November 30, 2007 The supreme
court will issue two decisions on Monday, No. 06SC591, Wheat Ridge Urban
Renewal v. Cornerstone, and No. 06SC780, In re the matter of J.C.T. Here are the summaries of yesterday's published decisions from the court of appeals: The trial court did not abuse its discretion in denying defendant’s challenge for cause for juror who she worked as an administrator for a victim advocacy organization. The juror never testified in a case, did not participate in the prosecution of alleged offenders beyond taking victims to the district attorney’s office or to court, had not been involved in the day-to-day operations of the organization for five years, and focused on the organization’s financial affairs in her present capacity as a board member. Under the record thus indicated the prospective juror was not a “compensated employee of a public law enforcement agency” for purposes of C.R.S. § 16-10-103(1)(k) and Crim. P. 24(b)(X)(II). There was no information to establish the victim advocacy organization was a “police-like division of government that has the authority to investigate crimes and to arrest, to prosecute, or to detain suspected criminals.” The court of appeals rejected the defendant's argument that various factors about the juror’s association with the victim advocacy organization that, in combination, required removing her from the jury for cause. Judge Webb specially concurred on another issue, prosecutorial misconduct. Judge Webb concluded the prosecutor's misconduct was improper but agreed with the majority that it was harmless error. He did criticize the conduct, noting that "controlling precedent provides no bright line test to determine when improper argument mandates reversal. Hence, while I accept my colleagues' conclusion that the foregoing argument was harmless error, such argument should not be condoned, and my acquiescence in affirming defendant's conviction does not condone it." People v. Whitman In a case to
determine whether an owner who entered into a standard American Institute
of Architects (AIA) contract waived all claims for damages against the
contractor and subcontractor to the extent those damages were covered
by property insurance, the court of appeals adopted the majority position,
which does not distinguish between work and non-work, but instead interprets
the waiver to bar all claims to damaged property to the extent covered
by the owner’s property insurance. The court rejected the minority
position, which does distinguish between work and non-work, limiting
the scope of the waiver provision to claims for damages to the work.
In so holding, the court of appeals rejected Town of Silverton v. Phoenix
Heat Source System, Inc., 948 P.2d 9 (Colo. App. 1997), which had adopted
the minority view. I strongly suspect the supreme court will review
this case to decide which position to adopt. Copper
Mountain, Inc. v. Industrial Systems, Inc. Accepting defendant's
guilty plea when the criminal complaint did not include an annotation
indicating that the underlying factual basis for the charges involved
an act of domestic violence or, in the alternative, requiring the prosecutor
to represent that he or she could not make a prima facie case on the
original charge, was a violation of C.R.S. § 18-6-801(3). But the
violation was technical only, and the court of appeals remanded for
the trial court to allow the prosecution to amend the complaint to reflect
that the charges involved an act of domestic violence. People
v. Campbell Defendant contended
the trial court committed reversible error by failing to revoke his
probation within five days after the probation revocation hearing. The
court of appeals rejected that argument. Under C.R.S. § 16-11-206(5),
if the court finds that a defendant violated the terms and conditions
of probation, it has the discretion to revoke that privilege and impose
any sentence to which the defendant was subject upon conviction of the
underlying crime. That section also provides that “If the court
determines that a violation of a condition of probation has been committed,
it shall, within five days after the said hearing, either revoke or
continue the probation.” The court of appeals concluded that the
provision was not jurisdictional, and thus, the court had the power
to revoke his probation after the five days expired. People
v. Heimann Taxpayer timely appealed the final determination by filing a complaint in the district court under C.R.S. § 39-21-105(1). But she failed to comply with the requirement in § 39-21-105(4) to post a surety bond, or deposit with the executive director the amount of the tax claimed due, within fifteen days after filing the notice of appeal. She also failed to request an extension of time to file the bond. The district court denied her motion to waive the requirement. The district court dismissed her appeal. The court of appeals affirmed, concluding that the failure to comply with the bond requirement was fatal to her appeal. Overstreet v. Colorado Department of Revenue The court of appeals rejected the insured's argument that his claims did not accrue until he discussed them with counsel. Since the claims were not filed within the 3-year statute of limitation, they were barred. Olson v. State Farm Mutual Automobile Insurance Company Trial court did not err in concluding insurer had no duty to defend. Under the policy, the term “temporary worker” was defined as “a person who is furnished to you to substitute for a permanent ‘employee’ on leave or to meet seasonal or short-term work conditions.” The court concluded