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Colorado Court of Appeals Opinions
January 17, 2013

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

2013 COA 1. No. 08CA1231. People v. Fuentes-Espinoza.
Human Smuggling—Federal Immigration Laws—Intent—Evidence—Prosecutorial Misconduct.

Defendant appealed the judgment of conviction entered against him after being found guilty of transporting seven passengers in violation of Colorado’s human smuggling statute, CRS § 18-13-128. The judgment was affirmed.

Defendant argued that Colorado’s human smuggling statute is preempted by federal law. However, the Court of Appeals would not consider the unpreserved constitutional attack on the statute in this case involving substantive preemption.

Defendant argued that Colorado’s human smuggling statute requires the prosecution to prove that the person to be transported violated federal immigration laws. Here, none of the alleged passengers was available to testify at trial, and the prosecution did not establish whether any of them was illegally present in the United States. However, the prosecution must prove only that the defendant had “the purpose of assisting another personto enter, remain in, or travel through the United States or the state of Colorado in violation of immigration laws.” Because the statute’s focus is on the defendant’s intent, the prosecution is not required to prove that the defendant’s passenger or intended passenger was illegally present in the United States or Colorado, in violation of immigration laws.

Defendant contended that the evidence was insufficient to support his convictions because it did not establish that he transported any of the persons named in the complaint. Defendant and the seven alleged passengers were taken into custody outside a gas station and convenience store. There was sufficient evidence that the seven persons named in the complaint were traveling together in defendant’s van, which supported defendant’s conviction.

Defendant also contended that the trial court erred by allowing the arresting officer to testify that, when the seventh alleged passenger approached, the officer “found out that he was a passenger.” There was no reasonable probability that defendant was prejudiced by the admission of the officer’s statement, because there was sufficient evidence to support defendant’s convictions as to the seventh passenger. Therefore, any error was harmless.

Defendant also contended that reversal was required because the prosecutor committed misconduct in closing argument by suggesting that defendant lied to police. Although the prosecutor used the word “lie” in his closing argument, he was characterizing defendant’s contradictory statements. Thus, any such error was harmless.

2013 COA 10. No. 12CA0644. Averyt v. Wal-Mart Stores, Inc.
Post-Judgment Interest Rate Personal Injury Tort Case.

In general, if a plaintiff obtains a money judgment in a personal injury tort case, CRS § 13-21-101(1) requires the trial court to add post-judgment interest to the amount of damages the jury awards, at the rate of 9%, compounded annually. However, if the judgment debtor appeals the money judgment, then the court must calculate post-judgment interest at a market-determined rate. This appeal raised the question of whether the exception applies when the judgment creditor—here, the plaintiff—appeals after (1) the jury has awarded the plaintiff money damages; (2) the trial court enters judgment in plaintiff’s favor; (3) the judgment debtor—here, the defendant—files a motion for a new trial; and (4) the trial court grants the defendant’s motion for a new trial and vacates the judgment. In this case, the applicability of the exception is particularly meaningful because the post-judgment interest rate established by the general rule is much higher than the market determined rate (9% versus 3%). The Court of Appeals held that the exception did not apply and affirmed the trial court’s judgment.

Holly Averyt drove a commercial truck. She slipped and fell on grease-coated ice on a loading dock when she was making a delivery to Wal-Mart Stores, Inc. (Wal-Mart). The fall ruptured a disc in her spine and injured her shoulder and neck, rendering her unable to do her job and unable to control her bladder or bowel.

Averyt sued Wal-Mart for negligence and premises liability. The jury returned a verdict in her favor, assessing total damages at $15 million. In December 2010, the trial court entered judgment and reduced the damages to $9,866,250 to reflect the statutory cap on noneconomic damages. Wal-Mart moved for a new trial based on an evidentiary issue, and the motion was granted. Averyt sought relief in the Supreme Court under CAR 21. The Supreme Court reversed the trial court’s order granting Wal-Mart a new trial.

In February 2012, the trial court entered judgment for the driver in the amount of $9,866,250, pre-judgment interest in the amount of $2,794,788.47, and costs of roughly $45,000. It also awarded post-judgment interest at the statutory rate of 9%, accruing from December 1, 2010 and compounding annually until the judgment was satisfied. Wal-Mart appealed.

Wal-Mart argued that the premises liability verdict was not supported by sufficient evidence. However, the Court found sufficient facts in the record to support the verdict.

