March 22, 2007 The court of appeals' announcements for today are here. The court issued 14 published decisions, summarized below: Trial court erred by ruling that C.R.C.P. 69(d) interrogatories are not “process” that can be validly served on a corporate judgment debtor’s registered agent for service of process. “Process” is a broad term that encompasses not only a summons, but also subpoenas and other documents. Under this modern view, postjudgment interrogatories constitute “process.” Isis Litigation v. Svensk Filmindustri In a statutory action for exclusion of property within a municipality from a special district, the trial court erred in finding that to be “fair and equitable” under C.R.S. § 32-1-502, it must require municipality to reimburse the special district for the fair market value of facilities. The court remanded for further findings under the proper legal standard. City Council of the City of Cherry Hills Village v. South Suburban Park and Recreation District Defendant contractor would be immune from tort liability to plaintiff under C.R.S. § 8-41-401(2), only if it is a statutory employer under § 8-41-401(1)(a). Because there was a genuine issue of material fact whether defendant was a statutory employer when plaintiff was injured, the trial court erred in granting summary judgment. Judge Roy dissented, and would have affirmed the summary judgment. Cowger v. Henderson Heavy Haul Trucking, Inc. May the legislature
transfer to the general fund cash funds that were collected by the state
and Trial court did not erred in denying defendant's Rule 35(c) motion. Defendant contended that an uncharged misdemeanor was not a lesser nonincluded offense of the charged offenses but rather, was a separate, new offense which was time barred when it was alleged against him. The court of appeals rejected that argument. People v. Lowry In boundary dispute case where location of the monuments on the ground and the distance call and boundary line depicted on the plat conflicted, the monuments, even if misplaced, controlled and set the boundaries. Morales v. CAMB Where defendant
was sentenced in October 1994 and there was no direct appeal, the time
limitation for claims for postconviction relief expired in October 1997.
Defendant's motion challenged the validity of his plea and the manner
in which the plea and sentence were implemented, and therefore his claims
were cognizable only under Crim. P. 35(c), not as claims of illegality
under Crim. P. 35(a). Since defendant alleged no justifiable excuse
or excusable neglect, his claims were time barred by C.R.S. § 16-5-402(1).
The court also concluded defendant's request for a proportionality review,
more than ten years after his sentencing, was time barred. Defendant’s
request for a proportionality review was a challenge to the constitutionality
of his sentence under the Eighth Amendment, rather than an allegation
that his sentence did not comport with the statutory framework. Therefore,
the limitation period of C.R.S. § 16-5-402 was also applicable
to the request for a proportionality review. People
v. Moore-El In putative class action concerning nondisclosure in the sale by defendants of uninsured/ underinsured motorist (UM/UIM) coverage, plaintiff appealed the trial court's order decertifying the class. The court of appeals concluded that the trial court abused its discretion in decertifying and therefore reversed and remanded for further proceedings as a class action. Judge Nieto dissented. Benzing v. Farmers Insurance Exchange Court of appeals
rejects argument is that insurance policy was not a “complying
policy” under former C.R.S. § 10-4-703(2) because it did not
pay claimant all of the wage loss benefits to which she was entitled.
Former § 10-4-703(2) of the No-Fault Act, defined a “complying
policy” as “a policy of insurance which provides the coverages
and is subject to the terms and conditions Summit county land use and development code § 3812.04 was not expressly or impliedly preempted by the Colorado Mined Land Reclamation Act, C.R.S. § 34-32-101. Section 3812.05(H) of the county's land code was expressly preempted, however, because it set reclamation standards different from those established in the state statute. Judge Roy dissented in part, concluding that § 3812.04 was expressly or impliedly preempted by the statute. Colorado Mining Association v. Board of County Commissioners of Summit County The UCC is to
be construed so as to make the law uniform among the various jurisdictions.
