v. Heredia, 122 P.3d 1041 (Colo. App. 2005) (cert. denied as improvidently granted). The court of appeals disagreed with its sister division's conclusion in Heredia, and concluded that the answer to the question is yes. I suspect the supreme court will grant cert. in this case. People v. White Paratransit, a member-owned risk retention group that provides automobile liability insurance to public transportation companies, filed an action against one of its insureds, Colorado Transportation Services, Inc. (CTS), and Kamins, the sole shareholder and director of CTS, alleging Kamins made distributions to himself that rendered CTS insolvent and unable to satisfy its obligations for premiums owed to Paratransit and for unpaid claims for accidents caused by CTS’s taxicab drivers. The court of appeals concluded that because a director’s fiduciary duty to corporate creditors arises only upon insolvency, in order for Paratransit to have standing to assert a breach of fiduciary duty claim as a creditor, the trial court must find CTS was insolvent, or must find that, as a result of the distributions, it would become insolvent. The court of appeals remanded for further findings on that issue. The court said that if the trial court makes a finding of insolvency, then Kamins, from the time of CTS’s insolvency, had a duty to manage its assets as a trustee for the corporation’s creditors, and Paratransit would have standing to sue Kamins for breach of a common law fiduciary duty. Paratransit Risk Retention Group Insurance Co. v. Kamins Where on three
separate occasions the trial court severely admonished juror whose absence
required the trial to be delayed, and the trial court identified the
serious consequences that Judgment for intentional interference with prospective business relations had to be reversed, where party claiming intentional interference would not have been a party to any prospective contracts. MDM Group Associates, Inc. v. CX Reinsurance Company Ltd., U.K.
C.R.C.P. 41(a)(1)(A)
notice of voluntary dismissal divested the district court of jurisdiction
tto grant Dismissal of
complaint reversed, where the complaint alleged that city's mayor accepted
a Huizar v. Allstate
Insurance Co., 952 P.2d 342 (Colo. 1998), and State Farm Mutual Automobile
Insurance Co. v. Brekke, 105 P.3d 177 (Colo. 2004), did not effectively
overrule cases holding an insurer may aggregate its insured’s recovery
from tortfeasors and their insurers and offset the amount against the
insured’s UM/UIM coverage. Therefore, summary judgment for insurer
was appropriate. American
Family Mutual Insurance Co. v. Murakami Award of damages
for lost profits had to be set aside because such damages were too It was not error for the trial court to hold no hearing hearing to resolve a dispute between the parties regarding the terms and conditions of a settlement agreement, because the plaintiff, who challenged on appeal the lack of hearing, did not ask for a hearing in the trial court. The court did vacate the trial court's award of attorney's fees. The trial court did not identify the basis for awarding fees, made no factual findings supporting its determination of the reasonableness of defendants’ fees beyond a conclusory sentence ordering plaintiff and his attorney to pay, and did not explain its basis for joint and several liability. Therefore, the court of appeals could not determine the basis for the fee award, the basis for joint and severable liability, or whether the fees were reasonable. A remand was therefore necessary. Yaekle v. Andrews Trial court erred in concluding that mortgage broker was a financial institution and creditor under C.R.S. § 38-10-124. Section 38-10-124 bars claims between parties who are creditors and debtors. In addition, the mortgage broker did not meet the statutory definition of a creditor. Fisher v. 1st Consumers Funding, Inc. License revocation was proper, even though arresting officer disregarded driver's request for a breath test to determine BAC, because