Defendant allegedly beat the victim unconscious and took items from his pockets. Defendant was convicted of robbery and theft from the person of another.

On appeal, Delgado argued that his conviction should be reversed because the trial court erred in finding that there could be simultaneous convictions for robbery and theft from the person of another for the same act. On the one hand, robbery requires that a person take “by the use of force.” On the other, theft from the person of another requires that a person take “by means other than the use of force.” Because the force elements of robbery and theft from the person of another negate each other, guilty verdicts on both are legally and logically inconsistent. 

Defendant also contended that he was acquitted of both crimes because “each verdict included a jury finding that effected an acquittal on the other count.” The Court of Appeals determined that the proper remedy when guilty verdicts are legally and logically inconsistent is to remand for a new trial so a jury can determine which conviction the evidence supports. 

The judgment and sentence were reversed and the case was remanded for trial.

Defendant was convicted of two counts of aggravated robbery and two counts each of felony murder and murder after deliberation. Defendant spent the next several years filing postconviction motions and appeals through a succession of private attorneys. He also filed a pro se Crim. P. 35(c) motion for postconviction relief raising numerous claims, including ineffective assistance of counsel. About 24 years after trial and 12 years after defendant filed his original Crim. P. 35(c) motion, the court denied the motion. 

On appeal, defendant argued that the court erred in concluding that the proper remedy for the 12-year delay in resolving his postconviction claims, which violated his right to due process, was to finally address his Crim. P. 35(c) motion, rather than grant him a new trial. The Court of Appeals employed a four-part balancing test that considers (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) whether the defendant suffered prejudice as a result of the delay. The length of the delay must be presumptively prejudicial to the defendant before further inquiry into the other factors is warranted. The Court concluded that the 12-year delay was presumptively prejudicial. Regarding the second factor, any negligence of defendant’s counsel is attributable to him, even though his attorneys were appointed by the court. The third factor weighed in defendant’s favor. However, defendant did not demonstrate prejudice resulting from the delay sufficient to establish a due process violation. The proper remedy for the delay was to address the Crim. P. 35(c) motion rather than grant a new trial.

Defendant next argued that the court erroneously denied his motion for postconviction relief. The record shows that defendant did not suffer prejudice as a result of any alleged ineffective assistance of trial counsel. 

Lastly, defendant contended that the court erred in finding that he validly waived his right to testify at trial. Although defendant initially decided to testify, he was again given the proper advisement when he decided not to testify hours later, and he remained firm in his decision to forgo testifying. Therefore, defendant’s waiver was voluntary, knowing, and intelligent.

The order was affirmed.

Sieck drove Przekurat home from a party in Przekurat’s car. Sieck, who was highly intoxicated at the time of the accident and was under 21 years old, drove at speeds in excess of 100 miles per hour before losing control of the car and colliding with an embankment. Przekurat sustained catastrophic injuries, including brain damage. Przekurat’s father sued the four hosts of the party, claiming they “knowingly provided [Sieck] a place to consume an alcoholic beverage” and thus were liable for his damages under the 2005 amendments to the Dram Shop Act. The trial court granted the hosts’ summary judgment motion.

On appeal, Przekurat argued that the district court erred when it held that CRS § 12-47-801(4)(a)(I) of the Dram Shop Act requires actual knowledge of two separate elements: (1) that the defendant provided a place for the consumption of alcohol by a person under the age of 21, and (2) that the defendant knew that the person who consumed alcohol at that place was under age 21. The statutory requirement of “knowingly” applies to all of the elements of liability under the 2005 amendments. Therefore, the trial court correctly construed the 2005 amendments and also correctly determined that Przekurat failed to demonstrate a disputed issue of material fact regarding the hosts’ knowledge that Sieck was underage and was drinking at the party. 

Przekurat next argued that the district court’s summary judgment must be reversed because he offered abundant evidence that the hosts knew that they were hosting an “open” party and providing a venue to underage guests, including Sieck, to drink indiscriminately. Although circumstantial evidence is admissible to prove knowledge under the statute, Przekurat did not offer any evidence, circumstantial or direct, that would permit a reasonable inference that any of the hosts knew Sieck, much less that they knew his age, or that Sieck appeared to be obviously underage. 

The judgment was affirmed.

Antero Resources Piceance Corporation (Antero), an oil and gas exploration and production company, received approval from the Colorado Oil and Gas Conservation Commission (the Commission) to establish a drilling and spacing unit to produce oil and gas. Antero wanted to produce oil and gas underlying Grant Brothers Ranch, LLC’s (Grant Brothers) property, which was within the unit, but Grant Brothers refused Antero’s offer to lease the minerals or participate in their production. Antero then requested that the Commission pool all nonconsenting interests in the unit and allow Antero to produce and sell the oil and gas of the nonconsenting owners. Following a hearing, the Commission granted the request. A year and a half later, to produce from a deeper formation, Antero sought to establish a new unit within the same lands. Again, Antero asked Grant Brothers to participate in their production, and Grant Brothers refused. Following objection by Grant Brothers and a hearing, the Commission granted this request and issued an order pooling all nonconsenting interests in the second unit. Pursuant to these pooling orders, Grant Brothers was entitled to receive its interest in the proceeds from the production and sale of oil and gas from wells in the units after the wells reached “payout.” Antero was required to furnish Grant Brothers monthly statements concerning its costs and proceeds.

