June 29, 2009 Here are links to the supreme court's announcements for today, and the court of appeals' announcements from last Thursday. The supreme court issued five decisions, which may be the last decisions the court issues for awhile. The court did not grant cert. in any cases. The court of appeals issued eight published decisions. Due to a heavy work load and the upcoming holiday weekend, I will have to post summaries next week. Thanks for your patience and have a happy and safe Fourth of July. June 22, 2009 A few readers have alerted me that Google reported my blog "as an attack site” and in some cases blocked access based on the reader's security preferences. Thanks to all who reported the problem. Our IT department has worked to fix the problem, and we believe the offending computer code has been removed. But please feel free to email me if this problem recurs or if you have any other technical problems with the site. I'm not very technically-savvy, so all I can do is forward on any problems. Thanks again for alerting me. Today's supreme court announcements are here. The court issued two decisions, summarized below. The court also granted cert. in two cases. The issue in those appeals follow the summaries. Defendant in a criminal case appealed the court of appeals' decision affirming the admission of character evidence under CRE 404(b). The defendant was charged and convicted of felony menacing for pulling a gun against the driver of a van. The defendant claimed he acted in self-defense. The trial court admitted evidence of a prior act where the defendant, a deputy sheriff, was off-duty, wearing his service weapon, and yelled at an apartment manager -- causing her to feel intimidated. The supreme court reversed, concluding that the evidence did not satisfy the four-part test of People v. Spoto, 795 P.2d 1314 (Colo. 1990), and therefore was inadmissible under Rule 404(b). The error was not harmless, so the court reversed and remanded for a new trial. Justice Coats, joined by Justice Eid, dissented, concluding, "While it would also have been within the trial court’s discretion to exclude evidence of the defendant’s prior encounter with his landlord, I do not agree that admitting this evidence amounted to an abuse of discretion. The admission of uncharged misconduct is fundamentally a question of relevance, as to which a trial court must be entitled (at least in the absence procedural error) to considerable discretion. Because I believe the majority’s overly mechanical application of the standards we have developed for evaluating uncharged misconduct evidence not only infringes on that discretion but is also likely to mislead trial courts and unnecessarily deprive fact-finders of valuable, relevant evidence in future cases, I respectfully dissent." Yusem v. People In an interlocutory appeal of a suppression order, police advised defendant of his Miranda rights after taking him into custody. Although defendant invoked his right to remain silent in two separate interviews, police subjected him to further interrogation in both of those interviews and in a third interview.The supreme court affirmed the trial court’s suppression order, holding that under the totality of the circumstances, the police violated defendant’s constitutional right to remain silent by continuing to conduct custodial interrogation on three occasions after he had clearly invoked that right. Justice Eid, joined by Justice Coats, concurred in the judgment only, agreeing only that during the third interview, the detective sought to convince the defendant to abandon his earlier invocation of the right to remain silent by diminishing the importance of having an attorney present during questioning. People v. Bonilla-Barraza The court granted cert. in the following cases: Rodriguez
v. People, No. 09SC132, on these issues: Whether the removal of a defendant from the courtroom during the child victim’s testimony and the failure to provide a contemporaneous electronic method of communication between the defendant and her counsel during the testimony deprives the defendant of her federal constitutional right to counsel, right to be present at a critical stage of her criminal trial, and right to confront witnesses. Whether the court of appeals erred in analyzing as trial error rather than structural error the question of the constitutionality of removal of the defendant from the courtroom during the child victim’s testimony, and the failure to provide the defendant with a contemporaneous electronic method of communication between defendant and her counsel. Whether the court of appeals erred in holding that the trial judge’s comments and questioning did not so depart from the required impartiality of the judge such as to deny Petitioner a fair trial. Smith v. Executive Custom Homes, Inc., No. 09SC223, on these questions: Whether the court of appeals erred as a matter of law in holding that the petitioners’ claim for relief for personal injuries under section 13-80-104 of the Colorado Revised Statutes accrued approximately one year before the subject personal injuries were suffered. Whether the court of appeals erred in reversing the trial court’s grant of summary judgment for the respondent/cross-petitioner by finding that the repair doctrine equitably tolled the statute of limitations under section 13-80-104 of the Colorado Revised Statutes. June 19, 2009 The supreme
court will issue two decisions on Monday, No. 08SC526
Yusem v. People, and No. 09SA6 People v. Bonilla-Barraza. No. 09SA144, In re: Goodman Associates, LLC v. WP Mountain Properties: Petitioner Goodman Associates, LLC seeks relief from the Eagle County District Court's order setting aside the default judgment it previously had granted in favor of Goodman Associates and against WP Mountain Properties, LLC. On June 17, 2009, the court issued a rule to show cause why the relief requested should not be granted. Respondent WP Mountain Properties is directed to provide a written answer on or before July 7, 2009. Petitioner has 20 days from receipt of the answer within which to reply.
Petitioner, the People of the State of Colorado, requested that the court issue a rule to show cause why the district court did not abuse its discretion in granting defendant Malinda E. Spykstra's request for the issuance of a subpoena duces tecum requiring the named victim in the underlying sexual assault case and her parents to allow defendant's expert into the parents' home to inpsect their computers and to produce personal emails between the victim and her parents. On April 24, 2009, the court issued a rule to show cause why the relief requested should not be granted. Respondent Spykstra is directed to provide a written answer on or before May 26, 2009. The People have 30 days from receipt of the answer within which to reply. The court has solicited amicus briefs in this case. June 18, 2009 Here are today's court of appeals announcements. The court issued only unpublished decisions. June 17, 2009 The court of appeals will release the following unpublished decisions tomorrow: 05CA1480 People v. Farrell Greenlee June 15, 2009 Here are today's supreme court announcements. The court issued no decisions and did not grant cert. in any cases. June 11, 2009 Here are today's court of appeals decisions. The court issued nine published decisions, summarized below. Trial court’s findings based on a hearing to reconstruct the record, together with the record as a whole, were sufficiently reliable to permit the court of appeals to us to conduct an intelligent review of defendant’s contention on appeal. Moreover, defendant failed to establish any specific prejudice other than the mere fact that he could not review the actual transcript. The court therefore rejected defendant's challenge to the adequacy of his Arguello advisement. The court did remand the case on a recusal issue, however. On remand, the judge who tried this case must explain on the record why he recused himself before sentencing. If his explanation comports with any of the reasons set forth in Crim. P. 25, the sentence previously imposed will stand , subject to defendant’s right to re-initiate his appeal of that sentence. If the reasons given by the judge are not based on any of the grounds for recusal set forth in the rule, defendant’s sentence wil be vacated, and the judge who sat on defendant’s jury trial will resentence him. People v. Brewster District court erroneously denied defendant’s challenge for cause of a prospective juror employed by the Division of Youth Corrections (DYC), and therefore a new trial was necessary. The court concluded that the DYC is a public law enforcement agency within the meaning of C.R.S. § 16-10-103(1)(k), and therefore the the challenge for cause should have been granted. People v. Sommerfeld Although plaintiff was not convicted of a sex offense in a criminal proceeding, a DOC hearing panel in 2007 classified him as a sex offender, based on plaintiff’s alleged sexual assault of his ex-girlfriend. Plaintiff filed a complaint under C.R.C.P. 106(a)(4) asserting that the DOC abused its discretion when it classified him as a sex offender because he had not been convicted of a sex offense or an offense with an underlying factual basis of unlawful sexual behavior. The court of appeals concluded that the 2008 amendment to C.R.S. § 16-22-103(2)(d)(I) did not apply to the DOC’s May 2007 classification, and therefore the the DOC was not bound by the prosecution’s stipulation dismissing sexual assault charges. The court found no abuse of discretion by the DOC. Vondra v. Colorado Department of Corrections Continued employment does not create consideration for a noncompete agreement once an employee has begun working for an employer. Lucht’s Concrete Pumping, Inc. v. Horner Plaintiff was injured in an automobile accident when her vehicle was struck by a bus driven by defendant bus driver. She sued the bus driver and his employer, First Transit, Inc. The district court determined as a matter of law that the bus driver was also an employee of the Regional Transportation District (RTD), and therefore his potential liability was capped at $150,000 by virtue of the Colorado Governmental Immunity Act (CGIA). The court also determined that First Transit, which Plaintiff had sued solely on a theory of respondeat superior, could not be held liable for an amount greater than the bus driver’s potential liability. The court of appeals affirmed, concluding that as a matter of law the bus driver was an RTD employee as well, and therefore the CGIA caps applied. Henisse v. First Transit, Inc. Beneficiary deeds executed by decedent as trustee were invalid as a matter of law. C.R.S. 15-15-401 does not state or imply that a trust can be a grantor of a beneficiary deed, and the court declined to interpret the statute to allow for that. Fischbach v. Holzberlein C.R.S. § 13-40-110(1) and 13-40-115(2) expressly allow a landlord to recover past due rent in an FED action. Renco Associates v. D’Lance, Inc. District court’s order granting defendant’s petition for discontinuation of the requirement that he register as a sex offender and for his removal from the sex offender registry under C.R.S. § 16-22-113 was vacated and remanded for entry of an order denying the petition. Because defendant has more than one conviction for unlawful sexual behavior, he was ineligible for such relief by virtue of § 16-22-113(3)(c). People v. Atencio In a lien
priority dispute, Bent County appealed the declaratory judgment finding
its lien to be junior in priority to the lien of plaintiff bank. The
trial court based its determination of priority on C.R.S. § 38-30-104,
the after-acquired interest statute. The court of appeals reversed,
concluding the after-acquired interest statute was inapplicable because
the deed of trust (1) did not involve a transfer of title and (2)
did not “purport to convey an estate in fee simple absolute.”
The court further noted that even assuming the statute were applicable,
it would conclude that the trial court erred in altering the lien
priority dates because section 38-30-104 does not address or affect
lien priority. The court also noted that the statute had not been
cited in over 80 years by a Colorado appellate decision. Premier
Bank v. Board of County Commissioners of the County of Bent June 10, 2009 The court of appeals will release the following decisions tomorrow, including nine published opinions: Published Opinions June 9, 2009 This post will get me caught up. First are the supreme court announcements from yesterday. Following that are the court of appeals' argument calendar for July and the summaries of the court of appeals' published decisions from May 28. Here are yesterday's supreme court announcements. The court issued two decisions summarized below. The court did not grant cert. in any cases. A deputy sheriff and Alamosa County are entitled to restitution under C.R.S. § 18-1.3-602(4)(a) as "victims" 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. Because an essential element of the underlying crime of vehicular eluding of a peace officer requires the primary "victim" to be a police officer, the supreme court held that the deputy sheriff and Alamosa County fall within the meaning of "victim" for purposes of restitution. Dubois v. People In a case arising out of a serious collision between a train and a car, the supreme court held that the premises liability statute, when construed in context, did not mandate that the damages resulting from the railroad's negligence be assessed without regard to the negligence of the injured party or fault of a nonparty. Therefore, the judgment of the court of appeals was reversed and a new trial ordered. Union Pacific RR Co. v. Martin The court of appeals' oral argument calendar for July is here. A motion for new trial filed before a judgment of conviction has entered is a critical stage of trial to which the right to counsel attaches. In addition, the court held a defendant, whether indigent or not, is free to discharge his or her retained counsel without having to show cause, and an indigent defendant may subsequently request appointed counsel, so long as the discharge or request is not made for improper purposes and does not significantly disrupt judicial proceedings. On the facts, the court of appeal concluded that the trial court abused its discretion in failing to review the public defender's determination of nonindigency. The court remanded to determine whether the defendant's financial status at the time of her request entitled her to court-appointed counsel during post-trial proceedings. People v. Munsey Defendant's challenge to an instruction was not preserved because it was not raised at trial. The court of appeals held raising an objection for the first time in a new trial motion is too late to avoid the plain error standard. In addition, the court concluded that the prosecutor's references in closing argument to a witness's occupation as "a youth pastor" and "man of God" were improper. While the occupation was relevant background information, because it explained the context in which the witness had met the victim and eventually heard her claim of a sexual relationship with defendant, it had no legitimate bearing on the witness's credibility. But reversal was not necessary because the trial court sustained objections to the improper arguments. Further, the witness had no firsthand knowledge of the alleged crimes, and the case did not turn on his credibility. People v. McNeely Defendant was convicted of finding him guilty of leaving the scene of an accident. At trial, the prosecutor asserted the defendant violated the statutory prohibition against leaving the scene of an accident solely because he failed to identify himself as the driver at the scene. The court of appeals disagreed, concluding that the statutes under which defendant was charged and convicted, C.R.S. §§ 42-4-1601(1) and -1603(1), do not require the driver of a vehicle involved in an accident to identify himself as such. Because the evidence was otherwise insufficient to support defendant's conviction for leaving the scene of an accident, the court reversed and remanded with instructions to enter judgments of acquittal on all charges. People v. Hernandez In a commercial case, the court of appeals concluded that the parties did not enter into an enforceable settlement agreement. The court described the case as "a prototype for a purported offer that was 'on its face manifestly too good to be true.'" At issue was a mathematical calculation of interest. On the facts, the court concluded that an e-mail and erroneous charts from defendant raised a presumption of error because they were inconsistent with (1) the jury's award; (2) with prior discussions between counsel; and (3) other calculations in the same charts, in which defendant's consistently used the jury's allocations of fault. The court of appeals concluded that at a minimum, "these obvious inconsistencies gave rise to a duty on the part of plaintiffs' counsel to inquire before attempting to accept the purported 'offer.'" Without such an inquiry, there was no offer capable of acceptance. Sumerel v. Goodyear Tire & Rubber Company In C.R.S.
§ 7-80-107(1), the General Assembly did not expressly, or by
clear implication, manifest an intent to prohibit courts from using
the common law doctrine of piercing the corporate veil to hold an
LLC manager personally liable for the LLC's improper actions. The
court also concluded that when an LLC becomes insolvent, its manager
owes a common law duty to the LLC's creditors to avoid favoring personal
interest over those of creditors. Breach of this duty will result
in the manager's personal liability to those creditors (personal liability
that is distinct from the personal liability that may be imposed through
the piercing-the-corporate-veil doctrine) While engaged in a high speed chase with police, defendant was in a serious crash with another vehicle. That crash was a head-on collision with a vehicle driven by a woman who was then eight and one-half months pregnant. There was an eighty percent abruption of the placenta, which required an emergency cesarean section. The child was delivered alive, but died one hour and nine minutes later. The defendant was charged with serious felonies, including 7 related to the death of the child (first degree murder being among those 7 charges). The trial court granted defendant's motion to dismiss all charges relating to the unborn child. On appeal, the panel agreed that the language of C.R.S. § 18-3-101(2) precludes charging a defendant with homicide for causing death of an unborn child - regardless of whether death occurs in the womb or after birth as a result of fetal injuries. The majority, however, concluded that the non-homicide charges--reckless child abuse resulting in death, § 18-6-401(1)(a), (7)(a)(I); deadly vehicular eluding, § 18-9-116.5; careless driving causing death, § 42-4-1402; and under the influence vehicular assault, § 18-3-205(1)(b)(1)-could be brought. The court therefore reversed the dismissal of those charges. Judge Connelly, dissented on this issue, noting, "Because the legislature defined 'persons' in the homicide statute expressly to exclude the unborn, and because all criminal laws must be strictly construed, we should not adopt a broader construction in interpreting related statutes." People v. Lage The standard for approval of a settlement of a shareholder derivative action under C.R.C.P. 23.1 should be identical to the standard for evaluating a class action settlement under C.R.C.P. 23(e). A trial court's approval of a settlement of a derivative action is a discretionary determination, which, as in class action settlements under C.R.C.P. 23(e), will not be overturned absent an abuse of discretion. Thomas v. Rahmani-Azar In an appeal
from cease and desist order of the Colorado Securities Commissioner,
the court concluded that Commissioner's conclusion that respondents'
sale of unregistered securities violated C.R.S. § 11-51-301 was
supported by the record. The court also concluded that by employing
an unlicensed sales representative, the fund violated § 11-51-401(2).
The court rejected respondents' contentions the Commissioner erred
in finding a violation of § 11-51-501 because (1) there was no
evidence or finding that respondents made the omissions with scienter,
that is, with intent to defraud; (2) no statement was rendered misleading
by respondents' omission to disclose the sales rep's licensure status
and, in any event, his licensure status was not a material fact; and
(3) the licensure status was public information, and therefore its
disclosure was not required. In this Equal Pay Act (EPA) case, 29 U.S.C. § 206(d), plaintiffs, appeal the amount of the trial court's attorney fees and costs award against defendant. The court affirmed the fee award, but reversed the trial court's order refusing to award any costs under C.R.S. § 13-17-202. The court of appeals concluded that costs for a witness's airfare could be "reasonable travel expenses" under § 13-17-202(1)(b), even if the airfare exceeds the mileage reimbursement rate provided in § 13-33-103 depending on the circumstances that led the witness to travel by air and the type of arrangements chosen. The court also concluded that because the expenses of a traveling companion are "similar" to "reasonable travel expenses" and this phrase is not limited to such expenses of a witness, under unusual circumstances traveling companion expenses could be awarded under § 13-17-202(1)(b). The court held, though, that section 13-17-202(1)(b) neither loan interest nor witnesses' lost wages are not recoverable, as those are not "similar" to the items of "actual costs" listed in section 13-17-202(1)(b). Catlin v. Tormey Bewley Corp. The Farmers Reservoir and Irrigation Company (FRICO) appealed the district court's judgment entered following a bench trial authorizing the City of Boulder to construct an under-highway path spanning a portion of an irrigation ditch operated by FRICO, and ruling against FRICO on its counterclaims against Boulder and on its third-party complaint against the Colorado Department of Transportation. The court of appeals reversed the portion of the judgment allowing Boulder to construct the under-highway path, concluding that the district court clearly erred in finding that the proposed trail extension would not adversely affect FRICO's maintenance rights. City of Boulder v. Farmer's Reservoir and Irrigation Company In a workers' comp. case, the court of appeals concluded that the 2007 amendment to C.R.S. § 8-43-406(2), which increased the aggregate amount a workers' compensation claimant may receive in one or more lump sums, permitted the claimant, who previously received a lump sum payment before the amendment, to receive an additional lump sum payment equal to the difference between the amended aggregate amount and the amount she previously received. Nelson v. ICAO In a case involving exclusion of a municipality from a special district, petitioners, Cherry Hills appealed the order of the district court directing them to pay a "transfer amount" of $9,660,838 to the South Suburban Park and Recreation District, as a condition of the exclusion of Cherry Hills from the District. In a prior appeal addressing, among other things, the propriety of the transfer amount, the court of appeals had concluded that the trial court had misinterpreted one of the statutes governing exclusion of municipalities from special districts. City Council v. S. Suburban Park & Recreation Dist., 160 P.3d 376, 381 (Colo. App. 2007). On remand, the trial court properly reconsidered and explained its rationale for requiring Cherry Hills to make the transfer payment to the District. The court of appeals therefore affirmed. The City Council of the City of Cherry Hills Village v. South Suburban Park and Recreation District In a quiet title action, the court of appeals concluded that the trial court properly quieted title in Beaver Creek Ranch based on adverse possession. The court held, however, that the trial court erred in awarding prejudgment interest. Prejudgment interest in actions that do not involve personal injury is governed by C.R.S. § 5-12-102. Subsection (1)(b) provides a statutory rate of interest for money or property wrongfully withheld: "Interest shall be at the rate of eight percent per annum compounded annually for all moneys or the value of all property after they are wrongfully withheld or after they become due to the date of payment or to the date judgment is entered, whichever first occurs." "Wrongful withholding" means "that the aggrieved party lost or was deprived of something to which she was otherwise entitled." The party that lost the adverse possession claim believed that it owned the disputed property at all times until the judgment was entered. Therefore, Beaver Creek Ranch only became entitled to royalties after it obtained a judgment from the court quieting title to the disputed property. Beaver Creek Ranch, L.P. v. Gordman Leverich LLLP The court of appeals reversed the district court's judgment dismissing for lack of jurisdiction a petition seeking judicial review of an administrative order revoking petitioner's driver's license. The court found no error in the district court's determination that the petitioner was a resident of Nevada, as initially alleged in her petition, and not a resident of Larimer County. But the court noted that the petitioner was not a resident of Larimer County, or of any other Colorado county. Therefore, the court turned to the Administrative Procedure Act (APA), specifically section 24-4-106(4), and determined that The plain language of sections 24-4-106(4) and 42-2-135(1) leads us to conclude that, absent a specific statute such as section 42-2-126(9)(a), the proper venue for the licensee's petition for review was the Denver District Court. The court therefore remanded with directions to change venue to Denver District Court. Hastie v. Huber In an appeal raising issues of first impression under Revised UCC Article 8 (Investment Securities), the parties who had or claimed interests in the bond were: (A) the original owners of the bond; (B) the entity that was entitled to purchase the bond if the original owners failed to close on the underlying property development; and (C) the party who purchased the bond from the original owners. The original owners fraudulently transferred the bond to the purchaser of the bond. The purchaser relied on UCC's "protected purchaser" provision to claim he acquired greater interests than the original owner had and thereby trumped the entity's interests. But because the purchaser had notice of the entity's property interests in the bond, he was not a protected purchaser. The entity therefore was entitled to the bond. Meadow Homes Development Corp. v. Bowens The trial
court aggravated defendant's sentences under a statutory provision
that did not require the court to impose a sentence to incarceration.
This statutory provision mandated the court to aggravate defendant's
sentence only if it sentenced defendant to incarceration. See C.R.S.
§ 18-1.3-401(8)(a)(III). Because the plain language of that section
did not require a sentence to incarceration or imprisonment in the
DOC, the court's authority to suspend defendant's sentence was not
limited by to section 18-1.3-401(11) was not applicable. Therefore,
the district court's imposition of defendant's suspended sentences
was authorized by statute and was not illegal. Insurance company had not duty to defend insured who was sued for giving the victim a "date rape drug" and sexually assaulting her. The policy excluded from coverage "bodily injury, property damage or personal injury which . . . is either caused intentionally by or at the direction of an insured; or . . . results from an occurrence caused by an intentional act of any insured where the results are reasonably foreseeable." Therefore, summary judgment for the insured was appropriate. Fire Insurance Exchange v. Sullivan June 4, 2009 Today's court of appeals announcements are here. The court issued the following unpublished decisions: Unpublished Opinions June 2, 2009 Yesterday's supreme court announcements are here. The court issued two decisions, summarized below. The court did not grant cert. in any cases. I will not be able to post the court of appeals summaries until later this week, as I have an unexpected work matter to deal with. In an original proceeding arising from a medical malpractice action alleging lack of informed consent and negligence, the plaintiffs subpoenaed the doctor for all documents associated with a Board of Medical Examiners’ investigations of his professional conduct. In filing his privilege log listing specific documents, the doctor asserted that C.R.S. § 12-36.5-104(10) and § 12-36-118(10)created a privilege against discovery. The supreme court concluded that § 12-36.5-104(10) did not apply because the BME is not a peer review committee. The court also concluded § 12-36-118(10) does not directly govern civil discovery requests for the doctor’s records. But when considering whether documents the doctor provided to the BME or received from the BME are discoverable, the trial court may consider any expectation of confidentiality the doctor asserts for records listed in the privilege log. The supreme court held that the trial court abused its discretion in this case by ordering the doctor to produce all of the documents listed in his privilege log without first reviewing the documents in camera and conducting a Martinelli analysis. In Re DeSantis v. Simon In a water court appeal, the supreme court held that an applicant for conditional water storage rights in certain reservoir sites failed to demonstrate by a preponderance of the evidence that there was a substantial probability that it can and will gain access to the disputed sites. Therefore, the water court proprerly dismissed, on summary judgment, the applicant’s claims for conditional water storage rights in those sites. City of Aurora v. ACJ Partnership May 29, 2009 The supreme
court will issue two decisions Monday, No. 08SA321,
In Re DeSantis v. Simon, and No. 08SA222, City of Aurora v. ACJ Partnership. May 28, 2009 This post includes summaries of this week's supreme court decisions and summaries of the court of appeals' decisions from May 14. So please scroll down. Today's court of appeals' announcements are here. The court issued 17 published decisions, which I hope to summarieze by next Tuesday. The court released the following decisions: Published Decisions 04CA1405 People v. Nancie Munsey The supreme
court announcements from Tuesday are here.