plaintiff was receiving medical treatment at a hospital where breath testing was not available. It was therefore proper for the arresting officer to require a blood test. Brodak v. Visconti February 21, 2007 The supreme court's oral argument calendar for March is here. The court will hear arguments March 6 and 7. The court of appeals will issue the following decisions tomorrow, including 12 published opinions: Published Opinions No.: 04CA0509 People of the State of Colorado v. Darryl White Unpublished Opinions No.: 04CA1739 People of the State of Colorado v. Ateba A. Bailey February 20, 2007 Here are today's supreme court announcements. The court issued one decision, summarized below. The court also granted cert. in one case. Corporation's
bankruptcy trustee lacks standing under section 544(a) of the federal
Bankruptcy Code to bring a claim against the corporation's attorneys
for aiding and abetting the president's breach of fiduciary duty to
corporate creditors. Standing under section 544(a) is determined by
state law, and under Colorado law, directors and officers of an insolvent
corporation owe a limited The court granted cert. in No. 06SC757, Holcomb v. Jan-Pro Cleaning Sys. of Southern Colorado, on this issue:
Whether the district court erred by adding a use test to the Colorado No-Call laws by concluding that Petitioner removed his residential subscriber home telephone number from No-Call protection because Petitioner uses his residential subscriber home telephone for personal and office use, when the legislature passed the No-Call Act to protect the statutorily defined classification of residential subscriber with use of a home telephone being irrelevant. February 19, 2007 Happy Presidents' Day The court of appeals' oral argument calendar for April is here. The court will be hearing arguments at CU Law School on April 4th at 1:30, and at DU on April 11th at 4:00. For Tenth Circuit practitioners, the court is now requiring $25.00 renewal fee "for lawyers who have been admitted to practice before the court for at least three years as of January 1, 2007." The court has sent, and will continue sending over the next few weeks, letters to attorneys informing them of the renewal requirement. According to the court's website, the court does not currently intend to make this fee an annual one, but may revisit that as necessary. For more information on the renewal fee, click here. February 16, 2007 Update: The supreme court will issue one decision on Tuesday, Alexander v. Anstine, No. 05SC367. Here are yesterday's court of appeals announcements. The court issued unpublished decisions only. Monday is a legal holiday, so if there are any announcements from the supreme court, they will be on Tuesday. Have a good Presidents' Day weekend. And if you are interested in learning more about the new President $1 coins, visit the U.S. Mint website. The coins are pretty cool and certainly more durable than the $1 bill. (Stephen) Grover Cleveland will get to be on two separate $1 coins because of the nonconsecutive terms he served. And William Henry Harrison will finally get his face on a coin, in honor of his 30 days as President in 1841. February 14, 2007 Happy Valentines Day! The court of appeals will release the following unpublished decisions tomorrow: No.: 03CA1471 People v. Hal Lewis Hebert February 12, 2007 Here are today's supreme court announcements. The court did not issue any opinions, but did grant cert. in one case, No. 06SC624, Hesse v. McClintic, on these issues: Whether the court of appeals erred in holding the evidence could not support a theory of comparative negligence despite the jury’s finding that Plaintiff was 30% liable for the subject accident.
Whether the court of appeals erred in determining that animals on a roadway create a sudden emergency exonerating the lead driver from fault as a matter of law. I have added the rest of the summaries of the court of appeals' decisions from last Thursday. Look under the February 8 post for those summaries.