Wal-Mart also argued that the market-based interest rate of 3% should apply. It contended that the trial court should have treated Averyt’s CAR 21 original proceeding after the trial court vacated the judgment (an appeal by the judgment creditor) like an appeal by a judgment debtor for the purposes of determining the rate of post-judgment interest. The Court disagreed. CRS § 13-21-101(1) refers only to judgment debtors, not to judgment creditors. The 9% rate was affirmed.

Averyt contended that she should be awarded attorney fees because Wal-Mart’s appeal was frivolous. The Court disagreed. The appeal was not frivolous because there was a basis for Wal-Mart’s argument.

2013 COA 2. No. 09CA2533. People v. Fleischacker.
Sexual Assault on a Child—Challenge for Cause—CRS § 16-10-103(1)(b)—Double Jeopardy.

Defendant appealed the judgment of conviction entered against him after a jury found him guilty of sexual assault on a child, position of trust; sexual assault on a child, pattern of abuse; and sexual assault on a child. The judgment was affirmed.

Defendant contended that the trial court erred in denying his challenge for cause against Juror G. Juror G told the court that he had worked in law enforcement for four-and-a-half years; that his daughter was a paralegal at the district attorney’s office; that his son worked for the Denver sheriff’s office; and that his son-in-law was a parole officer. He also stated that the prosecuting attorney had attended his daughter’s wedding the previous month. CRS § 16-10-103(1)(b) does not require the disqualification of a prospective juror related within the third-degree to a paralegal working in a district attorney’s office. Because Juror G’s daughter was not an attorney, the trial court did not err in denying defendant’s challenge for cause under CRS § 16-10-103(1)(b). Further, the trial court did not abuse its discretion in finding that Juror G was not actually biased because of his numerous connections to law enforcement based on Juror G’s assurances to the court that he could hold the prosecution to its burden of proof and that he would be impartial to both sides.

Defendant also contended that the trial court erred in denying his challenge for cause against Juror J. Juror J’s daughter was sexually assaulted by his brother-in-law when she was approximately 15 years old. Based on Juror J’s assurances that he could be fair in this particular case, could listen to the court’s instructions, and could hold the prosecution to its burden of proof, the trial court did not abuse its discretion in denying defendant’s challenge for cause to Juror J.

Defendant also argued that his convictions for Counts 2 and 3 violated his right to be free from double jeopardy because they were predicated on the same factual basis. The evidence demonstrated that defendant was not convicted twice for the same offense because there were factually distinct incidents of sexual assault. The predicate act for Count 2 was defendant touching the victim’s buttocks with his hand, and the predicate act for Count 3 was touching the victim’s buttocks with defendant’s lap. Any clerical error on the verdict forms did not undermine the fundamental fairness of the trial. Accordingly, the convictions for those counts did not violate defendant’s right to be free from double jeopardy.

2013 COA 3. No. 10CA2188. People v. Carrillo.
Misdemeanor Unlawful Sexual Contact—Parole—Presentence Confinement Credit.

Defendant appealed the sentence imposed on the judgment of conviction entered following his guilty plea to misdemeanor unlawful sexual contact. The sentence was affirmed.

While defendant was on parole for another offense, police arrested him on suspicion of sexual assault and other offenses and booked him into the Pueblo County Jail. Unable to post bond, he remained there pending disposition of the charges. After defendant pleaded guilty to misdemeanor unlawful sexual contact, the court found that defendant was entitled to nineteen days of presentence confinement credit (PSCC) against his misdemeanor sentence at the sentencing hearing, even though defendant spent 274 days in presentence confinement.

Defendant contended that the trial court erred in awarding him only nineteen days of PSCC. In enacting CRS § 18-1.3-509, the General Assembly intended that credit for time served on misdemeanor offenses should be treated the same as credit for time served on felony offenses. Therefore, defendant was not entitled to credit against his new misdemeanor sentence for time served while on parole for a previous offense.

2013 COA 4. No. 11CA0241. People v. Corson.
Crim.P. 35(c)—Discovery—Evidence—Juvenile Adjudication—Witness—Non-Disclosure—Involuntary Guilty Plea—Exculpatory Evidence—Ineffective Counsel.

Defendant David Corson appealed the district court’s order denying his Crim.P. 35(c) motion for post-conviction relief, which alleged that the nondisclosure of the complaining witness’s juvenile adjudications rendered his plea invalid and his counsel ineffective. The order was reversed and the case was remanded. 