The court issued three decisions, summarized below. The court granted
cert. in one case, No. 08SC907, The Colorado Intergovernmental Risk
Sharing Company v. Northfield Insurance Company, on this issue:
In an original proceeding, the supreme court addressed which statute of limitations applied to the charges brought against defendant. The defendant was charged with thirty-two counts of sexual assault on a child, sexual assault on a child by one in a position of trust, sexual assault on a child -- pattern of abuse, and criminal attempt to commit sexual assault on a child. The acts were allegedly committed during two separate time periods -- one period from August 1, 1992, to August 31, 1993, and one period from August 1, 1995, to June 30, 1996. The felony complaint charging defendant with those crimes was filed April 6, 2007. Defendant moved to dismiss the charges against him, contending that they were all barred by the statute of limitations. The statute of limitations in effect at the time of the alleged crimes was ten years. But the General Assembly amended the statute of limitations in 2002, tolling the ten-year statute of limitations for sexual assault on a child until the child victim reaches the age of eighteen. The trial court denied defendants' motion to dismiss, holding that the newly- amended statute of limitations applied to defendants' case and that it had not yet run. The supreme court noted that the statute itself contains two contradictory limitations provisions (C.R.S. §§ 18-3-411(2)(b) and 5(1)), each compelling a different result in this case. Because of the conflicting statutory language, and because the court was unable to discern the legislative intent behind the statute, the court concluded that it could not determine which limitations period applied. As a result, the court concluded that it was forced to apply the rule of lenity to hold that the charges against the defendant were barred by the ten-year statute of limitations in effect when the crimes were allegedly committed. In so holding, the court overruled the court of appeals' recent decision in People v. Boston, --- P.3d ---, No. 07CR2186, 2009 WL 400073 (Colo. App. Feb. 19, 2009). Justice Coats concurred in the judgment, finding it unnecessary to resort to the rule of lenity. Justice Eid dissented, concluding that the interpretation that better preserves the statute as a whole controls -- that is, that the tolling provision applies to all crimes that were committed on or after July 1, 1992 for which the statute of limitations had not already run. She concluded that since there was "no 'tie' to be broken, resort to the rule of lenity [was] inappropriate." In re People v. Summers In a C.A.R. 21 proceeding, the supreme court held that the untimely expert disclosure was substantially justified because the expert was a treating physician brought into the case at a late date through the natural course of Plaintiff's medical care. Plaintiff's request to add this expert after the deadline was also justified by the critical nature of the testimony in question. The untimely disclosure was harmless because a trial date has not been set and because Defendant's opportunity to defend against the evidence has not been compromised. Therefore, the supreme court held that the trial court erred when it barred the expert witness. Justice Eid dissented, concluding that under the circumstances the trial court did not abuse its discretion in excluding the expert. In re Berry v. Keltner While defendant's direct appeal of his convictions was proceeding in the court of appeals, the child victim indicated that her testimony of sexual abuse by the defendant was fabricated. After a series of evidentiary hearings, the district court denied defendant's motion for new trial, and he was permitted to join an appeal of that ruling with the appeal of his convictions. Although the court of appeals reversed portions of the judgment of conviction, it found no abuse of discretion in the district court's denial of his motion for new trial. The supreme court affirmed, holding held that because the district court was not reasonably convinced that the victim's testimony at trial was probably false, it did not abuse its discretion in denying defendant's motion for new trial. Justice Bender, joined by Chief Justice Mullarkey and Justice Martinez, dissented, concluding that the "majority holds that a recantation 'can justify a new trial only to the extent that it not only impeaches the prior testimony but does so by contradicting it with a different and more credible account.' Maj. op. at 14. Such a conclusion overstates our precedent. The appropriate standard that should be applied here is that newly discovered impeachment evidence is sufficient to justify a new trial when it, taken together with all of the other evidence for and against the defendant, is of such consequence that it probably would result in an acquittal on retrial. In this case, the parties agree that there was no evidence other than the victim's trial testimony to support the defendant's conviction. The trial court found that the victim's trial testimony had 'substantial credibility issues.' Given this set of circumstances, I conclude that the addition of the victim's recantation would bolster the defense argument for reasonable doubt and probably result in an acquittal on retrial. In my view, justice requires that the defendant receive a new trial." Farrar v. People Here are summaries of the the court of appeals' decisions from May 14: Where the
trial court was not called upon to make any factual findings relevant
to the self-representation issue, the court of appeals reviews the
issue de novo. The court concluded that Informant's statements referencing a drug transaction arrangements, describing the two suppliers and giving their street names, and identifying them upon arriving at the scene were all introduced for the nonhearsay purpose of showing their effect on the listening officers (to show why the officers chose to go to that particular location and stop, arrest, and search defendant and the car in which he was traveling). The evidence did not run afoul of CRE 403, and it thus was not error to admit it. People v. Robinson A four-month delay in issuing a search warrant did not make the supporting affidavit stale. The information provided probable cause to believe that at least some of the stolen property would be located in defendant's residence four months after the crime. People v. Mapps Trial court did not commit reversible error by allowing the jury, during deliberations, unfettered access to a videotaped interview of the victim that had been admitted into evidence. The majority concluded that the under the supreme court's decision in Frasco v. People, 165 P.3d 701 (Colo. 2007), the trial court did not err. Judge Bernard, joined by Judge Jones, wrote the majority opinion. Judge Dailey dissented, concluding that "Here, unlike in Frasco, the trial court did not (1) give a limiting instruction with respect to the victim's videotaped statement; (2) wait for a jury request to review the videotape; or (3) obtain counsel's agreement to allow the jury to have access to the tape. Indeed, with respect to the videotape of the second interview, the trial court here did not exercise any discretion to the end identified in Frasco: without even considering whether the jury might give undue weight to that videotape, the court allowed the jury access to it, without even so much as providing the jury with a cautionary or limiting instruction." People v. DeBella Evidence supported jury's verdict, in abuse of process counterclaim, that plaintiff used the judicial proceedings for the ulterior purpose of retaliation for defendants' cooperation in a federal investigation of plaintiff (which led to plaintiff pleaded guilty to a federal crime). Plaintiff filed the lawsuit after he entered his guilty plea and was sentenced, but before he began serving his sentence, alleging that defendants lied to federal law enforcement authorities. Defendants testified that they believed that this was a "vindictive" lawsuit filed for "retaliatory purposes." The Assistant United States Attorney who prosecuted plaintiff testified that he was "shocked" plaintiff was suing defendants. The court also concluded that the statutory cap set forth in C.R.S. § 13-21-102.5 does not apply to limit a defendant's liability based upon the number of plaintiffs. Otherwise, a defendant could injure many people by the same tortious conduct and in essence receive a "group discount." Such an interpretation of section 13-21-102.5(3)(a) would have absurd consequences, and therefore was rejected. Palmer v. Diaz Rental car driver led police on a high-speed chase that severely injured defendant and killed defendant's son. The insured pleaded guilty to five felonies: second degree murder, first degree assault-extreme indifference, possession of a controlled substance with intent to distribute, vehicular homicide, and vehicular assault-reckless. The insured assigned all of his claims, if any, against the insurer to the defendants. The rental car insurance company brought a declaratory judgment action seeking a determination of no liability for it. The trial court granted summary judgment. The court of appeals affirmed. The court rejected defendant's argument that the insurance policy's crime exclusion was void for violating the insured's "reasonable expectations," and that the crime exclusion violated public policy or was unconscionable. Lincoln General Insurance Co. v. Bailey In a CCIOA case, the court concluded that reading C.R.S. § 38-33.3-312(3) and (4) together, the "contract" referred to in § 38-33.3-312(4) must be ratified by the unit owners, otherwise the contract is unenforceable. Platt v. Aspenwood Condominium Association Inc. Claimant, the recipient of an award of permanent partial disability (PPD) benefits, sought review of the part of the ICAO final order that upheld the denial of his request for a protective order to block a division-sponsored independent medical examination (DIME) and the exclusion of evidence offered to show the DIME physician's apparent or actual conflicts of interest. The court of appeals affirmed the conclusion that no actual conflict of interest existed, but held that the issue of whether an apparent conflict existed had to be reconsidered. The physician selected to perform the DIME was a member of the SelectNet physician referral system operated by Pinnacol Assurance, the insurance carrier in the case, and received approximately twenty-five percent of his income from such referrals. The physician also provided services as a medical advisor for insurer one-half day per month. Ruff v. ICAO Parents' marital status is irrelevant and does not preclude a child support action in the juvenile court under C.R.S. §§ 19-6-101 to -106. Because the Children's Code does not contain language restricting the juvenile court's jurisdiction to cases regarding parents who are not married or cases where paternity is contested, the juvenile court erred by dismissing the child support action for lack of subject matter jurisdiction. People In the Interest of S.E.G Defendants
were held in contempt and remedial contempt sanctions of $5,000 a
day was ordered until Defendants complied with the trial court's contempt
order. Defendant's appeal was dismissed for failure to timely file
a notice of appeal. Under C.R.C.P. 107(f) and C.A.R. 4(a), the appeal
of the Contempt Order had to be filed within forty-five days after
the Contempt Order entered, and Defendants did not file within that
period. The court also concluded that the trial court abused its discretion
in awarding a 2.5% "client fee" to Plaintiff as costs. The
affidavit of costs indicated that the client fee was a flat 2.5% 'general
costs' surcharge that reflects the cost of in-house copying and long
distance, but was not "merely overhead." The court of appeals
concluded that the affidavit thus indicated that at least some portion
of the charge was for firm overhead. Therefore, it should not have
been awarded as a cost. Madison
Capital Company, LLC v. Star Acquisition VIII May 22, 2009 The supreme court will issue the following three decisions on Tuesday: No. 08SA169, In Re: People v. Summers; No. 09SA5, In Re: Berry v. Keltner; No. 07SC983, Farrar v. People. I was unable
to summarize last week's published court of appeals decisions. I will
try to get those up next week. May 21, 2009 The court of appeals' oral argument calendar for June is here. Here are today's court of appeals announcements. The court issued the following unpublished decisions (no published decisions). 05CA1159 People v. Joseph Edwards May 19, 2009 Due to other commitments, I'm a bit behind on my blogging. I hope to post summaries of the court of appeals' published decisions from last week by the end of the week. But the supreme court's decisions from yesterday are summarized in this post. Yesterday's supreme court announcements are here. The court issued two decisions and granted cert. in one case. In an appeal of a suppression order, the supreme court held that defendant was sufficiently advised of and validly waived his Miranda rights after receiving three separate advisements and stating he wished to speak to police after each advisement. Defendant's alleged intoxication did not render him cognitively incompetent. Nor did societal or other subjective pressures to cooperate with police render his waiver involuntary. The court also concluded that a defendant has no constitutional right to call a family member before police interrogation. Although C.R.S. § 16-3-402 requires police to allow a suspect to call family upon arrival at a police station, suppression of evidence is not the proper remedy for an alleged violation of the statute. People v. Clayton Travelers took a cruise vacation to Panama, and while there were injured in a train wreck during a train ride along the Panama Canal. They sued the travel company, and the train's operators, among others. The court of appeals concluded that the borrowing statute C.R.S. § 13-80-110, applies to the claims and therefore subjected the action to Panama’s one-year statute of limitations, not Colorado's two-year statute of limitations. The court therefore upheld the trial court's summary judgment in favor of defendants. The supreme court affirmed but on different grounds. The court noted that the borrowing statute and the Uniform Conflict of Laws –- Limitations Act, C.R.S. §§ 13-82-101 to -107, applied to petitioners’ action, and each assigned a different statute of limitations. Under the borrowing statute, Panama’s one-year statute of limitations applies, while the limitations act assigns Colorado’s two-year statute of limitations. Resolving the conflict between the two statutes, the supreme court held that since the borrowing statute was enacted after the limitations act, and thus is more recent, it controlled. Justice Hobbs, joined by Chief Justice Mullarkey, dissented. Justice Hobbs concluded that the fairness provision of C.R.S. § 13-82-106 should apply to this case to effectuate the General Assembly’s policy that a two-year statute of limitations is the shortest period required for filing a personal injury lawsuit. Justice Hobbs noted that "the fairness provision allows a court to apply Colorado’s limitation period when another state’s substantially different limitation period has not afforded a fair opportunity to sue or imposes an unfair burden in defending against the claim." Jenkins v. Panama Canal Railway Co. The court granted cert. in No. 08SC1073, Wolf Ranch, LLC v. The City of Colorado Springs, on this issue: Whether the court of appeals erred in ruling that the Regulatory
Impairment of Property Rights Act, C.R.S. sections 29-20-201 to 205
is not applicable when a governmental body legislatively adopts a
uniform fee, but then determines on an individual and discretionary
basis whether or not to apply the fee to specific properties. May 13, 2009 The court of appeals will release the following decisions tomorrow: Published Opinions 05CA1083 People v. Aymen A. Abdu May 12, 2009 Here are yesterday's supreme court announcements. The court issued one decision, summariezd below, and granted cert. in three cases. the questions in those cases follow the case summary. The supreme court has concluded that under the doctrine of equitable subrogation, a putative subrogee may be barred from enforcing its subrogation rights on grounds of prejudice if another party detrimentally changes its position in reasonable reliance on the record state of title. Land Title Ins. Corp. v. Ameriquest Mortgage Co. The court granted cert. in these cases: No. 08SC650,
Doumbouya v. The County Court of the City and County of Denver, on
this question: No. 08SC756, Pineda v. People, on this issue: Whether, in light of the recently decided U.S. Supreme Court case Arizona v. Gant, No. 07-542 (U.S. April 21, 2009), the court of appeals erred in affirming the trial court’s denial of a motion to suppress contraband found in Petitioner’s vehicle during a warrantless search incident to arrest conducted while Petitioner was handcuffed and secured in a police cruiser. No. 08SC972, MDC Holdings, Inc. v. Town of Parker, on these issues: Whether the court of appeals erred in concluding that letters written by outside legal counsel for the respondents constituted “final decisions” in accordance with section 29-2-106.1(2)(c), C.R.S. (2008), that commenced petitioner Richmond's thirty-day period for filing an appeal notwithstanding that the letters specifically stated the respondents' position that the matters were not yet ripe for final decisions. Whether the court of appeals erred in allowing the respondents to
benefit from municipal procedures which conflict with the uniform
statute and their own characterization regarding the finality of the
decision contained in the letters. May 7, 2009 The court of appeals' announcements for today are here. The court issued only unpublished decisions. May 6, 2009 The court of appeals' oral argument calendar for May is here. The court of appeals will release the following unpublished decisions tomorrow: 06CA0841 People v. Daniel Terence Stuart May 1, 2009 The supreme court will issue no case announcements on Monday. Here are the summaries of the supreme court's decisions from Monday. The court of appeals summaries follow them. Trial court did not abuse its discretion in decertifying class, where the plaintiff advanced no theory of class-wide causation sufficient to maintain a class action. The supreme court held that, under the circumstances of this case, the fraud on the market theory could not be applied to maintain an insurance class action brought under the Colorado Consumer Protection Act. Farmers Insurance Exchange v. Benzing The court of appeals had declared illegal Petitioner's three-year sentence to community corrections and remanded for imposition of her previously suspended four-year sentence for robbery. The court of appeals held that because probation was imposed as a condition of a suspended sentence, the sentencing court did not have the option to resentence her to three years in community corrections upon finding a violation, but was instead required to simply re-impose the four-year sentence it had suspended. The supreme court reversed, holding that C.R.S. § 18-1.3-401(11) must be understood to permit the suspension of a sentence in conjunction with, rather than in contradistinction to, the imposition of a statutorily-prescribed alternative to imprisonment. Therefore, the sentencing court’s resentencing options upon revocation were dictated by the statutory provisions governing revocation of probation. Because C.R.S. § 16-11-206(5) permits, upon revocation of probation, the imposition of any sentence that might originally have been imposed, the supreme court reversed the court of appeals. Justice Eid concurred in the judgment, noting that "under both the suspension and probation provisions, the district court judge is not bound by the suspended sentence, and instead has the authority at resentencing to impose any sentence that could have been imposed originally." Fierro v. People Here are the summaries of yesterday's court of appeals decisions: In Nathan Dunlap's appeal of the sentence imposed on remand following reinstatement of his original convictions for second degree kidnapping, aggravated robbery, and theft, the court of appeals concluded that his sentence was illegal to the extent it did not reflect consideration and fixing of restitution. Therefore, the court remanded with directions to the trial court to consider and fix restitution and amend the mittimus accordingly. But the court rejected Dunlap's arguments that the illegality of the sentence means that his conviction has never been final and that he may appeal anew his conviction and sentence despite the fact that his conviction was affirmed on direct appeal in 1998, and his request for collateral relief was finally resolved in 2005. The court concluded that the illegality of his sentence did not affect the finality of his conviction nor the denial of relief on collateral review in this case. People v. Dunlap In an important decision on the economic loss rule, the court of appeals held that the doctrine can apply to fraud or other intentional tort claims based on post-contractual conduct. With respect to fraud claims, the applicability of the economic loss rule depends on whether the alleged fraud arises from duties implicated by a party’s performance of contractual terms or whether the alleged fraud concerns a matter extrinsic to the contract. Where the alleged fraud arises from duties implicated by a party’s performance of contractual terms, the claim is barred by the economic loss rule. The court concluded that applying the economic loss rule to claims for post-contractual fraud does not contravene public policy where the alleged fraud relates to the performance of the contract, since the parties to a contract can allocate the risk of intentional concealment or misrepresentation in the performance of a contract. Because the implied covenant of good faith and fair dealing prohibits fraud in the performance of contractual obligations as to which one party has discretionary authority, the covenant may preclude a fraud claim arising out of the party’s performance of contractual terms. The court concluded that the duty Plaintiff alleged clearly arose out of the parties’ interrelated contracts. Hamon Contractors, Inc. v. Carter & Burgess, Inc. The CCIOA
creation provision states that a common interest community is created
“only by recording a declaration executed in the same manner
as a deed.” C.R.S. § 38-33.3-201(1). In a negligence
case, the court held that the trial court should have afforded a hearing
before increasing the jury's punitive damages award to three times
the compensatory damages awarded. Defendant pled guilty to misdemeanor sexual assault. The district court found he was a “sexually violent predator” (SVP), subject to lifetime registration and community notification requirements. On appeal the court rejected Defendant's argument that the SVP statute does not cover misdemeanors, concluding that the SVP statute applies to misdemeanor sexual assaults in violation of C.R.S. § section 18-3-402(1)(e). But eh court agreed with Defendant that court’s findings were insufficient, and remanded for the trial court to make “specific findings of fact” as required by the SVP statute. People v. Tuffo C.R.S. § 42-2-126(1)(a) requires the Colorado Department of Revenue to revoke the licenses of suspected drunk drivers who refuse blood or breath testing. The district court held the statute does not allow revocation unless a test request is made within two hours of driving a vehicle. The court of appeals reversed, concluding that the statute requires only that a request be made within a reasonable time, and therefore that the Department properly revoked Petitioner's license. Stumpf v. Colorado Department of Revenue, Motor Vehicle Division A water line providing service to Plaintiff’s property broke. The water district hired contractors to fix the break, and assessed Plaintiff the cost of the repair under C.R.S. § 32-1-1101(1)(e). Plaintiff disputed his obligation to pay and filed an action seeking a determination that he was not liable for the expense of the repair. The case was tried to a jury, which returned a verdict in favor of the district. After trial the district filed a motion for foreclosure and an award of attorney fees under C.R.S. § 31-35-402(1)(f). The trial court entered a decree of foreclosure and awarded attorney fees. On appeal, the court affirmed. The court rejected Plaintiff's argument that a jury trial was improper. The court of appeals concluded that trial court’s characterization of the declaratory judgment action as legal was not contrary to law, since the district would have had to sue for damages had Plaintiff not brought his action. Stuart v. North Shore Water & Sanitation District In a Medicaid
benefits case, the court of appeals concluded that that the Medicaid
Act sections on which plaintiff relied do not contain rights-creating
language essential to enforcement under 42 U.S.C. § 1983 and
that her claim under C.R.S. § 24-4-106 claim was untimely. Therefore,
the court affirmed the trial court’s judgment dismissing her
1983 claims and her claim for judicial review of administrative action.