February 9, 2007 The supreme court will issue no decisions on Monday, but will rule on cert. petitions. If the court grants any, I'll let you know. I also hope to update the summaries of yesterday's court of appeals' decisions on Monday. February 8, 2007 Here are today's court of appeals announcements. The court issued 22 published decisions. Yes, I said 22. It's gonna take me awhile to summarize that many. I'll do my best to get them all done before the snow melts. Check back periodically, as I will probably have to update these in groups. In one of the cases arising from the Valeri Barnes transcript fiasco , the court concluded that the existing transcripts were sufficient to permit meaningful appellate review. On the merits, the court affirmed defendant's convictions. The court rejected the defendant's ineffective assistance argument. Defendant argued that because his counsel did not advise him he was subject to the provisions of the Sexual Offender Lifetime Supervision Act (SOLSA), C.R.S. § 18-1.3-1004, he received ineffective assistance of counsel during plea negotiations. The court concluded that the defendant rejected the plea not because of the failure of his counsel to properly advise him, but because he maintained his innocence. Therefore, there was no ineffective assistance. People v. Carmichael Search warrant affidavit did not allege that drug "broker" approached defendant's home or that any criminal activity occurred there. The only reference to the home contained in the affidavit was that after following the broker down the road from the RV, a truck drove to the home while the broker went to the garage. The affidavit does not contain a description of the person in the truck or indicate that the broker contacted him or her. Therefore, no allegations existed in the affidavit linking the broker to the home or linking the home to any suspected criminal activity. The court of appeals remanded for a determination of whether the good faith exception to the exclusionary rule applied and whether defendant's statements were admissible under an attenuation analysis. People v. Eirish Trial
court followed the statutory procedures for determining competency and
was not required to In a TABOR case,
the court of appeals concluded that the district court erred in granting
summary judgment to the taxing district. It was undisputed that the
district levied and collected $8,430 more than allowed in 2003. Despite
that fact, the district court concluded that since the amount was a
small percentage of total revenueand the district's actions were taken
in good faith, the district had substantially complied with TABOR. The
court of appeals concluded the substantial compliance standard was not.
That standard applies when reviewing claims to enforce TABOR’s
election provisions, esnuring that the voting franchise is not unduly
restricted and prevents a court from lightly setting aside the results
of an election. The overage, however, was exactly what TABOR was intended
to preclude, and C.R.S. § 39-1-111.5 provides districts with a
simple means to Because the defendant's conviction was for an offense enumerated in C.R.S. § 18-1.3-1003(5), and not one of the offenses specified in § 18-1.3-1004(4), he was subject to mandatory indeterminate sentencing under Colorado’s Sex Offender Lifetime Supervision Act without the need for a sexually-violent predator assessment. People v. Harrison Where defendant physicians deposited the maximum amount recoverable under the GIA ($150,000) into the court registry, trial court properly granted motion to dismiss on mootness grounds. Because the plaintiffs could not recover any relief beyond that amount, the case was moot. That was so even though one of the physicians did not participate in the deposit, because whether that physician participated or not, the plaintiffs' recovery was limited to the $150,000. Rudnick v. Ferguson In light of this extensive change to the natural gas industry following deregulation of the industry, evidence of acts taken before FERC Order No. 636 was issued would have had little relevance in determining whether gas was marketable during the period at issue in this case. Therefore, the trial court did not abuse its discretion in excluding such evidence. Clough v. Williams Production RMT Company On summary judgment, it is sufficient for the nonmoving party to demonstrate that the moving party's proffered evidence establishes that there is a triable issue of fact. Woodward v. Board of Directors of Tamarron Association of Condominium Owners, Inc.