In 2001, Corson worked as a substance abuse counselor at a juvenile facility. K.B., a 17-year-old resident of the facility, alleged that Corson and she had engaged in a sexual relationship while she resided at the facility. After Corson pleaded guilty to sexual assault on a child by one in a position of trust, which was made in exchange for dismissal of the pattern of abuse count, Corson discovered evidence showing K.B. had previously made false allegations of sexual assault and had resulting juvenile adjudications for false reporting that the prosecution had not disclosed to the defense.

Corson contended that the district court erred in denying his motion, asserting that his guilty plea was unintelligent and involuntary because (1) the prosecution failed to comply with its discovery obligations, and (2) the prosecution made an affirmative misrepresentation regarding the existence of exculpatory evidence that induced this plea. He also contended that the prosecution’s nondisclosure of exculpatory evidence and its affirmative misrepresentation concerning its existence caused defense counsel to erroneously assess the case, rendering counsel ineffective. It is undisputed that the prosecution did not disclose to Corson evidence regarding K.B.’s juvenile adjudications. Because juvenile adjudications in a prosecution witness’s criminal history are discoverable and must be disclosed as part of the prosecution’s discovery obligations, the trial court erred in finding otherwise. Therefore, the trial court’s order was reversed and the case was remanded for the court to reevaluate Corson’s motion.

2013 COA 5. No. 11CA2184. People v. Hunsaker.
Crim.P. 35(b)—Sexual Assault on a Child—Crime of Violence—Presumptive Sentencing Range.

The People appealed the trial court’s order granting the Crim.P. 35(b) motion of defendant, who had been convicted of two sexual offenses that were subject to indeterminate sentencing under the Colorado Sex Offender Lifetime Supervision Act (Act). The order was reversed and the case was remanded with directions.

A jury convicted defendant of one count of sexual assault on a child, a class 4 felony, and one count of sexual assault on a child as part of a pattern of sexual abuse, a class 3 felony. On the first count, the trial court sentenced defendant to an indeterminate term of eight years to life imprisonment. On the second count, the trial court imposed an indeterminate sentence of sixteen years to life imprisonment. The maximum of the presumptive sentencing range for class 4 and class 3 felonies is six years and twelve years, respectively.

Although the prosecution conceded that the sentence on the first count was illegal, it contended that the post-conviction court erred by vacating defendant’s original sentence of sixteen years to life imprisonment on the conviction for sexual assault of a child as part of a pattern of abuse. Defendant argued that his original sentences were illegal, because the bottom end of each sentence improperly exceeded the maximum of the presumptive sentencing range for the respective class of felony. He contended that such bottom ends could be imposed only if the trial court expressly found that there were aggravating factors that supported a bottom end in the aggravated range. The bottom end of an indeterminate sentence for a sex offense that is also a crime of violence is intended to be imposed in the same manner and within the same strictures as a determinate sentence prescribed for any crime of violence: specifically, between the midpoint in, and twice the maximum of, the presumptive range for the applicable felony class. As a result, the prosecution is not required to prove aggravating factors before a court can impose a bottom end above the maximum of the presumptive range for the class 3 felony offense of sexual assault on a child as part of a pattern of abuse, which is a per se crime of violence.

2013 COA 6. No. 11CA2345. In re the Marriage of Krejci.
Dissolution of Marriage—Property Distribution—Child Support Calculation—Third-Party Donation to Marital Property—Underemployment—Dividends as Income.

Husband appealed from the property distribution provisions of permanent orders entered in connection with dissolution of his marriage to wife, as well as from findings concerning wife’s income for purposes of calculating child support. Wife conditionally cross-appealed from the property distribution. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Husband argued that the trial court erred by classifying the marital home as wife’s separate property to the extent that her mother contributed to the equity by paying off the mortgage during the marriage. When a spouse places separate property in joint ownership during the marriage, a presumption that the donor spouse intended a gift to the marriage arises, and the gifted property is presumed marital absent clear and convincing evidence to the contrary. Here, the parties purchased the marital home jointly during their marriage, and wife’s mother paid off the mortgage several years later. After the payoff, the mother signed a trust instrument that didn’t mention husband and described all previous gifts to wife as advances on her inheritance. The trial court found the funds were part of wife’s inheritance and therefore her separate property under CRS § 14-10-113(2)(a).

The novel issue in this case is whether the marital presumption applies to a gift by a third party that increases the value of a jointly-owned asset. The Court of Appeals concluded that such a gift is presumably a gift to the marriage, and this presumption can only be rebutted by clear and convincing evidence. Because the trial court did not apply this presumption, the case was remanded.

