July 18, 2008 The supreme court will issue no case announcements on Monday. Last monday's supreme court announcements are here. The court issued no decisions and did not grant cert. in any cases. Yesterday's court of appeals announcements are here. The court issued the following unpublished decisions: 03CA0223 People v. Michael William Hunter July 10, 2008 Here are today's court of appeals announcements. I will post summaries in the next few days. The court issued the following decisions: Published Opinions 06CA1795 In re the Marriage of Steven W. Newell and Ruth F. Newell Unpublished Opinions 00CA1659 & 05CA2044 People v. Tommie C. Bradley, Jr. July 7, 2008 There are no case announcements from the supreme court today. The court typically issues few announcements during July and August. But I will keep you posted on any announcements. July 3, 2008 I hope everyone has a happy and safe Fourth of July. It's a great time to re-read the Declaration of Independence. Talk about fireworks! The court of appeals' announcements for today are here. The court issued only unpublished decisions. July 2, 2008 The court of appeals will release the following unpublished decisions tomorrow: 04CA0361 People v. Matthew David Moody June 30, 2008 Here are today's supreme court announcements. The court issued 6 decisions, summarized below. The court granted cert. in one case. The questions presented in that case follow the summaries. A trial court can admit prior act evidence under CRE 404(b), even though the defendant was acquitted of the criminal charges arising out of the prior act. Based on the facts of the case and the nature of the testimony presented, the trial court has discretion to determine whether the jury should be informed of the defendant’s acquittal. Here, the trial court abused its discretion by refusing to instruct the jury that the defendant had been acquitted of the two prior acts. Therefore, a new trial was required. Providing guidance on retrial, the court held that the defendant’s constitutional right to confront a witness against him was violated when the trial court ruled that he could not cross-examine an adverse witness about a pending misdemeanor charge that might have influenced the witness’s testimony. Justice Eid, concurred in part and concurred in the judgment in part, disagreeing "with the majority that evidence of acquittal is generally relevant." But in her view the case presented an exception to that general rule. Kinney v. People Petitioner sought review of the court of appeals’ judgment affirming the restitution component of her sentence. Although the district court did not determine the amount of restitution owed until some two years after imposing sentence, and although Petitioner had, in the interim, already initiated an appeal of her conviction, the court of appeals concluded that the district court was not divested of jurisdiction to impose a specific amount of restitution, either by delaying beyond the statutory time limit or by the filing a notice of appeal. The supreme court held that under C.R.S. § 18-1.3-603(1), part of Colorado’s criminal restiution statute, the amount of the defendant’s liability is no longer a required component of a final judgment of conviction. Thus, the court of appeals erred in finding that the judgment of conviction did not become final for purposes of appeal until the specific amount of her restitution obligation had been imposed. The supreme court nevertheless affirmed the court of appeals’ judgment, for the reason that filing a valid notice of appeal did not divest the district court of jurisdiction to set the amount of the restitution previously ordered. Sanoff v. People In an appeal concerning the proceeds of a house sale, the supreme court held that appellate courts should review a finding of unjust enrichment for abuse of discretion. The court further held that in claims arising from a failed gift or failed contract by a close family member or confidant, whether enrichment from the contribution of the other party is unjust is determined by considering whether the benefiting party acted in significant deviation with the parties’ mutual purpose. When a party has benefited from a significant deviation from this mutual purpose, the deviating party has been unjustly enriched. Justice Eid, joined by Justices Rice and Coats, dissented, taking issue with the majority's theory of "mutual purpose of the parties." She said, the "major flaw with the majority’s theory is that it bears no resemblance to the unjust enrichment cause of action. I could not find a single reported case in this jurisdiction (or any other, for that matter) that recognized a 'mutual purpose of the parties' theory of unjust enrichment. That is because unjust enrichment is not focused on the intent of the parties, as the majority seems to believe, but rather on the benefit conferred, if any, by the plaintiff that is unjustly retained by the defendant. The consequence of the majority’s interpretation is that it awards full benefit of the bargain damages . . . even though no bargain ever existed." Lewis v. Lewis In this appeal from the grant of summary judgment for the respondent landowner, the supreme court reviewed Colorado’s premises liability statute, C.R.S. § 13-21-115, which allows an invitee to recover damages caused by the “landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.” The petitioner contended that she presented sufficient evidence to overcome summary judgment because the ladder, from which she fell and suffered injuries, was in violation of the building code and thus constituted a danger of which the landowner knew or should have known. The supreme court held that the premises liability statute allows a plaintiff to recover if (1) the landowner actually knew or should have known of a danger and (2) the landowner failed to exercise reasonable care. The court concluded that “knew or should have known” is satisfied by actual or constructive knowledge. Consequently, the court concluded that the petitioner presented sufficient evidence that the respondent landowner knew or should have known of a danger because the use of a ladder violated building code provisions that were intended to protect the safety of those on the premises; the landowner was responsible for constructing the unit and installing the ladder; and the landowner had signed building permits by which it agreed to comply with the building code. The supreme court further held that although a plaintiff may no longer bring a negligence per se claim in this context, the premises liability statute does not preclude the plaintiff from offering the landowner’s violation of a statute or ordinance as evidence of the landowner’s failure to exercise reasonable care. Accordingly, the supreme court concluded the petitioner presented sufficient evidence to overcome summary judgment because the respondent landowner violated building code provisions that were intended to protect the plaintiff from the type of injury she suffered. Lombard v. Colorado Outdoor Education Center In an interlocutory appeal of a suppression order, supreme court reversed the district court's suppression of evidence discovered during a search of defendant's vehicle. The trial court had suppressed on the ground that it was the fruit of an unconstitutional seizure. The supreme court reversed, concluding that the evidence should not be suppressed because it resulted from a consensual encounter between the defendant and law enforcement officers. People v. Castaneda In an interlocutory
appeal of a suppression order, the supreme court reversed the suppression
of statements made by the defendant. The police arrested the defendant
in his home without a warrant. After his arrest, he made statements
to the police while in custody at the police station. He moved to
suppress all statements obtained, as the fruit of an illegal arrest.