Willful destruction of wildlife requires proof that a person removed the trophy portions of any wild animal and abandoned the carcass. Illegal possession of wildlife requires a showing that the person illegally had wildlife in his or her possession. Thus, the two crimes are separate offenses for double jeopardy purposes. People v. Gordon Any person found liable under the CCPA is liable for damages plus, "[i]n the case of any successful action to enforce said liability, the costs of the action together with reasonable attorney fees as determined by the court." C.R.S. § 6-1-113(2)(b). Therefore, by accepting an offer of settlement as to "all claims" plaintiff waived any further right to seek attorney fees under the CCPA. But plaintiff was entitled to costs recoverable under C.R.C.P. 54(d) and C.R.S. § 13-16-104, because those are not part of any "claim." Because the offer of settlement did not state expressly whether it included costs, plaintiff could recover those costs. Bumbal v. Smith Defendant contended there was insufficient evidence to convict him of the operating a vehicle without insurance, arguing that the prosecution was required to prove he was operating a motor vehicle on the public highways of this state without a complying policy or certificate of self-insurance in full force and effect as required by law. He argued that C.R.S. §§ 42-41-409(2) and (3), read together, require an officer to request proof of insurance before an offender may be convicted under § 42-41-409( 2). Because there was no evidence he was asked by the officer to produce proof of insurance, defendant contends his conviction cannot stand. The court rejected that argument, concluding that the prosecution's burden under the statute is to prove beyond a reasonable doubt that the offender was driving and that he or she had no insurance. People v. Martinez Trial court did not abuse discretion in by not permitting defendant to cross-examine plaintiff's expert regarding his "substantial connection" with plaintiff's insurer. While the expert regularly testified for the insurance company, there was no evidence an adverse judgment would impact his personal finances, and there was no agency or employment relationship between him and the insurance company. The court also concluded that the Colorado Driver's Handbook is not a learned treatise under CRE 803(18). Garcia v. Mekonnen Inmate's convictions for possession of syringe or drug paraphernalia, and tattooing or possession of tattooing paraphernalia, on the other hand, did not arise out of the same incident, and thus sentences could run consecutively. In addition, suspension of his visitation privileges was shown to be imposed to meet a legitimate penological objectives, and was not shown to be discriminatorily or irrationally applied, and thus did not amount to a deprivation of due process. Therefore, inmate's due process rights were not violated when his visitation privileges were suspended without a hearing. Buenabenta v. Neet C.R.C.P. 121 § 122(1) provides a trial court with authority to accept and consider a bill of costs filed "within such greater time as the court may allow." The rule thus permits a trial court to consider a bill of costs to be timely, even though it was filed more than fifteen days after the entry of judgment, because it was filed within "the time allowed by the court." The rule does not require a court to determine that a filing made outside the fifteen-day period was attributable to excusable neglect or to make any other findings such as those required under C.R.C.P. 6(b). Parry v. Kuhlmann Trial court did not err in holding that the DOC has authority to classify inmates as sex offenders based on Code of Penal Discipline convictions and to withhold earned time credit if an inmate fails to comply with sex offender treatment as required by that classification. Reeves v. Colorado Department of Corrections Department of Revenue did not violate licensee's constitutional and statutory rights by refusing to reschedule driver's license revocation hearing. It is "well settled" that the 60-day time limit under C.R.S. § 42-2-126(8)(e)(I) for holding a revocation hearing is jurisdictional and Department has no authority to depart from that (except as expressly provided in the statute-exceptions not applicable here). In addition, the use of affidavits in revocation hearings is governed by the provisions of C.R.S. § 42-2-126(8)(f), which provides that the Department "may consider evidence contained in affidavits from persons other than the respondent." Under the plain language of the statute, a hearing officer cannot consider a respondent's affidavit, and therefore the hearing officer properly decline to consider respondent's affidavit here. Tate v. Colorado Department of Revenue Arbitration clause survived expiration of home warranty agreement. Therefore, since alleged construction defects arose under the construction contract at issue, construction defect claims had to be arbitrated. Shams v. Howard Colorado Motor Vehicle Dealer Board improperly expanded the scope of C.R.S. § 12-6-120.5(1) by concluding the prohibition against motor vehicle manufacturers owning and operating a "motor vehicle dealer," which is defined in § 12-6-102(13), prohibits manufacturers from owning and operating a "used motor vehicle dealer," which is separately defined under § 12-6-102(17). Because the Board's denial of petitioner's request for a change in class application was based upon the Board's erroneous interpretation of § 12-6-120.5(1), its decision cannot stand. International Truck and Engine Corporation v. Colorado Department of Revenue The