Bates
v. Henneberry The People appealed a trial court’s order, entered at a preliminary hearing, reducing two class three felony sexual assault charges against defendant to class four felony charges and dismissing five other sexual assault charges against defendant. The court noted that the trial court had concluded that evidence that a defendant’s body weight prevented a victim from escaping a sexual assault is categorically insufficient to constitute the actual application of physical force or physical violence under C.R.S. § 18-3-402(4)(a). That was a conclusion of law, and thus subject to de novo review. The court of appeals concluded that evidence that a defendant’s body weight caused the victim to submit against his or her will is sufficient to establish probable cause to believe that the defendant applied the physical force required under § 18-3-402(4)(a). Applying the correct legal standard, the court reversed some of the dismissals and reductions, but upheld others. People v. Keene Mother appealed
the termination of her parental rights, asserting the juvenile court
failed to comply with the Indian Child Welfare Act (ICWA). The court
of appeals concluded that the Denver Department of Human Services
erred by not filing ICWA notices or the return receipt cards with
the court and such errors were not harmless because there was no evidence
in the record that the tribe knew mother was an enrolled tribal member
or had lived on the reservation, andthat later notices sent by the
department did not comply with the ICWA. The court therefore vacated
the judgment and remanded for proper notices to be provided. The court
noted that if on remand, the tribe does not seek to intervene or indicate
that the child is eligible for enrollment, then the juvenile court
would not need to apply the substantive ICWA standards. People
In the Interest of N.D.C. April 30, 2009 Sorry for the lack of posts this week. I've been tied up on work and other things and have not been able to get to blogging. This post contains this week's case announcements from the supreme court and court of appeals. I hope to post summaries tomorrow. Monday's supreme court announcements are here. The court issued two decisions and granted cert. in the following cases: No. 08SC783, Wells Fargo Bank, N.A. v. Kopfman, on these issues: Whether the court of appeals erred in holding that a judgment creditor who has domesticated a foreign judgment and established a judgment lien on Colorado real property under section 13-52-102, C.R.S., (2008), must revive that judgment in the foreign court, re-domesticate that judgment, and record a new transcript of judgment issued by a Colorado court. Whether the court of appeals erred in adopting a strict compliance standard for Colorado’s judgment lien and recording statutes and should have instead adopted a substantial compliance standard. No. 08SC945, People v. Gabriesheski, on these questions: Whether the Court of Appeals erred in concluding that conversations between a child and her guardian ad litem in a dependency and neglect case are confidential communications protected by attorney-client privilege. Whether the Court of Appeals erred in concluding that section 19-3-207(2), C.R.S. (2008), which governs the admissibility in criminal proceedings of statements made to treating professionals in dependency and neglect proceedings, precluded a social worker’s testimony in a criminal case about pressure placed on the child-victim to recant allegations of sexual abuse. Whether the Court of Appeals erred in concluding that section 13-90-107(1)(g), which bestows a privilege on communications between social workers and their clients in psychotherapy sessions, applies to a social worker who neither directed nor participated in psychotherapy with the child-victim and her family. Whether jurisdiction is proper under section 16-12-102(1), C.R.S. (2008), as an appeal limited to a question of law or as an appeal from an order dismissing one of more counts of a charge. Here are today's announcements from the court of appeals. The court issued the following decisions: Published Opinions April 24, 2009 The supreme court will issue the following two decisions on Monday: No. 07SC483, Farmers Insurance Exchange v. Benzing No. 07SC788,
Fierro v. People April 23, 2009 Here are today's court of appeals decisions. The court issued only unpublished decisions. April 22, 2009 The court of appeals will release the following unpublished decisions tomorrow: 01CA1252 People v. Toney L. Brown, April 21, 2009 The supreme court's announcements from yesterday are here. The court issued two decisions, which are summarized below, and granted cert. in one case. Following the supreme court announcements, are summaries of last week's published decisions from the court of appeals. In a declaratory judgment action in the water court, the supreme court concluded that the Water Right Determination and Administration Act of 1969 defines "beneficial use" as "the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made." C.R.S. § 37-92-103(4). Under the language of the Act, the coalbed methane process "uses" water -- by extracting it from the ground and storing it in tanks -- to "accomplish" a particular "purpose" -- the release of methane gas. Consequently, the extraction of water to facilitate coalbed methane production is a "beneficial use" as defined in the Act and a "well" as defined in the Colorado Ground Water Management Act. Therefore, the court concluded that coalbed methane production is subject to regulation under both acts. The court rejected the argument that water used in coalbed methane production is merely a nuisance rather than a "beneficial use." Instead, the use of water in coalbed methane production is an integral part of the process itself. The presence and subsequent controlled extraction of the water makes the capture of methane gas possible. Justice Coats concurred in part and dissented in part, concluding that although "I agree that the extraction of groundwater in the coalbed methane production process falls within the administrative responsibilities of the state and division engineers, I do not agree that this process, in itself, amounts to a 'beneficial use' of the water extracted, for either constitutional or statutory purposes." Vance v. Wolfe In a tax case, respondents purchased property as tenants in common and subsequently donated the property as a conservation easement. The two couples split the value of the donated easement in half and claimed tax credits totaling $154,700 under the Conservation Easement Tax Credit Act. The Colorado Department of Revenue issued notices of deficiency to the two couples on the ground that their tax credits exceeded the $100,000 limit. The supreme court agreed with the Department of Revenue. The Conservation Easement Tax Credit Act limits the “amount of the credit allowed [to] one hundred thousand dollars per donation.” Thus, although each couple may claim a tax credit, the statute expressly limits the amount of the credits claimed to an aggregate total of $100,000 per donation. Because the tax credits claimed by respondents exceeded $100,000, the court holds that the Department correctly issued the notices of deficiency to the respondents. Huber v. Kenna The court
granted cert. in No. 09SC68, Board of County Commissioners of the
County of Boulder, Whether it was error for the district court and court of appeals to find that section 30-28-110(1) of the County Planning and Building Code exempts a fire protection district -- which is planning to obtain ownership of and develop an outlot in a subdivision within a planned unit development -- from the requirements of section 24-67-106(3)(b) of the Planned Unit Development Act. Here are the summaries of last week's court of appeals decisions: Securities fraud in the course of business, C.R.S. §11-51-501(1)(c), contains different elements from the securities fraud counts under 11-51-501(b) on which defendant was acquitted. Thus, defendant could be acquitted of the counts of securities fraud under section 11-51-501(1)(b) because the jury found he did not make any untrue statement of material fact or omit to state a material fact and still be convicted on the count of securities fraud in the course of business under section 11-51-501(1)(c) because the jury found he willfully engaged, directly or indirectly, in any course of business that operated as a fraud or deceit upon any person. The court, however, reversed defendant's computer crime conviction for insufficient evidence. The court concluded that the People were required to prove beyond a reasonable doubt that defendant personally "used" a computer as that term is defined in the computer crime statute, rather than simply aided and abetted others who may have actually used a computer in the sales process. People v. Robb When the prosecution
seeks to admit any evidence which suggests that the defendant is a
person of bad character, it must be prepared to explain why the logical
relevance of that evidence does not depend on the inference that the
defendant acted in conformity with his bad character. Under this standard,
the district court did not abuse its discretion in admitting defendant's
notebook entries in her murder trial. The notebook entries indicated
that defendant, a black woman, believed that (1) white people are
detestable and are a threat to her and other black women, and (2)
therefore, she is justified in ignoring the law and killing them.
Because the victim was white, the entries were relevant to establish
defendant's culpable mental state and to rebut her assertion that
she had acted accidentally or in reasonable self-defense. This theory
of relevance did not depend on the inference that defendant acted
in conformity with her bad character generally. In a case of first impression in Colorado, the court of appeals concluded that where a defendant's mental disease or defect renders him incompetent to decide whether or not to exercise his right to testify in his own defense, he is incompetent to stand trial. Defendant's trial could not properly proceed if his mental disease or defect prevented him from deciding rationally whether to exercise his fundamental and personal right to testify in his own defense in a manner consistent with the Dusky standard (requiring both a present factual and rational understanding of the proceedings). If defendant's mental disease or defect rendered him incapable of deciding rationally whether to testify, then, because of the nature of that right, he necessarily lacked the sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and the requisite factual and rational understanding of the proceedings against him. The trial court applied the wrong legal standard, and therefore a remand was necessary. People v. Mondragon Defendant
was convicted on five counts of attempted first degree extreme indifference
murder. The trial court erroneously denied defendant's request to
provide the jury with the option of convicting him of a lesser non-included
offense involving reckless discharge of a firearm. The error required
reversal of three of the five attempted murder convictions, but not
two convictions involving child victims actually struck by gunfire
because the jury was instructed on analogous lesser assault offenses
as to those two victims. For those two counts, the lesser non-included
assault offense instructions served the same purpose that would have
been served by lesser non-included firearms offense instructions.
Defendant was able to argue that the jury should convict him of assaulting
but not attempting to murder the two girls. For the other three counts,
however, there was no comparable lesser offense on which the jury
could have convicted. In a medical negligence case involving acts or omissions during surgery, the jury should be instructed, under the captain of the ship doctrine, that a surgeon is vicariously liable for the negligence of subordinate hospital employees from the time the surgeon assumes control of the operating room until the surgeon concludes the procedure. The court rejected the surgeon's argument that he had no right to control how the nurses counted the sponges. The court also rejected the surgeon's argument that plaintiff's release of the nurses precluded the surgeon from being held vicariously liable for their negligence. On the plaintiff's cross-appeal, the court held that C.R.S. § 13-64-302(2) includes prefiling interest -- but not prejudgment interest -- within the $250,000 cap on noneconomic damages. Therefore, calculating prejudgment interest on prefiling interest in excess of the cap would be contrary to section 13-64-302(2). Ochoa v. Vered C.R.S. § 8-43-303(1) & (2)(a) permit reopening of a workers compensation award on grounds of "overpayment." Therefore, employer and current insurer were entitled to credit fo overpayment of claimant's benefits. Under Avalanche Industries v. Clark, 198 P.3d 589 (Colo. 2008), workers compensation claimant was entitled to have his permanent total disability benefits capped at ninety-one percent of the state average weekly wage (AWW) that was in effect at "the time of his disablement." Contrary to claimant's contention, the issue is one of fact that the ALJ must determine, because claimant could have become disabled at the time of his initial accident, or at some point thereafter, depending on the facts and circumstances. Accordingly, the court of appeals remanded to determine the time of claimant's disablement under Avalanche Industries, and the state AWW that was in effect at that particular time. Simpson v. Industrial Claim Appeals Office Trial court properly denied motion to suppress arising from passenger involved in a traffic stop. The court of appeals concluded that the officer lawfully could ask for her identification during the traffic stop without reasonable suspicion of criminal activity on her part. The court noted that the officer did not ask defendant any questions beyond her name and date of birth. Nor was the encounter improperly prolonged by requiring defendant to step out of the car and remain at the scene. No testimony suggested that either officer touched defendant or retained anything that might have prevented her from leaving the scene as the car was being searched. Therefore, her continued presence after the traffic stop ended was consensual. People v. Bowles In proceeding to terminate father's parental rights, evidence of polygraph examinations should not have been admitted, and the trial court should not have listened to, or considered, the opinions of any experts based, in whole or in part, on the polygraphs. The error was prejudicial. Inadmissible evidence of polygraph examinations formed the basis for the opinions and recommendations from all of the expert witnesses that father's parental rights should be terminated. The court therefore remanded the case for further proceedings. People In the Interest of M.M., Jr. Denver police
officer challenged his ten-month suspension for tactical errors preceding
his fatal shooting of a developmentally disabled fifteen-year-old
boy who had been wielding a knife. Denver's Civil Service Commission,
reversing an administrative hearing officer, upheld the suspension.
The officer sought discrict court review under C.R.C.P. 106(a)(4).
The district court affirmed. Though the shooting itself was not alleged
to have violated the department's use-of-force policy, the officer
was suspended for violating a provision requiring that officers "maintain
the highest standard of efficiency and safety." The commission
disagreed with the hearing officer's determination that this provision
could not constitutionally be applied to the officer. The commission
upheld the suspension because the officer had "disregarded the
opportunity to de-escalate" the situation prior to the shooting.
On appeal, the officer contended the "highest standard of efficiency
and safety" provision is unconstitutionally vague, and that the
commission exceeded its authority and applied the wrong legal standard,
among other errors. The court of appeals affirmed the suspension.
The majority concluded that a provision requiring officers to adhere
to the "highest standard of efficiency and safety" can be
applied to evaluate the reasonableness of officers' actions in light
of their training, and therefore survives a vagueness challenge. Judge
Roy dissented, concluding that the Denver Police Department Operations
Manual § 3.13 was void for vagueness and violated the officer's
rights to substantive due process. CDOT was not statutorily authorized to condemn mineral interests when it condemned land for highway purposes, regardless of the nature of the title it took otherwise. The court noted that its interpretation of the plain meaning of C.R.S. § 38-1-105(4) was clarified by SB 08-041, which revised several of the condemnation statutes. SB 08-041 clarified that the legislature does not, and never did, intend for CDOT to condemn mineral interests, other than those needed for subsurface support, when it acquires land for highways. Therefore, the trial court erred in granting summary judgment in favor of CDOT. Gypsum Ranch Co., LLC v. Board of County Commissioners of the County of Garfield Any person who would otherwise be entitled to workers' compensation benefits may not receive and is not entitled to such benefits for any week following conviction during which he or she is confined in a jail, prison, or any Department of Corrections facility. See C.R.S. § 8-42-113(1). Under section 8-42-113(2), when a person is released from confinement, he or she must be "restored to the same position with respect to entitlement to benefits" as he or she "would otherwise have enjoyed at the point in time of [his or her] release from confinement." Claimant contended that this provision tolls the running of the six-year period during which an administrative law judge may review and reopen an award. The court of appeals rejected that argument, concluding that nothing in either Article 42 or 43 provides authority for tolling the limitation periods provided in section 8-43-303 while a claimant is in prison. Landeros v. Industrial Claim Appeals Office In a campaign finance case, the court of appeals concluded that an ALJ, proceeding under a privately-filed complaint under Article XXVIII, section 9 need not be "the appropriate officer" described in section 10 in order to have the authority to impose a sanction. The ALJ found an issue committee had violated C.R.S. § 1-45-108 by failing to fully disclose all the committee's contributions and expenditures in its reports and failing to establish a bank account required under section 3(9) of Article XXVIII, and she imposed a civil penalty from the date the committee first filed its inaccurate report. The court concluded the ALJ had authority to impose that sanction. The court also concluded that the ALJ has the discretion to choose to impose no sanction or penalty if the ALJ reasonably concludes one would not be appropriate. Section 10(2)(b)(1) of Article XXVIII authorizes the ALJ to set aside or reduce a penalty for good cause. "Set aside" clearly contemplates imposing no sanction whatsoever. "Reduce" logically implies a lessening, even to zero. Therefore, while section 9 of Article XXVIII requires the ALJ to include in the decision an appropriate order, sanction, or relief as authorized, the ALJ has discretion to impose no sanction at all. Patterson Recall Committee, Inc. v. Patterson Juvenile court erred when it denied motion for acquittal because there was a "fatal variance" between the petition and the evidence presented at trial. The "fatal variance" was that while the petition charged him with rendering assistance to one Norris knowing that Norris was charged with a crime, the theory on which the prosecution proceeded, and upon which juvenile was adjudicated delinquent, was that he rendered assistance to Norris knowing Norris had committed a crime. That variance required reversal and entry of judgment of acquittal. People In the Interest of H.W. Workers compensation claimant contended ALJ erred by denying permanent total disability benefits based on her refusal to undergo surgery, which the ALJ found to be unreasonable. She claimed that surgery refusal is an affirmative defense that employer failed to endorse for hearing. The court of appeals found no reversible error, noting that the order also contained extensive evidentiary findings supporting the ALJ's additional determination that claimant had failed to prove she has no ability to earn wages. Thus, the findings and conclusions regarding claimant's refusal to undergo surgery were neither essential nor integral to the ALJ's finding that she did not carry her burden of proof. Aviado v. Industrial Claim Appeals Office Letter from
Division of Insurance plainly requested that insurer send a highlighted
copy of the policy to homeowner and to the Division and insurer's
response was incomplete. Thus, the insurance commissioner's decision
upholding the Division's decision to levy a fine was affirmed. Trial court erred by requiring adoptee to use a confidential intermediary in order to gain access to certain adoption records. C.R.S. § 19-5-305(2)(a) entitles adoptees to access their adoption records and the names of their birth parents without limitation if their adoptions were finalized before July 1, 1967, and adoptee's adoption was finalized in 1965. In the Matter of the Petition of J.N.H. Because a lis pendens can be a "spurious document," the trial court could award attorney fees and costs under C.R.C.P. 105.1(d) and C.R.S §§ 38-35-109(3) and 38-35-204, for plaintiff's spurious lis pendens. The court also rejected plaintiff's argument that the trial court lacked personal jurisdiction. Although plaintiff did not file a response to the petition as required by C.R.C.P. 105.1(c), the trial court held a show cause hearing, which plaintiff attended. Therefore, service under C.R.C.P. 4(e) or (g) was not required. The court of appeals concluded that because a show cause hearing was held and plaintiff did not refute that the lis pendens was spurious, the court had jurisdiction to enter judgment in favor of defendants and against plaintiff for defendants' costs and attorney fees under C.R.C.P. 105.1(d). Shyanne Properties, LLC v. Torp Sir Mario Owens was convicted of two counts of capital murder and sentenced to death. In addition, he was convicted of lesser felonies, which he appealed to the court of appeals, asking the court to determine whether it had jurisdiction over the appeal of those lesser felonies. The court of appeals dismissed the appeal, in light of the unitary review statute vesting the supreme court with exclusive appellate jurisdiction in death penalty cases. People v. Owens April 15, 2009 The court of appeals will release the following decisions tomorrow, including 18 published decisions: Published Opinions April 14, 2009 This post gets me caught up. Thanks for your patience. The supreme court's oral argument schedule for the 2009-10 term is here. The court will hold arguments September 22-24, October 20-22, and December 1-3, 2009, and January 19-21, March 2-4, April 27, 28, and 30, and June 8-10, 2010. The supreme court recently issued a rule to show cause in the following original proceeding: No. 09SA59, In re: People v. Body: Kenneth Lee Body, Jr. requests that the Colorado Department of Corrections be compelled to award him earned-time credit for the last eighteen years that he has served. He contends that the DOC has improperly withheld the credit based on its erroneous interpretation of the governing statute. On March 19, 2009, the court issued an order to show cause why the requested relief should not be granted. Respondents the DOC and the Denver District Attorney's Office are directed to file a written answer no later than April 8, 2009 why the relief requested should not be granted. Petitioner Mr. Body has twenty days from receipt of the answer within which to reply. Here are the summaries of the court of appeals' published decisions from April 2: Defendant contended that the mens rea of "knowingly" applies to every element of the charge of methamphetamine possession, including the amount of methamphetamine, and the trial court erred in instructing the jurors that the defendant did not need to know the amount he possessed. The court of appeals rejected that argument. The court concluded that C.R.S. sec. 18-18-405 creates two felony levels of offenses for possession of a schedule II controlled substance: a class 4 felony if the offense "involve[s]" more than one gram; and a class 6 felony if the offense "involve[s]" one gram or less. But these subsections do not expressly include a mens rea requirement with respect to the amount. People v. Sheffer In an appeal
by the People dismissing criminal charges, the court of appeals concluded
that the trial court abused its discretion in dismissing the charges
because it misapprehended the legal standard that governs the amount
and type of hearsay that may be presented in a preliminary hearing.
The court of appeals concluded that the prosecution satisfies the
minimum requirement for nonhearsay if it (1) presents some competent
nonhearsay addressing essential elements of the offense, and (2) presents
hearsay testimony through a witness who is connected to the offense
or its investigation and is not merely reading from a report. The
court concluded that the prosecution met these requirements and therefore
the case should not have been dismissed. Colorado Open Records Act (CORA) did not require Governor Ritter to allow requestor to inspect information redacted from a memorandum sent to the Governor's legal counsel. The court concluded that the redacted content was confidential "work product" exempted from public disclosure under CORA, and therefore affirmed the district court's order. The memorandum in question concerned draft legislation considered by former Colorado State Representative Rosemary Marshall. Ritter v. Jones In a dispute over the terms of a charter school contract, plaintiffs, a public charter school and parents of three of the school's students, appealed the dismissal of their complaint against the state Board of Education and the Pueblo School district. The court concluded that under the political subdivision doctrine, the charter school lacked standing to sue the district or the board. Moreover, C.R.S. sec. 22-30.5-107.5 does not permit judicial review of a board decision concerning the governing policy provisions of charter school contracts. As for the parents' appeal, the court of appeals affirmed the district court's dismissal of the parents' claims that lack of specific long-term facility funding violated their rights under the Colorado Constitution. The court held that the "thorough and uniform" clause of the Colorado Constitution did not require funding for long-term charter school facilities in parity with those of noncharter schools. The court also held that the choice to attend a charter school is not a constitutional right. Dolores Huerta Preparatory High v. Colorado State Board of Education Following the refusal of the Westminster Municipal Court to dismiss criminal charges against him, petitioner brought a C.R.C.P. 106 proceeding in the district court. The district court ordered the municipal court to dismiss the charges, finding that the municipal court had violated Hills' right to a speedy trial. The court of appeals reversed, concluding that defense counsel's rejection of a new trial date within the speedy trial time period extended the speedy trial deadline. Judge Gabriel dissented, disagreeing with the legal premise on which the majority's decision was based, and concluding instead that the delay was due to the municipal court's congested docket and not to any action or request of the petitioner. Hills v. Westminster Municipal Court Claim against physician did not relate back to date patient filed medical malpractice claim because patient failed to establish (1) that he made a mistake concerning the doctor's identity as a proper party or (2) that the doctor should have known that, but for such a mistake, plaintiff would have named him as a defendant in the complaint. Since the amended complaint was untimely and did not relate back, it was dismissed on statute of limitations grounds. Lavarato v. Branney In an underinsured motorist (UIM) benefits action, the notice-prejudice rule applies to insureds' failure to notify insurer of, and obtain its consent to, a settlement with a tortfeasor, in violation of a provision of the insurance contract requiring such consent. The court concluded the notice-prejudice rule applies, but that insureds' failure to provide notice and obtain consent before settling is presumptively prejudicial. Insureds, however, must have the opportunity to rebut this presumption, and if they are successful, the insurer must then establish that it actually was prejudiced by the settlement. The court therefore remanded for further proceedings regarding the notice-prejudice rule. Lauric v. USAA Casualty Ins. Plaintiff filed a tort action against defendants, asserting claims for assault, false imprisonment, and involuntary servitude. Plaintiff lives in Colorado, according to the complaint, but she is not a United States citizen. Because of her non-citizen status, defendants filed a motion to require plaintiff to post a cost bond as a nonresident of Colorado. The trial court granted the motion and ordered plaintiff to post a $20,000 bond. When she failed to do so, the trial court dismissed the complaint. The court of appeals reversed, concluding that the trial court erred in ruling that plaintiff's non-citizen status alone precluded her from qualifying as a resident for purposes of C.R.S. sec. 13-16-101, and in requiring that she post a cost bond on that basis. On remand, the trial court must apply the proper criteria to determine whether plaintiff is a resident. If the trial court then determines that plaintiff is a nonresident, it may require her to post a bond. Munos-Hoyos v. Munoz de Cortez Plaintiff appealed a summary judgment for defendant on the ground that prior federal court litigation precluded his claims. The court of appeals reversed. Defendant is a multi-state law firm practicing primarily in the field of debt collection. In 2006, plaintiff filed a complaint against defendant in the United States District Court for the District of Colorado, alleging that a series of debt collection telephone calls made to plaintiff's cell phone by agents of defendant violated the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, entitling him to monetary relief. In May 2007, the parties settled the FDCPA claims. Approximately one week after entering into the settlement agreement, plaintiff moved for leave to amend his complaint to assert violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. When a dispute arose concerning compliance with the settlement terms, defendant moved the U.S. District Court to enforce the settlement agreement. Following an evidentiary hearing before a magistrate judge, the U.S. District Court granted defendants motion to enforce the settlement agreement in October 2007. In its order granting defendant's motion, the U.S. District Court denied plaintiff's motion for leave to amend his complaint because the request was untimely and plaintiff failed to show "good cause to amend the Scheduling Order to allow him to assert new claims at this juncture." But the court noted in its order that "[a]s to claims under the Telephone Consumer Protection Act, the settlement agreement explicitly does not resolve such claims and does not prevent Mr. O'Neil from asserting such claims in the future." In December 2007, plaintiff filed his complaint in state court case, asserting claims under the TCPA. The district court granted summary judgment on claim preclusion grounds. The court of appeals reversed, concluding that the final judgment in the federal case did not encompass plaintiff's TCPA claims and thus did not preclude plaintiff from asserting them in state court. O'Neil v. Wolpoff & Abramson, L.L.P. In the Interest
of T.M.W. and S.A.W.--The
court's link to this decision
is not working. I have contacted the court about it. Once it's fixed,
I'll post a summary here in place of this note. April 13, 2009 Today's post will update the supreme court decisions from last week and today. I hope to get the court of appeals' decisions from April 2 summarized and posted tomorrow. Here are today's supreme court announcements. The court issued two decisions summarized below. The court also granted cert. in three cases. The questions in those cases follow the summaries. The summaries of the court's March 30 decisions follow that. Defendant
challenged
his conviction on the basis that he received ineffective assistance
of counsel during plea negotiations and, as a result, refused an offer
he otherwise would have accepted. His attorney fundamentally misunderstood
the sentencing statute involved and, as a result, advised defendant
to reject the district attorney’s offer. This offer would have
significantly reduced defendant ’s sentencing exposure. The supreme
held that the ineffective assistance of counsel standards in Strickland
v. Washington, 466 U.S. 668 (1984), apply throughout plea negotiations.
Under the Strickland standard, the court concluded defendant received
constitutionally deficient assistance of counsel during plea negotiations
and, as a result, suffered prejudice which calls the fairness of the
trial into question. This prejudice was shown through objective testimony
that corroborated the defendant’s own self-serving statements.