Husband also argued it was error to classify all of wife’s Merrill Lynch investment account, including the marital increase in value, as wife’s separate property. The Court agreed. Appreciation of a spouse’s separate property during the marriage is marital property subject to equitable division under CRS § 14-10-113(1). Here, during the marriage, wife deposited her inheritance from the estates of her mother and brother into the parties’ joint investment account. Husband later agreed to remove his name from this account. When his name was removed, the value was $323,978. At the date of the hearing, it was $517,545. Wife argued that $53,653 was marital increase based on the difference between her total inheritance ($463,892) and the value at the hearing. The trial court classified the entire account as wife’s separate property, explaining that the funds derived from her inheritance. The Court held this was not supported by the record. The trial court was instructed on remand to determine the marital increase in the value of the account and distribute that increase equitably.

Wife cross-appealed, arguing that the trial court erred in determining the marital increase in value of husband’s interest in Race Place, a real estate investment company. The Court disagreed, finding that wife presented no evidence or authority as to why the trial court erred or abused its discretion.

Husband contended that the trial court abused its discretion by failing to make findings as to whether wife was voluntarily underemployed. The Court agreed. On remand, the trial court must reconsider this issue and enter findings supporting its determination.

Husband further argued that the trial court abused its discretion by failing to include in wife’s income the dividends she earns on her investments. The Court agreed. Under CRS § 14-10-115(5)(a)(I)(F), a parent’s gross income for child support purposes includes dividends. On remand, the trial court must recalculate wife’s income to include dividends in an amount to be determined by the court.

2013 COA 7. No. 11CA2555. Stan Clauson Associates, Inc. v. Coleman Brothers Construction, LLC.
Summary Judgment—Negligence—Economic Loss Rule—Professional Standard of Care.

Defendants Coleman Brothers Construction, LLC and Coleman Ranch, LLC (collectively, Coleman) appealed the entry of summary judgment in favor of plaintiff Stan Clausen Associates Inc. (SCA) on their negligence counterclaims. The appeal was dismissed in part and the judgment was affirmed.

In a letter agreement dated August 21, 2006, SCA agreed to provide land planning and development services to Coleman regarding the Crown Mountain property. In early 2007, Coleman and SCA orally agreed that SCA would provide a development analysis for another property on Emma Road in Basalt. The district court concluded that the oral agreement contained the same terms as the 2006 letter agreement. This conclusion was not appealed.

In 2009, SCA sued Coleman for breach of the agreement regarding the Emma Road property. Coleman counterclaimed, alleging that SCA had negligently provided inaccurate advice about whether the Emma Road property could be subdivided and developed. The trial court granted SCA’s motion for summary judgment, concluding that the economic loss rule barred Coleman’s negligence counterclaims. The parties settled SCA’s claims against Coleman but stipulated that Coleman retained its negligence claims and could appeal the court’s dismissal.

Under the economic loss rule, “a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such breach absent an independent duty of care under tort law.” [Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256, 1264 (Colo. 2000).]Professionals are held to duties and standards of care independent of those established by contracts for their services. If a contract for professional services does not explicitly adopt the professional standard of care, fulfillment of that standard of care is a duty that is independent of the services agreement, and the economic loss rule will not bar a claim for breach of the professional duty. Coleman did not identify, and the Court could not find, a Colorado case holding a land planner to a professional standard of care.

Coleman argued that the agreement with SCA focused primarily on the financial relationship, billings, and payments, and not on SCA’s professional duty to Coleman. Therefore, Coleman contended that SCA had an independent duty to act without negligence in providing professional services. The trial court found no recognized common law duty of care owed by a land planner to anyone and found that SCA performed its tasks in good faith and to the best of its abilities.

The Court of Appeals concluded that SCA did not owe Coleman a duty independent of the agreement because land planning is not a profession that is held to an independent duty and standard of care under any Colorado statute or common law. The Court also found that the allegedly negligent actions of SCA provided a basis for a breach of contract claim and, therefore, there was no error in the trial court’s applying the economic loss rule to bar Coleman’s negligence counterclaims. The judgment was affirmed.

2013 COA 8. No. 12CA0345. TCF Equipment Finance, Inc. v. Public Trustee for the City and County of Denver.
Writ of Garnishment by Judgment Debtor on Public Trustee Foreclosure Funds.

The Public Trustee for the City and County of Denver (Public Trustee) appealed the trial court’s order upholding a writ of garnishment served by TCF Equipment Financial, Inc. (TCF) for the purposes of collecting on a judgment against a judgment debtor, Matthew Gold, whose property had been foreclosed on by the Public Trustee. The order was affirmed.

