June 28, 2018
2018 COA 88. No. 15CA0352, People v. Wambolt
2018 COA 89. No. 2016CA1010 — Crimes — Forgery
Defendant worked as a certified nursing assistant for Interim Healthcare (Interim), which provides in-home care to patients. In 2015, Interim assigned defendant to care for Moseley five days a week for two hours each day. Even though defendant had failed to show for her shift for three weeks, she had submitted weekly shift charts to receive payment for the preceding three weeks. The shift charts showed Moseley’s purported signatures acknowledging that defendant had arrived for her shifts. A jury convicted defendant of forgery, and the court sentenced her to two years’ probation.
On appeal, defendant contended that the trial court erred when it failed, on its own motion, to require the prosecution to elect a single forged shift chart as the basis for the conviction or to give a modified unanimity instruction. The People argued that defendant waived this issue by failing to object to the information under Crim. P. 12(b)(2) and (3), which requires a defendant to raise defenses or objections to an information and complaint within 21 days following arraignment. Colorado law is clear that Rule 12(b) does not require a defendant to object when the error stems from circumstances that are not apparent from the charging document. Here, on its face the charge does not evidence a defect, so Crim. P. 12(b)(2) does not apply. The unanimity issue arose only after the prosecution decided to introduce three different written instruments for the period charged. Therefore, defendant did not waive her claim.
The Court of Appeals determined that the prosecution’s evidence presented a reasonable likelihood that the jurors may have disagreed on which shift chart constituted the forgery charged. Thus, the court should either have (1) required the prosecution to elect an act on which it relied for a conviction, or (2) instructed the jury that to convict, it had to unanimously agree on the act committed or unanimously agree that defendant committed all of the acts. This error was substantial and obvious.
The conviction was reversed and the case was remanded for a new trial.
2018 COA 90. No. 16CA1787, People v. McCulley
Defendant pleaded guilty to one count of second degree sexual assault and one count of third degree sexual assault and entered into a plea agreement. Among other things, the plea agreement provided that the trial court would dismiss the felony charge once defendant complied with his deferred judgment. A condition of the deferred judgment was that defendant register as a sex offender pursuant to the Colorado Sex Offender Registration Act (SORA). Defendant completed his deferred judgment and the felony charge was dismissed. Years later, defendant filed a petition to discontinue the requirement that he register as a sex offender. The trial court denied the motion.
On appeal, defendant argued that the trial court erred by construing the term “conviction” under SORA to include a successfully completed deferred judgment. SORA’s plain language provides that the term “conviction” as used in CRS § 16-22-113(3)(c) includes a successfully completed deferred judgment.
The order was affirmed.
2018 COA 91. No. 17CA0341 Children’s Hospital Colorado v. Property Tax Administrator and Colorado Board of Assessment Appeals
Children’s Hospital Colorado (the Hospital) owns and operates a child care facility (the Center) on the University of Colorado Anschutz Medical School (CU Anschutz) campus. The Center provides child care to constituents of the Hospital and CU Anschutz as an employee benefit. The Center has a written tuition assistance policy that gives all families with an income below 150% of the federal poverty level a flat 10% discount. It also provides a flat 5% discount for siblings of enrolled children, regardless of the family’s income. The Hospital filed an application for exemption from property tax for the Center, which the Division of Property Tax considered under the charitable purposes exemption, CRS § 39-3-108(1)(a), and an exemption for qualified child care centers, CRS § 39-3-110. The Property Tax Administrator denied the application, and the Board of Assessment Appeals (BAA) upheld the order.
On appeal, the Hospital argued that the BAA exceeded its authority in interpreting CRS § 39-3-110(1)(e) to conclude that the Center’s tuition discount policy did not qualify the Center for an exemption under that section. It argued that the BAA misinterpreted the rule regarding the definition of “charges on the basis of ability to pay.” CRS § 39-3-110(1)(e) requires that the Center charge for its services based on the recipient’s ability to pay. Here, the family tuition reduction policy was based solely on whether a family’s income falls above or below the federal poverty line; it was not a scale that provides a range of tuition options, and it did not account for more than one factor in determining a family’s ability to pay. Similarly, the sibling discount is provided regardless of income or another factor indicating ability to pay. The BAA properly interpreted CRS § 39-3-110(1)(e) to conclude that the Center’s tuition discount policy did not qualify as offering services “on the basis of ability to pay.”
The Hospital also contended that the BAA erred by finding that the Center is not operated for strictly charitable purposes. Here, the Center was operating for a business purpose,providing an employee benefit and recruitment tool,and not for a charitable purpose. Additionally, the Center did not benefit an indefinite number of persons and did not lessen the burdens of government. Therefore, it was not operated strictly for charitable purposes, as required by CRS§ 39-3-108(1).
The order was affirmed.