Justice Coats dissented, concluding that "[u]nlike the majority,
I consider it clear that the Supreme Court has not thus far extended
its remedy for ineffective assistance of counsel to include ineffective
plea negotiating; and in light of its existing jurisprudence, I do
not look for it to do so. In any event, I would not anticipate the
Supreme Court’s extension of its ineffective assistance materiality Under C.R.S. § 13-21-101, a personal injury judgment creditor is entitled to post-judgment interest from the date judgment is entered against the judgment debtor until the date the judgment is satisfied. The court rejected petitioner's argument that under section 13-21-101, both as written by the General Assembly and re-written by the court in Rodriguez v. Schutt, 914 P.2d 921 (Colo. 1996), a personal injury judgment creditor is entitled to post-judgment interest from the date the action accrued until the date the judgment is satisfied. The court holds that Petitioner’s suggested reading of the statute is contrary to the common understanding of the term “post-judgment interest” and does not serve the statutory goal of section 13-21-101. Therefore, the court affirms the court of appeals’ decision that a judgment creditor is entitled to post-judgment interest under section 13-21-101 from the date judgment is entered until the date judgment is satisfied. Justice Eid, joined by Justice Rice concurred in the result, noting that the "problem presented by this case highlights the fact that the interest statute is in need of legislative attention. Until the legislature acts, however, I believe we should avoid engaging in “interpretive” efforts such as the majority’s that further redraft the statutory language. Instead, I would reach the same result as that reached by the majority on the narrow ground that Sperry did not seek prejudgment interest in her complaint and therefore cannot collect it now. Maj. op. at 11. The language of section 13-21-101(1) states (in a portion not altered by Rodriguez) that “it is the duty of the court” to add “interest” to the judgment “[w]hen such interest is so claimed.” (emphasis added.) Here, Sperry did not claim prejudgment interest and therefore cannot collect it under the statute." Sperry v. Field The court
granted cert. in these cases: No. 08SC63,
Cash Advance v. State of Colorado, ex rel. John W. Suthers, Attorney
General, on these issues: Whether the court of appeals erred in holding petitioners do not have tribal sovereign immunity from Colorado trial court orders compelling them to produce information regarding their eligibility for tribal sovereign immunity. Whether the court of appeals contravened Congress’s plenary power over Indian tribes by implementing its own test to determine if a tribe’s commercial enterprise is sufficiently connected to the tribe such that the enterprise is protected by tribal sovereign immunity. Whether the court of appeals erred by stating that tribal officers are not protected by tribal sovereign immunity when acting outside state authority. Whether the court of appeals erred by stating petitioners may have waived sovereign immunity against Colorado’s enforcement actions by including arbitration clauses in loan agreements with Colorado consumers. Whether the court of appeals erred in reaching the question of sovereign immunity in an investigative subpoena enforcement proceeding. Whether the court of appeals erred in allocating the burden of proof to the state when sovereign immunity is an affirmative defense, not a challenge to the court’s subject matter jurisdiction. Whether the court of appeals erred in holding the state’s burden of proof is “preponderance of the evidence” when the burden of proof in an investigative subpoena enforcement proceeding is “cause to believe.” No. 08SC667, Tumentsereg v. People, on this question: Whether the court of appeals erred in not finding that even if petitioner's convictions are upheld, he was nonetheless entitled to resentencing because (a) the district court erroneously classified the sexual assault conviction as a class two felony, and (b) the court erroneously believed the minimum possible sentence was the midpoint of the presumptive range. No. 08SC784,
Joondeph v. Hicks, on these issues: Whether the court of appeals' refusal to apply the doctrine of derivative subrogation -- the right of property owners to transfer equitable subrogation rights, by way of warranty deed, to subsequent purchasers -- improperly deprives property owners of their equitable subrogation rights and unjustly results in the conveyance of a diminished estate. Whether, if this court declines to follow the doctrine of derivative subrogation, this court should abandon the rule that a lender’s actual knowledge of intervening liens prevents that lender’s ability to enforce the obligation it satisfied under the doctrine of equitable subrogation. Whether, if the court abandons this rule, petitioners may equitably subrogate to the senior lien position on the property. Here are the summaries of the supreme court decisions from March 30: County judge was properly authorized to issue pre-trial rulings. The pretrial hearings took place in the district court, which possessed the proper jurisdiction over felony criminal matters. In addition, the county judge was properly qualified to preside over the district court because he met the requirements of C.R.S. § 13-6-218 and was appointed to serve as a district judge by his chief judge. Thus, assuming that county judge did not receive written authority before the pretrial hearings, the lack of an appointment order in the record did not invalidate his pretrial rulings. The Chief Judge's nunc pro tunc order documented the county judge's authority. Therefore, no error occurred. People v. Sherrod Catholic Health
Initiatives Colorado challenged the imposition of a sales and use
tax, claiming exemption under the Pueblo municipal code. The applicable
portions of the municipal code exempt “charitable organizations”
from payment of sales and use tax incurred “in the conduct of
their regular religious or charitable functions or activities.”
The supreme court held that operation of a facility for the care and
housing of the elderly did not fall within the definition of “charitable
organization” as used in the City of Pueblo code. The court held
that the code complied with the constitutional requirements of the
Establishment Clause, because it sets forth broad secular standards
necessary to qualify for exemption, which either religious or secular
organizations may satisfy. Nor did the imposition of sales and use
tax on Catholic Health violate the Free Exercise In an original proceeding under C.A.R. 21, the court held that the trial court abused its discretion in disqualifying the entire State Public Defender’s Office from representing the defendant where some individual attorneys from the Public Defender’s Office had previously represented three of the prosecution’s witnesses. The court concluded that no direct conflict of interest existed because neither individual public defender representing the defendant was involved in the prior representation of the witnesses. Conflicts that may have existed with regard to other public defenders within the statewide office could not be imputed to the individual attorneys in this case under RPC 1.11. Justice Bender dissented, noting, "Although I agree in large part with the majority’s analysis of the relevant Rules of Professional Conduct, I disagree with its conclusion that the trial court abused its discretion when it disqualified the public defender’s office. I would hold that the trial court could rationally conclude that, in view of the public defender’s prior representation of three of the prosecution’s key witnesses, the office’s continued representation of the defendant gives rise to an appearance of impropriety warranting disqualification. I would arrive at this conclusion even though I agree with the majority that, under the circumstances of this case, such representation would not constitute a literal violation of the Colorado Rules of Professional Conduct." In re People v. Shari April 10, 2009 The supreme court will issue the following decisions on Monday, No. 07SC478, Carmichael v. People, and No. 08SC438, Sperry v. Field. Yesterday's court of appeals announcements are here. The court issued unpublished decisions only. I will post summaries of recent cases next week. April 6, 2009 I'm back. I was out of town on vacation. I have an argument this week, so I won't being doing any other updates before Friday. I do hope to get fully updated by this Friday or next Monday. Here are today's announcements from the supreme court. The court did not issue any decisions, and did not grant cert. in any cases. Here are the announcements from the supreme court on March 30. The court issued three decisions, which I will summarize later. The court granted cert. in the following case: No. 08SC451,
People v. Loveall on these issues: Whether the court of appeals properly analyzed the alleged violation of the defendant’s limited due process right to confront and cross-examine adverse witnesses at his probation revocation hearing. Assuming arguendo that there was a denial of the defendant’s limited due process right to confrontation, whether the court of appeals erred by relying on out-of-state authority and reversing the revocation instead of following Colorado precedent permitting the court to uphold the revocation on an independent ground or remand the matter for further findings by the trial court. Whether a pro se defendant can enter into a deferred sentence under section 18-1.3-102, C.R.S. (2008), which requires the consent of the district attorney, defendant, and defendant’s “attorney of record.” Whether a deferred sentence is prohibited by section 18-1.3-1004, C.R.S. (2008)’s requirement to sentence sex offenders to an indeterminate term. Here are last Thursday's court of appeals announcements, which includes the following decisions: Published Opinions Here are are the court of appeals announcements from March 26. The court issued only unpublished decisions. March 23, 2009 Here are today's supreme court announcements. The court did not issue any decisions, but did grant cert. in the following two cases: No. 08SC936, People v. Bergerud, on these issues: Whether criminal defendants have a fundamental constitutional right to direct their counsel to present an “innocence-based defense,” irrespective of counsel’s professional judgment. Whether, if there is such a constitutional right, what procedures should this Court devise to ensure that defendants are aware of said right, any waiver of it is done in a knowing, voluntary, and intelligent manner, and that counsel is acting pursuant to the defendant’s directions and not on the basis of his own professional judgment. No. 08SC970, Boles v. Sun Ergoline, Inc., on this question: Whether the public policy of Colorado allows enforcement of an exculpatory
agreement purporting to release a manufacturer from liability for
possible future injuries caused by the manufacturer’s defective
products. March 19, 2009 Here are today's court of appeals announcements. The court issued 10 published decisions, summarized below. Reckless
endangerment conviction should have merged with defendant's conviction
for attempted Trial court
did not abuse its discretion in disqualifying defendant's counsel,
where counsel testified. The court concluded that the testimony would
not have related to an uncontested issue in the case and therefore
it was not an abuse of discretion to conclude that the first exception
to Colo. RPC 3.7(a) did not apply. In addition, there was an adequate
basis in the record to support the trial court’s conclusion that
preventing counsel from testifying would not be a substantial hardship
on defendant. People
v. Pasillas-Sanchez Where the only direct evidence connecting an accused person to the crime is the presence of DNA at the scene of a crime, the evidence, to be legally sufficient to sustain a conviction, must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the DNA was deposited at a time other than that of the crime. Such other circumstances may include the source material of the DNA and its susceptibility to transfer, the location of the DNA, the character of the place or premises where it was found, the accessibility of that place or premises to the general public, and the object upon which the DNA was found. Here, defendant’s semen was on a sweatshirt and headband recovered from the scene of an assault. The victim testified that she purchased the sweatshirt several days before the attack. If believed, her testimony thus provided the jury with a narrow window of time in which defendant’s semen was likely deposited. Taken in the light most favorable to the prosecution, the narrow window of time during which the victim had owned the sweatshirt, combined with her mother’s denial and the defendant’s initial denial of any consensual sexual encounter, suffice to reasonably exclude the hypothesis that the DNA was deposited at a time other than that of the crime. People v. Clark In 2002, defendant pleaded guilty to felony theft. He failed sentences both to a diversion program and to probation, and thus was sentenced in 2004 to two years imprisonment. During the 120-day time limit provided by Crim. P. 35(b), defendant moved to reduce his sentence to probation, based primarily on his performance in a regimented inmate training “boot camp” while in prison. At a hearing on the motion, defendant requested that he be sentenced to intensive supervision probation (ISP). The district court granted his motion and resentenced him to three and one-half years of ISP. Defendant also failed at ISP, and the court subsequently resentenced him to three and one-half years in a community corrections program. After he was terminated from that program, the district court resentenced him to three and one-half years imprisonment in the DOC. On appeal, defendant contended that because he had already begun serving his two-year prison sentence, the district court violated his constitutional right against double jeopardy when it ultimately increased that sentence to three and one-half years. The court of appeals disagreed, concluding that defendant took advantage of the suspension of finality afforded by Rule 35(b) to successfully argue that his sentence should be changed and reduced to probation, thus voluntarily accepting the relevant probation statute authorizing the possibility of a more severe sentence for a subsequent revocation. People v. Castellano Magistrate was correct when he decided that a child’s disability payments should not be included in mother’s gross income. The phrase “actually received” in C.R.S. § 14-10-115(7)(a)(I)(A) and (16.5) refers only to the disabled parent’s own disability benefits, and does not include disability benefits the disabled parent receives on behalf of a child. Such benefit payments are not included in mother’s gross income for the purposes of calculating her child support obligation. In re the Marriage of Anthony-Guillar The BAA erred in dismissing its abatement and refund claims. Taxpayer had a viable basis for its abatement and refund claims under the statutory scheme on the ground of overvaluation, to the extent that taxpayer could prove that its personal property was overvalued by the inclusion of any value attributable to nonexistent assets. The majority perceive no basis under the statutory scheme for barring these authorized abatement and refund claims under the equitable defenses asserted by the BOCC. Judge Bernard dissented, noting that there was "no suggestion in this case that Boulder County did anything wrong in collecting personal property taxes from HealthSouth. Rather, the payment of personal property taxes at issue here was based on HealthSouth’s intentional misrepresentations in documents that it submitted to the County. The County did not invent fictitious personal property; HealthSouth did. The County did not give this fictitious personal property a value; HealthSouth did. As a result, I would conclude that HealthSouth is not entitled to pursue the administrative remedy of abatement and refund of its taxes because it bases its claim for relief on its own misconduct." HealthSouth Corporation v. Boulder County Board of Commissioners Plaintiffs own farmland and irrigation wells near the South Platte River. On June 2, 2006, plaintiffs received letters from Water Division No. 1 of the state engineer stating that plaintiffs’ wells were part of an augmentation plan in a pending water court case, and consequently, the wells could not pump water until the water court had entered a decreed plan for augmentation. Plaintiffs were ordered to “immediately cease and desist diverting water in violation of the above referenced law, decree, and/or permits.” Plaintiffs did not challenge the validity of the cease and desist orders, instead filed a complaint against defendants in district court alleging that the cease and desist orders constituted takings in violation of Colorado Constitution article II, section 15, and the Fifth and Fourteenth Amendments of the United States Constitution. Their claims were dismissed for lack of subject matter jurisdiction. On appeal, Plaintiffs contend the district court had jurisdiction to hear their complaint because they own vested water rights for irrigation. The court of appelas concluded that the substance of relief sought requires a determination that plaintiffs had the right to use water for irrigation without interference from others, and therefore there was no jurisdiction over the claims. Exclusive jurisdiction rested with the water court. Kobobel v. State of Colorado, Department of Natural Resources, Division of Water Resources Decedent's farm equipment fell within the exception to the joint tenancy presumption set forth in C.R.S. § 15-11-805(1)(c), as he engaged in the farming business. His gun collection, however, did not overcome the joint property presumption created under section 15-11-805(1) and thus the proceeds from the sale of the gun collection were the property of defendant’s wife. In re Estate of Whittman Worker's comp. claimant sustained a compensable back injury while employed at a scientific research station in Antarctica. He contended that he was entitled by statute to an increase in his average wekkly wage for room and board and that the ALJ erred by determining that the absence of comparable market forces in Antarctica precluded him from proving a reasonable sum to support an increase. The court of appeals agreed and remanded for a determination of the value of the room and board provided by employer. Iler v. Industrial Claim Appeals Office In a workers’
compensation proceeding, employer sought review of the final order
issued by the Panel upholding the fine imposed for employer's failure
to carry workers’ compensation insurance. The court of appeals
concluded that the procedure utilized by the Division of Workers’
Compensation did not violate employer’s due process rights, and
therefore affirmed. The issue was whether an employer is denied its
right to procedural due process by not timely requesting a prehearing
conference. The court concluded that it is reasonable to condition
the occurrence of an administrative hearing on an employer’s
timely request to participate in a prehearing conference. Because
the prehearing conference provides an opportunity to speedily resolve
or simplify issues, as well as resolve discovery matters and evidentiary
disputes, it also provides an opportunity to determine whether any
factual issues are in dispute and, thus, a need for an evidentiary
hearing. March 18, 2009 The court of appeals will release the following decisions tomorrow, including 10 published decisions: Published Opinions March 16, 2009 Here are today's supreme court announcements. The court issued three decisions, summarized below. The court granted court in several cases, and the issues in those appeals follows the summaries: In the long-awaited mill levy case, the supreme court reversed the trial court’s judgment finding unconstitutional the amendments to the School Finance Act made by SB 07-199 that allowed local school districts to collect and expend revenues in excess of the property tax revenue limitations of TABOR. The supreme court concluded that SB 07-199 violated none of TABOR's requirements. The local school districts are the relevant taxing authority with respect to the revenue at issue in this case, and voters in those school districts validly waived the property tax revenue limit imposed TABOR. Nothing in TABOR requires an additional vote directing the use of revenue received as the result of a valid waiver, and SB 07-199 did not require a second vote in addition to the local school district waivers. Because there was no change in state revenues, a statewide election was not required. Thus, SB 07-199 did not violate TABOR and was a constitutional legislative enactment. Justice Coats concurred in part and concurred in the judgment in part, noting that he "would not address either the validity or scope of the various attempts by local school districts to waive local spending or revenue limits," but that he agreed with the restof the majority opinion and the judgment. Justice Eid dissented because, in her view "the majority deprives the people of their right to vote on SB 07-199 and the $117 million tax increase it permits." Mesa County Board of County Commissioners v. State of Colorado Copper Mountain, Inc. and Amako Resort Construction (U.S.), Inc. signed an American Institute of Architects form contract for Amako’s construction work on a ski lodge owned by Copper. While aAmako’s subcontractor was performing welding work, a fire broke out, causing significant damage to the lodge. The trial court held that two clauses in the AIA contract between Copper and Amako barred Copper’s claims against Amako and the subcontractor for damages to property that was not part of the contractually defined work. The court of appeals affirmed, holding that a clause in the contract barred Copper’s claims for damages to non-work. The supreme court reversed, concludingin that the contract did not bar Copper’s claims against Amako and the sub for damages to property that was not part of the contractually defined work, despite the fact that Copper insured the damaged property under an existing policy covering the work. Justice Martinez, joined by Justice Coats, dissented, noting that "a majority of jurisdictions" had interpreted the waiver provision of the AIA contract to bar an owner’s claims for damage to non-work property to the extent the owner’s insurance policy covering the work also covers the non-work property. Copper Mountain v. Industrial Systems Rebuttable
presumptions of undue influence and unfairness do not continue after
they are sufficiently rebutted. The rebuttable presumptions of undue
influence and unfairness (1) shift the burden of going forward to
the party against whom they are raised, and (2) if that burden is
not met, establish the presumed facts as a matter of law. But if the
burden is met, then the presumptions do not continue in the case,
and a trial court properly rejects jury instructions on them. Nonetheless,
after a rebuttable presumption is rebutted, a permissible inference
remains. A trial court maintains discretion regarding whether to instruct
the jury on a permissible inference, and does not abuse its discretion
in failing to so instruct a jury unless the omission caused substantial
prejudice to the requesting party. Here, the trial court did not abuse
its discretion because the omission did not substantially prejudice
the requesting party. Krueger
v. Ary The court granted cert. in the following cases: No. 08SC748,
In re Marriage of Schelp, on these issues: Whether the court of appeals erred when it reversed the trial court and held that C.R.C.P. 16.2(e)(10) gives the trial court five years of continuing jurisdiction to retroactively reopen divorce cases when a post-degree motion alleging improper asset disclosure was filed after the rule’s effective date of January 1, 2005 even though the underlying divorce case was filed before the new rule was in effect. Whether the court of appeals erred in concluding that retrospective
application of C.R.C.P. 16.2(e)(10) to dissolution of marriage cases
filed and concluded prior to January 1, 2005 was constitutional. No. 08SC749, In re Marriage of Roberts, on this question: Whether the court of appeals erred when it reversed the trial court and held that C.R.C.P. 16.2(e)(10) gives the trial court five years of continuing jurisdiction to retroactively reopen divorce cases when a post-degree motion alleging improper asset disclosure was filed after the rule’s effective date of January 1, 2005 even though the underlying divorce case was filed before the new rule was in effect. No. 08SC884, Crumb v. People on this issue: Whether a trial judge’s participation in plea discussions, in violation of section 16-7-302(1), C.R.S. (2008), and Crim. P. 11(f)(4) is harmless error where the defendant had rejected previous plea offers and had only agreed to plead guilty after the trial judge advised him of the sentence that would be imposed if he was found guilty at trial and compared that with the sentencing consequences of pleading guilty. No. 08SC887, In re Marriage of Barnett, on this question: Whether the court of appeals erred when it reversed the trial court and held that C.R.C.P. 16.2(e)(10) gives the trial court five years of continuing jurisdiction to retroactively reopen divorce cases when a post-degree motion alleging improper asset disclosure was filed after the rule’s effective date of January 1, 2005 even though the underlying divorce case was filed before the new rule was in effect. The suprme court granted cert., vacated, and remanded the following case for reconsideration: No. 08SC498,Vered v. Ochoa, remanded to the Colorado Court of Appeals for reconsideration in light of Morris v. Goodwin, 185 P.3d 777 (Colo. 2008) on this issue: Whether the award of prejudgment interest should be reduced where: (1) interest was based on the full amount of the jury’s award, before application of the statutory cap on noneconomic damages and (2) the court of appeals held that the base amount for calculating prejudgment interest should have been increased by adding pre-filing interest on the uncapped jury award. March 12, 2009 Here are today's court of appeals announcments. The court issued unpublished decisions only. March 11, 2009 The summaries of last week's published decisions from the court of appeals are belew. Following the summaries is the list of unpublished decisions the court will release tomorrow. Defendant
appealed his conviction of unlawful possession of a schedule II controlled
substance and possession of chemicals or supplies to manufacture a
schedule II controlled substance. He contended that sheriff’s
deputies acting without a warrant unlawfully entered the backyard
of the house in which he lived, and that the trial court erred when
it denied his motion to suppress the fruits of that unlawful search.
