January 31, 2008 Here are today's court of appeals announcements. The court issued only unpublished decisions. The supreme court recently issued orders to show cause in the following original proceedings: No. 07SA346 District Court, El Paso County Case No. 06CR5870 In re: Plaintiff: THE PEOPLE OF THE STATE OF COLORADO, v. Defendant: MARCO REINER LEE. An El Paso County District judge granted a defense motion to videotape the examination of evidence and testing procedures conducted by the Colorado Bureau of Investigations without allowing representatives from the Colorado Bureau of Investigations to testify about the feasibility of complying with the order. The procedure in question was the CBI’s removal of bullet fragments from the black leather jacket that the defendant was wearing when the crime charged occurred. On November 15, 2007 the Court issued an order to show cause why this order should not be reversed. The respondents Mr. Lee and the Honorable G. David Miller are directed to file a written answer on or before December 17, 2007 and the Petitioner has thirty days from the receipt of the answer within which to reply.
No. 07SA339 District Court, Arapahoe County Case No. 07CR1483 In re: Plaintiff: THE PEOPLE OF THE STATE OF COLORADO, v. Defendant: AARON THOMPSON. Synopsis: On November 8, 2007, the court issued a rule to show cause why the district court’s order should not be vacated and the remaining portions of the indictment disclosed to the public. The respondent, the Honorable J. Mark Hannen, is directed to file a written answer on or before December 12, 2007, and the Petitioner has thirty days from the receipt of the answer within which to reply. January 30, 2008 The court of appeals will release the following unpublished decisions tomorrow: 05CA0874 People v. Julie L. Shepardson January 29, 2008 Here are the summaries of last week's published court of appeals opinions. The summaries hid on my laptop for a few days, but I finally found them.. A court may order the release of confidential school records to a party in a criminal case upon a proper showing of need. The court of appeals set forth standards for trial court's to determine whether a need exists. People v. Bachofer Discovery of child abuse and neglect records is determined solely by the standards of C.R.S. § 19-1-307. To obtain such records, the defendant must request an in camera review, identify the type of information sought, and explain why disclosure of that information "is necessary" under subsection (2)(f). To justify in camera review by the trial court, the defendant must show that child abuse and neglect records exist and may contain relevant information. On the facts, the court rejected the defendant's argument for greater discovery of DSS records. People v. Jowell Lender's deed of trust was senior to condo association's lien for assessments, except for assessments accruing within six months before the commencement of foreclosure proceedings by the lender. BA Mortgage, LLC v. Quail Creek Condominium Association, Inc. As political subdivisions, school districts lack standing to challenge adequacy of school financing. As for parents' challenge to the adequacy of school financing, the court held the issue was a nonjusticiable political question. I expect this case will receive review by the state supreme court. Lobato v. State of Colorado In a remedial contempt case, a trial court need not find willful noncompliance before imposing remedial sanctions. In re Marriage of Cyr Plaintiffs were represented in county court criminal cases by two attorneys who worked for the same law firm. In those cases, the attorneys moved for substitution of the judge under Crim. P. 21(b) and C.R.S. § 16-6-201, alleging that the county court judge was biased against the attorneys and their firm. The alleged bias arose from a 2002 complaint about the county court judge's conduct filed by one of the attorneys. Before the cases at issue here, the judge had recused herself from seven other cases in which the law firm filed motions requesting this relief. In plaintiffs' cases, however, the judge denied motions for substitution after conducting a hearing on each motion. Plaintiffs then filed separate C.R.C.P. 106(a)(4) actions in district court challenging the county court judge's rulings. The district court upheld the county court judge's decisions, and the court of appeals rejected Plaintiffs' argument that the county court judge exceeded her jurisdiction and abused her discretion by denying their motions for substitution. Kane v. County Court Jefferson County In a medical malpractice case, summary judgment was proper where plaintiff's expert report was not submitted with a sworn affidavit. The court held that unsworn expert witness reports are not admissible to support or oppose a motion for summary judgment. Therefore, plaintiff did not demonstrate that a genuine issue of material fact was in dispute. McDaniels v. Laub January 25, 2008 Here are yesterday's court of appeals announcements. The court issued seven published opinions, which I intended to summarize below, but I can't locate the file containing my summaries (it may be hiding on my laptop at home). So I will post the summaries as soon as I can find the file and get them posted. That'll most likely be