that a temporary worker must be “furnished” by a third party, and since the worker who caused the car accident was not furnished to the insured, he could not be considered a temporary worker. Nor was the worker an "apparent agent." Therefore, the auto exclusion applied, and the insurance company had no duty to defend. Carl’s Italian Restaurant v. Truck Insurance Exchange Workers comp. claimant contended that a second final admission of liability (FAL), filed within thirty days of a first FAL, supersedes the first FAL and extends the time before the automatic closure of all issues raised in the corrected FAL. Therefore, she argued that the Panel erred in affirming the ALJ’s determination that her bjection, filed thirty-one days after the original FAL, was untimely. The court of appeals agreed. Judge Terry, however, dissented in part, concluding that while the rule reached by the majority may be better public policy, C.R.S. § 8-43-203(2)(b)(II) contains no provision for additional time for claimants to respond in the event the employer files an amended FAL within the thirty-day period to contest the original FAL. Therefore, Judge Terry concluded, the claimant's objection was untimely. Leewaye v. Industrial Claim Appeals Office November 29, 2007 Here are today's court of appeals announcements. The court issued 8 published decisions. Summaries will be posted shortly. November 28, 2007 The court of appeals will release the following decisions tomorrow, including 8 published opinions: Published Opinions 04CA1428 People v. Joshua J. Whitman Unpublished Opinions 03CA0704 People v. Nathan M. Serrano November 26, 2007 Here is the supreme court's oral argument calendar for December. The court will hold arguments December 4-6. Here is the court of appeals' oral argument calendar for January 2008. The supreme court's announcements for today are here. The court issued three decisions, summarized below. The court granted cert. in two cases, and the issues in those appeals appear below the summaries. The court has also granted review in three original proceedings, and the descriptions of those cases appear below the cert. grants. The defendant's allegedly criminal acts in response to a Fourth Amendment violation were sufficiently attenuated from any illegal conduct of the sheriff’s deputies so that exclusion of the evidence of the criminal acts was not appropriate. In response to the alleged Fourth Amendment violation, the defendant allegedly committed criminal acts against the deputies, including menacing them with a shotgun. The trial court had suppressed all evidence of those criminal acts on the ground that the evidence was derived from the deputies’ unconstitutional trespass. The supreme court unanimously concluded that the evidence was not derivative of any constitutional violation, and reversed the trial court’s suppression order. People v. Doke The phrase “pain and suffering” in the seatbelt defense provision of C.R.S. § 42-4-237(7) includes all noneconomic damages. Thus, the jury should have been instructed that it was required to consider the plaintiff's failure to use a seatbelt to mitigate the damages he claimed for inconvenience, emotional stress, and impairment of the quality of life. The court also held that an award for physical impairment and disfigurement is not subject to mitigation under the seatbelt defense provision because it is a separate and distinct category of damages that is not included in noneconomic damages. Accordingly, the court affirmed plaintiff's unmitigated damages award for physical impairment and disfigurement and reversed his damages award for noneconomic damages including inconvenience, emotional stress, and impairment of the quality of life. Justice Coats, joined by Justice Eid, concurred in part and dissented in part. Justice Coats said, "Largely because I agree so completely with the first part of the majority’s analysis, I feel compelled to dissent from the second. For precisely the reasons offered by the majority in concluding that the legislature used the term 'pain and suffering'broadly to include all noneconomic damages, I think it also necessarily includes noneconomic damages resulting from physical impairment or disfigurement. I am unpersuaded by the majority’s historical rationale for disparate treatment, not least because I am convinced that it misreads the pertinent authorities." Justice Coats concluded that the fact that noneconomic loss from physical impairment or disfigurement was already a recognized source of recovery for tortious conduct made it more rather than less likely that the legislature intended that it be treated the same as all other noneconomic loss. He therefore was "unable to find any logical or principled basis for concluding that the impact of failing to wear a seatbelt is any less relevant to the mitigation of physical impairment or disfigurement damages than it is to any other noneconomic damages." Pringle v. Valdez The supreme
court interpreted C.R.S. § 18-1.3-301(1)(e) to permit a sentencing
court to increase an offender’s sentence to community corrections
on the condition that the offender receives a hearing. The court finds
that subsection (1)(e) implies that such an increase is allowed, and
that § 18-1.3-301(1)(h) makes that implication explicit. The court
further held that an increase of a sentence to community corrections
under subsection (1)(e) does not violate double jeopardy guarantees
because double jeopardy does not bar an increased sentence if the defendant
lacked a legitimate expectation of finality in the original sentence.
