Construction Defects—Statute of Repose—Statute of Limitations.

In this case, the Supreme Court considered the parameters for timeliness of third-party claims in construction defect cases. The Court concluded that such claims are timely, irrespective of both the two-year statute of limitations in CRS § 13-80-102 and the six-year statute of repose in CRS § 13-80-104(1)(a), so long as they are brought at before the 90-day time frame outlined in CRS § 13-80-104(1)(b)(II). Accordingly, the Court made its rule to show cause absolute.

Tort—Respondeat Superior Liability—Direct Negligence.

In this original proceeding under CAR 21, the Supreme Court reviewed trial court orders dismissing plaintiff’s direct negligence claims against an employer that acknowledged vicarious liability for its employee’s negligence, and denying plaintiff’s motion for leave to amend her complaint to add exemplary damages against the employer and the employee. The Court adopted the rule articulated in McHaffie v. Bunch, 891 S.W.2d 19 822 (Mo. 1995), which held that an employer’s admission of vicarious liability for an employee’s negligence bars a plaintiff’s direct negligence claims against the employer. The Court declined to adopt an exception to this rule where the plaintiff seeks exemplary damages against the employer. The Court concluded that the trial court did not err in dismissing plaintiff’s direct negligence claims against the employer or in denying plaintiff’s motion for leave to amend the complaint to add exemplary damages. The Court therefore affirmed the trial court orders and discharged the rule to show cause.

Plain Error Review—Double Jeopardy—Lesser Included Offenses.

In these four cases, which raise the ultimate question of whether driving under the influence (DUI) is a lesser included offense of either vehicular assault—DUI or vehicular homicide—DUI, the Supreme Court addressed (1) whether a double jeopardy claim can be raised for the first time on direct appeal, and (2) what test courts should apply in evaluating whether one offense is a lesser included offense of another. The Court concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error. In so holding, the Court rejected the People’s contention that defendants waive their double jeopardy claims unless they raise them at trial through a Crim. P. 12(b)(2) challenge to defective charging documents. The Court further concluded that the applicable test for determining whether one offense is a lesser included offense of another is the strict elements test articulated in Schmuck v. United States, 489 U.S. 705, 716 (1989).

Under this test, an offense is a lesser included offense of another offense if the elements of the lesser offense are a subset of the elements of the greater offense, such that the lesser offense contains only elements that are also included in the elements of the greater offense. Applying this test to the cases before it, the Court concluded that DUI is a lesser included offense of both vehicular assault—DUI and vehicular homicide—DUI, and thus, defendants’ DUI convictions must merge into the greater offenses. The Court further concluded that in not merging such offenses, the trial courts plainly erred and that reversal of the multiplicitous convictions is therefore required. Accordingly, the Court affirmed the divisions’ rulings in People v. Reyna-Abarca, No. 10CA637 (Colo.App. Aug. 1, 2013), and People v. Hill, No. 12CA168 (Colo.App. Aug. 8, 2013), that appellate courts review unpreserved double jeopardy claims for plain error, but reversed the portions of the judgments in those cases concluding that DUI is not a lesser included offense of vehicular assault—DUI, and remanded for further proceedings consistent with the opinion. Similarly, the Court reversed the portion of the judgment in People v. Medrano-Bustamante, 2013 COA 139, ___ P.3d ___, concluding that DUI is not a lesser included offense of vehicular assault—DUI and vehicular homicide—DUI, and remanded for further proceedings. The Court affirmed the judgments in those cases in all other respects, and affirmed in full the judgment in People v. Smoots, 2013 COA 152, ___ P.3d ___.

Plain Error Review—Double Jeopardy—Lesser Included Offenses.

In this case, the Supreme Court reviewed two issues: (1) whether a double jeopardy claim can be raised for the first time on appeal, and (2) whether defendant Scott’s convictions for both aggravated robbery-menaced with a deadly weapon (“aggravated robbery-menaced victim”) and menacing amounted to plain error. In light of the Supreme Court’s opinion in Reyna-Abarca v. People, 2017 CO 15, ___ P.3d ___, also decided on February 27, the Court concluded here, contrary to the division majority below, People v. Scott, No. 08CA2327 (Colo.App. Nov. 8, 2012), that unpreserved double jeopardy claims can be raised for the first time on appeal and that courts should ordinarily review such claims for plain error. The Court further concluded, however, that in the circumstances presented here, any error that might have occurred when the trial court entered judgment on Scott’s convictions for both aggravated robbery-menaced victim and menacing was not obvious, and thus did not amount to plain error.

Plain Error Review—Double Jeopardy—Lesser Included Offenses.

In this case, the Supreme Court addressed (1) whether a defendant may raise his or her unpreserved double jeopardy claim for the first time on appeal and, if so, what standard of review applies, and (2) whether driving under revocation (DUR) is a lesser included offense of aggravated driving after revocation prohibited (aggravated DARP). In Reyna-Abarca v. People, 2017 CO 15, ¶¶ 2–3, ___ P.3d ___, also decided on February 27, the Court (1) concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error and (2) clarified the applicable test to be employed in determining whether one offense is a lesser included offense of another. Applying those rulings here, the Court concluded that the division in Zubiate v. People, 2013 COA 69, ___ P.3d ___, correctly (1) conducted plain error review of Zubiate’s unpreserved double jeopardy claim, and (2) determined that DUR is not a lesser included offense of aggravated DARP, although the Court’s analysis differs somewhat from that of the division. Accordingly, the Court affirmed the judgment of the Court of Appeals.

Plain Error Review—Double Jeopardy.

These two cases present the issues of whether double jeopardy claims can be raised for the first time on direct appeal and, if so, what standard of review applies. The Supreme Court addressed the same issues in four cases also decided on February 27 (consolidated as Reyna-Abarca v. People, 2017 CO 15, ___ P.3d ___). There, the Court concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error. Applying that ruling here, the Court concluded that the divisions in People v. Zadra, 2013 COA 140, ___ P.3d ___, and People v. Adams, No. 12CA339 (Colo.App. Mar. 12, 2015), correctly conducted plain error review of defendants’ unpreserved double jeopardy claims and merged certain of defendants’ convictions. Accordingly, the Court affirmed the judgments in both cases.