Colorado Court of Appeals Opinions


2018 COA 15. Nos. 16CA1521 & 17CA0066. Marso v. Homeowners Realty, Inc.

Respondeat Superior—Agent—Amendment of Answer—Affirmative Defense—Setoff—Settlement—Statutory Prejudgment Interest.

Dilbeck was employed by or associated with Homeowners Realty, Inc., d/b/a/ Coldwell Banker Home Owners Realty, Inc. (Coldwell) and acted as the Marsos’ agent in their purchase of a house. Two years after the purchase, the Marsos discovered that uranium tailings had been used as fill material, creating a potential health hazard. The Marsos filed a complaint against Dilbeck and Coldwell alleging negligence against Dilbeck and respondeat superior liability against Coldwell. Before the scheduled trial date, the Marsos settled with Dilbeck for $150,000, inclusive of interest. The jury was instructed to determine the total amount of damages sustained by the Marsos and was not informed of the amount of the settlement with Dilbeck. The jury returned a verdict of $120,000 against Coldwell. In post-trial proceedings, the trial court set off the settlement payment of $150,000 against the $120,000 jury verdict, resulting in a zero recovery for the Marsos. Because the settlement payment exceeded the jury verdict, the court entered judgment in favor of Coldwell and later entered a cost award against the Marsos of approximately $30,000.

On appeal, the Marsos contended that the court abused its discretion in allowing Coldwell to amend its answer to assert the affirmative defense of setoff over the Marsos’ timeliness objection. Because Coldwell did not obtain the settlement agreement until shortly before trial and the Marsos had no right to rely on the absence of a setoff, the amendment did not result in legal prejudice to the Marsos. Under these circumstances, the court did not abuse its discretion in allowing Coldwell to pursue its setoff defense.

The Marsos next argued that the trial court erred when it set off the settlement payment against the jury verdict. When a party’s liability is based entirely on respondeat superior, a settlement with the agent is setoff against the jury verdict entered against the principal. Therefore, the trial court did not err in this regard.

The Marsos also contended that the trial court erred when it set off the settlement payment before statutory prejudgment interest accrued on the jury verdict. Statutory prejudgment interest accrues on the jury verdict before the setoff. Here, the court must calculate the interest that accrued on the jury’s verdict from the date of the Marsos’ injury to the date of Dilbeck’s settlement payment and add it to the jury verdict

The judgment and cost award in Coldwell’s favor was reversed, and the case was remanded for further proceedings.


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2015 COA 12. No. 15CA0164. Denver Health and Hospital Authority v. City of Arvada ex rel. Arvada Police Department.

Domestic Disturbance—Custody—Medical Treatment—CRS § 16-3-401(2)—Unconstitutionally Vague—Colorado Governmental Immunity Act (CGIA).

Arvada police officers were dispatched to a residence in response to a domestic disturbance call. The victim told the officers that her husband, Terry Ross, had hit her and waved a gun back and forth during the alleged domestic violence. After the officers allowed Ross to use the restroom, he ran into the bedroom and attempted to commit suicide with a gun. The officers transported him to a hospital owned by plaintiff Denver Health and Hospital Authority (Denver Health) for medical treatment. Denver Health later filed a complaint against the City of Arvada (Arvada) for payment of Ross’s medical expenses incurred at the hospital. The trial court entered summary judgment in favor of Denver Health pursuant to CRS § 16-3-401(2).

On appeal, Arvada contended that CRS § 16-3-401(2), which provides that persons arrested or in custody shall receive medical treatment if required, is unconstitutionally vague on its face because it does not expressly define the term “in custody” and does not address the point in time at which custody is determined. Because the General Assembly has defined the term “custody” in CRS § 16-1-104(9), which applies to CRS § 16-3-401(2), the statute is not unconstitutionally vague.