Tuesday, as I'll be out of the office on Monday. There will be no announcements from the supreme court on Monday. January 23, 2008 The court of appeals will release the following decisions tomorrow, including seven published opinions: Published Opinions 03CA1311 People v. Baruch J. Bachofer Unpublished Opinions 05CA2246 People v. Jeremy Michael Garcia January 22, 2008 Here are today's supreme court announcements. The court issued two decisions, summarized below. The court granted cert. in three cases. The issues in those appeals follow the summaries. Plaintiff filed suit against defendant in county court asserting that a debt collection communication defendant sent her did not comply with the notice provisions of C.R.S. § 12-14-109 because it failed to include necessary information and was contradictory about her rights and obligations under Colorado’s statute. Plaintiff also alleged that defendant violated C.R.S. § 12-14-105(2) when it utilized an automated mailing service to print and mail the communication and thereby impermissibly communicated with a third party. Construing the applicable provisions of the Colorado Fair Debt Collection Practices Act, the supreme court held that the debt collection communication violated the notice provisions of § 12-14-109, but the use of an automated mailing service to print and mail the communication did not violate § 12-14-105(2). Justice Eid, joined by Justice Rice and Justice Coats, concurred in part and dissented in part, noting "The majority does not dispute that [defendant's] disclosures . . . contained all of the information required by section 12-14-109; instead, it finds that the disclosures contained 'two apparent contradictions likely to confuse the consumer.' Maj. op. at 13. Unlike the majority, I would find [the] disclosures to be in compliance with section 12-14-109. In my view, the majority’s holding today -- which penalizes [defendant] for permitting consumers to contact it by phone and for giving consumers additional time to consider a settlement offer after they dispute a debt -- may well harm consumers in the long run." Flood v. Mercantile Adjustment Bureau In an original proceeding, the supreme court addressed whether the Colorado Wrongful Death Act caps recovery of noneconomic damages at a maximum of $250,000, adjusted for inflation, on a per claim basis, rather than a per defendant basis. The court held, unanimously, that the Wrongful Death Act’s noneconomic damages cap applies on a per claim basis. In re: Lanahan v. Chi Psi Fraternity The court granted cert. in these cases: Huber v. Kenna, No. 07SC657, on this issue: Whether the court of appeals erred in refusing to apply a 2006 tax statute, which expressly limits tenants in common to a single $100,000 credit and expressly applies to any easement donated after 1999, to the respondents’ 2000 easement. Feirro v. People, No. 07SC788, on this question: Whether the court of appeals erred when it determined that the trial court imposed an illegal sentence in a probation revocation setting by sentencing petitioner to a term of imprisonment other than the original, suspended Department of Corrections’ sentence. Acoustic Marketing Research, Inc. v. Technics, LLC, No. 07SC789, on this issue: Whether an award of damages based on future royalties payable on a per-unit-produced basis pursuant to a written agreement is speculative when that agreement includes an explicit provision that allows, upon payment of a specified sum, discontinuance or abandonment of production for any reason.
January 18, 2008 Monday is a legal holiday, but on Tuesday, the supreme court will issue two decisions, No. 06SC699 Flood v. Mercantile Adjustment Bureau, and No. 07SA113 Lanahan v. Chi Psi Fraternity. Court of Appeals'
Judge Marquez will be stepping down effective April 1, 2008. Here's
the press release announcement his retirement and the vacancy it creates. January 17, 2008 The court of appeals' announcements for today are here. The court issued unpublished decisions only. January 16, 2008 The court of appeals will release the following unpublished decisions tomorrow: 02CA1312 People v. Gintear Howard January 14, 2008 I am now fully caught up. First are the links to the most recent oral argument calendars. Below that are the supreme court announcements and summaries of today's decisions, and finally, the summaries of the court of appeals' most recent published decisions. Thanks for bearing with me. The supreme court's oral argument calendar for January is here. The court will hear arguments January 22-24. The court of appeals' oral argument calendar for March is here. Here are today's supreme court announcements. The court issued four decisions, summarized below. The court also granted cert. in one case. The issues in those appeals follow the summaries. Finally, at the bottom of this post are the summaries of the published court of appeals' decisions from December 27 and January 10. Thanks for your patience on those. Plaintiff was rear-ended by defendant when she slowed for bighorn sheep that had entered her lane of travel on the highway. She brought a negligence claim against defendant, and defendant raised the defense of comparative negligence, claiming plaintiff was negligent in failing to pull onto the shoulder instead of slowing