Here, because the legislature provided for the possibility of a sentence
increase under subsection (1)(e), the defendant lacked a legitimate
expectation of finality in his initial sentence. Therefore, the sentence
increase upon his rejection from community corrections did not violate
double jeopardy. Justice Martinez, joined by Justice Bender and Chief
Justice Mullarkey, dissented, concluding "the majority ignores
the more reasonable interpretation of subsection (1)(e) and conflates
its mistaken interpretation with subsection (1)(h), which provides for
the modification of the sentence pursuant to the statutory procedures
for modification of probation. The majority’s interpretation ignores
the differences between subsections (1)(e) and (1)(h) as well as the
legislative history of both subsections. Moreover, the majority’s
application of probation modification hearing requirements to a subsection
(1)(e) transfer would require a due process hearing addressing whether
the sentence should be modified. Such a hearing was not conducted here."
Justice Martinez would hold that subsection (1)(e) allows the sentencing
court to resentence an offender without increasing the sentence, irrespective
of whether the court affords the offender a hearing. Romero
v. People The court granted cert in these cases: Denny Construction, Inc. v. City and County of Denver, No. 07SC236, on this issue: Whether Colorado law prohibits lost profits arising out of the loss of bonding capacity as a matter of law. Platt v. People, No. 07SC573, on this question: Whether a sleeping victim is “incapable of appraising the nature of her conduct” within the meaning of section 18-3-402(1)(b), C.R.S. (2007). The supreme court has granted review in the following original proceedings: 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.
No. 07SA321 In re: JULIE STONE, v. Defendant: STATE FARM MUTUAL INSURANCE COMPANY, an Illinois corporation. On October 22, 2007 the Court issued a rule to show cause why the requested relief should not be granted. The Respondent, State Farm Mutual Automobile Insurance Company, is directed to file a written answer on or before November 21, 2007 and Stone has thirty days from the receipt of the answer within which to reply.
No. 07SA310 District Court, Chaffee County No. 07CV44 (Judge Charles R. Barton) In re: Plaintiff: SANCTUARY HOUSE, INC., v. Defendants: GARRISON KRAUSE, SILVIA JIMENEZ KRAUSE, and RANCHO PACIFICO, S.A. a Costa Rican Corporation. Synopsis: Petitioner Sanctuary House, Inc. seeks relief from the trial court, which transferred venue to Costa Rica. Sanctuary House, Inc. filed suit in Chaffee County where defendants Garrison Krause and Silvia Krause live and where defendant Rancho Pacifico S.A. does business. Sanctuary House, Inc. seeks rescission and/or damages based on various contract and tort claims. Defendants argue that venue is not proper in Chaffee County under C.R.C.P Rule 98(a) since the dispute involves a real estate claim. Sanctuary House, Inc. claims that venue is proper under C.R.C.P. Rule 98(c) since these claims are in contract and tort. On October 16, 2007, the court issued a rule to show cause why the requested relief should not be granted. Respondents Garrison Krause, Silvia Jimenez Krause, and Rancho Pacifico, S.A. are directed to provide a written answer on or before November 15, 2007. Petitioner Sanctuary House, Inc. has thirty days from receipt of the answer within which to reply. November 20, 2007 I'm now updated. This post has (1) the list of unpublished decisions the court of appeals will release tomorrow; (2) yesterday's supreme court announcements and case summaries; and (3) summaries of last week's published decisions from the court of appeals. My next update will be next week. Have a happy and safe Thanksgiving. The court of appeals will release the following unpublished decisions tomorrow: 04CA1755 People v. Reginald Porter Here are yesterday's supreme court announcements, the court issued two decisions, summarized below. The court did not grant cert. in any cases. Recovery of
