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Colorado Court of Appeals Opinions
October 24, 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 139. No. 10CA0791. People v. Medrano-Bustamante.
Driving Under the Influence—Vehicular Homicide—Vehicular Assault—Leaving the Scene of an Accident—Lesser Included Offense—Testimony—Opinion Evidence—Expert Testimony—Hearsay.

Defendant appealed the judgment of conviction entered on jury verdicts involving multiple charges. The judgment and sentence were affirmed in part and vacated in part, and the case was remanded.

Defendant, Jose Medrano-Frias (Frias), and 15-year-old A.S. were involved in a single-car accident that injured Frias and resulted in the death of A.S. Defendant was charged with driving under the influence (DUI), vehicular homicide–DUI, vehicular assault–DUI, and two counts of leaving the scene of an accident. At trial, the identity of the driver was contested—defendant argued that A.S. had been driving. The jury convicted defendant as charged.

Defendant contended that the convictions based on two counts of leaving the scene of an accident, one for Frias and one for A.S., were multiplicitous. Because the unit of prosecution is the number of accident scenes and not the number of victims, defendant’s two convictions for leaving the scene of a single accident violated his right to be free from double jeopardy.

The Court of Appeals therefore ruled that the two convictions related to leaving the scene of an accident—one involving serious bodily injury and the other involving death—should be merged into one, and thus remanded to the trial court on this issue. The Court then vacated the imposed sentence regarding conviction for leaving the scene of an accident involving serious bodily injury.

The Court ordered that the mittimus be corrected based on its rulings. The judgment regarding all other issues in this case was affirmed.

2013 COA 140 No. 10CA1207. People v. Zadra.
Perjury—False Reporting—Official Misconduct—Discovery Violations—Motion to Suppress Statements—Verdict Forms—Multiplicitous—Double Jeopardy.

Defendant appealed the judgment of conviction entered on jury verdicts finding her guilty of three counts of official misconduct, one count of false reporting, and seven counts of perjury. She also appealed her sentence. The judgment and sentence were affirmed in part, reversed in part, and vacated in part.

There were ten contentions before the Court of Appeals. The Court affirmed on all counts except counts 9 and 10, which were merged into the conviction of count 6.

Defendant first contended that the district court erred by denying her counsel’s motions to dismiss the case as a sanction for the prosecution’s discovery violations. Because there was no evidence that the prosecution’s conduct was willful and a continuance was granted to allow defendant sufficient time to review the late discovery, the court did not abuse its discretion in denying defendant’s motion to dismiss the case.

Defendant contended that the district court erred by denying her motion to suppress statements she made in two interrogations. Defendant voluntarily came to the police station unescorted, signed a written consent for the polygraph examination, and was free to leave at any time. Therefore, the interrogation was not custodial and her statements were voluntary.

Defendant contended that there was insufficient evidence to support her convictions. Defendant argued that the wording of the verdict forms assumed that she had committed the alleged acts giving rise to the charges, constituting plain error. In light of the other instructions and the overwhelming evidence, the presumed errors did not so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction.

Defendant argued that her seven perjury convictions and one of her convictions for official misconduct were multiplicitous and therefore violate constitutional prohibitions against double jeopardy. Because counts 6, 9, and 10 were established by identical proof, these counts were multiplicitous and the convictions on and sentences for all three counts were reversed.

2013 COA 141. No. 11CA2626. In re the Estate of Grosboll: Grosboll v. Grosboll, Jr.
Probate—Estate—Partnership—Real Property—Statute of Frauds.

In this probate matter concerning the consolidated estates of Jeanette Elizabeth Grosboll and Ashley Nelson Grosboll (collectively, decedents), Jo Ann C. Grosboll, decedents’ daughter, appealed the district court’s order finding that the sales proceeds of Loma Vista Apartments (Loma Vista) were an estate asset rather than an asset of Grosboll Manor, L.L.L.P. (partnership), a limited partnership formed between decedents and Jo Ann. The orders were reversed and the case was remanded.

In 2004, decedents and Jo Ann entered into a limited liability limited partnership by executing a written partnership agreement. When decedents died, Loma Vista was titled in their individual names. Robert Grosboll’s surviving sons contended that Loma Vista was an estate asset because it was titled in decedents’ names, and they were entitled to the sale proceeds of Loma Vista as the residuary beneficiaries of decedents’ estate. Jo Ann contended that, according to the terms of the written partnership agreement and the intention of the partners, Loma Vista was a partnership asset and she was entitled to it as the remaining partner.

As a matter of first impression, the Court of Appeals considered whether real property owned individually by one who enters into a partnership may become a partnership asset without a written conveyance sufficient to satisfy the statute of frauds. A written conveyance from a partner to the partnership is not required because the General Assembly has enacted legislation specifically allowing real property titled in an individual partner’s name to be deemed an asset of the partnership, and because the trust relationship between partners provides adequate protection against fraud in oral agreements making a partner’s real property a partnership asset. Thus, the intention of the partners determines whether such real property is a partnership asset, but a written conveyance is a factor for a court to consider in evaluating that intent. Here, the district court, relying on the statute of frauds, found that because decedents did not execute a deed transferring their individual interest in Loma Vista to the partnership, it was not a partnership asset. Because the trial court applied an erroneous legal standard, the trial court’s order was reversed and the case was remanded for further findings of fact and conclusions of law consistent with this opinion.