The trial court granted the motion to suppress, ruling that although
there was probable cause to support Davis’s arrest, and although
Davis was informed of and voluntarily, knowingly, and intelligently
waived his Miranda rights, the police had failed to obtain an arrest
warrant and there were no exigent circumstances justifying the warrantless
arrest in the home. The supreme court reversed, holding, in accordance
with New York v. Harris, 495 U.S. 14 (1990), that the exclusionary
rule does not extend to suppress statements made outside the home,
when the arrest is based on probable cause and the statements are
made after a proper Miranda warning and a knowing, intelligent, and
voluntary waiver of the defendant’s rights. People
v. Davis The court granted cert. in Union Pacific RR v. Martin, No. 07SC913, on these issues: Whether the statutory defenses of comparative negligence and pro rata fault of non-parties are available in an action under the 1990 Premises Liability Act.
In determining legislative intent for the purpose of construing an ambiguous statute: (a) whether a court should give greater weight to the statute itself or to a later amendment to the statute, which does not apply to the case; and (b) whether a court should give greater weight to the General Assembly's statements in the bill itself or to oral comments by a sponsor of the bill. June 26, 2008 Here are today's court of appeals announcements. The court issued 8 published decisions, summarized below. First degree burglary instruction required the jury to find that defendant (or his confederate, if it determined that defendant acted as a complicitor) entered the home with the intent to commit either aggravated robbery or theft. Although neither the instruction nor the verdict form required the jury to indicate which underlying offense it relied upon to support the first degree burglary charge, the jury unanimously found defendant guilty of attempted aggravated robbery and conspiracy to commit aggravated robbery as separate offenses. Because the jury unanimously concluded that defendant was guilty of attempted aggravated robbery and conspiracy to commit aggravated robbery, it necessarily found that defendant intended to commit aggravated robbery upon the entry into the victims' home. This finding satisfies the intent requirement of first degree burglary as well as any requirement that the jury unanimously agree upon an underlying offense. The court did vacate defendant's sentence on a conspiracy charge because the trial court misapprehended the applicable sentencing range. People v. Linares-Guzman In a consolidated appeal in a medical malpractice action, the trial court did not err in letting the deceased's family physician testify about the standard of care. As to non-specialty diagnosis and treatment, a physician in one area of practice, or a general practitioner, may testify as to the standard of care common to the medical profession. In addition, a specialist in one field may testify as to whether a specialist in another field has met the appropriate standard of care when either of the following two criteria is met: one, the expert has demonstrated, through skill, knowledge, training, or experience, a substantial familiarity with the defendant’s specialty such that his or her opinion is as well informed as any other expert in the defendant’s specialty; or two, the expert has demonstrated that the standard of care for both specialties is substantially similar. The court also held that the trial court did not err in instructing the jury on agency as to the relationship between the physician and a colleague in the treatment of the decedent. The court rejected the argument that there can be no agency or vicarious liability between an attending and “cover physician” as a matter of law. The court did find some error in the trial court's decisions on awarding costs and remanded. Hall v. Frankel, Hall v. Robinson Court did not err in holding party personally liable for civil theft. An investment agreement purported to exempt the party from personal tort liability. But since the party's actions were found to be intentional, unauthorized, and self-serving, the agreement was unenforceable as a matter of public policy. The court relied on Restatement (Second) of Contracts § 195(1). The court also rejected the argument that the economic loss rule applied. Rhino Fund, LLLP v. Hutchins In a breach of construction case, the court of appeals concluded that the administrative law doctrine of exhaustion of administrative remedies did not apply, and therefore plaintiff was not required to exhaust its administrative remedies before the court would have jurisdiction. New Design Construction Company, Inc. v. Hamon Contractors, Inc. In an action
concerning the authority of a county to regulate a private access
road, the trial court granted summary judgment, determining that the
County has the authority to require that the road comply with the
County’s fire code and its access requirements. The court of
appeals reversed and remanded. The record did not indicate whether
the parcels of property involved had been operated or, when judgment
entered, were operating in a manner consistent with the definitions
of farms and ranches. On remand, if the trial court concludes that
the property is not a “farm or ranch” within the meaning
of the statute, the County could regulate the road at issue. But summary
judgment was not appropriate. Zweygardt
v. Board of County Commissioners of the County of Elbert In a case
arising out of a contract for the installation of windows during the
construction of a custom home, the court of appeals addressed a seller’s
right to cure when the buyer revokes acceptance under C.R.S. §
4-2-608. the court concluded that the owners properly revoked their
acceptance under section 4-2-608 but then subsequently reaccepted
the windows on the condition the defects would be cured, thereby precluding
any claim for breach of warranty until the vendor had been afforded
a reasonable opportunity to cure. Ranta