compensatory damages in a skiing-related wrongful death action is limited
to In an appeal from the Title Board, the supreme court concluded the proposed initiative violated the single-subject rule and therefore reversed the setting of the titles. The initiative’s proponents contended that the measure proposed only the creation of a new Colorado Department of Environmental Conservation with a mission of “conservation stewardship.” The opponents argued the the measure went beyond establishing a new environmental department and supplying it with a mission statement for conservation stewardship, and instead set forth a mandatory public trust standard for agency decision-making whereby conflicts between “economic interest” and “public ownership and public conservation values in lands, waters, public resources, and wildlife,” must always be resolved in favor of “public ownerships and public values.” The supreme court agreed that the initiative contained the additional subject of a public trust standard, not simply the subject of a new environmental department with a conservation stewardship mission. Therefore, the initiative violated the single-subject requirement, and therefore the court reversed the Title Board. Justice Eid, joined by Justices Rice and Coats, dissented, concluding, "According to the majority, the initiative’s proponents can create a new department, but they cannot -- without running afoul of the single subject requirement -- give that department a mission. In my view, the single subject requirement does not put the initiative’s proponents to such a choice. That requirement is easily satisfied in this case because the new department’s 'conservation stewardship' mission is sufficiently connected to the creation of the department itself." Kemper v. Hamilton Here are the summaries of last week's court of appeals' published decisions: Defendant's the prior acts contained significant information indicating defendant’s hatred of women, and were therefore admissible as evidence of motive in defendant's trial on menacing and assault charges. People v. Cousins Notice filed with Denver City Attorney's office did not comply with the notice requirement of the CGIA for giving notice to University Hospital physicians. Therefore, the trial court properly dismissed the plaintiff's claims. The court of appeals rejected the plaintiff's argument that an agency relationship between University Hospital and the Denver Health and Hospital Authority meant that giving notice to one gave notice to the other. Villalpando v. Denver Health and Hospital Authority The court of appeals we decline to recognize liability for suicide in a bad faith case. The court concluded the duty of good faith and fair dealing does not create liability for suicide based only on actual causation. The court noted it found not authority , holding that breach of a claims s duty of good faith and fair dealing could lead to liability for the suicide of an insured. Judge Vogt dissented in part, concluding that if plaintiff could prove defendants breached their duty to act in good faith, she would be entitled to all damages proximately resulting from defendants’ breach of their duty, including damages flowing from her husband’s emotional distress. Where emotional distress is the proximate result of a tortfeasor’s intentional or bad faith conduct, the fact that it was so severe as to lead to suicide does not, in Judge Vogt's view, preclude either imposition of liability on, or recovery of damages from, the tortfeasor who caused the distress. Moore v. Western Forge Corporation The court of
appeals affirmed the
trial court’s judgment holding that monies received from the Veterans
Administration (VA) and the Colorado Old Age Pension Program (OAP) may
be applied to cover costs incurred by the protected individuals (plaintiffs)
while patients at the Colorado Mental Health Institute at Pueblo (Hospital).
Under the Charges for Patients Act, plaintiffs’ VA and OAP benefits
were properly deemed available for payment of the costs of their care.