in the lane of travel. At the close of evidence, plaintiff moved for a directed verdict on the issue of her comparative negligence, which the trial court denied. The jury found plaintiff to be thirty percent at fault. The court of appeals reversed the trial court’s denial of the directed verdict motion. The supreme court reversed the court of appeals. The suprem court held that a driver is under a duty to drive with reasonable care, which may be violated in some circumstances by not pulling over. The court further held that defendant presented sufficient evidence that plaintiff acted unreasonably by failing to pull over when confronted by sheep on the road. Thus, the court held that the question of comparative negligence was properly submitted to the jury. Justice Rice, joined by Justice Hobbs and Justice Bender, dissented, concluding that no legal duty to pull over existed. Hesse v. McClintic In the case
of Terry Lynn Barton, who set the Hayman fire, Barton pleaded guilty
to fourth-degree arson, a felony that carries a sentencing range of
two to six years’ imprisonment. The trial court sentenced Barton
to the maximum aggravated sentence of 12 years’ imprisonment, and
Barton appealed under Blakely v. Washington. The court of appeals reversed
and remanded. The trial court then allowed the People to withdraw from
the plea agreement on the ground that Barton’s appeal violated
a provision in the agreement that waived her right to appeal except
to challenge an “illegal sentence.” The supreme court issued
a rule to show cause to consider whether the trial court erred by allowing
the People to withdraw from the plea agreement. The court made the rule
absolute and held that the plea agreement did not waive Barton’s
right to raise a Blakely challenge to her aggravated sentence on appeal.
Because Barton did not violate the plea agreement, the prosecution cannot
withdraw from it. In
Re People v. Barton C.R.S. §
16-11.7-105(1), C.R.S. (2007), the supreme court held that sex offender
treatment is not mandated in every case where a sex offender subsequently
commits an offense of any kind. Where the recommendations of the sex
offender evaluation and the facts of the subsequent case do not support
treatment, a sentencing court is not required by § 16-11.7-105
to order treatment. The trial court had ruled that when police seized the defendant’s car at an early point in an investigation, it lacked sufficient probable cause for a full seizure. In an interlocutory appeal, the supreme court reversed, holding that probable cause is not necessary when police temporarily seize a car. Instead, police may temporarily seize a car, for a brief period, while an investigation continues if they have reasonable suspicion that the car was involved in criminal activity. In light of the officers’ knowledge that the defendant evaded police, trespassed through private property, was sought under a felony arrest warrant, and was in possession of a large amount of cash and two cell phones when arrested, it was reasonable for officers to believe that the defendant’s car was being used in furtherance of criminal activity. Thus, when an officer briefly stood guard over the car while the investigation progressed, it was not a Fourth Amendment violation. People v. Tallent The court granted cert. in No. 07SC658, Reyes v. People, on this issue: Whether the anti-shuttling provision of the Interstate Agreement on Detainers was violated under the facts of this case.
Here are the summaries of the court of appeals' recent published decisions: January 10, 2008 decisions: Search of motorcycle that occurred 30 minutes after defendant's arrest was contemporaneous search incident to arrest under New York v. Belton and therefore did not violate the Fourth Amendment. People v. Malloy Defendant challenged the right of the DOC to withhold money from his account when restitution was not imposed as part of his sentence and the mittimus did not reflect a restitution order. The motion sought only to compel the DOC to show why it was garnishing defendant’s account. Nothing in the record showed that the trial court treated defendant’s motion as having been filed under Crim. P. 35. Therefore, the motion was not a substantive postconviction motion, and the order “denying” it is not a final appealable order. The appeal was therefore dismissed. People v. Davis A person commits the crime of second degree assault if, “[w]ith intent to cause bodily injury to another person, he causes serious bodily injury to that person or another.” C.R.S. § 18-3-203(1)(g). “Serious bodily injury” “means bodily injury which, either at the time of the actual injury or at a later time, involves . . . breaks [or] fractures.” § 18-1-901(3)(p). The victim suffered fractured cartilage in her nose. Defendant argued evidence of fractured cartilage is not sufficient to establish serious bodily injury because “fractures,” as used in that section, are limited to bone fractures. The court of appeals concluded that the term "fractures" does include cartilage fractures. People v. Jaramillo Granting a petition for rehearing in a quiet title action, the court of appeals issued a new decision and remanded for further factual proceedings. Hinojos v. Lohmann, The doctrines of issue preclusion and claim preclusion (a/k/a