Arvada next contended that the district court misinterpreted Poudre Valley Health Care Inc. v. City of Loveland, 85 P.3d 558 (Colo.App. 2003),because it incorrectly found the case to be dispositive of the issues raised in this case. Pursuant to Poudre Valley, the duty of governmental entities to provide food, shelter, and, if necessary, medical treatment extends to all individuals “arrested or in custody,” CRS § 16-3-401(2), and inherent or implicit in this duty is the duty to pay for such expenses. Ross was in custody under CRS §§ 16-3-401(2) and 16-1-104(9) from the time police significantly restrained his freedom to move about the house, and he was unquestionably in custody when he was taken to the hospital and given medical treatment there. Therefore, Colorado law requires Arvada to pay the remaining balance of Ross’s hospital expenses.

Arvada also contended that the district court erred in ruling that Denver Health’s implied contract claim was not barred by the Colorado Governmental Immunity Act (CGIA). The nature of injury and the relief sought by Denver Health are both based solely in contract. Denver Health does not allege any tortious conduct by Arvada, nor does it seek any tort remedies. Therefore, Denver Health’s implied contract claim is not barred by the CGIA. The judgment was affirmed.

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2015 COA 156. No. 13CA1920. People v. Evans.

Department of Corrections—Attempt to Escape—Jurisdiction—Concurrent or Consecutive Sentence—Double Jeopardy.

Defendant was in the custody of the Department of Corrections (DOC) serving a 16-year sentence when he left the Centennial Community Transition Center (CCTC) and reported to work as scheduled; however, he did not return to CCTC after completing his shift. Defendant pleaded guilty to one count of attempt to escape, and the trial court imposed a three-year prison sentence without stating whether it was to be served concurrently or consecutively. The trial court thereafter ordered the sentence to be served consecutively to his original 16-year sentence.

On appeal, defendant contended that the trial court did not have jurisdiction to change the sentence so that the sentence for attempt to escape would be served consecutively. The Court of Appeals held that the initial sentence—which was presumptively concurrent because the court did not order otherwise—was valid. Therefore, the trial court lacked jurisdiction to later impose a consecutive sentence.

Defendant also argued, and the Court agreed, that his right to be free from double jeopardy was violated because his valid sentence was increased after he had begun serving it. The sentence was reversed, and the case was remanded with the direction that the trial court amend the mittimusto provide that defendant’s sentence for attempted escape be served concurrently with his underlying sentence.

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2015 COA 157. No. 14CA0487. People v. Larsen.

Juvenile—Sexual Assault—Juror Poll—Prejudicial News Article—Cross-Examination.

Victims A.H. and K.H. moved to Colorado with their mother S.L. to live with S.L.’s father, defendant. After learning that K.H. was sexually abused previously, defendant put K.H. in therapy. A.H. and K.H. thereafter accused defendant of touching them inappropriately. The jury convicted defendant of both charges involving the sexual assault of A.H., and he was sentenced to eight years to life in prison.

On appeal, defendant asserted that the court erred by declining to poll the jurors to ask whether they were exposed to an allegedly prejudicial news article released midtrial. The prejudicial information contained in the news article was not part of the evidence at trial, and there was a reasonable probability that the jury was exposed to the article. Accordingly, the trial court abused its discretion by not polling the jury and such error was not harmless beyond a reasonable doubt. The judgment of conviction was reversed and the case was remanded for a new trial.

Defendant also argued that the trial court denied his right to confront multiple witnesses by excluding evidence of the Department of Human Services’ attempt to remove the victims from S.L.’s custody. However, because there was record evidence that the Department sought to take custody of S.L.’s children, the court did not abuse its discretion when it limited the cross-examination of witnesses by barring questions about the Department’s attempt to remove the victims from S.L.’s custody.

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2015 COA 158. No. 14CA0811. People v. Parks.

Vehicle—Inventory Search—Suppression of Evidence—State and Federal Constitutions.