Three years after the second order, Grant Brothers asked Antero for permission to audit its books and records regarding the wells. Antero refused, stating it had been sending Grant Brothers the required monthly statements.

On appeal, Grant Brothers argued that the district court improperly granted summary judgment because Grant Brothers was not required under the Act to exhaust its administrative remedies. The Court of Appeals noted that because the district court had not resolved a number of factual disputes and resolved Antero’s motion solely on the basis that the court lacked subject matter jurisdiction, the summary judgment motion was more properly characterized as a motion to dismiss for lack of subject matter jurisdiction under CRCP 12(b)(1) and it therefore treated it as such.

First, Grant Brothers’ claim was one for payment of proceeds under CRS §§ 34-60-116 and -118.5. Grant Brothers is entitled to receive payment only if and when payout occurs. Primary jurisdiction to make this determination rests with the Commission. Second, because there was no contract between the parties, Grant Brothers needed to first submit a written request for payment. If there is a payment dispute, Grant Brothers may request a hearing before the Commission, whose order would then be appealable to the courts. Third, the Act’s language and structure indicate that a proceeding before the Commission is the primary remedy for nonconsenting owners’ claims for the payment of proceeds when there is no contract between the parties. Grant Brothers was required to exhaust its administrative remedies and because it did not do so prior to filing suit in the district court, the court properly dismissed the action. 

Grant Brothers also contended that the district court erred in dismissing its claim with prejudice solely on the basis that the court lacked subject matter jurisdiction. A dismissal under CRCP 12(b)(1) does not adjudicate the merits, but results from the court lacking the power to hear the claims asserted. Thus the dismissal is necessarily without prejudice. 

The judgment was affirmed in part and reversed in part, and the case was remanded with directions. 

Design—Trade Secret—Conversion—Defense—Waiver—Standing—Breach of Contract.

Hawg Tools, LLC (Hawg) rents mud motors to oil and gas drilling companies. Newsco International Energy Services, Inc. (Newsco) uses mud motors to provide drilling services. Gallagher owned Hawg. Before he formed this company, he operated a similar business called New Venture. In 2008 Gallagher asked a machinist to manufacture sealed bearing packs for use in New Venture’s mud motors. The machinist arranged for a designer, defendant Ficken, to design the sealed bearing packs for the machinist as a favor. The designer assigned his rights in the design to the machinist, who assigned them to Gallagher for compensation. Gallagher later assigned the rights to Hawg. The designer later designed a sealing bearing pack for Newsco. After determining that the Newsco design was similar to the Hawg design, Gallagher filed this lawsuit alleging (1) misappropriation of a trade secret concerning the design of a sealed bearing pack, (2) conversion of a trade secret, and (3) breach of contract. The trial court entered judgment in favor of plaintiff. The trial court denied defendants motions for directed verdict and judgment notwithstanding the verdict.

On appeal, defendants contended that the trial court erred when it denied their motions for directed verdict and judgment notwithstanding the verdict on Hawg’s claim for misappropriation of a trade secret. CRS § 7-74-102(4) defines a trade secret as “the whole or any portion . . . of any . . . design . . . which is secret and of value.” To determine whether a trade secret exists, the fact finder considers (among other thing) the extent to which the information is known outside the business. Here, Hawg did not establish that its design, in whole or in part, was substantially different from designs that were publicly available at the time of its creation. The Court of Appeals concluded that (1) the record does not support a conclusion that the Hawg design was secret and (2) the record does not contain sufficient evidence to support the trial court’s decision to deny defendants’ motions for a directed verdict and for judgment notwithstanding the verdict.

Defendants also contended that the trial court erred when it denied their motion for judgment notwithstanding the verdict on Hawg’s conversion claim, asserting that the Uniform Trade Secrets Act preempts claims for conversion of trade secrets. This was a preemption defense based on choice of law, which defendants waived because they raised it for the first time in their motion for judgment notwithstanding the verdict. 

Ficken appealed the judgment against him on Hawg’s breach of contract claim, contending that the trial court erred when it rejected his assertion that Hawg lacks standing to bring suit against him for breach of contract based on his violation of a confidentiality agreement. Here, the designer and the machinist entered into an assignment agreement with Gallagher. Later, Gallagher fully assigned his rights under this agreement to Hawg. Therefore, Hawg had standing to bring suit for breach of that agreement.

The judgment on Hawg’s claim for misappropriation of a trade secret was reversed and the case was remanded for the trial court to enter judgment in favor of defendants on that claim and to vacate the award of damages on that claim. The judgment on Hawg’s claims for conversion and breach of contract were affirmed.