collateral estoppel and res judicata) apply in probation revocation proceedings, but here the trial court erred in applying those doctrines to bar the People’s complaint in the second probation revocation proceeding. People v. Lewis Employer's violation of Wage Order No. 22 (relating in part to rest and lunch breaks) gave rise to a private right of action. The two sections of the Wage Order, sections 7 and 8, provide that “Employees shall be entitled to an uninterrupted and ‘duty free’ meal period of at least a thirty-minute duration when the scheduled work shift exceeds five consecutive hours of work” (section 7), and “Every employer shall authorize and permit rest periods, which, insofar as practicable, shall be in the middle of each four (4) hour work period. A compensated ten (10) minute rest period for each four (4) hours or major fractions thereof shall be permitted for all employees” (section 8). The court of appeals concluded that Wage Order No. 22 constituted a clearly expressed public policy relating to certain employees’ basic rights. The court concluded that plaintiff presented sufficient evidence for the jury to decide her claim, and that the trial court erred when it ruled as a matter of law that defendants’ violation of Wage Order No. 22, sections 7 and 8, did not give rise to a private cause of action for wrongful termination of employment. Bonidy v. Vail Valley Center for Aesthetic Dentistry, P.C December 27, 2007 decisions: Use for impeachment
purposes of evidence of a defendant's refusal to consent to a search
does not impermissibly burden the Fourth Amendment right to be free
from unreasonable searches and seizures. Thus, since defendant testified
at trial, evidence of the his refusal to consent could be admitted for
purposes of impeachment (if relevant for that purpose) and a prosecutor
may comment on that refusal in closing argument. People
v. Chavez In a 35(c) case, the court of appeals addressed a number of interesting issues. The court concluded that the doctrine of laches applies to 35(c) claims that were timely filed, but not timely pursued. The court also concluded that laches can be avoided if a defendant demonstrates justifiable excuse or excusable neglect for failing to pursue a timely filed claim. The court further concluded that ineffective assistance of postconviction counsel constitutes justifiable excuse or excusable neglect. Analyzing the performance of postconviction counsel, the court concluded that counsel was ineffective under the Strickland standard by not timely prosecuting defendant’s postconviction motion. The court remanded on two issues: (1) did defendant abandon his postconviction claims by acquiescing in his counsel’s inaction, or (2) did he waive his right to the effective assistance of postconviction counsel? People v. Valdez The district court had the power to deal with party's petition but inappropriately exercised its power by declaring a mechanic’s lien invalid under the spurious liens and documents statute (C.R.S. § 38-35-201 through 38-35-204). The court thus had subject matter jurisdiction, but misapplied the law. The court’s erroneous application of the law is not sufficient to render its judgment void, and therefore, the court did not abuse its discretion when it denied a motion under C.R.C.P. 60(b)(3), because the judgment was not void. The court of appeals did vacate the award of attorney's fees because the trial court did not have any basis to award those attorney fees and costs because a court could no longer invalidate a mechanic’s lien in a proceeding under the SLD statute. SR Condominiums, LLC v. K.C. Construction, Inc. Plaintiffs were injured in a train accident while on a ride along the Panama Canal. The defendant was the railway operator. Plaintiff sued the operator within 2 years of the accident, but the defendant moved for summary judgment on the statute of limitations, arguing that the one-year statute of limitation of the borrowing statute, C.R.S. § 13-80-110 applied. The trial court granted summary judgment and the court of appeals affirmed. The court rejected the plaintiffs' argument that, instead of the borrowing statute, the trial court should have applied the Uniform Conflict of Laws – Limitations Act, C.R.S. §§ 13-82-101 to -107(UCL-LA). The court of appeals held that the borrowing statute applied because: (1) the borrowing statute is more specific than the UCL-LA, which applies by its terms to all cases; and (2) the current borrowing statute was enacted after the UCL-LA and has a later effective date. Jenkins v. Haymore The court of appeals upheld the trial court's dismissal of a county's petition to condemn property for a road for access to a private cemetary. The trial court concluded that the public purpose requirement was not met.The trial court found that the physical conditions in the area would make it difficult to visit the cemetery in any season without a four-wheel-drive vehicle and that the county has no plans to improve the road. It also found that the cemetery association is a private entity and thus, while descendants of those interred at the cemetery have rights to visit, the cemetery is not legally open to the general public. The trial court further found that there is little public demand and no particular need for a public road across the owners’ property at this time. Finally, the trial court found the field road unnecessary to the development of public resources because no public resources are accessible from this road and none are planned in the future. So the essential purpose of the condemnation was not to obtain a public benefit, and the petition was properly dismissed. Board of County Commissioners of the County of Morgan v. Kobobel In a legal malpractice action, the plaintiff alleged various failures to advise it that undue delay in filing a patent infringement suit could give rise to a laches defense. 