Construction, Inc. v. Anderson Defendant was sentenced to 10 years of community corrections. That sentence was thrown out under Apprendi. At resentencing defendant argued, and the prosecution agreed, that six years in community corrections was the maximum sentence that could be imposed. The trial court found that a prison sentence was more appropriate than a community corrections sentence under the facts of this case and imposed a three-year sentence to the Department of Corrections.The court of appeals concluded the sentence is contrary to C.R.S. § 18-1-409(3), and vacated it. People v. Hopkins In a construction defect suit brought by a homeowners association, the developer appealed the summary judgments in favor of two subcontractors. The court of appeals affirmed. During the discovery phase of the case, the developer, D.R. Horton, was served with a notice to take the deposition of its C.R.C.P. 30(b)(6) designee regarding specific issues, including landscaping errors with regard to fine grading, errors with regard to drain pipe installation, and “any other errors D.R. Horton claims were made by subcontractors.” D.R. Horton did not file a motion for protective order. Instead, it advised the subcontractors that its C.R.C.P. 30(b)(6) designee would be a vice president of sales and marketing, who was “the only employee remaining with the company who was employed” at the time the project was constructed and sold. D.R. Horton further advised that the designee’s knowledge was limited to sales and marketing but, “[She] should be in a position to identify former employees who may have knowledge regarding specific questions, and we can discuss whether you want to depose those individuals as fact witnesses.” At the deposition, the designee testified that she was not aware of any problems the subcontractors had “with performing their work” at the project; that specific individuals who had since become employed elsewhere, she presumed in Colorado, were assigned to the warranty department and were knowledgeable about warranty and negligence matters; that she had no information with regard to the claims made by D.R. Horton against the subcontractors; and that she specifically had no information as to (1) whether the subcontractors performed their work negligently; (2) whether there were any errors made with respect to the subcontractors’ work; (3) whether the subcontractors breached their contracts with D.R. Horton; and (4) whether the subcontractors failed to respond to warranty requests. The trial court granted summary judgment in favor of the subcontractors. On appeal, D.R. Horton contended the district court erred in granting summary judgment because (1) it was not required to submit evidence of negligence to defeat a summary judgment motion on its breach of contract, breach of warranty, and contractual indemnity claims and (2) there were genuine issues of material fact based on the evidence before the court. When choosing a C.R.C.P. 30(b)(6) designee, companies have a duty to make a conscientious, good-faith effort to designate knowledgeable personsand to prepare them to fully and unevasively answer questions about the designated subject matter. Nothing in the rule or its interpretation suggests that persons who are designated and testify under Rule 30(b)(6) will not bind their corporate principal. And nothing in the rule precludes a principal from offering contrary or clarifying evidence where its designee has made an error or has no knowledge of a matter. Since the record supported the summary judgment, the court affirmed. D.R. Horton, Inc. v. D&S Landscaping, LLC June 25, 2008 The court of appeals will release the following decisions tomorrow, including 10 published decisions: Published Opinions 05CA2445 People v. Uriel Antonio Linares-Guzman Unpublished Opinions 05CA1532 People v. Antonio Dwayne Stancil June 23, 2008 Today's supreme court announcements are here. The court issued two decisions, summarized below. The court granted cert. in one case, No. 08SC261, Heath v. People, vacated the court of appeals' decision and remanded to the court of appeals for reconsideration in light of Leyva v. People, No. 07SC60. In a consolidated opinion resolving two criminal cases asserting systemic problems with jury selection in Arapahoe County, the supreme court held that no specific statistical measure should be excluded in a court’s analysis of a constitutional fair cross-section claim. In these cases, a systematic jury-selection practice resulted in a statistically significant underrepresentation of African-Americans and Hispanics on jury panels in Arapahoe County at the time of the defendants’ trials. The supreme court disapproved of Arapahoe County's practice and directed that it be stopped immediately. But upon review of all the statistical evidence, the supreme court concluded that the underrepresentation was not so unfair or unreasonable as to rise to the level of a constitutional violation. Thus, the underrepresentation here, although statistically significant, did not violate the defendants' Sixth Amendment’s guarantee to a jury selected from a fair cross-section of the community. Justice Coats, joined by Justice Eid, concurred in the judgment only, noting, "While I agree that the jury selection process in these cases did not violate the Sixth Amendment’s fair cross-section requirement, I consider the majority’s lengthy disquisition on techniques for describing disparity neither necessary nor helpful. In light of the majority’s decision not to address the question of a statutory violation and its conclusion that this selection process did not produce any unconstitutional underrepresentation, I am also at a loss to understand its justification for disapproving the practice for future cases. Of perhaps greatest significance, however, I consider the majority’s treatment of the concept of statistical significance, in particular, not only unhelpful but in fact quite problematic. Because I believe it is clear enough by inspection that the jury selection process used in these cases did not result in unfair or unreasonable underrepresentation of any distinctive group, I consider the bulk of the majority opinion little more than dicta." Washington v. People During the respondents’ trial against the petitioner for various tort claims, the petitioner filed for bankruptcy. He claimed his disability insurance payments as exempt property that could not be used to satisfy his pre-bankruptcy debts, although he claimed a higher percentage of exemption than was permitted under Colorado law. The respondents did not object to the claimed exemption within the requisite thirty-day period. The supreme court held that under Taylor v. Freeland & Krontz, 503 U.S. 638 (1992), when assets are claimed as exempt property, that exemption becomes final if not objected to within the requisite thirty-day period, even where the exemption lacks a statutory basis. The court also held that under the plain language of the Bankruptcy Code, exempt property is not liable for “any debt” of the debtor that arose before the commencement of the bankruptcy proceedings, even nondischargeable debt, with four enumerated exceptions. Because the respondents’ nondischargeable debt does not fall into one of those exceptions, they cannot garnish the petitioner’s disability insurance payments and must look to his other assets to satisfy their judgments against him. Kancilia v. Pearson June 18, 2008 The court of appeals will release the following unpublished decisions tomorrow: 05CA0551 People v. Donald Ray Gonzales Here are Monday's supreme court announcements. The court issued no decisions and did not grant cert. in