phrase “all claims” in C.R.S. § 13-80-104(1)(b)(II) did
not include plaintiff’s subrogation complaint and, therefore, the
90-day tolling provision set forth in § 13-80-104(1)(b)(II) is
inapplicable. Accordingly, the trial court erred in dismissing plaintiff’s
complaint based on the 90-day statute of limitations. The court of appeals
noted that in order for the 90-day statute of limitation tolling provision
to be applicable, the plaintiff must be a “claimant” under
the specific terms of § 13-80-104(1)(b)(II). Interpreting §
13-80-104(1)(b)(II), the court concluded the General Assembly intended:
(1) the “claimant” is not a plaintiff in the underlying construction
defect lawsuit, but is the defendant construction professional in the
underlying lawsuit; (2) because a “claimant” is the defendant
construction professional in the underlying lawsuit, a construction
defect plaintiff (the “claimant” under §13-80-104(a)and
(b)(I)), is a “third person” to whom a “claimant”
construction professional is or may be liable; (3) the “third person’s
claim against the claimant,” as set forth in § 13-80-104(1)(b)(II),
refers to the construction defect plaintiff’s The court of appeals concluded that legislative history demonstrated that the General Assembly intended to distinguish acts of professional negligence from intentional sexual assaults committed by a licensed professional in the course of treating a patient. Accordingly, the six-year statute of limitation, C.R.S. §13-80-103.7, applies to claims of intentional torts of sexual assault during the course of a medical examination or treatment of a patient by a licensed health care professional. Hurtado v. Brady Although the state must make “active efforts” under the Indian Child Welfare Act, it need not “persist with futile. The “active efforts” required by 25 U.S.C. § 1912(d) need not be part of a treatment plan offered as part of the current dependency proceedings. A department may engage in “active efforts” by providing formal or informal efforts to remedy a parent’s deficiencies before dependency proceedings begin. In other words, the court may terminate parental rights without offering additional services when a social services department has expended substantial, but unsuccessful, efforts over several years to prevent the breakup of the family, and there is no reason to believe additional treatment would prevent the termination of parental rights. People In the Interest of K.D. February 7, 2007 The court of appeals will issue the following decisions tomorrow, including 22 published opinions: Published opinions No.: 02CA0719 People v. Richard S. Carmichael Unpublished Opinions No.: 02CA1829 People v. Clevia Maria Firethunder February 5, 2007 The supreme court's announcements for today are here. The court issued two decisions and granted cert. in one case. Defendant was
sentenced to consecutive terms of twenty-five years to life. The court
of appeals upheld the sentence, finding that the Lifetime Supervision
of Sex Offenders Act places no upper Answering a
certified question from the 10th Circuit, the supreme court determine
that a claimant seeking access to moneys held in trust under C.R.S.
§ 38-22-127 need not have a properly perfected lien or nor still
be able to file such a lien under the time limitations provided by the
Colorado mechanics’ lien statutes, §§ 38-22-109 and 110.
The court held that the procedural The court granted cert. in Colorado Education Association v. Rutt, No. 06SC559, on these issues: Whether the court of appeals erroneously interpreted the term "coordinated with" as used in Colorado Constitution Article XXVIII, sections 2(9) and 5(3), in deciding a question of first impression.
Whether the court of appeals erred in concluding that the Petitioners coordinated their campaign activities with a candidate, under Article XXVIII, sections 2(9) and 5(3) and, therefore, that Petitioners violated the prohibition on labor organizations making contributions to candidate committees (Colorado Constitution Article XXVIII, section 3(4)(a)).
Whether the court of appeals erred in failing to address the application of the "membership exception," where the ALJ concluded that most of the Petitioners' communications were not made to non-members. (Note: my firm is counsel for petitioners.) February 2, 2007 Happy Groundhog Day! As you may know from reading this blog in Februaries past, I have a soft spot for the groundhog, also known as the North American woodchuck (Marmota monax is the species name). Here are some groundhog facts courtesy of Cornell University (which has an excellent woodchuck research facility--an important tool in the study and fight against Human Hepatitis B and liver cancer). Now on to appellate news. The supreme court will issue two decisions on Monday, No. 05SC193 Vensor v. People, and No. 06SA286 In re Regan (no orals). February 1, 2007 Here are today's court of appeals announcements. The court announced the following unpublished decisions (no published decisions today): No.: 03CA2424 People v. Michael Barry
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