Tthe majority of the courts considering the issue have concluded that
the language of the instrument controls. In light of the admonition
of C.R.S. § 4-1-103(a)(3), and the relatively short time after Town Code did not confer upon Town property owners a constitutionally-protected property interest in the retention of scenic views. Therefore, by permitting new construction on lots adjacent to plaintiffs' homes that blocked their views, the Town did not deprive them of a property interest without due process. JJR 1, LLC v. Mt. Crested Butte Employer was
not denied equal protection and due process. The court rejected employer's
argument that its right to procedural due process was violated by the
ALJ’s failure to make adequate findings in his order, and that
its right to equal protection was violated because the average weekly
wage statutes were applied differently to it than to other similarly
situated employers that have not been required to compensate a claimant
for AWW based on wages earned from a subsequent employer. The court
noted that employer was not alleging that it was denied proper notice
or hearing, but its procedural due process claim rested solely on its
contention that the ALJ’s order was brief and did not make adequate
findings. The ALJ was not required to expound thoroughly on the reasons
and findings underlying its decision. And the employer did not meet
its burden of showing an equal protection violation. The court also
concluded that the ALJ did not abuse his discretion in awarding claimant
benefits based upon her The
petitioners were not the child’s legal guardians when they sought
custodial adoption, and therefore lacked standing to seek custodial
adoption as the child’s legal guardians under C.R.S. § 19-5-203(1)(k).
Nor were the petitioners the legal custodians of the child. Although
they had had physical custody of the child for more than one year, there
had been no court action divesting the parents of legal custody. Accordingly,
the petitioners did not have standing to seek custodial adoption as
the child’s legal custodians. In
re the Adoption of a Child, K.L.L. March 21, 2007 The court of appeals will issue the following decisions tomorrow, including 14 published opinions: Published Opinions No.: 04CA1619 Isis Litigation v. Svensk Filmindustri Unpublished Opinions No.: 04CA1753 People v. Victor Dean Frazier No.: 05CA2219 People v. Justin Benjy Duran March 19, 2007 Here are today's supreme court announcements. The court issued two decisions, summarized below, and granted cert. in four cases. The questions presented in those cases follow the summaries. Also, below that are the summaries of the court of appeals' published decisions from March 8. The district court properly ruled that it lacked subject matter jurisdiction to adjudicate water use rights, but erred in granting summary judgment to the opposers and dismissing the water court application, based on issue preclusion. The court remanded for the water court to proceed with considering the change of water right application. Justice Eid, joined by Justice Coats, specially concurred, concluding, "In my view, the water court on remand should start from a clean slate when considering the merits of the Tonkos’ claim. I therefore concur only in the judgment that the water court’s reliance on issue preclusion in this case was erroneous." Concerning Application for Water Rights of John and Beverly Tonko in Fremont County The tort of malicious prosecution requires proof that the action allegedly maliciously prosecuted was terminated in favor of the moving party. An ex parte action, however, is exempt from the favorable termination requirement. Affirming the court of appeals’ decision in Hewitt v. Rice, 119 P.3d 541 (Colo. App. 2004), the supreme court holds that a lis pendens is not an ex parte action and is not exempt from the favorable termination requirement. The court also declines to adopt a totalityofthecircumstances test to determine whether the proceeding giving rise to the claim of malicious prosecution was favorably terminated when the parties entered a settlement. A malicious prosecution action based upon the filing of a lis pendens requires favorable termination on the merits of the claim underlying the lis pendens. Justice Eid, joined by Justice Coats, concurred in part and specially concurred in part, concluding that the recording of lis pendens, in and of itself, cannot support a claim for malicious prosecution. In Justice Eid's view, a plaintiff who is aggrieved by the allegedly wrongful recording of a lis pendens standing alone, without an underlying action, must look elsewhere for relief. Hewitt v. Rice The court granted cert in these cases: Close v. People, No. 06SC520, on these questions: Whether the court of appeals erred when it failed to follow Rule 35(b)’s express language and held that defendant’s motion for sentence reconsideration was untimely even though it was filed, as allowed by Rule 35(b), within 120 days of this Court’s decision affirming defendant’s sentence in People v. Close, 48 P.3d 528 (Colo. 2002).
Whether the holding in People v. Nguyen, 900 P.2d 37 (Colo. 1995), should be applied retroactively thus permitting a sentence reduction in this case.
Whether the court of appeals applied the wrong standard of review to the district court’s finding that defendant lacked justifiable excuse or excusable neglect for filing a late Crim.P. 35(c) motion when the district court made its decision based solely on written pleadings?
Whether the court of appeals erred in denying defendant conflict-free counsel when the court denied a hearing on his pro se Crim.P. 35(c) motion. Reynolds v. People, No. 06SC651, on this issue: Whether the court erred in admitting “res gestae” evidence of two prior drive-by incidents involving verbal confrontations and threats between Defendant and the victim. Flood v. Mercantile Adjustment Bureau, LLC, No. 06SC699, on these issues: Whether Colorado case law requires strict compliance with the notice provisions of the Colorado Fair Debt Collection Practices Act, and, if so, whether the notice here complied, when it gave notice to an alleged debtor using different language than that required by the statute.