any cases. Here are the summaries of last Thursday's court of appeals published decisions: Under the logical relationship test, whether a counterclaim is compulsory depends on whether the subject matter of the counterclaim is logically related to the subject matter of the initial claim. Applying this test, the court of appeals concluded that that a legal malpractice claim arising from the same representation as an action to collect attorney fees is a compulsory counterclaim in the fees action. Because the malpractice counterclaim had matured when the client was required to answer the collection claim, it was a compulsory counterclaim that she had to bring. In addition, the court concluded that on the particular facts of the case, the client's guilty plea met the "actually litigated" factor for determining issue preclusion. But the court expressed no opinion on the preclusive effect of a guilty plea in subsequent civil litigation if the defendant had sought to avoid those consequences by entering a nolo contendere plea, but that option was foreclosed by either the prosecution or the trial court. Allen v. Martin Under the Colorado wrongful death statute, C.R.S. § 13-21-202, a wrongful death action may be maintained for the death of a nonviable fetus born alive and can be maintained even where the child, though born alive, is not viable at birth. Gonzales v. Mascarenas District court properly delegated authority to a special master to decide discovery disputes, order sanctions short of dismissal, and recommend dismissal, if warranted. Special master did not need to be an active judge. Nothing in C.R.C.P. 53 requires that the master be an active judge. The trial court did not err in dismissing Plaintiff's claims as a sanction for discovery violations. Pullen v. Walker In a legal malpractice claim arising out of criminal defense work, the court of appeals reversed the district court's grant of summary judgment on issue preclusion grounds. The court of appeals agreed that in ruling on a motion for new trial based on newly-discovered evidence the federal court's ruling on causation was not entitled to preclusive effect because the issue was not "necessarily adjudicated." Schultz v. Stanton District court properly confirmed arbitration award including award. While the agreement contained no provision regarding an award of attorney fees in the event of arbitration, fees were available under statute. The fact that the arbitrators mistakenly referenced an inapplicable statutory provision in awarding fees did not require the district court to vacate the award, because such fees could properly be awarded under federal law, which governed the arbitration proceedings. Barrett v. Investment Management Consultants, Ltd. With respect to the standards for the appointment of a parenting coordinator, C.R.S. § 13-22-313 and § 14-10-128.1 conflict and cannot be harmonized. The court concluded that as the more specific statute § 14-10-128.1 controls. Under section 14-10-128.1(2)(b), a claim by one parent that he or she was subject to abuse by the other parent is not sufficient to bar the appointment of a parenting coordinator. Even documented evidence of domestic violence does not automatically bar such an appointment; rather, the court is required only to consider the effect of the evidence on the parties' ability to engage in parenting coordination. The court agreed with mother, however, that the trial court improperly appointed the parenting coordinator to a term of forty-eight months, as the term of appointment should have been limited to two years, as provided by § 14-10-128.1(5). The court also concluded that trial court erred in giving the parenting coordinator the powers of a special master. Judge Taubman dissented in part, concluding that the trial court erred in appointing a parenting coordinator without making the findings required by § 14-10-128.1(2)(a). In re Marriage of Rozzi In an appeal from a driver's license revocation, the court of appeals concluded that once a speed limit sign is erected, the speed limit starts at the physical location of the sign and continues to be in effect until it ends at the next different speed limit sign. Shafron v. Cooke In this oil and gas case involving claims of mineral trespass, conversion, and civil theft, INB Land & Cattle LLC, appealed the summary judgment in favor of Kerr-McGee Rocky Mountain Corporation. The court of appeals noted that a spacing order was in place, and that the existence of forty-acre spacing allowed INB to employ the remedy of offset drilling. Therefore, the rule of capture was modified only to that extent. Since INB has four forty-acre parcels on which it can drill offset wells, it cannot successfully assert a claim against Kerr-McGee for mineral trespass, conversion, or theft. INB Land & Cattle, LLC v. Kerr-McGee Rocky Mountain Corporation The court of appeals concluded that a trial court has subject matter jurisdiction to allow the filing of an amended complaint even when, at the time of the filing of the original complaint, the named defendant was deceased. The court thus disagreed with Jenkins v. Estate of Thomas, 800 P.2d 1358 (Colo. App. 1990), and declined to follow it. But because the court also concluded that the amended complaint was untimely filed and did not relate back under to C.R.C.P. 15(c), it agreed with the trial court's dismissal for failure to comply with the statute of limitations. Currier v. Sutherland June 12, 2008 Here is the court of appeals' oral argument calendar for August. The court will be at its newly-expanded size then, with 22 judges. Here are today's court of appeals announcements. The court issued 9 published decisions. Summaries will appear below within a few days: Allen v. Martin June 11, 2008 Tomorrow, the court of appeals will release the following decisions, including 9 published opinions: Published Opinions 06CA1768 Mary B. Allen, a/k/a Mary Beth Stenzel v. William S. Martin;
Kutak Rock L.L.P.; Paul G. Bursiek; and Pendleton Friedberg Wilson
& Hennessey, P.C. Unpublished Opinions 02CA2186 People v. Charity Lehnert June 10, 2008 Here are the summaries of the court of appeals' published decisions from May 29. That gets me up to date, at least for now. In a COCCA
and securities fraud prosecution, defendant contended the trial court
erred in not instructing the jury that in order to convict him of
securities fraud, it must find that he was aware that he was dealing
with securities. The court of appeals rejected that argument, noting
that proof of knowledge that an investment is a security is not required
for a conviction of “willful” securities fraud. In addition,
because both the COCCA and conspiracy counts were based upon acts
of securities fraud, the jury could convict defendant of those counts
without having to find that he knew he was dealing with a security.