2018 COA 92. No. 17CA0793, Falcon Broadband, Inc., v. Banning Lewis Ranch Metropolitan District No. 1
Falcon Broadband, Inc. (Falcon) signed a contract, the “Bulk Services Agreement” (BSA), with Banning Lewis Ranch Metropolitan District No. 1 (the District) to provide Internet and cable services to Banning Lewis Ranch area residents. Under the BSA, the District granted Falcon the exclusive right to provide Internet and cable services to residents for a monthly per-resident fee. The BSA states that it remains in effect until 2,700 homes in the development are occupied, which hasn’t yet occurred. The District later disavowed the BSA, stopped paying Falcon, and stopped collecting fees from residents. Falcon sued the District, its directors, and Oakwood Homes, LLC (the developer) and related Oakwood entities (collectively, Oakwood). The district court dismissed Falcon’s complaint in part as barred by the Colorado Governmental Immunity Act (CGIA) and granted summary judgment in defendants’ favor on the remaining claims not subject to dismissal under the CGIA.
On appeal, Falcon contended that the district court erred in its application of the CGIA and in granting summary judgment. It is undisputed that the District is a public entity within the meaning and protection of the CGIA. Thus, the district court properly dismissed the civil conspiracy claim against the District because that claim is undeniably a tort claim. However, the court improperly dismissed the unjust enrichment and promissory estoppel claims as sounding in tort because they were grounded in contracts; the district court should have granted summary judgment to the District on these claims. The district court properly granted the District summary judgment on the breach of contract, breach of implied covenant of good faith and fair dealing, and declaratory judgment claims. The District directors are also protected by the CGIA, and the district court should have dismissed the claims against them. All of the Oakwood entities are private associations; thus, the district court erred in dismissing some claims against Oakwood under the CGIA.
Falcon also contended that the district court erred by determining that the BSA is void and by entering summary judgment on its tortious interference and civil conspiracy claims regardless of the BSA’s validity. The BSA is void under CRS § 29-1-110 because it is a multi-year contract that does not provide that the obligation to pay is subject to annual appropriations. Because all of Falcon’s claims are premised on the BSA’s validity, only its unjust enrichment claim against Oakwood survives.
The District and the directors cross-appealed, arguing that the court erred by failing to award them attorney fees under CRS § 13-17-201. Because the gist of Falcon’s action against the District was the District’s failure to perform the BSA, not its commission of any tort, and those claims were dismissed on summary judgment, the District is not entitled to fees. On the other hand, the only claims Falcon brought against the directors were tort claims. Because Falcon’s entire action against the directors should have been dismissed under CRCP 12(b)(1) as tort claims barred by the CGIA, the directors are entitled to an award of their reasonable attorney fees under CRS § 13-17-201. The directors are also entitled to an award of their reasonable attorney fees incurred in their successful appeal under CRS § 13-17-201.
The judgment was affirmed on all claims except Falcon’s unjust enrichment claim against Oakwood, which was reversed. The district court’s denial of the District’s request for attorney fees was affirmed. The district court’s denial of the directors’ request for attorney fees was reversed and the case was remanded to determine those fees.
2018 COA 93. No. 17CA1936, City of Boulder v. ICAO
A firefighter worked for the City of Boulder’s fire department for 35 years. After he retired, a doctor discovered he had squamous cell carcinoma in his tongue. He filed a claim for workers’ compensation benefits under CRS § 8-41-209 (section 209). Section 209 creates a presumption that certain cancers are compensable if stricken firefighters meet certain criteria. But it does not impose strict liability on fire departments or cities; rather, the presumption may be overcome by showing that a firefighter’s cancer “did not occur on the job.”
The City challenged the firefighter’s claim. It maintained that human papillomavirus 16/18 was the more likely cause of his cancer and retained an expert that opined that was the case. The firefighter offered testimony from his own expert refuting the City’s expert. Based on the evidence, the administrative law judge (ALJ) decided the cancer was compensable and awarded the firefighter benefits. A panel of the Industrial Claim Appeals Office (Panel) affirmed, finding that substantial evidence supported the ALJ’s findings and conclusions.
On appeal, the City argued it had proved it was more likely that the virus had caused the firefighter’s cancer than other, more attenuated, risks. It further contended that by accepting the “multifactorial” or “combination” of causes advanced by the firefighter’s experts, the ALJ misinterpreted a trio of Colorado Supreme Court cases that had analyzed section 209 (the trio of cases). The City maintained that the trio of cases requires ALJs to “weigh and rank the risk factors to determine whether the employer showed by a preponderance of the evidence that a non-occupational risk factor was the greater or higher risk factor in the firefighter’s cancer.” The trio of cases does not mandate that ALJs rank firefighters’ cancer risks, nor does it preclude consideration of multifactorial causes of cancer. Rather, the cases emphasize that an employer can overcome the presumption by establishing the prevalence of non-work-related-factors. But this does not automatically rebut the section 209 presumption because the determination of whether an employer has met its burden is within the fact-finder’s discretion. Substantial evidence supported the ALJ’s factual findings, and the Panel did not err.
The order was affirmed.