July 27, 2007 The supreme court will have no case announcements next week. The court of appeals' oral argument calendar for September is here. July 26, 2007 Here are today's court of appeals' announcements. The court issued 13 published decisions, summarized below. In addition, below those summaries are the summaries of the published decisions from July 12. Defendant was
entitled to a new trial because significant pretrial rulings were issued
by a judge who lacked authority. In 1999, the prosecution filed felony
charges in El Paso County District Court. Although the case initially
was handled by a district court judge, it eventually was assigned to
a county court judge. From August 2000 to August 2001, the county court
judge ruled on various pretrial matters. In August 2001, the chief judge
of the El Paso County District Court authorized the county court judge
to sit as a district court judge in this case. See Colo. Const. art.
VI, § 5(3)(4). The chief judge’s order stated that the appointment
was “nunc pro tunc to An a class action
against an insurer, the trial
court’s order granting class action certification is not an ultimate
disposition of an individual claim. While an order denying class certification
may be appealed, an order granting class certification is not subject
to interlocutory appeal based on a C.R.C.P. 54(b) certification. Therefore,
the insurer's cross-appeal challenging the grant of class certification
was not a proper appeal at this stage and was dismissed. The court also
ruled that the order granting partial summary judgment against the plaintiffs
was properly certified under C.R.C.P. 54(b). On the merits of that appeal,
the court reversed summary judgment. The courtl concluded that former
C.R.S. § 10-4-710(2)(a) required the insurance company to offer
both enhanced benefits options at issue to its insureds. The court ordered
the insureds' insureds’ claims for declaratory judgment and breach
of contract reinstated. Soto
v. Progressive Mountain Insurance Company In an appeal
of a denial of a Crim. P. 35(c) motion, the court agreed, and the People
conceded, that the trial court erred in holding the claim to be time
barred. The claim was timely filed within the three-year period. The
trial court also erred in finding it did not have jurisdiction to consider
the motion because it was not filed on Form 4. The court of appeals
concluded that a pro se defendant’s failure to file a Crim. P.
35(c) motion on Form 4 does not deprive the trial court of The Health Care Availability Act places the decision as to the form and funding of periodic payments within the discretion of the trial court. The jury was not instructed to enter a verdict as to the amount of future damages or the rate it used in calculating present value, and the hospital did not request an instruction requiring the jury to state the amount of future damages. Rather, the special verdict form submitted to the jury required only that the present value of the future damages be recorded. Thus, to determine the value of future damages from the present value of those damages presented in the jury’s verdict, the trial court would have had to determine which discount rate the jury used to calculate the present value verdict from its findings of future damages. But it would have been inappropriate under CRE 606(b) for the trial court court to delve into the process the jury used to arrive at its present value calculations. Under the circumstances, the judgment reflected the jury’s computation of the present value of future damages, and thus the trial court did not abuse its discretion in accepting plaintiff’s proposed order of judgment regarding the periodic payments. Garhart v. Columbia/HealthONE, L.L.C. The
trial court erred in finding that it breached the duty of good faith
and fair dealing, because the other party's expectations under the language
of the contract were not violated by ADT’s conduct. There was no
exercise of “discretion in performance” that denied the other
party the benefit of the contract. Judge Criswell specially concurred,
noting that in his view "the covenant is implicated only if the
contract does not set forth any other criteria for the exercise of such
discretion. It In an appeal
from a preliminary injunction, the court of appeals saw not abuse of
the trial court’s discretion in concluding that the validity of
a noncompetition provision is determined as of the time the agreement
is entered into, and not as of any time thereafter. In examining the
definition of “professional,” the court noted that the defendant
may well have been a “professional” member of plaintiff's
staff, but he reported to persons who held management or executive positions
but who, for the most part, related to him in a nonmanagement or nonexecutive
capacity. Thus, the Trial court
did not err in granting motion to dismiss insurance coverage claim under
a professional services exclusion. The language of the exclusion was
unambiguous and under its plain language, there was no coverage. Titan
Indemnity Company v. Travelers Property Casualty Company of America Defendant was
convicted of offenses not enumerated in the direct file statute, and
therefore the trial court had discretion to consider either an adult
or a juvenile sentence. Thus, the trial court erred in determining that
it was required to impose an adult sentence. People
v. Vickers Application of equitable subrogation following a foreclosure sale served to fulfill the underlying policy of the foreclosure doctrines and therefore it was not error for the trial court to apply it. The court rejected the argument that there must be wrongful conduct in every claim of unjust enrichment. .Ameriquest Mortgage Company v. Land Title Insurance Corporation Trial court
did not err in concluding that principles of equity barred commercial
lender's claim for equitable subrogation. Lender is a sophisticated,
large commercial lender, had actual knowledge of a prior-recorded deed
of trust, and under the circumstances, had the ability to avert harm.