The court also concluded that the trial court lacked jurisdiction over
plaintiffs’ breach of fiduciary duty claim, so it vacated that
portion of the judgment addressing that claim. In
re the Estates of Nau, et al. The Department of Revenue appealed from the district court judgment reversing its revocation of the driver's license of plaintiff for driving with an excessive breath alcohol content. Although the arresting officer improperly permitted plaintiff to take a breath test after she had initially chosen and then refused to take a blood test, the court concluded that the arresting officer’s statutory violation did not warrant the suppression of the breath test results under the circumstances here. Therefore, the court reversed and remanded for reinstatement of the order of revocation. Bradt v. Colorado Department of Revenue, Motor Vehicle Division Defendant was
involved in a high-speed chase. While en route, a second deputy was
involved in a single-car accident that resulted in the total destruction
of her patrol car and several items of her personal property. Based
on these findings, the trial court concluded the deputy and the county
were victims of defendant's criminal conduct and ) defendant’s
criminal conduct was the proximate cause of the damage to the patrol
car and to the deputy’s personal property. The trial court ordered
defendant to pay restitution of $22,681.15. On appeal, defendant contended
that because the second deputy was not in close pursuit of him at the
time of her accident, neither the deputy nor the county is a “victim”
within the meaning of C.R.S. § 18-1.3-602(4)(a). The court of appeals
rejected defendant's argument and affirmed. People
v. Dubois In an inverse condemnation action, the trial court incorrectly required the landowner to prove that the County knew or should have known that some of the trees it removed were on landowner's property. The court of appeals held that a property owner may establish a takings claim by proving that a governmental entity had “the intent to take the property” or by proving that a governmental invasion had the “natural consequence of taking the property.” Scott v. County of Custer, Colorado Trial court
erred in finding that husband had waived attorney-client privilege protection
for document wife inadvertently saw. Wife found a note in husband’s
handwriting of a conversation with his criminal attorney in which he
indicated he was keeping her jewelry as a bargaining tool. Wife discovered
the note on an end table, underneath a telephone, in the living room
of the home that she no longer lived in and no longer had a key to.
She had entered the home when husband was not present, that husband
did not know she was coming over until she arrived with police unannounced,
and that husband was arrested and escorted out of the home in handcuffs
for allegedly violating a restraining order, which turned out to be
false. Wife found the note during a fifteen-minute police-assisted access
period in which she was permitted to obtain her personal belongings.
Husband objected to the admission of this note on the ground that it
was privileged as an attorney-client communication. The court of appeals
concluded the trial court should have sustained that objection. Husband
made reasonable efforts to maintain the confidentiality of the note.because
(1) wife had moved out and no longer had a key to the home, (2) the
note was left underneath a phone instead of in plain view, and (3) husband
did not invite wife into the home or have an opportunity to further
conceal the privileged note due to his unexpected arrest and removal
in handcuffs. In
re Marriage of Amich The court of appeals upheld a determination that claimant's appeal from deputy's decision was untimely. The appeal was filed after the statutory deadline, but claimant argued that the late filing was due to administrative error. The court rejected that contention. The hearing officer determined that claimant did not establish good cause for the untimely appeal. In affirming the Division's decision, the court of appeals noted the Division clearly explained the effect or impact of its decision and that claimant had no support for his assertion that the Division was obligated to explain legal distinctions in the factual information available through its internet claims filing system. Nguyen v. Industrial Claim Appeals Office November 16, 2007 I'm back. Work pushed aside all blogging time since last week, so now I have to play catch-up. The court of appeals has a new clerk. Chris Ryan, a senior budget analyst at the SCAO, replaces John Doerner, who left the position this fall after six years as clerk to become a principal court management consultant with the National Center for State Courts. I wish Chris and John all the best in their new roles, and I commend John for his quarter century of service to the judicial department. The supreme
court will release the following decisions next Monday: No. 07SA65 In
re Stamp v. Vail Corporation, and No. 07SA201, 07SA201 Kemper v. Hamilton