Parks was driving a van when officers pulled him over on suspicion of fictitious license plates after observing expired plates on the van. Parks did not have a valid driver’s license or registration. In preparation to impound the van, the officers searched and inventoried the contents of the van. They seized nine plastic baggies of methamphetamine, two pipes, a digital scale, a scoop, a spoon, an empty pill bottle, two wiretap detection devices, and a receipt listing a credit card allegedly belonging to Parks. The evidence gathered from the inventory search was admitted at trial. Parks was convicted of possession with intent to distribute a controlled substance, driving under suspension, failing to provide insurance, displaying fictitious license plates, driving an unregistered vehicle, and six habitual criminal counts.

On appeal, Parks contended that the trial court erred by declining to suppress the evidence gathered from the inventory search of the cooler found in his van. The state and federal constitutions are coextensive in the context of inventory searches. The Colorado Constitution does not prohibit the opening and inspection of a closed container found during a vehicle inventory search if the search was conducted in accordance with a standardized departmental policy and there is no showing that the police acted in bad faith or for the sole purpose of investigation. Here, the trial court found, with record support, that the officer’s opening of the cooler was authorized by a standardized departmental policy and the officer did not act in bad faith or solely as pretext for investigation. Accordingly, the court’s denial of the motions to suppress was affirmed.

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2015 COA 159. No. 14CA1348. Masters v. School District No. 1 in the City and County of Denver.

Teacher Employment, Compensation, and Dismissal Act—Contract Clause—Due Process.

Plaintiffs were employed as full-time teachers by Denver Public Schools and had achieved non-probationary status under the Teacher Employment, Compensation, and Dismissal Act (TECDA). Plaintiffs brought the underlying action in district court, alleging that TECDA violated their rights under the Colorado Constitution’s contract clause and due process clause. The trial court granted defendant’s motion to dismiss both claims.

On appeal, plaintiffs contended that the district court erred by dismissing their contract clause claim. TECDA created a contractual relationship between school districts and teachers. Non-probationary status is achieved under TECDA after a teacher completes a probationary teaching period, and that status conferred on the teacher protections against dismissal. Therefore, the district court erred by dismissing plaintiffs’ contract clause claim under CRCP 12(b)(5) for failure to state a claim upon which relief can be granted.

Plaintiffs also contended that the district court erred by dismissing their due process challenge to the mutual consent provisions of TECDA. TECDA provides that non-probationary teachers may be dismissed only for statutorily specified reasons constituting “good and just cause” and only after certain procedures are followed. Before Senate Bill (SB) 191 was passed, TECDA required a school district to find a new position for a displaced non-probationary teacher, and the receiving school was required to accept the teacher. Such for-cause dismissal provisions create a constitutionally protected property interest in continued employment. Through SB 191, the legislature replaced this procedure with a “mutual consent” procedure whereby a displaced non-probationary teacher may be assigned to a position at another school only with the receiving principal’s consent and input from at least two teachers at the school, and the school district is authorized to place on unpaid leave any displaced non-probationary teacher who has not secured a mutual consent position in the district within 12 months or two hiring cycles, whichever is longer. Before being placed on unpaid leave, however, non-probationary teachers have a due process right to a hearing in which the teacher may attempt to show that the purported reason for which she was placed on unpaid leave was not the actual reason or that the placement was effected in an arbitrary or unreasonable fashion. Therefore, the district court erred in dismissing the plaintiffs’ due process claim for failure to state a claim upon which relief can be granted. The judgment was reversed and the case was remanded with directions.

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2015 COA 160. No. 14CA1350. Prospect 34, LLC v. Gunnison County Board of County Commissioners.

Mill Levy—Abatement—Illegal—Abuse of Discretion.

Reserve Metropolitan District No. 2 (RMD2) is a special district located entirely within the town of Mt. Crested Butte (Town) in Gunnison County. RMD2’s service plan—a document statutorily required to organize a special district—states that RMD2’s mill levy “shall not exceed 50 mills, subject to Gallagher Adjustments,” and that any levy beyond 50 mills requires Town approval. By 2013, the mill levy totaled 52.676 mills, including the Gallagher Adjustment of 2.676 mills. The RMD2 board approved certifying to the Gunnison County Board of County Commissioners (BOCC) 55.676 mills, 3 mills in excess of the cap in the 2000 service plan, which the Town counsel protested. When RMD2 taxed Prospect Development Company, Inc. and Prospect 34, LLC (collectively, Prospect) at a higher rate, Prospect petitioned the BOCC to abate the excess taxes. After the BOCC denied the petition, Prospect appealed to the Board of Assessment Appeals (BAA). Instead of reaching the merits of this issue, the BAA resolved it against Prospect on the basis of the court’s order denying a summary judgment motion on this issue in a parallel district court action involving RMD2 and Prospect.