It failed to take the opportunity to do so, and thus acted negligently,
and thereby undermining any claim of equitable subrogation Green
Tree Servicing, LLC v. U.S. Bank National Association, N.D. In a post-dissolution
of marriage proceeding, mother appealed from orders permitting father
to exercise his parenting time rights during his military deployment
by having his current wife care for the children in his home during
his parenting time. The court affirmed the trial court's order, concluding
that the trial court did not fail to accord her any presumption that
she had the first and prior right to parenting time of the children.
Because the dispute concerned father’s parenting time and father’s
determination that it would be in the best interests of the children
to allow them to maintain their relationship with their stepmother and
stepbrother by maintaining the usual parenting time schedule during
his deployment, the court did not err by considering first the presumption
that father was acting in the best interests of the children, and determining
that the Father's right
to counsel was not violated in termination of parental rights proceeding.
The Court rejects
claimants' argument that the DIME physician’s apportionment was
unsupported as a matter of law. Reviewing the record, the court accepted
the Panel’s conclusion that the DIME Here are the summaries from the court of appeals' published decisions from July 12: The court of appeals dedclines to address additional issues raised in an appendix to defendant's opening brief. The court noted that Anders v. California, 386 U.S. 738 (1967), does not authorize the advancement of a concededly meritless claim in a brief that contains another claim which is purported to have merit. Turning to the meritorious claim, the court noted that in cases involving domestic violence, expert testimony concerning the reasons for victims’ recantations is admissible. The court rejected defendant's contention that because the victim did not recant her story at trial, and because as far as the jury was concerned, her story was consistent, the expert witness’s testimony was not relevant and could have served only to prejudice defendant. The court noted that because the opinion evidence here was relevant to the issue of the victim’s credibility and helpful to the jury, and the expert did not testify regarding the specific relationship between defendant and the victim, the probative value of the evidence was not substantially outweighed by any unfair prejudicial. The court did, however, vacate the sentence because defendant did not waive his right to conflict-free counsel at his sentencing hearing. The court concluded that defendant neither expressly nor impliedly waived his right to counsel, but instead merely stated that he did not want to represent himself. The court was not convinced the defendant knowingly and willingly undertook a course of conduct that demonstrated an unequivocal intent to relinquish his right to representation. People v. Wallin In common fund case arising out of a suit stemming from the Qwest/US West merger, the court rejected the objectors' argument that they should have reduced the attorney fees because they came to approximately $1,000 per hour per attorney or paralegal. The court did, however, conclude that the trial court abused its discretion in charging the settlement fund certain undocumented costs and expenses. Brody v. Hellman Insurer did not make a sufficient offer of enhanced PIP coverage and therefore the trial court erred in entering summary judgment based on its contrary conclusion. The court said that it perceived "no basis for concluding that a potential purchaser of enhanced PIP coverage is less entitled to information sufficient to make an informed purchase decision [than a purchaser of UM/UIM benefits]. Affording purchasers of enhanced PIP coverage a right to such information is, in our view, consistent with the remedial and beneficent purposes of the No-Fault Act and furthers the Act’s goal of avoiding inadequate compensation to automobile accident victims." Munger v. Farmers Insurance Exchange The $15,000
limitation on certain tort claims precludes recovery against a UM/UIM
insurer Trial
court did not err in finding that a promissory note had been paid in
full. The court of appeals rejected the bank's argument that the record
did not support the findings that the check was a cashier’s check,
certified funds, or a certified check for the payoff amount. The trial
court concluded the check “was either a cashier’s check or
certified funds or a certified check” and that conclusion was supported
by record evidence. Further, the trial court’s conclusion that
the check was “for the full amount of a payoff” was also support
by testimony. The court concluded that the check was “taken for”
the debtor’s obligation without regard to the bank’s internal
procedures. and therefore fell under C.R.S. § 4-3-310, Fifth
Third Bank v. Jones Trial court did not err in ordering defendant to pay an aggregate amount of restitution greater than the amount of the bond that he failed to post. Restitution was based on actual damage caused to victims, which could exceed bond amount. People v. Leonard The trial court erred in applying claim preclusion to mechanic’s lien claim because C.R.S. § 38-22-124 permits mechanic’s liens to coexist with other kinds of relief and thereby bars application of claim preclusion. Dave Peterson Electric, Inc. v. Beach Mountain Builders, Inc. Department of Revenue may revoke a liquor license in a revocation proceeding commenced before the expiration of a license but completed after the expiration. Trappers Lake Lodge & Resort, LLC v. Colorado Department of Revenue As a statutory town, Estes Park was not authorized to appropriate monies for any marketing and referral enterprises that were not advertising or advertising-related, under C.R.S. § 31-15-901(1)(b), as that provision allows towns to appropriate money for "advertising" only. Estes Park Chamber of Commerce. v. Town of Estes Park An insurance
company may deny UM/UIM coverage to a resident relative driver and resident The trial court
did not err in dismissing counts of sexual assault on a child by one
in a position of trust. The court rejected the People's argument that
the definition of “position of trust” should be interpreted
to include situations where the defendant first gained access to the
victim by being in a In a dependency
and neglect proceeding, mother appealed from the denial of her motion
to set aside the adjudicatory order and the subsequent judgment terminating
the parent-child legal relationship with her child. Mother contended
that that the statute authorizing service by a single publication C.R.S.