and Title Board. Here are the supreme court's announcements from Tuesday. The court issued two decisions, summarized below. Following the summaries are the five grants of cert. Below the supreme court update are the court of appeals' announcements from yesterday. The supreme court further defined the circumstances under which a criminal defendant can forfeit his confrontation rights under the doctrine of forfeiture by wrongdoing the court adopted in People v. Moreno, 160 P.3d 242 (Colo. 2007). In order to establish forfeiture by wrongdoing, the prosecution must prove that (1) the witness is unavailable; (2) the defendant was involved in, or responsible for, procuring the unavailability of the witness; and (3) the defendant acted with the intent to deprive the criminal justice system of evidence. The prosecution must prove these elements by a preponderance of the evidence in an evidentiary hearing outside the presence of the jury. The forfeiture applies to confrontation rights under both the federal and state constitutions. The prosecution need not prove that the defendant intended to prevent the witness’s testimony in the particular proceeding at hand. If forfeiture by wrongdoing is established, the defendant forfeits his right to confront the witness at any proceeding in which the witness’s statements are otherwise admissible. The court also held that forfeiture by wrongdoing does not preclude hearsay objections under the Colorado Rules of Evidence. Unlike the Federal Rules of Evidence, Colorado’s Rules of Evidence do not include a forfeiture by wrongdoing exception to the rule against hearsay. The court held that where a defendant forfeits his right to confront a witness, the reliability of the witness’s statements must still be ensured according to a Colorado hearsay exception. On the facts, the court affirmed the trial court’s admission of the unavailable witness’s hearsay statements based on the residual exception to the hearsay rule, CRE 807. Vasquez v. People In a companion case to Vasquez, the court applied Vasquez and upheld the court of appeals' holding that the defendant forfeited his right of confrontation in this case. The adjudicated facts from the murder proceeding establish that Pena killed the victim with the motive to silence her as a witness. The verdict in the murder trial, rendered beyond a reasonable doubt, more than satisfied the preponderance of the evidence standard required for a finding of forfeiture. Finally, in light of the murder verdict and the requisite finding of intent, the absence of a pretrial evidentiary hearing to address the forfeiture issue was harmless error. The court held the victim's hearsay statements were all admissible. Pena v. People The court granted cert in these five cases: Kaufman v. People, No. 07SC70, on these issues:
Whether the court of appeals erred in finding that it was harmless error to instruct the jury on a definition of second degree assault based upon a repealed statute.
Whether the court of appeals erred in finding the trial court’s admission of prejudicial evidence under CRE 404(b), without adherence to procedural prerequisites, to be harmless error.
Whether the court of appeals erred in finding the trial court’s jury instructions on the exceptions to self-defense to be harmless error, at most, where the exceptions were erroneously defined and unsupported by evidence.
Whether the court of appeals erred in holding that the cumulative effect of the errors at trial did not require reversal.
Robbins v. Goldberg, No. 07SC223, on these questions: Whether C.R.C.P. 54(h) deprives judgment creditors of their fundamental property rights without due process of law and subjects them to an arbitrary power beyond their control, in violation of the 14th Amendment of the United States Constitution and article 2, section 25 of the Colorado Constitution, because it permits judgments to lapse without any hearing or opportunity to affect revival, and only as a result of the trial court’s refusal to consider and rule timely upon, a petition for revival.
Whether C.R.C.P. 54(h) deprives judgment creditors of full access to judicial process as required by article 2, section 6 of the Colorado Constitution (the open courts provision) and Allison v. Indus. Claim Appeals Office, 884 P.2d 1113 (Colo. 1994), when it allows judgments to lapse solely as a result of trial court inaction.
Whether Mark v. Mark, 697 P.2d 799 (Colo. App. 1984), improperly infringes the legislature’s exclusive power to limit jurisdiction because it declares, without authority, that judgments which expire, even while a revival petition is pending, divest the court of jurisdiction. Barber v. Ritter, No. 07SC373, on these issues: Whether transferring money from multiple cash funds to the general fund to defray the general expenses of government requires voter approval because it constitutes a “tax policy change directly causing a net tax revenue gain” as that term is used in article X, section 20(4)(a) of the Colorado Constitution.
Whether the use of special taxes, fees, surcharges, and assessments to replenish money transferred from multiple cash funds to the general fund requires voter approval because it constitutes a “new tax” or a “tax rate increase” within the meaning of article X, section 20(4)(a) of the Colorado Constitution.
Whether taxpayers have standing to challenge transfers of money from cash funds to the general fund where the taxpayers paid no money into the cash funds and alleged no other connection to the funds.
Whether the court of appeals erred in reversing the trial court’s grant of summary judgment with respect to three cash funds, alleged to be public trusts, because of a lack of evidence regarding the operation of the funds. City of Commerce City v. Enclave West, Inc., No. 07SC445, on these questions:
Whether the court of appeals erred in finding an abuse of discretion by sua sponte limiting Commerce City Council’s legal authority to hear evidence “relevant to the denial of a license application,” as authorized by City Ordinance section 9-456(d)(1), to only those “matters relevant to the reason for denial” initially given by the inspector.