On appeal, Prospect first contended that the BOCC must abate the excess mill levy under CRS § 39-10-114(1)(a)(I)(A). The four grounds for abatement provide relief from taxes “levied erroneously or illegally.” Here, the mill levy caps are enforceable. Because the stated procedure was not followed to increase those caps, the excess mill levy was illegal.

Prospect also contended that the BAA acted arbitrarily and capriciously and abused its discretion by relying on an order denying summary judgment as a final determination. Because such an order is not a final determination of the issue raised in the motion, the BAA abused its discretion by not exercising its authority to decide whether the excess mill levy was illegal. The order was reversed and the case was remanded with directions.

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2015 COA 165. No. 11CA1784. People v. Bondsteel.

Joinder—Crim.P. 13—CRE 404(b)—Pretrial Lineups—Unduly Suggestive—Challenge for Cause—Jury—Kidnapping—Evidence—Prosecutorial Misconduct.

The trial court joined two separate cases against Bondsteel for trial: (1) the Signal Mountain Trail case in which Bondsteel had attacked two women while they were hiking; and (2) the motorcycle case in which Bondsteel approached four women in three separate cars while on his motorcycle, taking their cell phones and other belongings and demanding that the women move or remove portions of their clothing. A jury convicted him of multiple offenses, including second-degree kidnapping, aggravated robbery, unlawful sexual contact, and attempted sexual assault.

On appeal, Bondsteel first contended that the trial court erred in allowing the prosecution to join the two cases for trial. However, Bondsteel failed to satisfy either prong of the misjoinder test. Therefore, the trial court did not abuse its discretion in joining the cases.

Bondsteel next contended that because the pretrial lineups in which N.D. and K.D. both identified him as their attacker were unduly suggestive, their identifications should have been suppressed. All six lineup participants were dressed in camouflage with head coverings, leaving only their eyes visible, just as the victims had described their attacker to sheriff’s office deputies. Four of the participants had blue eyes; Bondsteel and one other participant had brown eyes. The disparity in the participants’ eye colors did not render the lineups impermissibly suggestive. Therefore, the trial court did not err in denying his motion to suppress.

Bondsteel contended that the trial court wrongfully denied his for-cause challenge to juror J.H., whom he eventually excused with a peremptory challenge. Even if the trial court abused its discretion in denying the challenge for cause, Bondsteel was not entitled to relief because he failed to show that a biased or incompetent juror sat on the jury instead of J.H.

Bondsteel further contended that the trial court committed reversible plain error by failing to instruct the jury sua sponteon the limited purposes for which it could consider evidence of the motorcycle case in relation to the Signal Mountain Trail case. However, Bondsteel failed to raise this issue, and a trial court’s failure to give a limiting instruction sua spontein the CRE 404(b) context was not reversible plain error.

Bondsteel argued that the evidence was insufficient to convict him for second-degree kidnapping of N.D. and K.D.; alternatively, he contended that the jury instructions on these counts were deficient. Although Bondsteel only moved N.D. a short distance, it substantially increased the risk of harm to N.D. by moving her off the public path. In contrast, there was no evidence in the record that Bondsteel moved K.D. at all. Because the evidence on the second-degree kidnapping conviction of K.D. was insufficient, this conviction was reversed and the accompanying sentence was vacated.