2005), The trial court ruled that, as a matter of law, the complaint did not state sufficient facts to allege that the attorney's representation caused harm to plaintiff, and, thus, that it failed to state a claim upon which relief could be granted. The attorney moved to a different firm. The trial court reasoned that the uner the circumstances, the attorney's move to a new firm, extinguished any liability he and his old fimr might have for his conduct while there. Bristol Company, LP v. Osman Although C.R.C.P. 121 section 1-15(3) provides that the failure of a party to respond to a motion “may be considered a confession of the motion,” courts have not applied that rule where a drastic remedy is at stake. Motions to dismiss for failure to state a claim must be considered on their merits and cannot be deemed confessed by a failure to respond. Hemmann Management Services v. Mediacell, Inc. A check is “made,”
for the purposes of applying the defense to a bad check claim set forth
in C.R.S. § 13-21-109(2)(b)(I), on the date that appears on the
face of the check, not on the date of mailing the check. In the court's
view the legislature did not intend the making of a check, as used in
this statute, to require that it be delivered, drawn, or uttered. Suncor
Energy (USA), Inc. v. Aspen Petroleum Products, Inc. Holder of notes had the option to raise the interest rate upon default, but was required to take affirmative action to demonstrate an intention to exercise that option. Unless and until the holder exercised that option, interest continued to accrue at the standard interest rate under the notes rather than the default rate because the holder waived its right to exercise its option by failing to take affirmative action to indicate it was exercising the option to implement the default interest rate. To hold otherwise would produce the unfair and unjust result of allowing a creditor to cause a debtor to believe it was not exercising a discretionary right under a promissory note to implement a default interest rate and then to retroactively exercise the option to implement the default rate, thus holding the debtor liable for interest he or she reasonably believed was not being charged. Padilla v. Ghuman The term “gross sale proceeds” as used in a settlement agreement was unambiguous, and meant receipts from the sale of the residence at issue, without any deductions. Ringquist v. Wall Custom Homes, LLC No private right
orf action exists under C.R.S. § 30-10-606 by which a party may
seek damages against a coroner for failure to perform an autopsy. Macurdy
v. Faure Father argued
that he was not given sufficient time to comply with his treatment plan
and, therefore, termination of parental rights could not be based on
a finding of unfitness or failure to change within a reasonable amount
of time. The court of appeals agreed and reversed and remanded to give
the father a reasonable time to comply with the plan. Father’s
treatment plan was adopted March 6, 2007. The plan required father,
among other things, to actively participate in and complete the Nurturing
Parenting class, visit the child a minimum of four hours weekly, commit
no criminal violations, obtain appropriate stable housing, and not abuse
alcohol, drugs, or prescription drugs. But the department department
filed a motion to terminate father’s parental rights on March 29,
2007, only twenty-three days after adoption of the treatment plan. People
in the Interest of D.Y. January 11, 2008 Well, the week slipped away and I didn't find the time I needed to get caught up. I guess I'll be reading cases and writing summaries while watching the NFL playoffs (or doing laundry, or both). I hope to have everything updated by the end of the day Monday. Speaking of Monday, the supreme court will issue four decisions on Monday: 06SC624 Hesse
v. McClintic And here
are the court of appeals' announcements from yesterday. The court handed
down 6 published decisions, which will be summarized Monday. January 8, 2008 A belated Happy New Year. I have been on vacation for a couple of weeks and am just now getting back in the swing. I'll try to get updated completely by the end of this week. The supreme court had no case announcements yesterday or December 24. It's announcements for December 31 are here, but the court issued no decisions and did not grant cert. in any cases. The court of appeals' announcements for December 27 are here. The court issued 16 published decisions, which I will summarize sometime this week. The court's announcements for January 3 are here, but the court issued only two unpublished decisions (no published opinions).
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