Whether the court of appeals erred when it ordered Commerce City to immediately grant the business license because, in doing so, it substituted its discretion for that of the local legislative body. Colorado Mining Association, No. 07SC497, on this issue:
Whether the Colorado Mined Land Reclamation Act (“MLRA”), C.R.S. section 34-32-101 to -127, which prohibits counties from imposing their own mining reclamation standards, preempts a county ordinance which, under the guise of land use planning, bans the use of cyanide and other chemical processing reagents that the MLRA explicitly authorizes and regulates for use in mining reclamation. Here are yesterday's court of appeals announcements. The court issued the following decisions, including 9 published opinions (which I hope to summarize by Monday) Published Opinions 05CA1524 People v. Darrell Lee Cousins Unpublished Opinions 04CA0713 People v. Dimitric Austin November 7, 2007 The court of appeals' announcements for November 8 are here. (This link should be a good link after 8 a.m. Thursday morning. I will be out of the office Thursday, so I'm posting it early.) The court will issue the following unpublished decisions: 02CA1403 People v. James Elwood Oplinger November 6, 2007 Here are last week's court of appeals announcements. The court issued 8 published decisions, summarized below. The definition
of "political committee" in Colo. Const. Art. XXVIII, sec.
2(12)(a) is qualified by the "major purpose test." Thus, only
if a group's "major purpose" is to influence elections is
it a "political committee" subject to Art. XXVIII's contribution
and expenditure limits. The case was remanded for further findings by
the ALJ to determine whether the petitioner's "major purpose"
in 2004 was the nomination or election of candidates. Alliance
for Colorado’s Families v. Gilbert Trial court
erred in granting directing verdict in favor of contractor on subcontractor's
quantum meruit claim. The extra work the subcontractor claimed damages
for was not occasioned by changes, errors, or lack of clarity in the
plans, design, or specifications for the project, and the subcontractor
could not have reasonably anticipated that the contractor would breach
its contractual obligations.The trial court erred in directing a verdict
on the subcontractor’s quantum meruit claim for extra work when
the subcontractor’s performance of the work was not contemplated
in the contract. Specialized
Grading Enterprises, Inc. v. Goodland Construction, Inc. Absent a grant of use immunity, the state may not revoke a defendant’s probation based on the assertion of his or her Fifth Amendment right against self-incrimination and the consequent refusal to admit guilt to the offense for which he is on probation while the direct appeal is pending and when he or she might be subjected to perjury charges based on any contradiction between his or her trial testimony and the admission. At was whether the probation of a sex offender could be revoked based on the sex offender’s invocation of his or her Fifth Amendment right against self-incrimination in a sex offender offense-specific treatment program and on the offender’s refusal to admit the offense for which he or she was convicted while the direct appeal is pending and perjury charges based on the admission could be pursued. The defendant had a reasonable fear of prosecution sufficient to pass constitutional muster concerning any admission to his therapist because the admission could have been used against him on retrial. In addition, he could have been subjected to charges of perjury because he had testified and denied the charges at trial. Hence defendant validly invoked his right against self-incrimination. Therefore, the state could not revoke defendant’s probation and sentence him to imprisonment for an indeterminate term for, as a maximum, the duration of his life, C.R.S. §§ 18-1.3-903(4), 18-1.3-904 based on defendant’s invocation of his Fifth Amendment right to remain silent. Defendant faced the “classic penalty situation” that the Fifth Amendment was designed to prohibit. People v. Guatney Where plaintiff’s
motion for attorney's fees and affidavit indicated the total amount
of fees requested and counsel’s hourly rate, but contained no other
information explaining how the total amount was calculated, the trial
court did not abuse its discretion in denying attorneys fee request.
Plaintiff’s request for attorney fees was governed by C.R.C.P.
121 § 1-22(2), which provides section provides, in pertinent part,
that a motion “shall explain the basis upon which fees are sought,
the amount of fees sought, and the method by which those fees were calculated.”