People
v. Destro Prosecutor
offered the race-neutral explainations for dismissing juror prospective
that the juror both slept during voir dire and had a visible reaction
to a statement by another prospective juror regarding the general
credibility of police officers indicating she might tend to disbelieve
a police officer witness. Under the circumstaces, the district court
did not err in denying defendant’s Batson challenge. The court
also concluded the district court did not abuse its discretion in
denying defendant’s motion for separate trials before different
juries. People
v. Robinson Defendant
argued that the trial court lost jurisdiction when it dismissed the
charges against him as a condition of a plea agreement from which
he was later allowed to withdraw. The court of appeals disagreed and
upheld the reinstatement of charges. Conditional dismissal of the
original charges did not deprive the court of jurisdiction because,
upon the failure of the condition underlying the order of dismissal,
that order became a nullity. People
v. Rogers In dismissing
a prospective juror, the prosecutor offered the following reasons:
(1) “she didn’t respond to anything”; (2) “she
had her arms crossed during the entire voir dire”; (3) she did
not bring up the fact that her husband was a defendant in a domestic
violence case (a In personal
injury case, Plaintiff contended the district court erred in granting
summary judgment based entirely on Plaintiffs' deemed admission (that
she suffered no injuries) because she moved for an extension of time
to serve her responses and rebutted the admission with a denial of
the request, her affidavit, and documentary evidence concerning her
injuries. The court of appeals agreed. The Plaintiff provided the
functional equivalent of a motion to withdraw the deemed admission.
In response to defendant’s motion for summary judgment, plaintiff
filed a motion to permit her to serve late responses and an opposition
to the motion for summary judgment, to which she attached her C.R.C.P.
26(a)(1) disclosures and her affidavit. Plaintiff subsequently filed
a certificate of service with the court indicating that she had served
defendant with responses to the requests for admissions. Plaintiff
thereby made clear her desire to contest the deemed admission and
presented substantial evidence that she had been injured in the accident.
The court of appeals then concluded that the circumstances satisfied
the two-part test set forth in C.R.C.P. 36(b) for withdrawing an admission.
the court concluded that the first part – whether the presentation
of the merits will be subserved – is satisfied when use of the
admission would dispense with the necessity of a trial on the merits.
The second part – a lack of prejudice to the party who obtained
the admission – is satisfied unless allowing withdrawal of the
deemed admission will cause the party who obtained the admission difficulty
in proving his case because of the sudden need to obtain evidence.
Sanchez
v. Moosburger Plaintiffs
were inmates at the Crowley County Correctional Facility (CCCF), a
private prison, at the time of a July 2004 riot at CCCF. They brought
this action alleging that they were not involved in the 2004 riot
but nevertheless sustained injuries as a result of defendants’
acts and omissions before, during, and after the riot. The trial court
dismissed the complaint for failure to exhaust administrative remedies
pursuant to C.R.S. § 13-17.5-102.3(1), and additionally dismissed
the claim for punitive damages as premature. The court of appeals
concluded that the trial court erred in dismissing their complaint
because section 13-17.5-102.3(1) does not require exhaustion of remedies
where only common law tort claims are asserted. Adams
v. Corrections Corporation of America Liquor license the regulation places licensees on notice that if they sell alcohol to a minor after checking identification that is (1) on the list of adequate identification and (2) facially valid as to form and expiration date, the Department of Revenue may not use the sale as a ground for revocation or suspension of liquor licenses, even if the identification is false as to the identity or age of the presenter. But the regulation also places licensees on notice that the statutory defense will not protect them when they rely on identification that falsely attests to the identity and age of the customer if the identification (1) is not on the list of adequate identification, and (2) is invalid on its face as to form or expiration date. The court held that the regulation was a reasonable interpretation of the statute. Therefore, the Department did not err in concluding the statutory defense was not available to licensee. Le v. Colorado Department of Revenue, Liquor Enforcement Division Ninety-day
period set forth in C.R.S. § 13-80-104(1)(b)(II) did not operate
to bar homebuilder's indemnity claims because the homeowners neither
“settled” any claims nor filed a construction defect lawsuit
against the homebuilder whereby a final judgment could be entered
on such claims. The court concluded that in repairing damages to an
existing home in the absence of a formal complaint, arbitration proceeding,
or settlement of a dispute where the homeowner has In a campaign
finance case, an ALJ found that advertisements by a political committee
were electioneering communications within the meaning of Colorado
Constitution Article XXVIII, section 2(7)(a); that "the regular
course and scope of business" exception to the definition of
electioneering communications under Article XXVIII, section 2(7)(b)(III)
did not apply; that although the committee complied with all other
contribution and expenditure reporting requirements, it failed to
file separate electioneering communications reports; and that it did
not identify the state representative it targeted by name in its reports
as required by the Secretary of State’s FCPA Rule 9.3, 8 Code
Colo. Regs. 1505-6, for electioneering communications reports under
Article XXVIII, section 6(1). The ALJ imposed a monetary penalty.