§ 19-3-503(8)(b), is unconstitutional on its face and as applied,
because it did not provide her with actual notice of her legal rights
before the child was adjudicated. The trial court rejected these contentions,
finding that mother “deliberately concealed herself” from
law enforcement and the court. Based on that finding, the court of appeals
concluded that she In an appeal from the termination of parental rights, parents contended that the trial court erred in failing to conduct the termination hearing within 120 days after the motion to terminate was filed as required by § 19-3-602(1). The court of appeals rejected the parents' argument that the statutory time limit is mandatory and that the court failed to make the findings required to support a delay in the termination hearing. The court held that the statutory time in which to conduct a termination hearing is not jurisdictional, and therefore the parents’ failure to raise the issue in the trial court precluded relief on appeal. People In the Interest of T.E.H. July 20, 2007 I suppose you're wondering where the case summaries. So am I. Apparently, there is no case summary gnome and I'm going to have to do them myself. But my day job has not cooperated, so it's more likely late next week that they will be posted. I may just do them with next Thursday's published decisions. Stay tuned. The supreme court will not issue any announcements on Monday. The supreme court did recently issue a rule to show cause in the following two original proceedings: 07SA200 Delta County District Court Case No. 06CV37 (Judge Charles R. Greenacre) In re: Plaintiff: ANDREA GOETTMAN, for herself and in the Representative Capacity for the Estate, Heirs and Minor Children (LRG, JMG and MBG) of Michael Goettman v. Defendants: North Fork Valley Restaurant; Thirsty Parrot Pub; Lawrence Jakubiak; Gabe Neuenschwander; Patricia Medina; Kate Benton; Phillip Dunn; Hydramatic Engineering, Pty. Ltd; Aro Mining Products, USA, Inc. Petitioner Aro Mining Products USA, Inc. contends that the Delta County District Court lacks subject matter and personal jurisdiction over it in this wrongful death action because the Pennsylvania Workers' Compensation Act provides the exclusive remedy and because it has not established minimum contacts with Colorado within the meaning of the Colorado Long-Arm Statute. It requests that the court issue a writ of prohibition directing the District Court to dismiss the suit against Aro for lack of jurisdiction. On June 29, 2007, the court issued a rule to show cause why the requested relief should not be granted. Respondent Andrea Goettman, for herself and in the Representative Capacity for the Estate, Heirs and Minor Children (LRG, JMG and MBG) of Michael Goettman, is directed to provide a written answer on or before July 30, 2007. Petitioner Aro has thirty days from receipt of the answer within which to reply.
07SA191 District Court, City & County of Denver, 05CR5882 (Judge Anne Mansfield) In re: Plaintiff: THE PEOPLE OF THE STATE OF COLORADO v. Defendant: MARVIN RICHARDSON Petitioner Marvin Richardson seeks relief from the trial court’s order that he be retried on first and second degree murder counts where he contends that the jury unanimously found him not guilty of those charges in his first trial, but where the court refused to inquire whether the jury had reached unanimity on those charges before the jury was discharged. Richardson maintains that a retrial would violate his right to be free from double jeopardy. On June 29, 2007, the court issued a rule to show cause why the relief requested should not be granted. Respondent the People of the State of Colorado is directed to provide a written answer on or before July 18, 2007. Petitioner Richardson has twenty days from receipt of the answer within which to reply. July 19, 2007 Here are today's court of appeals announcements. The court issued the following unpublished decisions (no published opinions today). I still have to update last week's opinions, but I'm finishing up a brief and have not been able to do summaries yet. No.: 03CA1292 People v. Lynn E. Scott July 16, 2007 The supreme court's announcements for today are here. The court issued no opinions. It granted cert. in one case, Schwartz v. Schwartz, No. 07SC353, on this issue: Whether the court of appeals erred in failing to either rule on the petitioner’s appeal or expressly declare the May 9, 2005 order of the district court to be null and void as a result of the petitioner’s death and the abatement of the appeal. I still have to post summaries on last week's court of appeals' decisions. I will try to get that done sometime this week. Thanks for your patience. July 12, 2007 Here are today's court of appeals announcements. The court issued 13 published opinions. I will try to post summaries of them in the next few days, but my current workload is getting in the way. Thanks for your patience. People v. Wallin July 11, 2007 Tomorrow the court of appeals will release the following decisions, including 13 published decisions. I will probably not get summaries up until Friday at the earliest: Published Opinions No.: 04CA1011 People v. Donald O. Wallin Unpublished Opinions No.: 04CA0780 v. Lorenzo Scott Sayles July 9, 2007 The supreme court did not issue any case announcements this morning. I suspect that the court is on its summer "hiatus" and will likely not be releasing many