The court of appeals agreed, concluding that the warrantless entry
into and movement within the backyard was not justified under any
recognized exception to the Warrant Clause. Judge Connelly dissented,
concluding that the intrusion into the backyard curtilage was outweighed
by officer safety interests. People
v. Brunsting Defendant was properly convicted of criminal impersonation where he used a Social Security number that he knew was not his own with intent to gain the benefit of a loan to purchase a car. Defendant impliedly asserted his power or fitness to obtain the loan, and his ability to work legally in this country, and thereby repay it. Because defendant knew that the information was false, and because he furnished it to obtain a benefit he could not otherwise have obtained, he violated the portion of the statute that prohibits the assumption of a false or fictitious capacity. Judge Jones dissented, concluding that defendant’s mere use of a Social Security number not belonging to him along with substantial other information accurately identifying him was not sufficient, under the circumstances of this case, to prove beyond a reasonable doubt that he “knowingly assume[d] a false or fictitious identity or capacity” as is required to sustain a conviction under C.R.S. § 18-5-113. People v. Montes-Rodriguez In a worker's comp. case, whether a deviation from covered employee travel is substantial enough to break the chain of causation is generally a question of fact for the ALJ. The court adopted the general test for deviation from employment in Colorado (whether the deviation is substantial) for deviations from travel for work-related medical treatment. The court concluded that substantial evidence supported the ALJ’s findings that claimant's deviation was substantial, and therefore the court affirmed the denial of benefits. Kelly v. Industrial Claim Appeals Office In an appeal from the denial of a Crim. P. 35(c) motion, defendant contended that the postconviction court erred when, after concluding that the evidence raised a presumption that he was improperly subjected to an interrogation style held unconstitutional in Missouri v. Seibert, 542 U.S. 600 (2004), it denied relief on his outrageous governmental conduct claim because it concluded that Seibert was not retroactively applicable to his case. The court of appeals disagreed, concluding that his outrageous conduct claim was procedurally barred and that Seibert did not apply retroactively. People v. McDowell Error in jury instruction concerning wrongful means in intentional interference case was harmless. Because the jury found the defendants liable for conversion and breach of fiduciary duty, wrongful means were established. The jury was free to consider conversion and breach of fiduciary duty as the wrongful means necessary to find that the defendants improperly interfered with the company’s contractual relations. Harris Group, Inc. v. Robinson Clear and convincing evidence did not establish that father intentionally abandoned his child , but rather showed that he sought to exercise parental rights and supported her. Abandonment is primarily a question of intent. The court may not find abandonment unless the totality of the circumstances shows the natural parent has left the child willfully without an intent to return. The court of appeals concluded that the trial court erred in finding abandonment, concluding that some of the magistrate's findings were not supported by the record evidence. In the Matter of the Petition of J.A.V. Where plaintiff did not object to defendant insurer’s alleged failure to comply with Rule 9(b) in pleading rescission until after insurer's motion for summary judgment was at issue, plaintiff waived any right to claim insurer failed to comply with Rule 9(b) in asserting its affirmative defense of rescission. But the court did reverse summary judgment concluding that genuine issues of material fact as to whether insurer was estopped to rescind the policy. Silver v. Colorado Casualty Insurance Company Plaintiff alleged that the insurer induced him to purchase UM/UIM coverage by failing to disclose that purchasing UM/UIM coverage on one vehicle provides coverage for persons named on the policy and their resident relatives and regardless of an owned-but-not-insured exclusion in the policy. The trial court granted summary judgment , concluding that C.R.S. § 10-4-609 does not require insurers issuing multi-vehicle policies to offer separate UM/UIM coverage on each vehicle insured for liability. The court of appeals reversed, concluding that genuine issues of material fact remain as to whether the insurer charged additional premiums for UM/UIM coverage on additional vehicles insured under its multi-vehicle policies. The court further concluded that that an insurer that includes an OBNI exclusion in its policies fails to satisfy its disclosure obligations under § 10-4-609. Briggs v. American National Property and Casualty Company The court
of appeals recognized the existence of a claim of medical malpractice
claim based on the failure of a doctor to prevent the birth of an
unwanted child. The court therefore reversed the trial court's grant
of a motion to dismiss that failed to recognize that claim. Judge
Connelly specially concurred, noting that while he agreed that plaintiff
has stated a valid claim for negligent failure to terminate her pregnancy,
"because a child’s existence cannot constitute a legally
cognizable injury, and because the normal costs of rearing a child
are inextricably intertwined with that existence, I would hold now
that plaintiff is not entitled to damages for raising her healthy
child." Surety appealed a district court judgment forfeiting a $20,000 bond posted for a criminal defendant later determined to have been in the country illegally. The case involved C.R.S. § 16-3-503(1)(c), which took effect on June 1, 2007. The court held that the statute limits forfeiture to fees collected by professional bonding agents, rather than the entire posted bond, where a non-appearing defendant later is determined to have been present illegally in this country; but the statute does not apply retroactively to this case because it substantively changed prior law. Therefore, the court affirmed the forfeiture. Judge Taubman dissented in part, concluding that the statute did apply retroactively because "the statute is procedural, not substantive, and it is not retrospective in its application." People v. Chavarria-Sanchez The court of appeals rejected adoption of the "make whole" doctrine, under which an insurer has no right to subrogation unless the insured was made whole by the underlying settlement. In the court's view the doctrine would not comport with the policy of encouraging the settlement of lawsuits. DeHerrera v. American Family Mutual Insurance Company In a personal injury case the district court did not err in prohibiting plaintiff from presenting evidence of past medical expenses or in denying her request for a continuance of the trial to seek additional medical treatment and the recovery of damages therefor. But the court erred by applying the repealed Colorado Auto Accident Reparations Act (No-Fault Act), by instructing the jury to subtract from plaintiff’s claimed damages for lost earnings fifty-two weeks of wage-loss reimbursements she received under the personal injury protection (PIP) benefits of her automobile insurance policy. The court of appeals reversed in part and remanded for a new trial on claimed lost earnings. Miller v. Brannon Defendants did not defendants violated C.R.S. § 17-1-203(1)(c) by removing plaintiff from the general prison population before the final resolution of a disciplinary proceeding against him. The statute governs private prison contractors and provides: “The contractor may remove an inmate from the general prison population during an emergency, before final resolution of a disciplinary hearing, or in response to an inmate’s request for assigned housing in protective custody.” The court concluded, contrary to defendants’s construction of section 17-1-203(1)(c), that the statute, through the use of commas, delineates three separate circumstances in which a prison inmate may be removed from the general population. The use of the term “before” does not convert the clause “before final resolution of a disciplinary hearing” into a subordinate clause modifying the phrase “during an emergency.” Gatrell v. Kurtz Plaintiffs
filed a complaint against defendants seeking to quiet title in certain
real property and asserting several other claims for relief. The complaint
asserted claims against one of the defendants for allegedly filing
spurious lien documents and for violating the good faith provision
of the Colorado Common Interest Ownership Act, C.R.S. § 38-33.3-113.
That defendant moved to dismiss and sough sanctions. The next day
Plaintiffs filed an amended complaint that contained more specific
allegations concerning the spurious documents claim. The trial court
dismissed and awarded sanctions, concluding the amended complaint
was improper because it was filed after the other defendants had answered.
The court of appeals reversed, concluding that since the defendant
against whom the spurious documents claim was brought moved to dismissed
rather than answer, Plaintiffs were entitled to amend their complaint
as of right under C.R.C.P. 15(a), as the motion to dismiss was not
a responsive pleading. Grear
v. Mulvihill The court will release the following unpublished decisions tomorrow: 03CA2479 People v. Joshua Vigil Torres March 9, 2009 Here are today's supreme court announcements. The court issued no decisions and did not grant cert. in any cases. March 6, 2009 The supreme court will issue no decisions Monday, but will issue rulings on cert. petitions. I'll have those announcements Monday. March 5, 2009 Today's court of appeals announcements are here. The court issued 14 published decisions. I will try to get summaries up as soon as possible, but it likely won't be for a week or so. March 4, 2009 The court of appeals will release the following decisions tomorrow, including 14 published opinions. Published Opinions March 3, 2009 This is my "catch-up" post. Yesterday's supreme court cases are summarized, then the court of appeals' decisions from February 19. Here are the supreme court announcements from yesterday. The court issued three decisions, summarized below. The court also granted cert. in one case, and the issue in that appeal appears below the summaries. A jury found defendant guilty of a single count of theft, in which he was charged with unlawfully taking more than $15,000, over a 27-month period, from 7-Eleven; and it returned a special finding that the theft involved a total of $27,169.14 and occurred on the day all of the losses were ultimately discovered. The court of appeals upheld both the defendant's conviction of class-three-felony theft and his mandatorily aggravated sentence, reasoning that the evidence supported the commission of a single offense of "theft by deception," which continued, and included everything taken before the deception ended, by which time the defendant was already on probation for another offense. The supreme court held that the court of appeals erred with regard to both the time the theft was committed and the value of the property involved in a single offense because the consolidated theft statute in this jurisdiction, C.R.S. § 18-4-401, does not create a separate and continuing crime of theft by deception. But the supreme court affirmed, concluding that there was sufficient evidence to support the conviction of class-three-felony theft by a person already on probation and because any error committed by the trial court in instructing the jury was harmless. Roberts v. People In an appeal from a water court decision, the supreme court affirmed the water court's order affirming the state and division engineers'authority to implement a fixed water year to administer the irrigation district's storage rights. Colorado law imposes a one-fill limitation on water storage rights, restricting each reservoir to one annual filling, according to its decreed capacity. The Engineers implemented a fixed water year, from November 1 to October 31, in order to track how much water the district diverts during a one-year period. After the district obtains one annual fill of its decreed rights, the Engineers will not honor calls until the administrative water year begins anew on November 1. The irrigation district argued that the fixed water year interferes with its decreed water rights by forcing the district to delay diversions or restrict them to a particular season. The district also argued that the November 1 water year conflicted with the historical administration of its water rights. The supreme court held that any limitation on the district's ability to divert water is lawfully imposed by Colorado's one-fill rule, not the Engineers' fixed water year. The court concluded the Engineers must distribute water according to judicial decrees, not custom, and that because the storage decrees were silent on the issue of how diversions are to be accounted for under the one-fill rule, the Engineers have the authority to implement a fixed water year for the purpose of administering the district's storage rights. North Sterling Irrigation District v. Simpson In an appeal from the Water Court, the supreme court held that the water court did not abuse its discretion in dismissing with prejudice several applications for adjudication of water rights and a plan for augmentation. The applicant failed to comply with the disclosure requirements of the Colorado Rules of Civil Procedure or provide any information related to his applications other than that contained in the applications themselves. The Opposers to the applications had no information before them with which evaluate the applications or prepare for trial. Just over one month before the scheduled trials, the Opposers had still received no information from the applicant. Accordingly, several Opposers filed a motion to dismiss for failure to prosecute which the trial court granted. In this situation, the water court did not abuse its discretion in determining that the applicant's failure to comply with the disclosure requirements constituted a failure to prosecute. Justice Rice, joined by Justice Coats, dissented, concluding that while the trial court did not abuse its discretion in dismissing the case, it did abuse its discretion in dismissing it with prejudice, since less drastic sanctions were available. Cornelius v. River Ridge Ranch The court granted cert. in No. 08SC698, Board of County Commissioners v. ExxonMobil Oil Corp. on this issue: Are materials and equipment that are used in the extraction and processing
of natural gas "construction and building materials" subject
to the use tax that local governments may impose pursuant to section
29-2-109(1), C.R.S. (2008). Here are the summaries of the court of appeals' published decisions from February 19: Where no witness had been sworn in a habitual criminal proceeding and no exhibits had been admitted when the trial court dismissed the charges, jeopardy had not yet attached. Therefore, the trial court's reinstatement of habitual criminal charges did not violate double jeopardy. People v. Barnum By granting defendant use-and-derivative-use immunity to compel his testimony at a codefendant's trial, the People undertook a heavy burden of proving affirmatively that the trial evidence derived from sources wholly independent of the immunized testimony. The trial court did not find, and on this record could not properly have found, that the People carried this heavy burden. Accordingly, while we reject defendant's remaining challenges, we remand for hearings and findings on defendant's immunity claim. People v. Stevenson Defendant's suppression motion was properly denied because the chemicals seized from a room in his residence were in plain view of an officer who entered the residence with the consent of Defendant's wife to search the entire premises, despite Defendant's earlier efforts to exclude her from that room. People v. Shover Defendant appealed the denial of his motion to dismiss, in which he argued his conviction must be vacated because the state did not bring him to trial within the limitations period specified in the Interstate Agreement on Detainers (IAD), C.R.S. § 24-60-501. The court of appeals concluded that Defendant's request for disposition of the charges complied with the IAD, and therefore the failure to bring him to trial within the limitations period required the case to be dismissed. People v. Harter A selective prosecution claim is an objection based on a defect in the institution of the prosecution, and therefore a defendant's failure to raise the objection in a timely motion constitutes a waiver of the claim. People v. Gallegos Trial court did not abuse its discretion by precluding medicatl expert's testimony since the trial court's order was based on both the failure to provide expert's prior testimony and the continuing failure to produce his file. Under these circumstances, the sanction of preclusion of the expert witness was not disproportionate, and the court of appeals concluded that the supreme court's decision in Trattler v. Citron, 182 P.3d 674 (Colo. 2008) did not require reversal. Clement v. Davies Part 5 of the Charter Schools Act, C.R.S. §§ 22-30.5-501 to -516 does not violate article IX, sections 1, 2, or 15, or article V, section 35 of the Colorado Constitution. Judge Criswell dissented in part, concluding that the amendments to the Charter Schools Act "infringe upon the 'local control' provisions of article IX, sections 15 and 16 of the Colorado Constitution." Judge Criswell concluded that the amendments "usurp the local school districts' authority under those constitutional provisions, and they are, therefore, facially invalid." Boulder Valley School District RE-2 v. Colorado State Board of Education
Under C.R.S.
Section 16-3-309(5), "Any report or copy thereof or findings
of the criminalistics laboratory shall be received in evidence in
any court, preliminary hearing, or grand jury proceeding in the same
manner and with the same force and effect as if the employee or technician
of the criminalistics laboratory who accomplished the requested analysis,
comparison, or identification. Insurer defended
insured subcontractor against a third-party construction defect complaint.
Insurers that insured the sub-subcontractors had no duty to defend
the subcontractors because there was "occurrence" alleged
in the underlying complaints of the construction defect litigation.
The trial court granted summary judgment and the court of appeals
affirmed, concluding that claims of defective workmanship, standing
alone, did not constitute an "occurrence." Nor did broad
allegations of "other" or "consequential" damages
give rise to a duty to defend. Because husband had no retirement benefits from his years of military service and would have received nothing if he had been separated from the military without a disability, all of his benefits under Temporary Disability Retired List were necessarily disability benefits. Therefore, wife was not entitled to such benefits as a matter of law under 10 U.S.C. § 1408(a)(4)(C), and the trial court properly denied her motion to divide the TDRL benefits under the permanent orders. In re Marriage of Williamson In an action to recover a the trial court's properly dismissed the complaint and denied plaintiff's arbitration demand. By agreement, defendant engaged plaintiff to find and introduce defendant to"individuals and/or parties who may have an interest in acquiring, investing or becoming financially involved with" defendant. The agreement provided that if plaintiff introduced an individual or company to defendant and that party became "financially involved in any matter," plaintiff was entitled to a finder's fee of five percent of all proceeds resulting from the sale of the project. Neither plaintiff nor defendant was a licensed Colorado real estate broker at any relevant time. The trial court found that plaintiff's principal was acting as a real estate broker as defined in C.R.S. section 12-61-101(2). Therefore, the court determined the agreement was illegal and unenforceable, and the court of appeals affirmed. Amedeus Corp. v. McAllister The trial court abused its discretion when, based on the entirety of the lawsuit, it denied attorney fees under C.R.S. section 13-17-102(4). The court of appeals held that when, as here, a trial court is requested to evaluate each claim or defense individually, as substantially frivolous or groundless, to determine whether attorney fees should be awarded under section 13-17-102(4), the statute requires the trial court to evaluate each claim or defense individually. Further, because an award of costs for claims dismissed for failure to prosecute is mandatory under section 13-16-113(1), the trial court erred in failing to award those costs. Munoz v. Measner The twenty-day rule in C.R.S. sec. 8-43-210 requires that "[a]ll relevant medical records, vocational reports, expert witness reports, and employer records shall be exchanged with all other parties at least twenty days prior to the hearing date." (Emphasis added.) While the plain language mandates a twenty-day rule for the exchange of the enumerated records and reports, the immediately preceding provision states, that once the hearing begins, "the administrative law judge may, for good cause shown, continue the hearing to a date certain to take additional testimony, to file an additional medical report, to file the transcript of a deposition, or to file a position statement. Except upon the agreement of all parties or for good cause shown, a continuance to complete a hearing shall not exceed thirty calendar days. C.R.S. § 8-43-209(3)." The ALJ's strict reading of the twenty-day rule was unwarranted. Exceptions are clearly contemplated by the allowance of continuances to file additional reports in appropriate circumstances. But on this record, the ALJ's misinterpretation of the statute did not require a different result. Ortega v. ICAO Hunters were charged with hunting on private property without permission in violation of C.R.S. sec. 33-6-116. They ultimate pled guilty to lesser charges of criminal trespassing, and their hunting licenses were suspended. They challenged as unconstitutionally vague the term "related activity," contained within the phrase "hunting, trapping, fishing, or engaging in a related activity." C.R.S. § 33-6-106(1)(c). The court of appeals rejected that argument, concluding that a person of ordinary intelligence would know that if his criminal conviction "has a close and logical connection to [his] hunting, trapping, or fishing activity, such conduct falls within the ambit of potential license suspension under section 33-6-106." Woodrow v. Wildlife Commission In an appeal by the People of the dismissal of charges of sexual assault on a child by one in a position of trust, the victim alleged defendant sexually assaulted her numerous times between January 1, 1987 and December 31, 1992, but she did not report the incidents to the police until June 19, 2007. Defendant was charged November 7, 2007. Defendant moved to dismiss on statute of limitations ground. The People stated the victim's birthday was October 21, 1980 and argued the statute of limitations contained in H.B. 02-1396, which amended C.R.S. sections 16-5-401 and 18-3-411, permitted the charge of sexual assault on a child by one in a position of trust to be brought within ten years after the victim's eighteenth birthday, or until October 21, 2008. The court of appeals agreed and concluded that the effective date clause of H.B. 02-1396, section 5(1) did not conflict with the substantive amendments extending the statute of limitations for ten years after the victim's eighteenth birthday for offenses committed on or after July 1, 1992 because the intent of the General Assembly in enacting that clause was to: (1) show when the act took effect; and (2) immunize the bill from attack through the referendum process. People v. Boston A ballot measure was designed to exempt a fire protection district from TABOR. Before the election, the district's board of directors spent money on printing and other preparation costs and on postage associated with a letter sent to registered voters within the district. The letter made statements in favor of passage of the ballot measure. Petitioner alleged that the district violated C.R.S. sec. 1-45-117(1)(a)(I)(C), by spending public money to urge electors to vote in favor of a ballot issue. The ALJ agreed but imposed a fine of only $400, citing her authority under Colorado Constitution article XXVIII, section 9(2)(a) to impose an "appropriate order, sanction or relief." On appeal, Petitioner argued that the ALJ's discretion to impose a sanction was limited to imposing a sanction of at least double the amount of the violation. The court of appeals disagreed, concluding that C.R.S. sec. 1-45-117, not section 9(2)(a) of Article XXVIII, was the applicable section for imposing the sanction. Under 1-45-117, the ALJ had the discretion to impose only a $400 sanction. Sherritt v. Rocky Mountain Fire District In a medical malpractice action, the defendant's answer was filed in May 7, 2007, and Plaintiff replied to the affirmative defenses on May 30, 2007. The parties did not file any other document with the district court before the court sua sponte dismissed the case on March 27, 2008, for failure to prosecute with due diligence under C.R.C.P. 121 section 1-10. The court of appeals reversed noting that compliance with the notice requirements of C.R.C.P. 41(b)(2) and 121 section 1-10 is required before a court may dismiss an action. A court errs when it sua sponte dismisses a complaint without providing the parties with thirty days written notice and an opportunity to show cause in writing why the action should not be dismissed. The court held that the delay reduction order did not suffice to provide the notice required under C.R.C.P. 121 section 1-10. Koh v. Kumar February 26, 2009 The court of appeals' oral argument calendar for April is here. On April 9th, the court will be holding arguments at DU. Here are today's court of appeals announcements. The court issued only unpublished decisions. I still need to do summaries of last week's court of appeals decisions. I was hoping to get that done this week, but that is looking very unlikely due to my workload. I will post summaries by next Tuesday, along with any decisions the supreme court may issue on Monday. February 25, 2009 The court of appeals will release the following unpublished decisions tomorrow: 02CA2023 John A. Nasious v. Colorado Department of Corrections,
Sterling Correctional Facility, Bob Furlong, Tim Chase, Colorado Care
Givers, Pam Tyson, Judy Bullard, Judy Cain, C.M. Crussel, Ken Salazar,
and Don Canfield February 23, 2009 Here are today's supreme court announcements. The court issued two decisions, summarized below. The court did not grant cert. in any cases. In an interlocutory appeal of a suppression order, the supreme court reversed. Th ec ourt concluded that the defendant was not in custody when he made his initial confession, so thte trial court should not have suppressed his statements. Defendant invited investigators to his home, voluntarily led them to where he had buried his wife after killing her, and confessed to the murder. Following this initial confession, he gave three more statements to police after receiving proper Miranda advisements. Since defendant was not in custody when he made the first statement and received proper Miranda warnings before giving the other statements, the statements should not have been suppressed. People v. Hankins In an interlocutory
appeal reviewing the district court's order disqualifying the Office
of the District Attorney for the Eighteenth Judicial District from
prosecuting the defendant Alejandro Perez in a death penalty case,
the supreme court reversed in a 4-3 decsion. The trial court concluded
that “special circumstances . . . would render it unlikely that
the defendant would receive a fair trial” under C.R.S. §
20-1-107(2), and cited four grounds to support its disqualification
of the entire Office: First, Special Deputy District Attorney Dan
Edwards’ previous representation of Perez as a private defense
attorney on a motion challenging a second-degree murder conviction
that the prosecution, in the instant cases, used as a death penalty
aggravator; second, the involvement of another prosecutor, Robert
Watson, who previously represented Michael Snyder, an inmate witness
and possible alternate suspect; third, the prosecution’s inaccurate
and inadequate witness list; and finally, the funding arrangement
between the District Attorney’s Office and the Department of
Corrections. The supreme court held that no “special circumstances”
that would “render it unlikely that the defendant [Perez] would
receive a fair trial” under section 20-1-107(2), and therefore
reversed the trial court’s order disqualifying the entire District
Attorney’s Office. The inquiry into whether an entire district
attorney’s office should be disqualified depends on whether confidential
information gained from the prior representation has been or could
be passed from the individual prosecutor with the conflict to other
members of the office who continue to prosecute the case. Here, there
was no showing that either Edwards or Watson ever possessed confidential
information from their prior representations. Therefore, no confidential
information was passed, or could have been passed, to other members
of the Office. The majority also held that neither the allegedly inadequate
witness list, nor the funding arrangement constituted a “special
circumstance” that would prevent a fair trial. Justice Bender,
joined by Chief Justice Mullarkey and Justice Martinez, dissented,
in a lengthy opinion. Justice Bender wrote that the "majority
misapplies precedent and fails to acknowledge the unique circumstances
and key facts that led the trial judge to take the highly unusual
step of disqualifying the entire office. February 20, 2009 The supreme court will issue two decisions Monday, No. 08SA343, People v. Hankins, and No. 08SA130, People v. Perez. February 19, 2009 Here are the court of appeals' announcements for today. The court released the following decisions , including 18 published decisions. I will not get a chance to post summaries until next week. Published Opinions February 17, 2009 Here are today's supreme court announcements. The court issued one decision, summarized below. The court also granted cert. in two cases. The issues in those appeals follow the case summary. The supreme
court hedl that a jury instruction based on C.R.S. § 18-3-203(1)(a),
the second-degree assault statute repealed in 1994, rather than the
current and controlling statute, § 18-3-203(1)(b), (g), constituted
reversible error. The supreme court held that the erroneous instruction
lessened the prosecution’s burden of disproving the defendant’s
claim of self-defense, thus constituting plain error and requiring
reversal. The instruction defined second-degree assault as either The court granted cert. in these cases: Adkins v. People, No. 08SC654, on these issues: Whether the court of appeals erred when it held that the defendant's evidence of the alternate suspect's prior similar arrest was inadmissible. Whether the court of appeals erred when it held that evidence of
a prior similar act was admissible against the defendant. In re Marriage of Thornhill, No. 08SC777, on these questions: Whether the appellate court erred by refusing to extend the holding of Pueblo Bancorporation v. Lindoe, Inc., 63 P.3d 353 (Colo. 2003), to divorce proceedings, thereby allowing the application of a marketability discount in valuing a closely held corporation operated as a going concern at the time of the parties’ divorce proceeding. Whether the court of appeals erred by reversing the district court’s
ruling, which upheld the magistrate’s temporary maintenance award
to wife, when it failed to consider the particular facts and circumstances
of the parties’ marriage within section 14-10-113(3)’s threshold
requirements of “reasonable needs” and “appropriate
employment.” February 12, 2009 It's Abraham Lincoln's (and Charles Darwin's) 200th birthday. To mark the occasion, the United States Mint is releasing the first of the new pennies today. Here's a picture and description. Here are today's court of appeals announcements. The court issued unpublished decisions only. Here are the summaries of last week's published court of appeals' decisions: The trial court did not err by summoning a second jury panel after the original jury was sworn. The second panel was necessary to fill the alternate position and to replace two jurors who were excused for cause before trial began. After the jury was sworn, the trial court discovered that only twelve jurors, but not the alternate, had actually been sworn. In light of this oversight, the parties and the trial court agreed another juror would be selected through voir dire of six additional potential jurors. Defense counsel agreed to the process but reserved the right to object. In affirming the trial court, the court of appeals noted that the panel of jurors was exhausted, and twelve jurors were initially sworn before the court and the parties discovered that the agreed-upon alternate had not been sworn. The trial court ordered the issuance of a venire for six, and later twelve, additional jurors, out of which three were impaneled for Moore’s case, thus constituting a full jury of twelve plus one alternate. Under the circumstances, and given the broad discretion of the court to manage a trial, the court of appeals concluded that C.R.S. §§ 16-10-102 and 16-10-105 provided the court with appropriate statutory authority to follow the jury selection procedure utilized. On another issue, the court held that there was insufficient evidence to convict defendant of a class 3 felony of theft by receiving (which requires the value to be $15,000 or more). The court noted that the vast majority of the testimony of value of the items take was based on speculation, guesses, assumptions, purchase prices many years old, and evidence not admitted at trial. Under these circumstances, even applying the very deferential standard of review for assessing the sufficiency of evidence, the evidence was simply not sufficient to support the jury’s finding that the value of the items was $15,000 or more. People v. Moore Stock options
presented a mere expectancy and no enforceable property right until
after the parties were married. Therefore, the stock options were
marital property in their entirety. The trial court abused its discretion in denying defense motion for funds to hire an expert who would have testified about the likelihood of physical evidence being present if victim was sexually assaulted as he said he was. The trial court effectively determined that defendant had made the requisite showing to obtain state-funded expert witness services. But the court denied the request because, in its view, no mechanism existed under the law to provide the necessary funds. The trial court was mistaken since CJD 04-04 § IV(D)(c) authoirzed payment from the Judicial Department’s budget. The error was not harmless and the conviction was reversed. People v. Orozco In an appeal from a trial court’s order revoking probation, Defendant claimed was denied due process because the original revocation complaint did not specify that it was based on his conviction for a murder he committed while on probation. The court of appeals rejected that argument, concluding Defendant received constitutionally sufficient written notice in a motion to continue the revocation hearing that explicitly identified the murder conviction as a ground for revocation. People v. Robles Defendant contended his burglary conviction should be reversed based on his reliance on the common law bonding agent’s privilege. The court held that a common law bonding agent’s privilege exists in Colorado, but the privilege did not justify Oram’s entry into the home at issue. Therefore, the court affirmed the conviction. Judge Connelly concurred in part and dissented in part. He would have reversed the burglary conviction, noting "Whatever else may be said of these two bounty-hunting defendants, they were not proven burglars." He asserted that Colorado's burglary statute requires "proof defendants knew the unlawfulness of their entry." He noted that Colorado's statute is atypical, requiring scienter while other states do not. Under the facts of the case, Judge Connelly concluded the burglary conviction could not stand. People v. Oram The trial court properly (1) applied rulings in a prior appeal to limit plaintiff’s negligence claims; and (2) proceeded with an alternate juror when a regular juror failed to return in the middle of trial. On the first issue, the Plaintiff sought to proceed with theories of negligent surgical performance. Defendant argued the appellate ruling precluded any theories of negligence relating to the surgery itself. The trial court ruled that Plaintiff could not challenge the surgery itself but could challenge post-surgery care. The court of appeals held that de novo review applied to law of the case issues involving trial court compliance with prior appellate rulings. The court then concluded that the trial court properly interpreted the remand order. On the juror issue, a sitting juror, who lived forty minutes from the courthouse, failed to return from a lunch break after informing the court he “was sick” and “wasn’t coming back.” The trial court heard the positions of both sides: plaintiff argued the court should suspend trial until the next morning to see if it was just a “24-hour bug” or at least should try to contact the juror; defendant responded that trial had to proceed that afternoon because a critical defense witness would be leaving town. The trial court decided not to delay the trial but to replace the absent juror with an alternate. The court of appeals held that the replacement was not an abuse of discretion. Hardesty v. Pino The court
of appeals held that a police officer may properly search a locked
glove compartment incident to the lawful arrest of an occupant of
a vehicle. The defendant had been driving the car, but was not the
owner of the car and the glovebox was locked. People
v. Perez Collateral estoppel applied where issues relating to common law fraud and negligent misrepresentation claims in a federal action were identical to those relating to Plaintiff’s claim under the Colorado Securities Act and other elements of collateral estoppel were met. On Plaitniff's claim for civil theft, the trial court properly entered summary judgment where stock options had not vested as of the date of the alleged theft and were therefore not property for purposes of a civil theft claim. Huffman v. Westmoreland Coal Company Defendant
home builder constructed a home in Highlands Ranch. Plaintiff was
a sole proprietor and an independent contractor who did trim work
on the home under a contract with a subcontractor that had agreed
to do the work for the home builder. Although the contract with required
Plaintiff to obtain workers’ compensation insurance, he neglected
to do so. Plaintiff asserted that that the trial court erred in awarding attorney fees under C.R.S. § 13-17-201 because (1) application of that statute in this case conflicts with the federal Telephone Consumer Protection Act, and therefore the award violates the Supremacy Clause, (2) § 13-17-201 provides for an award of attorney fees only when a “state tort claim” is dismissed for failure to state a claim and does not apply to a TCPA claim, and (3) the attorney fees provision of § 6-1-113(3) rather than § 13-17-201, governs the award of attorney fees for dismissal of Colorado Consumer Protection Act claims. The court of appeals rejected those claim, concluding that the TCPA is silent on attorney's fees and therefore does not preempt 13-17-201; that 13-17-201 is not limited only to state tort claims; and that § 6-1-113(3) and § 13-17-201 serve different purposes and can be applied without conflicting with each another. US Fax Law Center, Inc. v. Henry Schein, Inc.