Whether the collection agency violated section 12-14-105(2), C.R.S. (2006) by outsourcing its operations to a prohibited company.
Whether a prevailing debt collector is entitled to recover costs under Colorado’s general cost statute when the specific fees and costs provisions of section 12-14-113(1.5), C.R.S. (2006) are preempted by the Federal Fair Debt Collection Practices Act. Gallion v. Colorado Department of Revenue, No. 06SC809, on this question: Whether the court of appeals erred by holding that Petitioner could not validly recant her refusal to take a chemical blood alcohol test even though she consented to a chemical test within two hours of driving as required by section 42-4-1301.1(2)(a)(III), C.R.S. (2006), but the arresting officer was no longer available and had returned to patrol. Below are the summaries of the court of appeals' published decisions from March 8. C.R.S. § 7-108-501(2)(c), which addresses conflict of interest transactions for corporate directors, does not exempt transactions from its coverage when they involve directors who are also controlling shareholders. The court of appeals held that the transaction at issue was fair: "the test for whether a transaction is 'fair' is whether 'under all the circumstances [it] carries the earmarks of an arm's length bargain.'" The court did vacate the district court's award of costs and expert fees, concluding a hearing on reasonableness was necessary. Kim v. The Grover C. Coors Trust Decision in earlier appeal necessarily determined that the trial court was free to award more than $5,000 in damages and fees. Therefore, trial court did not err in awarding fees that exceeded the original injunction $5,000 bond. The court also rejected the cross-appeal argument that the trial court award too little in attorneys fees. Atmel Corporation v. Vitesse Semiconductor Corporation The court of
appeals rejected defendant's claim that police officers acted unreasonably
when, during the execution of a search warrant authorizing a search
of his father's residence for evidence of crimes committed by his father,
the officers searched defendant's bedroom, which he claimed he rented
from father. The facts known to the officers established that defendant's
father--the person whose unlawful activities formed the basis for the
search warrant-had ready access to Defendant's convictions must be reversed because defendant, who proceeded pro se at trial, was excluded during portions of jury selection and therefore was denied the opportunity to exercise any peremptory challenges. Despite the court's admonitions to ask questions or to refrain from making speeches, defendant persisted in "disruptive, contumacious, [and] stubbornly defiant" behavior. Therefore, defendant forfeited his Sixth Amendment right to be present in court. But because defendant was proceeding pro se, his exclusion from the courtroom denied his right to counsel. People v. Cohn Trial court erred in part of its parenting time order denying mother any contact with her children. Because the trial court must expressly consider the best interests of the child standard, including the least detrimental alternative to the children, in addition to the endangerment standard, the court of appeals concluded the issue needed to be reconsidered. On remand, the trial court should consider, as appropriate, options such as supervision of parenting time by the county or district welfare department or the court's probation department, under C.R.S. § 14-10-130(2), appointment of a qualified domestic relations decision-maker with binding authority to resolve disputes, under § 14-10-128.3, appointment of an arbitrator under § 14-10-128.5, and the resumption of therapeutic parenting time. But after expressly considering whether cessation of all contact is the least detrimental alternative, the trial court may nonetheless again determine that mother should have no parenting time with her children. Marriage of Hatton Appeal challenging trial court's order denying request for additional presentence confinement credit was dismissed as moot where because defendant had completed the confinement portion of his sentence and been placed on mandatory parole. Once he was placed on mandatory parole, the balance of his sentence to incarceration was discharged and his appeal was rendered moot. People v. Edwards Court of appeals
remands for further proceedings on whether Metro State College's 2003
Handbook was a breach of contract because it retrospectively eliminated
tenured faculty members' vested rights by (1) removing their priority
in the event of dismissals due to reductions in force, and (2) eliminating
their right to alternative employment at Metro State upon such dismissals.
The court concluded the rights to priority and relocation are essential
to the contractual right to tenure and therefore are substantive in
nature. The court reversed the judgment of the district court to the
extent the trial court held that the President's decision of dismissal
is final and to the extent the trial court denied Professors' claims
regarding their tenure rights to priority and relocation. The case was
remanded for further proceedings, including Court of appeals rejected insureds' argument that policy exclusion for "water below the surface of the ground" did not include water leaking from a building supply pipe, but, instead, meant only naturally occurring groundwater or subterranean water. The court concluded that the policy language clearly and unambiguously excluded coverage for losses caused by water below the surface of the ground, regardless of the source or cause. It therefore affirmed summary judgment in favor of the insurer. Thompson v. State Farm Fire & Casualty Company Claimant's petition
for review by the Panel of the order of an administrative law judge
denying death benefits was not timely filed under C.R.S. § 8-43-301(2).