2013 COA 142. No. 13CA0341. Ouray Sportswear, LLC v. Industrial Claim Appeals Office.
Unemployment Insurance—Bankruptcy—Successor Entity.

Petitioner Ouray Sportswear, LLC (employer) sought review of a final order of the Industrial Claim Appeals Office (Panel). The order was set aside.

In April 2007, Ski Country Imports, Inc. and Ouray Sportswear Wyoming, Inc. (collectively, debtor) filed for bankruptcy. As part of the bankruptcy proceeding, employer, through a related entity called Jalex Holdings, LLC (Jalex), purchased substantially all of debtor’s assets. In May 2007, the U.S. Bankruptcy Court for the District of Colorado issued an order approving Jalex’s purchase of debtor’s assets. The order expressly provided that the purchase was free and clear of any and all liens, claims, charges, and encumbrances.

In June 2012, a deputy for the Colorado Department of Labor and Employment (Department) issued a liability determination concluding that debtor’s entire unemployment insurance account (which included the unpaid premiums) would transfer to employer because employer was a successor entity to debtor under CRS § 8-76-104(1)(a). The hearing officer affirmed the deputy’ ruling, and the Panel affirmed a hearing officer’s decision that employer is a “successor” entity for unemployment taxation purposes under § 8-76-104(1)(a), because it purchased substantially all of the assets of two businesses.

Employer contended that the Panel erred in affirming the hearing officer’s determination that it is a successor entity under § 8-76-104(1)(a). The bankruptcy court’s order effectively precluded the Department and the Panel from treating employer as a statutory successor entity. Therefore, the Panel’s order holding that employer is a successor entity to debtor under § 8-76-104(l)(a) conflicts with, and is therefore preempted by, the bankruptcy court’s prior order issued pursuant to 11 USC § 363(f). Consequently, the Panel’s order was set aside.

2013 COA 143. No. 13CA1203. People in the Interest of Vivekanathan.
Involuntary Commitment—Gravely Disabled—Certification—Moot.

Respondent appealed the district court’s order upholding his certification, pursuant to CRS § 27-65-107, for involuntary commitment and treatment at the Colorado Mental Health Institute at Pueblo (CMHIP). The appeal was dismissed.

Respondent, a 25-year-old man, has suffered from schizophrenia since he was approximately 16 years old. A Centennial Peaks psychiatrist filed with the Larimer County District Court a “Notice of Certification and Certification for Short-Term Treatment,” which certified respondent for involuntary commitment to CMHIP based on the psychiatrist’s finding that respondent was “gravely disabled” as a result of his mental illness. Respondent objected. The district court upheld the certification, concluding that respondent is mentally ill and, as a result of that illness, is gravely disabled and a danger to himself. Respondent appealed the order upholding his certification. However, after this appeal was lodged and before the Larimer County Attorney’s Office filed a response, respondent’s civil commitment was terminated early by a different physician.

Respondent argued that the appeal was not moot because the issue is capable of repetition yet evading review. Whether respondent is gravely disabled is a fact-specific determination, and it depends on his condition at the time the finding is made. Thus, even if the district court erred in making the finding in the July 2013 order, this finding does not determine whether at some point in the future respondent may be found to be gravely disabled. Therefore, the particular issue of whether the July 2013 finding of “gravely disabled” was erroneous is moot, and the appeal was dismissed.

2013 COA 144. No. 13CA1390. Triple Crown at Observatory Village Assoc., Inc. v. Village Homes of Colorado, Inc.
Construction Defect—Interlocutory Review—Arbitration Provision Enforcement.

In this construction-defect action, plaintiff Triple Crown at Observatory Village Association, Inc. (Association) petitioned for interlocutory review of the district court’s order granting defendants’ motion to enforce an arbitration provision in the Association’s declaration. The petition was granted.

Defendants created the Association to manage, maintain, and repair certain properties. Defendant Village Homes of Colorado, Inc. recorded a Declaration of Covenants, Conditions, and Restrictions under the Colorado Common Interest Ownership Act. Article 14 of the Declaration established a dispute resolution procedure for claims arising from the design or construction of the improvements and structures on the property. It required arbitration of such claims if good faith negotiation and mediation efforts were unsuccessful. Disputes arose regarding defendants’ responsibility for construction defects, and the Association sought to revoke Article 14. The Association appeared to have received the requisite votes and recorded an amendment to the declaration and filed this action.

Defendants moved to enforce the arbitration provision, arguing that the revocation was ineffective because the Association did not obtain the written consent from 67% percent of its members within the sixty-day time period required under the Colorado Revised Nonprofit Corporation Act. The district court granted defendants’ motion. The Association then filed an unopposed motion for certification of the order pursuant to CAR 4.2. The district court granted the motion and certified three issues for appeal. The Association then filed the present CAR 4.2 petition for interlocutory review.

The Court of Appeals may grant such an appeal when (1) immediate review may promote a more orderly disposition or establish a final disposition of the litigation; (2) the order from which an appeal is sought involves a controlling question of law; and (3) that question is unresolved. The Court concluded that immediate review could promote a more orderly disposition of the litigation. If it did not grant review, the parties might arbitrate all the issues and then the Association could appeal the order compelling arbitration. Also, the questions certified present unresolved questions of law, none of which has been addressed by the Colorado Supreme Court or Court of Appeals. Finally, the district court’s order compelling arbitration involved a controlling question of law. Accordingly, the petition was granted.

Colorado Court of Appeals Opinions