The question in this case was what taxpayer knew, and when did it know it, regarding the existence of a combined-consolidated income tax return filing option for certain Colorado corporations. The court of appeals concluded that taxpayer was deemed to have had knowledge of the filing option before the deadline for filing its 2001 tax return, and therefore the Department of Revenue did not violate taxpayer's due process rights. Judge Connelly specially concurred, noting that taxpayer's "claim rests on the premise that state taxing authorities have a constitutional obligation, rooted in due process, to provide affirmative notice of potentially favorable tax code strategies. The majority opinion accepts this premise but concludes the Colorado Department of Revenue (DOR) provided sufficient notice to satisfy due process. Because I would reject the premise, I concur in the result but not in the majority’s reasoning." Cendant Corporation & Subsidiaries v. Department of Revenue Under the Federal Arbitration Act, there is a general presumption that the issue of arbitrability should be resolved by the courts. But where the parties explicitly incorporate rules that empower the arbitrator to determine issues of arbitrability, that incorporation constitutes clear and unmistakable evidence of intent to delegate those issues to the arbitrator. Therefore, by incorporating the AAA Commercial Arbitration Rules into their agreement, the parties authorized the arbitrator to decide arbitratbility issues. Ahluwalia v. QFA Royalties, LLC In 2005, Plaintiff slipped and fell on ice on the front walkway of her residence. She had purchased the residence from Defendant in 2001, shortly after construction was completed. The home is located in a retirement community of “patio homes” developed by Defendant. The district court dismissed the case as untimely. The court of appeals reversed concluding that (1) the trial court correctly interpreted C.R.S. § 13-80-104 to determine that homeowners’ complaint had been filed beyond the two-year statute of limitations, but that (2) the trial court erred in granting summary judgment on the question of whether the statute was tolled under the repair doctrine. Smith v. Executive Custom Homes, Inc. Where document coding expenses were “reasonably incurred in this particular case,” they could properly be included in a cost award. GF Gaming Corporation v. Taylor In an appeal
form the dismissal of a pro se prisoner complaint under C.R.C.P. 106,
the court of appeals remanded for further proceedings to determine
whether the facility at which plaintiff was incarcerated had a legal
mail system, and, if so, whether or when the envelope containing the
complaint was deposited with that system. If there was no such legal
mail system, or the envelope was deposited with the legal mail system
on or before March 17, 2008, the complaint must be reinstated; otherwise,
the order dismissing the complaint is affirmed. Wallin
v. Cosner February 11, 2009 The court of appeals will release the following unpublished decisions tomorrow: 04CA2072 People v. Gerald Dwayne Lewis February 10, 2009 The court of appeals' oral argument calendar for March is here. I will post summaries of last week's court of appeals decisions later this week. February 9, 2009 Here are today's supreme court announcements. The court issued two decisions summarized below. The court did not grant cert. in any cases. In an attorney discipline case, the supreme court held that, under the Colorado Rules of Professional Conduct as they existed in 2007, the Hearing Board did not err when it found: (1) Respondent violated Colo. RPC 1.1 and 1.3 (2007) when he failed to take action aimed at securing his client retirement benefits in a federal pension program; and (2) Respondent violated Colo. RPC 1.8(a) and (j) (2007) when he obtained a promissory note secured by a deed of trust in his client’s home in a dissolution of marriage action. The court applied a clearly erroneous standard of review to Respondent’s appeal. In the appeal by Attorney Regulation Counsel, the court concluded the Hearing Board did not err when it failed to find Respondent violated: (1) Colo. RPC 1.7(b) (2007) when he took a promissory note secured by a deed of trust in his client’s residence; and (2) Colo. RPC 3.3(a), 3.4(c), and 8.4(c) (2007) when he failed to disclose the promissory note and deed of trust to the trial court handling his client’s dissolution of marriage case. The court concluded that when reviewing appeals brought by Regulation Counsel of Hearing Board decisions finding no violation, the court will overturn the Board’s determination only if it cannot find any reasonable explanation for the determination, and concludes that no reasonable fact finder could be unconvinced of a violation by a standard of clear and convincing evidence. Justice Eid, joined by Chief Justice Mullarkey and Justice Rice, dissented from the part of the opinion that denied Regulation Counsel’s cross-appeal and affirmeds the Board’s determination that Respondent did not violate certain other Rules of Professional Conduct. The dissent noted, that the "majority acknowledges that the Board provided little guidance as to why it found no violation with regard to these allegations. . . . Yet it affirms the Board’s decision based on the fact that it is able to 'articulate a reason the Board could have been unconvinced of a violation.'" Justice Eid said that the court "should not affirm a 'no violation'determination by the Board simply because we can articulate a possible justification for that result. Instead, when the Board’s rationale is sufficiently unclear so as to hinder our review of its 'no violation'determination, we should remand the case to the Board." In the Matter of Fisher In sexual
assault cases, a sleeping victim may be deemed “incapable of
appraising the nature of the victim’s conduct,” depending
on the evidence. In this case, the prosecution presented I'll post summaries of last week's court of appeals decisions later this week. February 6, 2009 The supreme court will issue two decisions on Monday, No. 07SA383, In the Matter of Robert Scott Fisher, and No. 07SC573, Platt v. People. The supreme court recently issued rules to show cause in the following original proceedings: No. 09SA22, In re: People in the Interest of A.H. G.H. seeks relief from an order of the Juvenile Court adjudicating the child dependent and neglected, and continuing the removal of the child from his home, based on an admission by A.P. that the child is neglected "through no fault" of hers and notwithstanding a jury determination that there was insufficient evidence that G.H. neglected the child. On January 30, 2009, the court issued a rule to show cause why the relief should not be granted. The El Paso Department of Human Services, the Guardian ad Litem, and A.P. are directed to file an answer on or before February 19, 2009. G.H. has 15 days within which to reply. No. 09SA16, In re: People v. Ruch: Petitioner Carl Ruch seeks relief from the district court's order remanding him to custody following his conviction on a class five felony stalking violation until such time as Mr. Ruch agrees to sign a waiver of confidentiality that the probation department requires in order to complete its presentence investigation. Mr. Ruch contends that the order forces him to waive his federal privacy rights and is unlawful because it is not reasonably necessary to accomplish preparation of the presentence report of a psychosexual evaluation, and is not otherwise supported by law. He requests that the order remanding him to the custody of the sheriff's department be vacated, and that the court order his release and reinstate his bond pending resolution of the action. On January 29, 2009, the court issued a rule to show cause why the requested relief should not be granted. Respondents, the Honroable Paul King, the Arapahoe County District Attorney's Office, and the 18th Judicial District Probation Department, are directed to provide a written answe ron or before February 12, 2009 why the requested relief should not be granted. Petitioner Ruch has ten days from receipt of the asnwer within which to reply. The court further reversed the order remanding Ruch to the custody of the sheriff's department, and directed that upon consent of surety the previous bond shall be reinstated with all prior conditions imposed, at which time the sheriff's department shall release petitioner. The court ordered that the mandatory protection order pursuant to 18-1-1001, C.R.S., remains in effect.
No. 09SA19, In re: Pinkstaff v. Black & Decker: Petitioners Black & Decker (U.S.) Inc. and Baldwin Hardware Corporation, along with Steven M. Gutierrez, counsel for the defendant companies, seek relief from the district court's order striking their answer. Petitioners contend that the order was an abuse of discretion and that it was based on inaccurate information, an inappropriately harsh sanction not commensurate with the alleged improper conduct and disproprotionate to the prejudice, if any, caused to the other party, and an unfair reward to the also-culpable other party. They request reversal of the district court's order. On January 22, 2009, the court issued a rule to show cause why the requested relief should not be granted. Respondents Marcia Pinkstaff and the Honorable Connie Peterson are directed to provide a written answer on or before February 23, 2009. Petitioners have thirty days from receipt of the answer within which to reply. February 5, 2009 Here are today's court of appeals announcements. The court issued 16 published decisions. I will post summaries as soon as I can. February 4, 2009 The court of appeals will release the following decisions tomorrow, including 16 published decisions: Publihsed Opinions February 2, 2009 Happy Groundhog Day! As you may know from reading this blog, I have a soft spot for the groundhog, also known as the North American woodchuck (Marmota monax is the species name). Here are some interesting groundhog facts. The supreme court's announcements for today are here. The court issued no decisions and did not grant cert. in any cases. Also, the look of the courts' websites were updated over the weekend. The structure seems unchanged. January 29, 2009 Here are today's court of appeals announcements. The court issued only unpublished decisions. January 28, 2009 The court of appeals will release the following unpublished decisions tomorrow: 06CA1809 People v. Merle E. Eaton January 26, 2009 The supreme court's announcements for today are here. The court issued no decisions and did not grant cert. in any cases. The court recently issued a rule to show cause in this original proceeding: No. 09SA5, In re: Berry v. Keltner Larimer County District Court Case No. 07CV743 (Judge Jolene Blair) Plaintiff: Michelle K. Berry v. Defendant: Jennifer Keltner Synopsis: Petitioner Michelle Berry seeks relief from the trial court's order denying her motion for leave to endorse her treating physician as an expert witness in this personal injury case. Berry contends that it was an abuse of discretion for the court to prohibit her from endorsing, as an expert witness, a treating physician who began treating her after the expert disclosure deadline, and who therefore was endorsed after the expert disclosure deadline, but before the discovery cut-off date. On January 14, 2009, the court issued a rule to show cause why the relief requested should not be granted. Respondent Jennifer Keltner is directed to provide a written answer on or before February 3, 2009. Petitioner Berry has 20 days from receipt of the answer within which to reply. January 23, 2009 The supreme court will issue no decisions on Monday, but will rule on cert. petitions. I will have those announcements on Monday. January 22, 2009 Here are today's court of appeals decisions. The court issued 2 published decisions, summarized below. Juvenile charged with committing an unlawful sexual offense was not entitled to a jury trial because he was not charged with causing bodily injury to the victim, nor charged with using threats, intimidation, or force. As alleged, the charge would not constitute a crime of violence as defined in C.R.S. § 18-1.3-406. therefore he was not entitled to a jury trial under C.R.S. § 19-2-107(1). People In the Interest of A.B.-B. Defendant's
twenty-five-year sentence for child abuse did not violates Apprendi
and Blakely. The court of appeals rejected the argument that the trial
court relied on factors not admitted by him or found by a jury in
imposing the aggravated sentence. In entering his guilty plea, defendant
admitted the facts essential to establish the elements of aggravated
incest pursuant to the constitutional safeguards of Apprendi, Blakely,
Lopez, and Isaacks. Thus, the trial court could properly rely on them
in imposing the aggravated sentence for child abuse. The trial court
essentially aggravated the sentence for negligent child abuse based
on defendant’s simultaneous conviction for aggravated incest.
That did not violate Apprendi and Blakely. People
v. Misenhelter January 21, 2009 The court of appeals will release the following decisions tomorrow, including two published decisions: Published Decisions January 20, 2009 Today's supreme court announcements are here. The court issued 4 decisions and granted cert. in one case. Summaries of the cases are below. The question presented in the case for which the court granted cert. follows the summaries. When an insured succeeds in a claim against an insurer for uninsured/underinsured motorist insurance benefits arising from personal injuries, the insured’s prejudgment interest award is calculated under the prejudgment interest statute governing damages for personal injury, C.R.S. § 13-21-101, C.R.S. (2008), not the prejudgment interest statute governing “wrongful withholding,” C.R.S. § 5-12-102. Justice Coats dissented, disagreeing with the majority's statutory interpretation. Justice Eid dissented separately, agreeing with Justice Coats' reasoning, and adding that the plaintiff's action was not an action brought to recover damages for personal injuries under § 13-21-101(1). She noted that the nature of the injury stated against USAA as not a “personal injury,” but a purely monetary injury stemming from USAA’s failure to pay underinsured motorist benefits. USAA v. Parker In
a criminal appeal, the court of appeals reversed defendant's convictions,
concluding the trial court erred in admitting defendant’s statements
about killing a woman and hiding her body, made two months before
the defendant shot and killed the victim. The court of appeals found
the evidence inadmissible under res gestae principles and reversed
and remanded for a new trial. The supreme court reversed and remanded a water court judgment, concluding that given the present state of the record, plaintiff had not sustained his burden of proof to restore ditch rights-of-way and water deliveries through them, and that defendant had not sustained his burden of proof to demonstrate adverse possession of all or any portion of plantiff’s deeded interests in the adjudicated irrigation water rights. The court remanded to the trial court to allow both parties to submit supplementary evidence consistent with the legal standards applicable to adverse possession and abandonment of water rights, including a possible apportionment of beneficial historical consumptive use of the water rights among the deeded owner, the adverse possessor, and the stream. Justice Martinez dissented, noting "the majority, for the first time, articulates the requirement that for a successful adverse possession claim against water rights, the party asserting the claim must show he beneficially used a specific quantity of water expressed in acre feet. I believe this is an inappropriate case in which to announce this new legal principle. The argument that beneficial use of a specific quantity of water is an element of an adverse possession claim was not directly raised at trial, and is not necessary to resolution of the issues before this court." Archuleta v. Gomez Police responded to an anonymous caller’s report of drug use in the driveway of a residence. The responding officer did not observe evidence of drug activity in the driveway and entered the house for the limited purpose of talking with the owner. Once inside, the officer directed the defendant to come out of the bathroom and then directed him to another room to run a clearance check for outstanding warrants. The officer had no reason other than the anonymous call to believe that the defendant had been engaged in any illegal or suspicious activity. Under these circumstances, the supreme court held that the investigatory stop of the defendant was not based on reasonable suspicion, and therefore suppressed evidence obtained from the defendant after the stop as well as statements made by the defendant. Justice Rice, joined by Justice Eid, dissented, noting her belief that "the interaction between the defendant and the police was a consensual encounter that did not require reasonable suspicion." People v. Martinez The court granted cert. in Stanton v. Schultz, No. 08SC636, on this question: Whether a judgment that satisfies all the criteria for issue preclusion be denied preclusive effect because it considered and resolved multiple issues instead of a single issue. January 16, 2009 The supreme court will issue these four decisions on Tuesday (since Monday is a legal holiday): 07SC524 USAA v. Parker 08SC10 People v. Greenlee 08SA109 Archuleta v. Gomez 08SA317 People v. Martinez January 15, 2009 Here are today's announcements from the court appeals. Here are the summaries of Monday's supreme court cases: Plaintiff suffered impaired bonding capacity after the Denver Board of Water Commissioners declared plaintiff in default of a contract for the construction of the Board’s new headquarters. At trial, Plaintiff alleged that the Board had breached its contract by declaring default, that the declaration of default had impaired its bonding capacity, and that its lack of bonding capacity prevented it from continuing to bid on public works contracts, resulting in lost profit damages. Th jury found for plaintiff and awarded $845,000 in lost profit damages. The supreme court held that lost profit damages were not speculative as a matter of law. Instead, claims of lost profits due to impaired bonding capacity must be established with reasonable certainty. In determining whether such damages were reasonably foreseeable, the question was whether the Board knew or should have known that such loss would probably occur. Denny Construction Inc., v. City and County of Denver After the Summitville mine situation, Summit County enacted an ordinance banning the use of cyanide or other toxic or acidic chemicals in heap or vat leach mining operations for all zoning districts in the county. The Colorado Mining Association challenged the ordinance, asserting it was preempted by the Mined Land Reclamation Act. The supreme court held that the General Assembly assigned to the Mined Land Reclamation Board the authority to authorize and comprehensively regulate the use of toxic or acidic chemicals in mining operations. Since Summit County’s ordinance would occupy this field, the court held that the MLRA impliedly preempts the ordinance. Justice Martinez dissented, concluding that the ordinance was not preempted. Justice Eid, joined by Justice Coats, concurred in the judgment, concluding that the preemption analysis had no place when the ordinance was enacted by a statutory county as opposed to a home-rule municipality: "Unlike home-rule municipalities, statutory counties have no inherent sovereign authority and exist merely as a matter of convenience for carrying out the will of the state. Thus, the conflict here is between two state laws -- one giving general land use authority to the county, and one specifically preventing the county from promulgating a mining reclamation standard. Such a conflict should not be resolved through preemption analysis, but rather through straightforward statutory interpretation, which, in my view, leads to the conclusion that Summit County is without authority to enact its ordinance." Colorado Mining Association v. Board of County Commissioners of Summit County Under Colorado Rule of Professional Conduct 1.7, a defendant may waive the right to conflict-free counsel and the trial court should accept a valid waiver unless the defendant’s preference is outweighed by evidence in the record that affording the defendant his Sixth Amendment right to counsel of choice will frustrate the administration of justice. The court held that the trial court erroneously interpreted RPC 1.7 to allow a defendant to revoke his waiver at will. A defendant's attempt to revoke a waiver is subject to the court’s approval. Here, the defendant’s conflict-free waiver was knowing, voluntary, and intelligent and therefore valid. In addition, no evidence existed in the record to outweigh his preference of counsel. Therefore, the trial court’s rejection of the waiver was reversed, and defendant could proceed with his chosen counsel. In re People v. Matthew Maestas January 14, 2009 The court of appeals will release the following unpublished decisions tomorrow: 05CA2590 People v. Steven Wilson, a/k/a Paul T. Rateau January 12, 2009 Here are today's supreme court announcements. The court issued 3 decisions, and granted cert. in 4 cases. I'm preparing for an argument , so I will be unable to post summaries until later this week. But below are the questions presented in the cases in which the court granted cert. Thanks for your patience. The court granted cert in these cases: No. 08SC384, B.B. & C Partnership v. The Edelweiss Condominium Association, on these issues: Whether the court of appeals erred in holding that, as a matter of law, petitioner could not adversely possess a parking space on condominium property pursuant to C.R.S. section 38-41-108 (adverse possession under color of title) where petitioner had parked a car in the space without objection for over twenty years, paid property taxes for the space for over twenty years, recorded a warranty deed assigning the space to petitioner with the Eagle County Clerk and Recorder and paid condominium dues. Whether the court of appeals erred in holding that C.R.S. section
38-41-108 does not, as a matter of law, apply to condominium common
elements. No. 08SC539, Zamarripa-Diaz v. People, on these quesitons: Whether the court of appeals erred in finding no reversible plain error arising from an instruction that prevented the jury from considering the lesser-included offense of second-degree burglary unless and until the jury first unanimously acquitted the petitioner of first-degree burglary. Whether Medina v. People, 114 P.3d 845 (Colo. 2005), and due process require the trial court to give the petitioner an opportunity to be heard prior to asking juror questions of witnesses, and whether the court’s refusal to do so in this case requires reversal. No. 08SC588, People v. Wittrein, on these issues: Whether the court of appeals erred in finding that, when a defendant objects, it is per se reversible error for the trial court to permit the competency hearing to be held in front of the jury. Whether the court of appeals erred in reversing the convictions based on expert testimony the defendant elicited during his cross-examination of the People’s expert. Whether the court of appeals erred in holding that a trial court may decline to even review an alleged sexual assault victim’s school records in camera if the defendant argues that the records may contain impeachment evidence, and applied an erroneous legal standard in determining that, assuming the trial court should have reviewed the alleged victim’s mental health records in camera, the error was harmless. No. 08SC686, K.W.S. v. People, on this question: Whether the court of appeals erred in dismissing petitioner’s appeal based on a finding that a permanent probationary condition of his deferred judgment and sentence is not subject to direct appellate review unless and until such time as the deferred judgment is revoked. January 9, 2009 The supreme court will release the following three decisions on Monday: 07SC236 Denny Construction Inc., v. City and County of Denver 07SC497 Colorado Mining Association v. Board of County Commissioners of Summit County 08SA170 In re People v. Matthew Maestas January 8, 2009 Here are today's court of appeals announcements. The court issued 4 published decisions, summarized below. Lien that expired when holder could no longer collect on the underlying debt could not be revived. Under C.R.S. § 38-39-207 a lien is “extinguished” when the statute of limitations has run on the underlying debt. The court held that by its plain terms the statute does not merely affect a creditor’s ability to enforce a lien, but destroys the lien. Thus, even if the underlying debt was revived, the destroyed lien could not be revived. The court did, however, vacate the district court's award of attorney's fees under the spurious lien statute. The court of appeals concluded that Plaintiff's "revival theory" was at least rational, so his filings were not spurious documents. Rossi v. Osage Highland Development, LLC Defendant
appealed the trial court’s designating him a sexually violent
predator (SVP) at sentencing on his guilty plea to sexual assault
on a child by one in a position of trust and child abuse. The court
of appeals concluded that community notification under C.R.S. §
16-13-903 does not constitute additional punishment and therefore
defendant was not entitled to an evidentiary hearing before being
designated a predator. People
v. Rowland In a CCIOA case, appellants contended the trial court erred in determining that one of the plats was at all times part of the original declaration. The court of appeals agreed that “subsequent filings” language in one of the filings referrred to lots that were not yet created, and therefore described development rights. Under CCIOA (specifically, C.R.S. § 38-33.3-205(1)(h)), development rights must be properly reserved by affixing a time limit within which the rights must be exercised. Because the filing did not include the statutorily-required time limit, the development rights were not properly reserved. Miller v. Curry In an action
under the Fair Campaign Practices Act (FCPA), C.R.S. §§
1-45-101 to -118Colorado Ethics Watch appealed and ALJ order in favor
of defendants, the City and County of Broomfield Secretary of State
Mike Coffman, and the Office of Administrative Courts. Ethics Watch
urged an interpretation of Colorado Constitution article XXVIII, section
2(5)(a)(IV) (as incorporated in the FCPA), that would prohibit a City
employee from providing to a candidate for elected office anything
of value that had the effect of promoting the candidate’s election.