The court of appeals upheld the ALJ's decision. Colorado
Citizens for Ethics in Government v. Committee for the American Dream
In a case involving review of an arbitrator's decision, the district court, as the reviewing court, was required to determine de novo whether the arbitrator’s refusal to award attorney fees to plaintiff as the prevailing party was a determination beyond the scope of the parties’ arbitration agreement. The attorney fees clause contained in the parties’ arbitration agreement employed language commonly used in commercial contracts to mandate the award of attorney fees, among other costs, to the prevailing party. Thus, the court of appeals concluded that the only power the plain terms of the clause provided to the arbitrator was the determination of a reasonable amount of attorney fees, not the discretion to award them or not. Magenis v. Bruner June 9, 2008 The supreme court's announcements for today are here. The court issued five decisions, summarized below. The court also granted cert. in two cases. The questions presented in those appeals follow the case summaries. I'm still trying to get caught up on the court of appeals' decisions. Petitioner appealed her conviction for knowingly causing the death of a child under twelve years of age by one in a position of trust. First, she argued that the trial court erred by refusing to declare a mistrial after one witness told the jury that another witness had failed a polygraph, and second, by determining that Petitioner was competent to proceed even though no formal competency examination had been performed. The supreme court rejected those arguments. The court held that the reference to the witness’s polygraph results did not violate Petitioner’s right to confront the witnesses against her or her right to trial by an impartial jury. The court also held that the trial court did not abuse its discretion by denying Petitioner’s motion for a mistrial based on the reference. With respect to the competency proceedings, the court held that the trial court did not abuse its discretion by finding Petitioner competent to proceed. The court further held that the trial court’s failure to obtain a formal competency examination did not render Petitioner’s competency hearing inadequate under the circumstances because other evidence established Petitioner’s competency. Bloom v. People The district court found that the claims of royalty owners for underpayment of natural gas royalties accrued when the payments became due, according to C.R.S. § 13-80-108(4), and were therefore barred by the applicable statute of limitations. The court of appeals, however, held these claims to be governed by a different provision of the statute, C.R.S. § 13-80-108(6), postponing accrual of the royalty owners’ claims until breach of the agreement was, or should have been, discovered. The supreme court reversed, holding that these statutory accrual provisions, when properly construed, mandate that the respondents’ claims for monthly underpayments be considered to have accrued on the date the royalties actually became due, rather than only upon the discovery of a contractual breach. Therefore, the district court properly granted partial summary judgment. BP America v. Patterson In an original proceeding, the supreme court held that a party found to be indigent in county court and allowed to proceed in forma pauperis is not required to post a judgment bond before appealing an adverse money judgment to the district court. But as with appeals from the district court to the court of appeals, the prevailing party in the county court would then be able to execute the judgment while the appeal is still pending because the judgment would not have been stayed by a judgment bond. The court said this interpretation properly harmonizes C.R.S. § 13-16-103 and its mandate that court costs be waived for indigent parties with the appellate filing rules found in C.R.S. § 13-6-111and C.R.C.P. 411. In re Bryant v. State Farm The supreme court held that when a motion to revive a judgment is filed in sufficient time for the procedures of C.R.C.P. 54(h) to be completed before the expiration of the judgment, but court delays prevent a revived judgment from being entered before the judgment’s expiration, then a revived judgment should be entered nunc pro tunc as of a date the motion could have been decided had there been no court delays. Robbins v. Goldberg In an interlocutory appeal from a suppression order, the supreme court reviewed the trial court’s suppression of methamphetamine and drug paraphernalia that law enforcement officers found in the defendant’s motel room. The trial court held that exigent circumstances authorized the officer’s entry into the motel room, but did not permit the seizure of methamphetamine that was in plain view on the nightstand or drug paraphernalia that was in the nightstand’s drawer. The supreme court reversed, holding that the plain view doctrine authorized the warrantless seizure of the methamphetamine after the officer lawfully entered the motel room under exigent circumstances and observed the methamphetamine in plain view. The court also held that incident to the defendant’s arrest, the officer lawfully searched the area within the defendant’s immediate control and properly seized the drug paraphernalia in the nightstand drawer. People v. Gothard The court granted cert. in these cases: Copper Mountain, Inc. v. Industrial Systems, Inc., No. 08SC28, on this question:
Whether the court of appeals erred in ruling a waiver of subrogation provision in an American Institute of Architects (“AIA”) form contract barred all of owner-plaintiff’s claims, thereby creating a conflict with another decision of the court of appeals, Town of Silverton v. Phoenix Heat Source System, Inc., 948 P.2d 9 (Colo. App. 1997), which held the waiver provision barred only claims for damages to the “Work” required to be insured by the owner under the contract. Dubois v. People, No. 08SC34, on this issue:
Whether a deputy sheriff and Alamosa County are “victims” as defined by section 18-1.3-602(4)(a), C.R.S. (2007) of the defendant’s crime of vehicular eluding where the deputy was involved in a single car accident while en route to respond to another deputy’s call for assistance, resulting in losses to herself and the county. June 6, 2008 Below I have posted the summaries of this week's supreme court decisions. I won't get to the court of appeals' decisions from May 29 until next week. The supreme court will issue these five decisions on Monday: 06SC597 Bloom v. People 06SC330 BP America v. Patterson 07SA296 In re Bryant (no orals) 07SC223 Robbins v. Goldberg 08SA40 People