C.R.S. § 8-43-215(1), which provides that a written order granting
or denying benefits "shall be mailed . . . to each of the parties
in interest," does not require a mailing to the claimant in addition
to a mailing to the claimant's attorney in order to commence the running
of the time within which a petition for review Trial court erred in approving the final settlement and distribution of estate and dividing the estate equally among the four named beneficiaries, where only one of four had received a waiver by the Department of Health Care Policy and Financing, which had a claim against the estate. In re the Estate of Ligon Trial court erred in concluding that because the conditions plaintiff alleged caused her injuries were dangerous conditions under C.R.S. § 24-10-106(1)(e), governmental immunity was waived. Plaintiff's alleged that the district was negligent in its operation of Water World, but not that there was a physical defect in the attraction's construction or maintenance. Consequently, the court of appeals concluded the trial court erred when it ruled that the absence of an individual or system to regulate the spacing of visitors in rafts constituted a dangerous condition under § 24-10-106(1)(e). Accordingly, the district was immune to plaintiff's suit. Curtis v. Hyland Hills Park & Recreation District Colorado's statutory guardianship scheme contemplates the possibility a court can appoint DHS as a guardian for an incapacitated person. But C.R.S. § 15-14-312 does not contain any language indicating a court has the power to require any particular person or agency to be a guardian. The decision whether to provide services to, or seek a guardian for, an at-risk adult under C.R.S. § 26-3.1-104 rests within the discretion of the director of the county department of human services. Therefore, the court lacked the power to order DHS to serve as guardian where DHS did not consent to such appointment. In re the Estate of Morgan Evidence supported finding that parents were unfit, so trial court's termination of parental rights was affirmed. Moreover, the court's findings that there was no less drastic alternative to termination of parental rights and that termination of parental rights was in the child's best interests were supported by the record and could not be disturbed on appeal. People In the Interest of D.P.
March 15, 2007 The court of appeals' announcements for today are here. The court issued unpublished decisions only. Here is the May oral argument calendar for the court of appeals. I'm still in trial. I will try to get fully updated by next Tuesday. March 12, 2007 The supreme court's announcements for today are here. The court issued no new decisions and did not grant cert. in any cases. I'll try to get additional posts up this week, though, as I am in trial, that may not be possible. March 9, 2007 The supreme court will issue no new decisions next week. It is likely that I will have no new posts next week, as I will be in trial. I will get caught up as soon as I can after my trial ends. Thanks for your patience. March 8, 2007 Here are today's court of appeals announcements. The court issued 13 published decisions. As I noted yesterday, I will likely not be able to summarize these until March 20th. I apologize for the inconvenience. March 7, 2007 The court of appeals will release the following decisions tomorrow, including 13 published opinions. Unfortunately, I am preparing for a trial I have next week and will not be able to summarize those cases until the trial is over. I will try to do so by March 20th. Published Opinions Nos.: 04CA0583 & 04CA1203 Chinyun Kim v. The Grover C. Coors Trust;
et al. Unpublished Opinions No.: 03CA1109 People v. Corey Cornelius Woodard March 6, 2007 I apologize for not posting yesterday, but my computer went all wonky and had to be re-imaged, so I just got my software reinstalled and running this morning. Anyway, thanks for your patience. The supreme court's announcements for yesterday are here. The court issued no new decisions, but did grant cert. in the following two cases: Juhl v. People, No. 06SC637, on this issue:
Whether the court of appeals misinterpreted the mandatory concurrent sentence provision in section 18-1-408(3) when it held that "identical evidence" means "identical elements" and therefore, the provision did not apply to Petitioner's convictions for vehicular assault and first degree assault even though both convictions arose out of a single act and involved a single victim. Golob v. People, No. 06SC653, on these questions:
Whether the court of appeals erroneously concluded that the trial court's improper admission of hearsay evidence was not reversible error.
Whether the court of appeals erred when it held that the trial court's failure to make specific findings when it limited the defendant's expert testimony was harmless. March 2, 2007 The supreme court will announce no new opinions on Monday. It's unclear whether the court will make any other announcements or not. If it does, I will let you know. March 1, 2007 Today's court of appeals announcements are here. The court issued only unpublished decisions.
|
|||||||||||||||||||||||||