The court of appeals disagreed with Ethic Watch's interpretation,
and therefore affirmed the ALJ’s order. Ethics Watch had argued
that the City’s contribution of staff time was “for the
purpose of promoting” a political campaign. The court of appeals
rejected that argument, concluding that Ethic Watch's "contention
that 'for the purpose of' should be construed to mean 'with the effect
of' . . . would improperly conflate the distinct concepts of purpose
and effect." Colorado
Ethics Watch v. City and County of Broomfield January 7, 2009 The court of appeals will release the following decisions tomorrow, including 4 published decisions: Published Opinions January 5, 2009 Happy New Year! The supreme court's announcements for today are here. The court issued no decisions and did not grant cert. in any cases. The supreme court's oral argument calendar for January is here. The court will hold arguments on January 22. The supreme court recently issued rules to show cause in these cases: No. 08SA393, In re the Marriage of: Alejandres-Viscaino & Orosco-Olivera: Petitioner Sandra Orosco-Olivera seeks relief from the district court's order requiring her to make her minor child available every Saturday and Sunday from noon to 4 p.m. for visitation with the child's father. She contends that the order, which was entered without the benefit of testimony or other evidence regarding the best interests of the child, presents an extreme hardship for her as she fled to Chicago to escape domestic abuse, and cannot afford to travel to Denver every weekend and stay at a hotel during the child's visits with her father. Ms. Orosco-Olivera requests that the supreme court stay the district court's order, compel the judge to hold a hearing, and take testimony regarding the best interests of the child. On December 5, 2008, the supreme court issued a rule to show cause why the requested relief should not be granted. respondent Mario Alejandres-Viscaino is directed to provide a written answer on or before January 5, 2009. Petitioner has thirty days from receipt of the answer within which to reply. No. 08SA383, In re: People v. Rodricke, Shari: The (ADC) seeks relief from orders of the district court disqualifying the Colorado State Public Defender (PD) and appointing ADC. ADC argues PD did not have a conflict of interest, “ethical walls” created by PD were adequate, any conflict could be waived by the defendant, and the district court was without statutory authority to appoint ADC. On November 20, 2008, the court issued a rule to show cause why the
relief requested should not be granted. Respondents the People of
the Ste of Colorado and the Colorado State Public Defender are directed
to provide written answers on or before December 22, 2008. The Office
of Alternate Defense Counsel has 30 days from the receipt of the last
answer to respond. December 30, 2008 This is my last post for 2008. Thanks for tuning in. I'll be back next week. The court of appeals' oral argument calendar for February is here. The court of appeals will issue these three unpublished decisions tomorrow: 05CA2508 People v. Josiah Seth Ivy December 29, 2008 The supreme court had no announcements today. But here are the court of appeals' announcements from last Wednesday. The court issued published decisions, summarized below. The list of unpublished decisions the court issued follows the summaries. The trial court did not err in allowing the People to charge defendant with contributing to the delinquency of a minor under C.R.S. § 18-6-701(1). Defendant argued that the Colorado Liquor Code, CRS§§ 12-47-101 to -1002, as it existed at the time of her offense, prohibited the People from prosecuting her under the criminal code. The court of appeals disagreed, concluding that the General Assembly intended to allow felony prosecutions for contributing to the delinquency of a minor between 2005 and 2007, and, thus, the trial court did not err in allowing the charge. Judge Connelly specially concurred, noting that, to him, the issue was whether to apply the general rule allowing prosecution under either of two applicable statutes. He concluded that the general rule did apply. People v. Davis In a private condemnation action to obtain an access easement over an existing roadway, the court affirmed the trial court's grant of the easement. Appellants contended the trial court should have dismissed the condemnation petition because it was facially deficient for failing to sufficiently describe the property. The court of appeals disagreed. CRS§ 38-1-102(1)requires a petition in condemnation to set forth “a description of the property.” Here, the petition sought a “20 foot wide” easement “over and across an existing dirt access road.” Attached to the petition was a map depicting the road in relation to the various properties. That description sufficiently identified the of the location of the proposed easement. Story v. Bly In and appeal of a dismissal of a claim for wrongful discharge under the public policy exception to an employer’s right to fire an at-will employee, the court of appeals reversed and remanded. The claim was in the nature of a whistleblower suit. The district court erred when it dismissed the complaint for failure to state a claim of wrongful discharge in violation of public policy, incorrectly applying a heightened pleading standard not prescribed by C.R.C.P. 8(a). The court of appeals concluded the complaint was sufficient to put the employer on notice of the claim. Specifically, the court concluded the district court erred in basing its dismissal on the failure to identify a specific legislative, judicial, or administrative source of public policy, and the failure to plead the scienter. Kearl v. Portage Environmental, Inc. To satisfy the third prong of the unjust enrichment test--i.e., whether the enrichment was “unjust”--a subcontractor seeking recovery from a property owner or a general contractor on an unjust enrichment theory must establish some basis for finding injustice beyond the simple facts that (1) the owner or contractor benefitted from services the subcontractor provided, and (2) the subcontractor was not paid for its work. Redd Iron, Inc. v. International Sales and Service Corporation In probably the first Colorado appeal involving a Pelé-autographed soccer ball, the court of appeals concluded the plaintiffs were not entitled to an award of damages for the soccer ball in addition to the other damages to which they were entitled. Since the combined payments to defendant and the plaintiffs exhausted the plaintiffs' insurance coverage, plaintiffs should not have received the additional damages for the ball. The court also concluded that the trial court erred by characterizing paralegal charges incurred by plaintiffs as costs rather than attorney fees. Morris v. Belfor USA Group, Inc. Appellant psychologist appealed the probate court's order approving a personal injury settlement entered into on behalf of a child for whom the psychologist had provided services. The settlement did not provide for payment for accident-related services provided by the psychologist. The court vacated and remanded. The court concluded that the psychologist lien's was not a contractual obligation of the child's estate. But the court concluded that further proceedings were required to determine if, under principles of unjust enrichment, the psychologist could recover from the estate because he provided necessary medical treatment to the child. In re Estate of Reed Douglas Bruce filed a petition for an initiated ordinance with the Colorado Springs City Clerk’s Office as follows: "Enterprise Policy. City enterprises shall bill and collect charges for voluntary customer contracts only. Enterprise payments to the city shall phase out in ten or fewer equal yearly steps starting in January 2009, with equal savings for each customer contract. Future loans, gifts, and subsidies between an enterprise and the city or another enterprise are prohibited." After a hearing, the Title Board, composed of the City Clerk, City Attorney, and Presiding Judge of the Municipal Court, refused to set a title for the proposed initiative, concluding the initiative contained multiple subjects in violation of the single subject requirement of the City Code. Rejecting Bruce's claims under C.R.C.P. 106 or 57, the trial court ruled that proposed initiative had multiple subjects and therefore the Title Board did not err in refusing to set title. The court of appeals reversed and remanded for a determination of the constitutionality of the City's single subject ordinance. The court agreed with Bruce that the plain language of the single subject rule set forth in article V, section 1(5.5) of the Colorado Constitution and CRS§ 1-40-106.5 applies only to statewide measures and not to municipal ones. The court remanded to the district court to consider whether Bruce's right to petition under article V, section 1(9) of the Colorado Constitution was infringed by the imposition of the City’s single subject rule. Bruce v. City of Colorado Springs In an appeal of a judgment entered under the Mechanic’s Lien Trust Fund Statute (Trust Fund Statute), CRS§ 38-22-127, the court affirmed the result, but remand for modification of the form of judgment. In so holding, the court concluded that the property owner of a construction project, as well as the subcontractors, material suppliers, and laborers, has a legally protected interest to enforce the trust created by the Trust Fund Statute upon funds disbursed by the owner to a general contractor. The court noted that this does not necessarily mean, however, that the property owner has the right to retain the damages awarded against the general contractor. The court noted the judgment needed to be modified to reflect that the damages are held in constructive trust for the benefit of unpaid subcontractors, laborers, and material suppliers who have claims to the funds. Syfrett v. Pullen In a judicial
review of a twenty-five-year suspension of hunting and fishing license
privileges imposed by the Colorado Department of Natural Resources,
Division of Wildlife, the court of appeals reversed and remanded.
Plaintiff's privileges were suspended under for an additional twenty
years under CRS§ 33-6-106(8), the “three strikes” provision
of the license suspension statute. Plaintiff contended that a two-year
extension of an existing suspension authorized under § 33-6-106(6)
did not count as a separate suspension for purposes of § 33-6-106(8).
The court of appeals agreed and concluded that under the plain language
of § 33-6-106(6), and upon consideration of § 33-6-106 as
a whole, a two-year extension of an existing suspension is not itself
a separate suspension for purposes of § 33-6-106(8). Therefore,
plaintiff’s 2000-2002 extension of his existing suspension could
not count as one of the three “strikes” required to trigger
§ 33-6-106(8). Quercioli
v. Colorado Department of Natural Resources, Division of Wildlife A juvenile appealed the juvenile court’s judgment of delinquency entered on its finding that he committed acts that, if committed by an adult, would constitute the offense of carrying a concealed weapon. He asserted that the court erred in concluding that a firearm that was partially concealed but readily discernible as a firearm was “concealed” for purposes of CRS§ 18-12-105(1)(b). The court of appeals agreed and concluded the delinquency petition had to be dismissed because of insufficient evidence. People In the Interest of O.R. The court issued these unpublished decisions: 05CA0793 People v. Michael Lawrence Thompson December 22, 2008 Here are today's supreme court announcements. The court issued no decisions and did not grant cert. in any cases. This is my last post before Christmas, so I hope everyone has a safe and happy holiday. I will post again next week. December 19, 2008 The supreme court will not release any decisions on Monday, but they will issue rulings on cert. petitions. I will have those announcements on Monday. Decmeber 18, 2008 Here are today's court of appeals announcements. The court issued unpublished decisions only. December 17, 2008 The court of appeals will release the following unpublished decisions tomorrow: 04CA2420 People v. Michael Sean Edmond December 15, 2008 The supreme court's announcements for today are here. The court issued 5 decisions, summarized below. The court also granted cert. in 2 cases, and the issues in those cases follow the summaries. Attorney Regulation Counsel appealed an order of a disciplinary hearing board, dismissing one of the six claims for relief filed against attorney Daniel R. Rosen and ordering probation for the remaining five. The regulation counsel challenged as clearly erroneous the board’s finding that he failed to prove by clear and convincing evidence the commission of attempted theft. Counsel further challenged as unreasonable the board’s imposition of a six-month suspension, stayed pending a commensurate period of probation, arguing that this court should increase that discipline to a suspension of a year and a day, without probation. The supreme affirmed the order holding that the board did not err in finding unproven the sixth claim for relief and that the form of discipline imposed by the board for the respondent’s proven violations was not unreasonable. Justice Eid, joined by Chief Justice Mullarkey and Justice Bender, dissented, noting that "The Hearing Board found that Rosen violated Colorado Rules of Professional Conduct 8.4(c)4 and 4.1(a)5 by taking actions that were 'knowingly deceitful' . . . . Yet the Board imposed a penalty of just six months of probation. Because I believe that Rosen’s conduct was egregious, I agree with attorney regulation counsel that Rosen’s punishment should be increased to suspension of a year and a day, without probation." In re the Matter of Daniel Rosen Under C.R.S. § 8-42-102(3), an ALJ has considerable discretion in calculating a claimant’s average weekly wage (AWW) when the ALJ determines that the default method of calculation found in section 8-42-102(2) would lead to an unfair result. Section 8-42-102(3)’s discretionary exception is broad enough to allow an ALJ to consider a claimant’s salary at a subsequent employer when unique circumstances exist, and extends to the calculation of the cost of the claimant continuing the employer’s health insurance benefits pursuant to COBRA. In this case, the ALJ did not abuse his discretion when he concluded that the claimant’s average weekly wage, including health insurance costs, could be based on her increased earnings and insurance costs at the employer where she was working when the injury which she suffered at a previous job worsened and thus forced her to discontinue working. Justices Rice and Coats, in separate opinions each joined by Justice Eid, dissented. Justice Rice, noted that she viewed "the Workers’ Compensation Act as providing a static snapshot of the worker’s circumstances at the time of the injury. I would therefore reverse the court of appeals in this case and base the claimant’s award on the salary earned at the time of the injury." Justice Coats said, "While our case law interpretations of the statutory scheme have long acknowledged great flexibility in the calculation of an injured employee’s average weekly wage, they have never suggested that an award of compensation payments from an employer could be based on any wage or salary other than the employee’s wage under his contract of employment with that employer. Fairness in the computation of an average weekly wage must account for variations in compensation plans, personal circumstances, and even changes in the effects caused by an employee’s injuries, but until today the scheme had not been construed to permit an award altogether unrelated to the rate at which the injured employee was recompensed by the employer ordered to pay it." Avalanche Industries, Inc. v. Clark A defendant’s admission made at a probation revocation hearing may be used for purposes of sentence aggravation beyond the presumptive range only if the defendant first waives his constitutional right to have the facts forming the basis of the aggravated sentence found by a jury beyond a reasonable doubt. Absent a knowing, voluntary, and intelligent waiver of this right, the trial court cannot use the admission as justification for the aggravated sentence, even though C.R.S. § 16-11-206(1) specifically provides that a jury trial is not available at a probation revocation hearing. Petitioner was sentenced to serve an aggravated range term based on an admission he made during a probation revocation hearing. At the hearing, petitioner admitted he violated a condition of his probation. The trial court considered this to be an aggravating fact justifying a sentence beyond the presumptive range, and sentenced him to serve an aggravated range term. The supreme court held that because petitioner did not waive the right to have the facts used to aggravate his sentence be determined by a jury beyond a reasonable doubt, the admission could not be used to justify the aggravated sentence, notwithstanding the state statute. Justice Coats concurred in parat and dissented in part, noting that "Although I agree that the defendant’s admission to a probation violation was not a 'Blakely-compliant'fact, capable of justifying a sentence beyond the statutory maximum or, as we have held with regard to our own felony sentencing scheme, see Lopez v. People, 113 P.3d 713, 730 (Colo. 2005), increasing the statutory maximum sentence to include the extraordinarily aggravated range; I do not agree (for both statutory and constitutional reasons) that, upon resentencing, an intervening conviction could subject the defendant to a sentence greater than that which could originally have been imposed. I therefore dissent from the majority’s advice concerning resentencing." Justice Eid dissented, concluding that the admission of the probation violation was Blakely-compliant: "Villanueva admitted at his probation revocation hearing that he contacted the victim in violation of a condition of his probation, and his sentence was increased beyond the presumptive range based on that admitted probation violation. Blakely and its progeny permit a judge to sentence a defendant beyond the presumptive range based on facts admitted by the defendant. Here, the increase in sentence complied with Blakely because it was based on Villanueva’s own admission." Villanueva v. People The trial court exceeded its authority under the deferred judgment statute by starting the deferred judgment three years after the defendant’s plea, hearing a revocation petition filed five years after the defendant’s plea, and permitting the parties to stipulate to restarting the four-year deferred judgment period. Colorado’s deferred judgment statute authorizes a trial court to impose a deferred judgment in lieu of a conviction and sentence upon entry of the defendant’s plea, hear petitions to revoke the deferred judgment filed no later than 30 days after the deferred judgment period expires, and extend a deferred judgment for a felony no more than 180 days beyond the four year statutory maximum. Because a deferred judgment is imposed when a plea is entered, the trial court lacked authority to start the deferred judgment three years after the defendant’s plea. Because a court may only hear revocation petitions filed no later than 30 days after the deferred judgment period expires, the trial court lacked authority to hear a revocation petition filed eight months after the defendant’s deferred judgment period expired. Because a court may only extend a deferred judgment for a felony 180 days beyond the four year statutory maximum, the trial court lacked authority to restart the defendant’s four-year deferred judgment period. Thus, the supreme court directeds the trial court to dismiss the deferred judgment. In Re People v. Carbajal A trial court
retains jurisdiction to rule on a Crim. P. 35(b) motion for a “reasonable
time” following the 120-day filing window. If the trial court
fails to rule within a reasonable time, it will nonetheless retain
jurisdiction if a defendant makes “reasonable efforts” to
pursue a ruling on his motion. In the absence of such efforts, the
motion will be deemed abandoned and jurisdiction will be lost. The court granted cert. in these cases: People v. Speer, No. 08SC333, on these issues: Whether the court of appeals erred in concluding that the trial court committed reversible error in refusing to instruct the jury on the affirmative defense of duress. Whether the United States Department of Homeland Security constitutes a “law enforcement agency” for purposes of a statutory challenge for cause pursuant to C.R.S. section 16-10-103(1)(k). Moffet v. Life Care Centers of America, No. 08SC510, on these questions: Whether the court of appeals erred when it held that mere powers of attorney have the authority to execute nursing home arbitration agreements on behalf of incapacitated patients, contrary to the HCAA’s arbitration provisions, and the controlling precedents of this Court. Whether the court of appeals erred when it wholesale adopted the case law from Tennessee, concluding that the legal decision to arbitrate is a “medical treatment decision” in Colorado, and that a medical power of attorney thus has the power to execute non-mandatory nursing home arbitration agreements. Whether the court of appeals impermissibly engaged in substituted fact-finding for the fact finding properly and clearly made by the trial court, contrary to this Court’s holding in J.A. Walker Co., Inc. v. Cambria Corp., 159 P.3d 126, 130 (Colo. 2007), in that allegations challenging the validity of an arbitration clause itself are to be resolved by the trial court, and which so far departed from the accepted and usual course of judicial proceedings as to call for the exercise of the Supreme Court’s power of supervision. December 12, 2008 The supreme court will issue the following five decisions on Monday: No. 07SC255 Avalanche Industries, Inc. v. Clark No. 07SC954 Villanueva v. People No. 07SA340 Carbajal v. Delta County Jail (no oral argument) No. 07SA363 In re the Matter of Daniel Rosen No. 08SC5 Herr v. People December 11, 2008 The court of appeals' announcements for today are here. The court issued 12 published opinions, summarized below. In sexual
assault on a child case, the prosecution moved, under the statutory
provision currently codified at C.R.S. §16-10-402 to use a closed-circuit
television procedure to allow the ten-year-old vicitm to testify outside
defendant’s physical presence. Defendant asserted that the trial
court did not use the precise closed-circuit television procedure
prescribed by § 16-10-402. The court of appeals agreed, but concluded
the error was harmless. The trial court erred in removing defendant
from the courtroom and in not providing an electronic method of communication
between defendant and her counsel.