v. Gothard (no orals) And here are the summaries of this past Monday's supreme court decisions: Defendant petitioned the supreme court for review of the court of appeals’ judgment affirming his convictions for attempted second degree murder and first degree assault. The court of appeals found that the district court erred in permitting the prosecuting attorney, over the objection of defense counsel, to refer to him during rebuttal closing argument as having lied to the jury in specific portions of his testimony. Under the circumstances of this case, however, it found the error to be harmless. The supreme court held that although it is improper for an attorney to tell a jury that a witness has lied to them or to characterize the witness’s testimony as a lie, the court of appeals appropriately applied the harmless, rather than harmless beyond a reasonable doubt, standard of review and correctly found that the error in this case did not warrant reversal. Justice Bender, joined by Chief Justice Mullarkey and Justice Martinez, dissented, concluding that there was "a reasonable probability that the prosecutor’s misconduct contributed to the defendant’s conviction." He also disagreed "with the majority’s articulation of the harmless error standard and its application in this case. The standard discussed by the majority improperly and unnecessarily narrows the prism of our analytical appellate review and is applied erroneously here on the issue of provocation." Crider v. People The supreme court concludes C.R.S. § 38-1-101(4)(b) is an invalid abrogation of the eminent domain power granted home rule municipalities by article XX of the Colorado Constitution. The Town of Telluride, a home rule municipality, sought to condemn 572 acres of real property located next to Telluride for open space and park purposes. The property owners contested the condemnation, asserting that § 38-1-101(4)(b) barred condemnation of the property because it prohibits condemning property outside municipal boundaries for parks, recreation, open space, or other similar purposes. The supreme court concluded that the General Assembly cannot deny home rule municipalities the eminent domain power conferred to them in the constitution, and therefore C.R.S. § 38-1-101(4)(b) is unconstitutional with respect to home rule municipalities. Thus, Telluride’s condemnation of the property was lawful. Justice Coats specially concurred, noting that he wrote separately only "to emphasize what I consider to be the import of footnote 8 of the court’s opinion. As the court notes, our holding that the legislature cannot prohibit the exercise of constitutional home rule powers, regardless of shared state interests, does not suggest that the legislature cannot regulate the exercise of those powers." Justice Eid dissented, expressing her view that the Colorado "constitution does not convey to home rule municipalities such exclusive extraterritorial condemnation authority." Town of Telluride v. San Miguel Valley Corporation In a case involving discovery of tax returns, the supreme court recognized the confidential nature of such returns and clarified the appropriate test that a trial court must apply before requiring their disclosure. A trial court must find that the returns are relevant to the subject matter of the case, and that there is a compelling need for the returns because the information contained in the returns is not otherwise readily obtainable. Since the trial court below did not conduct the proper analysis or appropriately limit the scope of the disclosure, the supreme court concluded that the trial court abused its discretion in compelling the discovery. The court remanded for the trial court to apply the test laid out in the opinion. In re Stone v. State Farm In a condemnation action the trial court added three values provided by the jury, thereby confirming what the jury had already determined: that if the School District wanted to condemn all 138 acres of land owned for taking 60 acres, thus resulting in damages to the rest of the property, and then for taking the remaining 78 acres nearly a year later. The supreme court reasoned that the jury followed the requirements set forth in the jury instructions and answered the interrogatories contained in the verdict form accordingly, and, therefore, that the trial court’s ruling reflected the jury’s intent and was a permissible change of form. To the extent that the court of appeals’ judgment could be construed to create a category of so-called interim damages, it was vacated. Under C.R.S. § 38-1-122(1.5), which entitles a landowner to attorney fees if the condemnation award equals or exceeds 130 percent of the last written offer given to the landowner prior to the filing of the condemnation proceeding, landowner is entitled to attorney fees. Justice Bender wrote the majority decision. Justice Hobbs, joined by Justices Rice and Coats, dissented, concluding, "the majority erroneously approves a trial court change in substance to the jury verdict that deprives the School District of $2,000,000, plus substantial attorney fees, without a fair trial on the valuation of the entire condemned property." School Dist. No. 12 v. Security Life Commerce City denied Respondent a business license to operate a sexually-oriented business in the City because the location of the proposed business is within one thousand feet of an occupied single-family residence, in violation of Commerce City’s ordinances. The court of appeals reversed, construing Commerce City’s ordinances to restrict the City Council to a denial based on only those reasons for the denial originally stated by the city staff. The supreme court reversed concluding the Commerce City Council could refuse to issue a license based on the existence of an occupied single-family residence located within one thousand feet of Enclave West’s proposed sexually-oriented business. City of Commerce City v. Enclave West, Inc. June 5, 2008 I apologize for falling behind on updating, but my work schedule will not let up enough for me to do summaries until sometime next week. Thanks for your patience, and I promise to get completely caught up sometime soon. Here are the supreme court's announcements from Monday. The court issued the following five decisions: 06SC799 Crider v. People; 07SA101 Town of Telluride v. San Miguel Valley Corporation; 07SA321 In re Stone v. State Farm; 07SC340 School Dist. No. 12 v. Security Life; 07SC445 City of Commerce City v. Enclave West, Inc. Here are today's court of appeals announcements. The court issued the following unpublished decisions: 04CA0501 People v. John Richard Rickman May 29, 2008 Here are today's court of appeals announcements. The court issued 10 published decisions. Due to my schedule, I will not be able to post summaries until early next week. I apologize for the delay and any inconvenience. May 28, 2008 Here are yesterday's supreme court announcements. The court issued two decisions, summarized below. In addition, the court granted cert. in four cases. The questions presented in those appeals follow the case summaries. Following that is the list of decisions the court of appeals will issue tomorrow. Finally, below that, are the summaries of the court of appeals' published decisions from May 15. In an appeal arising from a suppression order suppressing statements made by the defendant, a recent Sudanese refugee to the United States, during a custodial interrogation, the supreme court held that because of the inadequate translation of the Miranda advisement, the substantial miscommunication between the defendant and the officer, and the defendant’s cultural background and limited intellectual ability, the defendant did not knowingly and intelligently waive his Miranda rights and agree to speak to the officer without a lawyer present. In addition, the court found that after the defendant unambiguously requested a lawyer, the officer did not honor the request by ending the questioning and leaving the room. Chief Justice Mullarkey wrote the majority opinion. Justice Eid, joined by Justices Coats and Rice, dissented, concluding that the defendant’s waiver was knowing and intelligent because his Miranda rights were adequately translated to him and because he had the “necessary level of rudimentary understanding” of those rights as required by People v. Al-Yousif, 49 P.3d 1165, 1172 (Colo. 2002). The dissenters would also have concluded that after requesting a lawyer, the defendant voluntarily initiated further communication with the detective and thereafter validly waived his right to counsel. People v. Redgebol The supreme
court held that the compensatory purpose of C.R.S. § 13-21-101
requires that a trial court calculate interest on the amount of the
final judgment, regardless of the jury’s determination. The court granted cert. in these cases: Catholic Health Initiatives Colorado v. City of Pueblo, No. 07SC905, on these issues:
Whether the court of appeals applied the proper test for religious activity.