TCF obtained a judgment against Gold that was not satisfied. TCF seized Gold’s commercial equipment, which satisfied a portion of the judgment. A month before entry of judgment, Gold’s real property was foreclosed on by the mortgaging bank. The foreclosure sale yielded substantial excess funds. The redemption period expired, and the excess funds were held in escrow by the Public Trustee. The parties agree that TCF could not have filed a notice to redeem, or attempted to participate in the foreclosure sale, because the foreclosure predated the judgment. However, TCF sought to garnish the funds held by the Public Trustee before their return to Gold.

The Public Trustee argued that, pursuant to CRS § 38-38-111(2), the Public Trustee has a legal obligation to return any excess funds to the judgment debtor after the expiration of the redemption period. The trial court disagreed, finding the garnishment was for funds remaining after the foreclosure had been completed.

On appeal, the Public Trustee argued that during a foreclosure, a judgment creditor cannot use garnishment as a means to gain priority over a judgment debtor, because the foreclosure statute clearly specifies excess proceeds are to be distributed to the judgment debtor. The Court of Appeals disagreed. CRCP 103(13) provides for the garnishment of a public body, and CRCP 103(2)(a) spells out the garnishment procedure. TCF contended it is a judgment creditor and that CRS § 38-38-111(2) is not the sole method to recover excess funds generated from a foreclosure sale. The Court agreed, holding that a judgment creditor’s garnishment claim filed after the close of the redemption period in a foreclosure sale is not barred by the foreclosure statute.

The Court found that TCF was not a junior lienor in the foreclosure proceeding. However, once the Public Trustee determined that the overbid funds were to be paid to the owner, garnishment of those funds is outside the foreclosure procedure. The garnishment statute provides a mechanism for a judgment creditor to reach the judgment debtor’s assets possessed by a third party. If the legislature had intended to prohibit garnishment actions commenced after a foreclosure sale, it could have done so. The Court found no reason to treat the Public Trustee any differently than any other entity holding funds of a judgment debtor.

2013 COA 9. No. 12CA0500. Alpenhof, LLC v. City of Ouray.
Flooding Risk as Part of Zoning Code.

Plaintiff Alpenhof, LLC raised an unresolved question in Colorado: whether flooding risk from a diverted natural waterway channel involves either a “geologic condition” or a “natural hazard” within the meaning of a zoning code. The Court of Appeals concluded that it does and affirmed the trial court’s order.

Skyrocket Creek basin “is characterized by steep slopes averaging approximately 80% [in grade],” descending from an elevation of 10,400 feet to the City of Ouray (City) approximately 2,800 feet below. In 1929, to protect against historically severe flooding from cloudbursts and spring runoff, the City diverted the creek. It had previously drained south of what is now Alpenhof’s property. Since the diversion, it has flowed north of Alpenhof’s property.

In 1997, the city approved subdivision of most of the property as the Ouray Vista Subdivision. It is located in the alluvial fan of the creek. Parcel C, adjacent to the north diversionary channel, was not subdivided, but was marked on the plat for future possible development.

In January 2011, Alpenhof submitted the preliminary plat application to subdivide Parcel C. The Ouray Planning Commission conditionally approved it, provided that Alpenhof would mitigate potential damage from future floodwater and debris. Alpenhof requested approval by the City Council without the mitigation requirements. The City Council determined that mitigation could be required under § 7-7-D-10 of the Ouray City Code, titled “Natural Hazard Mitigation,” and the “broad discretion” granted by the note on the plat stating the parcel “may not be developed in any fashion until further approval” by the City. The application was denied for insufficient mitigation.

Alpenhof petitioned the district court for relief under CRCP 106(a)(4). The district court denied the claim and certified its order under CRCP 54(b).

Section 7-7-D-10 requires developers to mitigate hazards when “geologic conditions and/or natural hazards are indentified in the Engineering Geology Report that could adversely affect the development.” Alpenhof argued that because the City’s diversion channel altered the flow of the creek, the current erosion and flood risk to Parcel C cannot be considered “natural” under the section. The Court found that the hazard to Parcel C is necessarily intertwined with the natural features and geologic conditions of the area, particularly the steep descent from its headwaters.

In addition, Alpenhof’s contention runs afoul of the “broad authority [granted] to local governments to plan for and regulate the use of land within their respective jurisdictions.” The City Council made specific findings about the public safety risks associated with Parcel C and rightly concluded that the section allowed subdivision approval to be conditioned on mitigation of these risks. The Court found ample record support for the City Council’s decision and the order was affirmed.

Colorado Court of Appeals Opinions

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