decisions or other announcements for awhile. I'll keep you posted regardless. July 5, 2007 I'm back. I was out of town for the Fourth. Caught fireworks at Mt. Rushmore, which is truly a sight to see. This post will update both today's court of appeals decisions (unpublished opinions only) and the supreme court's decisions from Monday. The supreme court's announcements from Monday, July 2, are here. The court issued four decisions, summarized below, and also granted cert. in one case. The trial court violated defendant's due process and Sixth Amendment rights when it sentenced her for a class 4 felony when the jury only found her guilty of a class 5 felony. Because a sentencing court does not have discretion to reconsider a defendant's guilt following a jury verdict, it cannot sentence a defendant on a crime different from that on which a jury's guilty verdict is based. This constitutional violation constitutes structural error in sentencing, and is not subject to plain error analysis. Hence, the supreme court affirmed defendant's conviction for the class 5 felony, vacated her sentence for the class 4 felony, and remanded for resentencing on the class 5 felony conviction. Medina v. People Defendant claimed
the district court erred in allowing the jury to have unsupervised access
to a videotaped interview of the child-victim, which had been admitted
as an exhibit at trial. The court of appeals held that the district
court did not err because C.R.C.P. 47(m) no longer prohibits unsupervised
jury access to testimonial evidence, including videotaped interviews.
The supreme court affirmed the judgment of the court of appeals, but
rejected its reliance on C.R.C.P. 47(m). That rule of civil procedure
does not govern materials going back to the jury room during deliberations
in criminal cases. Instead, the trial court’s ultimate objective
must be to assess whether the exhibit will aid the jury in its proper
consideration of the case, and even if so, whether a party will nevertheless
be unfairly prejudiced by the jury’s use of it. The matter is one
of trial court discretion. In this case, the trial court did not abuse
its discretion in allowing the jury unsupervised access to the videotape.
Justice Martinez, joined by Justice Bender, specially concurred, concluding
that the trial court's discretion is not as broad as the majority indicated:
"trial courts are limited in the exercise of that discretion and
charged with ensuring that when Trust instrument did not forbid the transfer of the trust principal to The Denver Foundation's nonprofit corporation and, indeed, that the intent in establishing the trust would be best effectuated by such a transfer. In so holding, the supreme court determined that the trust would not terminate by merger upon transfer of the principal. Justice Eid, joined by Justices Rice and Coats, dissented, concluding The Denver Foundation did not have the authority to revise a trust document’s provisions through incorporation. She concluded that The Denver Foundation could not contradict the express terms of a trust agreement, and therefore could not , through the vehicle of incorporation, give itself authority to transfer the principal of the trust and thereby become trustee. The Denver Foundation v. Wells Fargo Bank In two original proceedings arising from two criminal cases pending before the same district court judge, deputy public defenders alleged that conflicts of interest prevented them from investigating ineffective assistance of counsel claims related to their clients’ prior criminal convictions where such convictions occurred while the defendants were represented by other members of the public defender’s office. The supreme court held that each deputy public defender may present the trial court with a sealed affidavit demonstrating the facts indicating that his or her client received ineffective assistance of counsel during a prior conviction proceeding, and the trial court may appoint alternate defense counsel to represent the client if it determines that the stated factual basis and alleged conflict of interest are sufficient to warrant further independent investigation. The supreme court made the rules absolute so that the deputy public defenders may submit affidavits showing that alternate defense counsel should be appointed to review the claimed ineffective assistance of counsel. In re People v. Mills and In re People v. Pryor-Riley The court granted cert. in No. 07SC124, Wimp v. Brasher, LLC, on these issues:
Whether Colorado adopts the Restatement of Restitution principle that the measure of restitution in an unjust enrichment action may be more or less than the benefit received.
In an unjust enrichment action, whether the sole permissible manner for calculating the remedy is the measure of benefit conferred or whether a trial court has discretion to calculate an appropriate remedy according to the loss suffered, the benefit received, or a combination of the two.
Whether a trial court has authority to fashion an equitable remedy based on principles of fairness and equity and whether its discretion should not be disturbed unless it is shown that the court abused that discretion or acted unreasonably.
The court of appeals' announcements for today are here. The court issued the following unpublished decisions: No.: 04CA1523 People v. Diana Lynn Smith
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