Whether the test for religious activity applied by the court of appeals, with which Catholic Health must comply continually to retain its tax exemption, and which the City of Pueblo must apply in subsequent audits, is unconstitutional and creates an ongoing chilling and entangling effect.
Whether the court of appeals erred in its interpretation and application of the City’s sales and use tax exemption for religious organizations by applying a rule of broad and liberal construction which has heretofore been limited to property tax exemptions under Colorado Constitution, art. X, section 5. People v. Greenlee, No. 08SC10, on these questions:
Whether the court of appeals erred in holding that evidence of a defendant’s plan to shoot a woman and then hide her body made two months before he shoots a woman and hides her body is inadmissible as res gestae evidence at his murder trial.
Whether the court of appeals erred in not applying a plain error standard of review to the admission of the witness’s testimony about defendant’s plan.
Whether admitting evidence erroneously under a res gestae theory, when it might have been admissible under CRE 404(b), is reversible error. People v. Guatney, No. 08SC20, on these issues:
Whether a sex offender can request and accept a probationary sentence knowing he will refuse to discuss his offense, as required in treatment, but evade probation revocation proceedings by invoking the Fifth Amendment right against self-incrimination.
Whether the court of appeals erred by holding that a grant of use immunity would remove any threat of self-incrimination.
Krueger v. Ary, No. 08SC63, on these issues:
Whether the court of appeals erred in affirming the trial court’s decision not to instruct the jury, in accordance with C.J.I.4th 30:16, that the Subject Transfers were presumed to be unfair, unjust and unreasonable in review of the confidential relationship between the decedent and his caregiver.
Whether the court of appeals erred in affirming the trial court’s decision not to instruct the jury, in accordance with C.J.I.4th 34:16, that the Subject Transfers were presumed to be the product of undue influence in view of the relationship between the decedent and his caregiver, coupled with the fact that the caregiver was involved in the creation of the documents by which the transfers were made.
Whether the court of appeals erred in failing to consider and apply the compelling policy considerations that dictate that the presumptions set forth in C.J.I.4th 30:16 and 34:16 should be given to the jury, irrespective of whether the defendant has introduced some evidence rebutting the presumption. The court of appeals will release the following decisions tomorrow: Published Opinions 03CA1261 People v. William Destro Unpublished Opinions 03CA1262 People v. William Destro Here are the summaries of the court of appeals' published decisions from May 15: By inputting data (i.e., pushing buttons on a telephone) in response to computer-generated questions in calls to the unemployment benefits automated phone system, the defendant accessed a "computer system," as the term "computer system" is defined in C.R.S. § 18-5.5-101(6). But the court agreed with the defendant that the evidence and argument presented by the prosecution at trial, combined with the elemental jury instruction on computer crime, constituted an impermissible expansion of the charge as set forth in the information. The court held that the result was a constructive amendment to the charge, which is per se reversible. People v. Rice The trial court properly held the search of defendant's vehicle was consensual. The initial detention of the vehicle was a justified traffic stop. The officer did not give a ticket but instead just gave a warning. After the officer returned the license and registration, said good-bye, and stated that he was not going to issue defendant a ticket, defendant walked back to his car, at which point officer asked if he could search the vehicle. The defendant agreed, and under the circumstances the search was consensual. People v. Montalvo-Lopez District court did not err in failing to question a juror about her ability to deliberate fairly after learning that at one point in the deliberations the juror was emotionally upset and refusing to deliberate. On the morning of the second day of the trial, immediately prior to jury deliberations, the court discharged the alternate juror. During jury deliberations, the court received a note from the jury foreman indicating that one juror "shut down, became isolated, and began to draw." She declared herself bipolar and locked herself in the bathroom. The majority held that it was not an abuse of discretion for the the trial court to not question the juror. Judge Roy dissented, concluding that "the fact that deliberations resumed after a break and the foreman reported that 'all 12 jurors seem to be fine and are proceeding' did not substitute for an inquiry, because while it ay indicate appropriate deliberations, without more, it could equally indicate acquiescence by the juror." He would have granted a new trial. People v. Mollaun Insurance company that contracted with PERA to provide PERA disability retirement benefits argued that it acts as PERA’s agent because, by statute, it acts in place of PERA when determining disability retirement benefits. As such, it argued, because PERA is an instrumentality of the state, and is considered a public entity under the CGIA, PERA’s immunity under the CGIA extends to it as PERA’s agent. The court of appeals rejected that position and reversed the contrary conclusion of the district court. The insurer's status as a private corporation, even one that has entered a contract with a public entity, precluded its treatment as a public entity under the CGIA. Moran v. Standard Insurance Company Facts alleged in complaint would establish only nonfeasance of defendant, not misfeasance. The court found no special relationship or other circumstances that would justify imposing a legal duty on defendant, and therefore the trial court properly dismissed plaintiffs' claims. | ||||||||||||||||||||||||