Finally, Bondsteel argued that the judgments must be reversed because the prosecutors misrepresented the nature of DNA evidence during closing argument. Bondsteel’s counsel did not object to the arguments at trial, and there was either support in the record for the prosecutor’s arguments or there was a lack of evidence in the record that defense counsel’s failure to object was tactical instead of inadvertent. Therefore, reversal was not required.

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2015 COA 166. No. 12CA2538. People v. Guzman-Rincon.

Sixth Amendment—Fourteenth Amendment—Jury—Ex ParteCommunications.


The victim and her friends were standing across the street from Aurora Central High School when a vehicle drove by, made a U-turn, and drove back toward the group. A passenger from the vehicle then fired a single shot from the car. The bullet struck the victim in the spine, paralyzing her. A jury found him guilty of six counts of attempted extreme indifference murder (crime of violence).

During trial, the prosecutors requested ex partecommunications with the judge to inform him that the investigating officer on the case had been contacted by a confidential informant, who warned the prosecutors that defendant or defense counsel had leaked information about witness interviews to defendant’s family and that gang members viewed the interviews. The court determined there were credible threats against the witnesses, investigating officer, prosecutor, and jurors. The court sequestered the jury based on this information; however, the court did not inform defendant’s counsel or the jury that the sequestration was based on a credible threat. During deliberations, the jury questioned the court about their safety, and the court informed the jury of the threat outside the presence of defendant.

On appeal, defendant contended that the court’s ex partecommunications with the prosecutors and the jurors violated his Sixth Amendment right to counsel and Fourteenth Amendment right to be present at all critical stages of his trial. Because a defendant is entitled to counsel and to be present at every critical stage of the proceedings, and the court’s discussions with the prosecutors and the jurors constituted critical stages, defendant’s Sixth Amendment right to counsel and his Fourteenth Amendment right to be present were violated. Because the court could not conclude that these errors were harmless beyond a reasonable doubt, reversal was required.



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2015 COA 167. No. 14CA0063. Rogers v. Forest City Stapleton, Inc.

Implied Warranty of Suitability—Developer—Homeowner—Vacant Lot—Nuisance—Sanctions—Discovery Violation.

Defendants (collectively, Forest City) served as the master developer for the redevelopment of the old Stapleton International Airport. Forest City sold the vacant residential lot at issue here to a homebuilder, with which plaintiff Rogers contracted to build a home. Rogers paid the builder an extra fee to include a basement that could later be finished. After learning that his lot was not suitable for a home with a basement that could be finished, Rogers brought claims for breach of implied warranty, nuisance, and negligent misrepresentation.

On appeal, Forest City argued that the trial court erred by instructing the jury that it could find that an implied warranty runs from a developer to a homeowner under the circumstances of this case. An implied warranty of suitability exists between a developer of a vacant lot and the owner of a home on that lot who is not the first purchaser if (1) the developer improves the lot for a particular purpose, and (2) all subsequent purchasers rely on the developer’s skill or expertise in improving the lot for that particular purpose. Here, the trial court did not adequately instruct the jury on this law. Consequently, the judgment was reversed and the case was remanded for a new trial on the implied warranty claim.

Forest City also argued that the trial court erred in denying its motion for judgment notwithstanding the verdict on Rogers’s nuisance claim, arguing that there was insufficient evidence to support the nuisance verdict as a matter of law. Because the jury was instructed that Forest City placing RABC in the roads was a necessary element of the nuisance claim, and the record reveals no evidence that Forest City placed RABC, or anything else, in the roads in Stapleton, the evidence was insufficient to support the jury’s nuisance verdict. The trial court therefore erred by denying Forest City judgment notwithstanding the verdict on that claim pursuant to CRCP 59(e)(1).

Rogers argued that the trial court erred in the amount of sanctions awarded to Rogers and against Forest City’s counsel for the late disclosure of discovery documents. Because the trial court found that (1) the late disclosed documents were of “slight use” to Rogers, (2) Forest City’s counsel acted with “candor and professionalism,” and (3) the violation was an unintentional “oversight,” the trial court acted within its broad discretion by awarding only $10,000 of the $90,000 that Rogers requested.

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