C.R.C.P. 121 § 1-22(2)(b) and further provides that the motion
“shall be accompanied by any supporting documentation, including
materials evidencing the attorney's time spent, the fee agreement between
the attorney and client, and the reasonableness of the fees.” Front
Range Home Enhancements, Inc. v. Stowell Where there
was no evidence building manager knew or should have known of dangerous
condition (defective pulley mooring), summary judgment in manager's
favor was proper under the premises liability act, C.R.S. § 13-21-115
McIntire
v. Trammell Crow, Inc. Trial court did not abuse discretion in apportioning fees under common fund doctrine, where both plaintiff and intervenor benefited from the litigation, even though the settlement amount was less than the intervenor’s subrogation claim. Intervenor's efforts, although diligent, did not meaningfully contribute to the settlement, so the trial court could properly order intervenor to pay a portion of plaintiff's attorney fees. Comte v. Wilson In a paternity action, the People appealed from the trial court’s order affirming the magistrate’s determination that an attorney’s lien on personal injury settlement proceeds obtained for the father had priority over a child support judgment. The court of appeals affirmed, noting that an attorney’s lien begins to accrue from the moment services commence and attaches automatically to any monies or property due or owing to the client that the attorney obtains or assists in obtaining. Father, however, had an interest only in the net personal injury settlement proceeds, after deduction of law firm’s attorney fees, which he agreed to, and, therefore, the People’s writ of garnishment for the child support judgment could attach only to such net proceeds. People of the State of Colorado through the 18th Judicial District of the District Attorney Family Support Division Upon the Petition of D.D. In the Interest of J.W. A trial court may deny an appeal bond without a hearing if the motion, files, and record demonstrate that the defendant’s request is without merit, and if the trial court makes sufficient findings to enable review of its decision. People v. Gurule November 5, 2007 Happy Guy Fawkes' Day. Today's supreme court announcements are here. The court issued two decisions summarized below. The court did not grant cert. in any cases. The summaries of the court of appeals' published decisions from last week will be posted tomorrow. Thanks for your patience. A school board sought to reverse the court of appeals’ determination that the board failed to provide timely written notice of termination to a probationary teacher, and as a consequence, owed the teacher a year of reemployment and back pay for a lost year of employment. The supreme court affirmed the court of appeals’ ruling that C.R.S. § 22-63-203(3) mandates that a school board provide timely written notice of termination by the June 1 deadline and that such notice must arise from a public meeting of the school board. The court held that the school board failed to provide timely written notice to the teacher by the deadline. The court also affirmed the court of appeals’ determination that the supreme court’s opinion in School District RE-11J, Alamosa County v. Norwood requires that the teacher receive back pay, without need to mitigate the damages, for the school year or years the teacher lost before being provided timely written notice of termination. But the supreme court reversed the court of appeals’ ruling that the teacher should be reinstated for the school year following the end of litigation. Instead, the court held that the teacher is deemed reemployed for the school year following the school board’s failure to give the required notice. The teacher, however, is not deemed reemployed for subsequent school years if the school board provides timely written notice regarding those future years of employment. Further, if the school year for which the teacher is deemed reemployed has passed, back pay and benefits are the appropriate remedy. Justice Eid, joined by Justice Rice, concurred in part and dissented in part, concluding that because the teacher's remedy was common law contract damages, the doctrine of mitigation of damages should apply. Hanover School District No. 28 v. Barbour Colorado’s
express consent statute, C.R.S.§ 42-4-1301.1, requires courts to
focus on the overarching question of whether an individual cooperated
with the officer who had probable cause to believe the individual was
driving under the influence. Where a driver initially refuses and then
subsequently expresses willingness to take the test, the supreme court
held that the driver will be deemed to have refused testing if he or
she did not timely cooperate. To timely cooperate, the driver must cooperate
while the officer with probable cause remains engaged in the process
of requesting and directing the completion of the chemical test such
that a blood or breath sample can be obtained within two hours of driving.
The court concluded that petitioner to timely cooperate because she
did not demonstrate her willingness to submit to testing until the officer
had left the building and thus was no longer engaged in requesting or
directing the completion of the test. Thus, she refused to submit to
testing and her license was properly revoked for refusal. Gallion
v. Colorado Department of Revenue, Motor Vehicle Division
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