The court of appeals did not decide whether the issue was subject
to statutory or constitutional harmelss error, because the court concluded
that it was harmless error even under the more stringent constitutional
standard. People
v. Rodriguez In an insurance bad faith action brought by the assignee of the insured, the district court entered summary judgment because it concluded that the insured had not assigned any actual damages to the plaintiff. Though the insured purported to assign a claim for the unpaid portion of a judgment in excess of policy limits to which he and Plaintiff had stipulated before trial, because Plaintiff simultaneously covenanted not to execute on that stipulated judgment, the district court reasoned that the insured did not face any actual exposure to the stipulated excess judgment. The court of appeals agreed, and therefore affirmed. Nunn v. Mid-Century Insurance Company In a medical malpractice action, the trial court abused its discretion in excluding two defense experts from expressing opinions about the cause of the relevant injury. After considering the depositions and the parties’ other submissions, the trial court concluded one doctor's was not scientifically reliable, and the other's was not based on a reasonable degree of medical probability. The court of appeals reversed. The court concluded that instead of evaluating whether the theory propounded by the first doctor was reasonably reliable, as required by Shreck, the trial court determined which medical theory of causation was more plausible. The court concluded that was beyond the trial court's gatekeeping function. As for the second dodctor's opinion, the trial court mistakenly precluded this testimony in part because the doctor did not describe his conclusion as being to a degreee of “reasonable medical certainty.” The court of appeals noted that the trial court's ruling was understandable because the trial court did not have the benefit of People v. Ramirez, 155 P.3d 371 (Colo. 2007), which held that “reasonable medical probability” or “reasonable medical certainty” was no longer the standard for admission of expert testimony (under Ramirez a "possibility" is sufficient). Applying the Ramirez standard, the court of appeals concluded the second doctor's should be permitted to testify on remand regarding the likely cause of the injury in this case. Judge Terry specially concurred, noting that she was "concerned that, if the purpose of the Shreck test was to have trial courts exclude 'junk science'from the courtroom, the change in applicable standards may place obstacles in the path of trial courts attempting to discharge that duty." She expressed her "hope that the supreme court will give further guidance to the trial courts as to the proper exercise of their gatekeeping function with respect to admission of expert opinion testimony in light of its ruling in Ramirez." Estate of Ford v. Eicher Defendant appealed his convictions for inciting a riot and engaging in a riot. The court of appeals reversed. Defendant argued the trial court erred in instructing the jury that it could consider evidence of self-defense in determining whether defendant incited or engaged in a riot, but that, regarding those offenses, self-defense was not an affirmative defense which the prosecution had to disprove beyond a reasonable doubt. The court of appeals agreed, concluding that the prosectuion had to disprove beyond a reasonable doubt the affirmtive defense of self-defense. People v. Mullins In an appeal
from an attempted theft conviction (a shoplifting), the court of appeals
affirmed. The court held that the trial court did not err by allowing
a loss prevention officer’s hearsay testimony as evidence of
value. The officer’s testimony was properly admitted under C.R.S.
§ 18-4-414, and its reliability and credibility were issues to
be explored and possibly rebutted by defense counsel, and ultimately
for the jury to decide. People
v. Pearman The Town of Estes Park did not violate statutory requirements when it contracted for the sale of certain property to defendants. Plaintiffs claimed the Town violated C.R.S. § 31-15-713, which states that the question of the sale of any property used or held for any governmental purpose must be submitted for election prior to any sale. The court held that the Town’s original plan for the property, which ultimately lapsed, and its subsequent consideration of other potential public uses for the lot, did not cause the Town to hold the property for a governmental purpose pursuant to § 31-15-713. New Stanley Associates, L.L.L.P. v. Town of Estes Park In an automobile liability insurance coverage dispute, defendants appeal the partial summary judgment in favor of plaintiff declaring the insurance coverages co-primary and Plaintiff's “step-down” clause enforceable. The court affirmed as to co-primary coverage, but reversed as to the enforceability of the step-down clause. The court rejected the contention that Plaintiff’s excess clause is void because it erodes the mandate of C.R.S. § 10-4-619 that vehicle owners carry minimum liability insurance or because its clause is not subject to dollar-for-dollar apportionment with other coverage under Allstate Ins. Co. v. Avis Rent-A-Car System, Inc., 947 P.2d 341 (Colo. 1997). The court agreed, however, that because Plaintiff did not adequately notify regarding the reduction in coverage on renewal, the trial court erred in upholding Plaintiff’s step-down clause. Shelter Mutual Insurance Company v. Mid-Century Insurance Company In this dissolution of marriage action, wife's attorney appeals from the trial court’s order awarding attorney fees against him arising from his improper subpoena of a non-party. The court of appeals affirmed, concluding that C.R.S. § 13-17-102(4) is applicable in cases where a non-party is improperly subpoenaed, and therefore provides for the assessment of attorney fees in favor of a non-party, as well as a party, so long as a trial court finds that with respect to the non-party, any attorney or party (1) engaged in conduct interposed for delay or harassment, or (2) unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures under the Colorado Rules of Civil Procedure. In re Marriage of Ensminger In an appeal of a C.R.C.P. 106(a)(4) action, Boulder County appealed the district court's conclusion because a PUD is considered a form of zoning, the Fire Protection District seeking to build a second fire station in the County was not subject to the PUD regulations. Therefore, the District was not required to seek an amendment to the PUD in order to submit an application for Location and Extent Review. Hygiene Fire Protection District v. Board of County Commissioners In appeal raising issues under the Health Care Quality Improvement Act of 1986 (HCQIA), 42 U.S.C. §§ 11101-11152, plaintiff-physician sued defendant-hospital and three of its officers for revoking his hospital privileges. An earlier court of appeals decision reversed a summary judgment in favor of defendants. On remand, the district court again granted summary judgment. The court of appeals again reversed, concluding that defendants are not entitled to HCQIA immunity because plaintiff was denied notice and a hearing (“statutory due process”) before revocation, and he never waived his right to statutory due process. Peper v. St. Mary’s Hospital and Medical Center In a case involving the purported guarantee of an investment, defendant appealed the judgment in favor of plaintiff on her claim for promissory estoppel. The court of appeals affirmed. Defendant claimed that the trial court erred in granting equitable relief on the promissory estoppel claim because its determination was inconsistent with the jury’s verdict on the breach of contract claim and the court’s determination deprived him of his right to the jury’s findings. In determining whether a jury’s verdict is inconsistent, courts must determine if a reading of the record reveals any basis for the verdict. The court of appeals concluded that it had to determine whether the jury verdict by necessary implication reflects the resolution of a common factual issue. The court concluded that the trial court’s finding of reliance was not at odds with the jury’s determination that Plaintiff did not formally accept Defendant's offer (and thus no contract was formed). Instead, the trial court resolved a separate factual issue different from the jury’s finding of no acceptance. Therefore, the trial court’s findings and conclusions were not inconsistent with the jury’s determination and, therefore, the trial court did not deprive defendant of his right to the jury’s findings. Marquardt v. Perry Taxpayer
owns a manufacturing facility, and has a Corrective Action Plan with
CDHE because of chemical solvent contamination of the groundwater
on the property and the adjacent property. At the BAA, the BOE used
two calculations, both based on an income approach. The expert estimated
the gross annual income, substracted 50% of the 2005 annual cost to
cure to arrive at net income, and capitalized at a 10% rate. Alternatively,
the expert in essence reversed the order of calculations, capitaliazing
the gross annual income then subtracting the 50% of the cost to cure.
The BAA agreed with the BOE's income approach, but used the taxpayers
70% cost of cure. So ultimately the BAA took the projected gross annual
income, subtracted 70%, then capitalized at a 10% rate. On appeal
to the court of appeals, the taxpayer challenged the BAA's application
of the direct capitalization method of the income approach. Taxpayer
claimed that the the BAA should have determined the property's value
as if the property were clean and then deduct 70% of the total cost
to cure as a lump sum. The court of appeals concluded that the BAA
was not required to use that method. The court noted that "Taxpayers
have not brought to our attention any other Colorado case law or statutory
authority prohibiting the methodology used here by the BAA."
The court further noted that the BAA's method--"estimation of
annual income subtraction of an annual cost to cure, and application
of a capitalization rate to arrive at a taxable value--is in conformity
with the direct capitalization method of the income approach."
Since the assessment was supported by competent evidence, the court
found no basis to conclude the BAA committed legal error. Microsemi
Corp. of Colorado v. Broomfield County Board of Equalization December 10, 2008 The court of appeals will release the following decisions tomorrow, including 11 published opinions: Published Opinions 05CA2591 People v. Karen S. Rodriguez December 5, 2008 The supreme court will issue no announcements on Monday, so barring some other news, I won't be posting an update. December 4, 2008 The court of appeals' oral argument calendar for January is here. Here are today's court of appeals' announcements. The court issued the following unpublished decisions (no published opinions today): 05CA1233 The People of the State of Colorado v. John Anchondo December 3, 2008 Sorry about the week-long hiatus, but I was busy with Thanksgiving and preparing for an argument I had yesterday. This post will get you caught up. The supreme court announcements and summaries are first, followed by those for the court of appeals. Yesterday's supreme court announcements are here. The court issued 3 decisions, summarized below. The court granted cert. in two cases, and the issues in those appeals forllow the summaries. An offender who has earned presentence confinement credit is entitled to have that credit deducted from his mandatory parole. The supreme court held that the term “sentence” as used in the presentence confinement credit statute, C.R.S. § 18-1.3-405, refers to the mandatory parole portion of a defendant’s sentence as well as the confinement portion of that sentence. Justice Coats, joined by Justice Eid, dissented, concluding that "any challenge to the legality of a prison sentence, after the defendant has been released to parole supervision, will now be an acceptable procedure for seeking reduction of his parole term. For anything that appears in the majority’s opinion, this will be the case, whether the defendant had already served his entire term of confinement or was released at the discretion of the parole board after merely becoming eligible for parole. Because I believe this result not only thwarts the legislature’s intent in creating our current parole scheme, but also invites abuses of the process, I respectfully dissent." Edwards v. People Future damages, including lost future royalties, may be awarded in a breach of contract action if they are demonstrated with reasonable certainty. Although the contract at issue permitted the petitioner to stop royalty-generating activity at any time, the supreme concluded that it was a question for the jury whether petitioner would, indeed, stop. Where there is sufficient reliable evidence that royalties would have accrued but for defendant’s breach, the jury is permitted to assess the amount of the lost royalties from the best evidence the nature of the case allows. Justice Coats, joined by Justice Eid, dissented, concluding that he considered "it insufficient to predict, with reasonable certainty, the future production choices of the defendant company. More broadly speaking, I consider it impossible to divine, with the required degree of certainty for a damage award, as yet unmade, and contractually unconstrained, choices whether to commit capital to any particular project in the future, and I do not believe the authorities relied on by the majority suggest otherwise." Acoustic Marketing Research, Inc.. v. Technics, LLC In a C.A.R. 21 proceeding challenging an order of the district court suppressing statements made by the defendant as being taken in for violation of Rule 4.2 of the Colorado Rules of Professional Conduct. The district court found it to be a violation of the ethical rule for an agent of the district attorney to contact, for any reason, a defendant being represented by the public defender, in any case or capacity, without the knowledge and permission of his attorney. The defendant alleged, among other things, that an investigator from the district attorney’s office interviewed him in jail, at a time when he was already represented by the public defender on other filed charges. The motions further alleged that on neither occasion was his attorney present or notified about the interviews, and that on each occasion the interviews resulted in statements providing the district attorney with a basis for filing additional charges against him. Upon the prosecutor’s acknowledgment that these basic allegations were not in dispute, the district court found it unnecessary to take evidence or hear more.The supreme court unanimously held that Colo. RPC 4.2 does not support the blanket prohibition imposed by the district court, and it therefore made the rule absolute. Because the district court also made no findings concerning the subject of the challenged communications with the defendant or the defendant’s allegations of constitutional violations, the matter was remanded for further consideration of the defendant’s suppression motions. In re People v. Wright The court granted cert. in the following cases: Curious Theatre Co., v. Colorado Department of Public Health and Environment, No. 08SC351, on these issues: Whether the court of appeals erred in holding that Colorado’s smoking ban was constitutional as-applied to theatrical smoking under the First Amendment of the United States Constitution. Whether the court of appeals erred in concluding that the Colorado Constitution, Article II, Section 10 provided no greater protection to free speech than the federal Constitution in this case. Currier v. Sutherland, No. 08SC857, on this question: Whether the court of appeals, by adopting the modern trend of capacity vs. subject matter jurisdiction when suit is filed against a non-existent defendant, has improperly defeated the legislative intent behind the remedial revival statute. Here are the summaries of the court of appeals' decisions from last Wednesday: After the
parties ended their relationship, defendant sold her house to a person
who would not allow plaintiff on the property. Plaintiff issued a
subpoena duces tecum commanding the buyer to allow an inspection of
the house. The trial court quashed this subpoena. The court of appeals
upheld that decisio, rejecting plaintiff's argument a that a subpoena
duces tecum issued under C.R.C.P. 45(b) -- to “command the person
to whom it is directed to produce the books, papers, documents, or
tangible things designated therein” -- includes the power to
command inspection of real property. Thompson
v. Thornton In a case
arising out of a real estate purchase option, the question was "Should
courts enforce an option that has been timely exercised by written
notice when the contract states that notice shall be sent by 'certified
mail, return receipt requested,'but the notice is delivered another
way? A charter school appealed the dismissal of its declaratory judgment action complaint seeking a determination that a provision in its charter school contract with Poudre School District R-1 is null and void. The issue presented was whether a provision in a charter school contract permitting the school district to retain a prorated portion of the “per pupil revenue” (PPR) for each student who transfers out of the charter school into another school in the district, or to pay the charter school in the same manner if a student transfers to the charter school from another school in the district, violates C.R.S. § 22-30.5-105(5). The court of appeals concluded that the “services” at issue, that is, either the waiver of a transfer policy or funding the transferred student’s education in another school in the district, are not permitted or contemplated services within the meaning of either § 22-30.5-112(2)(b) or § 22-30.5-104(7)(b). Therefore, paragraph 6.2.5 of the contract violated § 22-30.5-105(5), was null and void as against public policy, and thus unenforceable. Ridgeview Classical Schools v. Poudre School District R-1 In a premises
liability case, plaintiff argued that the trial court erred in refusing
to strike defendants’ affirmative defenses of comparative negligence
and assumption of risk. The court interpreted the Premises Liability
Act as the General Assembly’s unambiguous creation of a comprehensive
act which specifies the exclusive duties of landowners to those injured
on their property. The court concluded the PLA did not exclusively
limit defenses and does not abrogate statutorily-created defenses,
which were available to landowners before the 2006 amendment and afterward.
The court held therefore that trial court correctly allowed defendants’
affirmative defenses of comparative negligence and assumption of the
risk. The court agreed with plaintiff, however, that the trial court
erred when it reduced his damages award under the collateral source
rule set forth in C.R.S. § 13-21-111.6. Tucker
v. Volunteers of America Colorado Branch In a campaign
finance law dispute, plaintiff, the Independence Institute, appealeds
the summary judgment entered in favor of Mike Coffman, in his official
capacity as Secretary of State of Colorado. The court of appeals affirmed,
concluding that the definition of “a major purpose” in article
XXVIII, section 2(10) of the Colorado Constitution (defining "issue
committee") is not unconstitutionally vague or overbroad on its
face. Judge Connelly specially concurred, noting "I cannot subscribe
to the discussion in the majority opinion that in my view goes further
than necessary or appropriate to reject this facial challenge. The
majority opinion contains an extended discussion of cases that have
'narrowly' construed provisions to avoid vagueness problems, and it
outlines factors pertinent to a 'fact-specific inquiry' into whether
an organization is or is not an Petitioners,
who call themselves the residents and registered electors of the “town
of Frankstown,” Colorado, contend that the town was incorporated
before Colorado became a state. They appeal the trial court’s
judgment declining to issue an order compelling a non-existent Board
of Trustees of the town to hold a reorganization election C.R.S. §
31-2-301. The court of appeals held that Frankstown was not incorporated
as alleged by petitioners, and therefore affirmed. Plaintiff appealed the trial court’s summary judgment in favor of defendants, the City and County of Denver, Denver Civil Service Commission (Commission), and the Denver Fire Department. Plaintiff had applied for a firefighter position with the City, and took an entrance exam administered by the Commission. He requested veterans’ preference points be applied to his entrance exam, and he submitted a copy of his DD-214, “Certificate of Release or Discharge from Active Duty,” to support his request. The Commission informed Arthur that it was unable to grant his preference points request because his DD-214 did not indicate he had been authorized to receive a campaign badge for preference consideration. Thus, his request for five-point preference was denied. Without five-point preference, Arthur did not meet the criteria for second round interviews. He appealed to the district court, which granted summary judgment in favor of the defendants. On appeal to the court of appeals, he contended the trial court erred in finding that he had not provided sufficient proof with his application that he qualified to receive veterans’ preference under the Colorado Constitution and further erred in granting defendants’ motion for summary judgment. The court of appeals agreed. Interpreting article XII, section 15 of the Colorado Constitution, titled “Veterans’ preference,” whichs sets forth a system for granting preference to veterans in hiring within the personnel systems of the state and its political subdivisions, the court concluded that plaintiff was entitled to the five-point preference. Subsection (1)(b) of the constitutional provides: "Five points shall be added to the passing grade of each candidate on each such examination, except any promotional examination, who is separated under honorable conditions and who, other than for training purposes, (i) served in any branch of the armed forces of the United States during any period of any declared war or any undeclared war or other armed hostilities against an armed foreign enemy, or (ii) served on active duty in any such branch in any campaign or expedition for which a campaign badge is authorized." The court concluded that plaintiff's active duty service in Operation Iraqi Freedom was a period of undeclared war or other armed hostilities within the meaning of article XII, section 15(1)(b) that entitled him to the preference. Arthur v. City and County of Denver Plaintiff challenged C.R.S. 39-28.5-102, which imposed an excise tax on “the sale, use, consumption, handling, or distribution” of “other tobacco products” (OTP) in the state, asserting that it violates due process and equal protection grounds. The court of appeals had previously addressed whether the statute violateed the Commerce Clause. In that earlier case, plaintiff had sought refunds under C.R. S. sections 39-28.5-101 to -111 of what it asserted were excess OTP excise taxes. The court rejected plaintiff's Commerce Clause challenge to the tax. Before the previous decision was was announced, plaintiff filed a refund claim excess OTP excise taxes paid during various periods, on the same basis asserted in its requests for refunds in the earlier claim. The Department of Revenue denied the refund claim based on the holding of the earlier decision, and plaintiff then filed due process and equal protection challenge. Plaintiff alleged that the OTP tax statutes, as construed by the earlier court of appeals' decision, were unconstitutionally vague under the Due Process Clauses of the Fourteenth Amendment to the United States Constitution and article II, section 25, of the Colorado Constitution, as well as under the Equal Protection Clauses of the United States and Colorado Constitutions. Plaintiff alleged that the earlier decision provided no guidance as to which party in the distribution chain is subject to the OTP tax and that the Department may tax similarly situated tax-liable distributors at different points in similar distribution chains, resulting in a non-uniform application of the tax. The trial court granted the Department's motion to dismiss. The court of appeals reversed, agreeing with plaintiff's contention that its complaint was not barred by either issue preclusion or claim preclusion. the court concluded that plaintiff’s claims "do not fit within the parameters of either claim preclusion or issue preclusion. Although the doctrines are designed to create efficiency and to thwart piecemeal or redundant litigation, the doctrines are exceptions to the general principle that litigants should have their day in court, and they must be applied strictly according to their rules."McLane Western, Inc. v. Department of Revenue Smith applied
for a motor vehicle salesperson license. He disclosed on his application
that he had twice been convicted of felony theft during the preceding
ten years. Smith argued on appeal that C.R.S. § 24-5-101 conflicts
with -- and, as the “later adopted statute,” controls over
-- C.R.S. § 12-6-118(7)(a)(I), and that the Board therefore erred
in denying his license application based on section 12-6-118(7)(a)(I).
The court of appeals disagreed and affirmed. The court noted that
both statutes address the same general subject -- the effect of criminal
convictions on licensing applications. But section 12-6-118(7)(a)(I)
applies specifically to a limited category of license applicants --
those seeking motor vehicle dealer or salesperson licenses -- whereas
section 24-5-101 applies generally to the broader category of persons
applying for public employment or for any business or professional
license. Because section 12-6-118(7)(a)(I) is limited to specific
felony convictions, and because such convictions may serve as a basis
for delaying but not permanently denying a motor vehicle salesperson
license, the section does not simply make a criminal conviction, without
more, the basis for denying a license. Moreover, contrary to Smith’s
argument, the fact that section 12-6-118(7)(a)(I) does not expressly
cross-reference section 24-5-101, as do some other licensing statutes,
does not require a conclusion that it conflicts with section 24-5-101. November 26, 2008 First, Happy Thanksgiving to everybody. I hope you all have a great and safe holiday. Second, today's court of appeals decisions are here. The court issued 9 published decisions. I'm preparing for an argument, so unfortunately, I won't be able to post summaries until next Wednesday or Thursday. November 25, 2008 The court of appeals will issue the following decisions tomorrow, including 9 published decisions: Published Opinions November 24, 2008 Here are today's supreme court announcements. The court issued two decisions, summarized below. The court did not grant cert. in any cases. A defendant in a criminal case brought a C.A.R. 21 proceeding, seeking review of the trial court’s denial of the defendant’s motion to dismiss on double jeopardy grounds. The supreme court concluded that the trial court erred when it found a prior instance of shoplifting inadmissible under CRE 404(b) and CRE 608(b). The court held that an act of shoplifting is probative of truthfulness, and therefore is admissible under CRE 608(b). Based on the circumstances at trial and because it was not error for defense counsel to ask a witness about a prior instance of shoplifting, there was no manifest necessity to declare a mistrial. Accordingly, retrial of the defendant is barred on double jeopardy grounds. Justice Eid, joined by Justice Coats, dissented, concluding that "the majority’s approach is flatly contrary to the plain language of Rule 608(b), which leaves to the 'discretion of the [trial] court'whether a specific instance of conduct that is probative of truthfulness can be inquired into on cross-examination. The majority then compounds its error, in my view, by approving the manner in which the question was asked -- that is, without warning to either the trial court or the prosecution. Finally, the majority mistakenly accords no deference to the trial court’s determination of manifest necessity for a mistrial." Justice Eid concluded that "the trial court exercised sound discretion in finding the question improper under Rule 608(b) and in finding manifest necessity for a mistrial." In re People v. Segovia In an interlocutory
appeal challenging the district court's suppression of statements
the defendant made during police interrogation, the supreme court
reversed. The defendant was interrogated by a police officer in the
employee lounge of a pharmacy after filling an altered prescription.
The lounge did not have a door on it; the defendant was told that
he was not under arrest; the tone of the conversation remained civil
throughout; the officer moved around the room during the interview,
facing the entryway so as to avoid the appearance that the defendant
was not free to go; and the defendant’s wife was at his side
during the interview. The court concluded that because an objective
person in the defendant’s position would not have found that
his freedom was restricted to the degree associated with formal arrest,
it was error for the trial court to suppress the defendant’s
statements. Justice Martinez, joined by Chief Justice Mullarkey and
Justice Bender, dissented, stating, "I do not agree with the
majority’s conclusion that Becker, who was told he was being
detained, moved to a secluded location, and escorted through the store,
was not in custody. Instead, I agree with the trial court that a reasonable
person in Becker’s position would believe his freedom of action
restricted to a degree associated with formal arrest." People
v. Becker November 21, 2008 The supreme court will issue two decisions on Monday, No. 08SA164, In re People v. Segovia, and No. 08SA235, People v. Becker. The Becker case appears to be an interlocutory appeal of a suppression order. The Segovia case was an original proceeding, in which the defendant sought relief from an order of the district court denying his motion to dismiss on grounds of double jeopardy. The trial court had previously found manifest necessity for a mistrial of the trial of petitioner on charges of sexual assault after the petitioner asked the witness, during cross examination, whether she stole from her mother's store. The prosecution objected and the question was never answered. The defendant claims the question was proper cross examination to probe the untruthfulness of the witness, and alternatively, if the evidence was not admissible, that merely asking the question did not constitute manifest necessity for a mistrial. The supreme court issued a rule to show cause back in May. November 20, 2008 Here are today's court of appeals announcements. The court issued unpublished decisions only. November 19, 2008 The court of appeals will release the following unpublished decisions tomorrow: 05CA0875 People v. Terry Leslie, Jr. November 17, 2008 Here are today's supreme court announcements. The court issued no decisions and did not grant cert. in any cases. It's been awhile since I updated the supreme court's original proceedings, but the court has only issued rule to show cause in two cases since my last update. Here's the information on those appeals: No. 08SA308, In re: Jon Glenn Arnett v. David Lynn Hoffman, et al Jefferson County District Court Case No. 08CV3698 (Judge M.J. Menendez) | ||||||||||||||||||||||||