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Colorado Court of Appeals Opinions
October 27, 2011

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.

No. 08CA1123. People v. King.
Possession—Controlled Substance—Strip Search—Warrant—Fourth Amendment—Knock and Announce.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of possession of a schedule II controlled substance. The case was remanded with directions.

Defendant contended that the trial court erred in concluding that the strip search, which revealed he was concealing bags of cocaine in his anus, was within the scope of the search warrant. Strip searches require reasonable suspicion specific to the search and are outside the scope of a warrant allowing a search “upon person.” Strip searches must be authorized (1) by a warrant allowing strip searches that includes an articulable basis for the more invasive search; or (2) by officers having particularized reasonable suspicion that the defendant has hidden contraband on his or her body. Here, the officers performed a strip search on defendant when they asked defendant to take off his pants and defendant informed them that he was not wearing underwear. The trial court failed to make any evidentiary findings regarding the justification for the strip search (specifically, whether the officers had the requisite reasonable suspicion that defendant was hiding drugs on his body). Accordingly, the trial court must consider this issue on remand.

Defendant also contended that the officers violated the “knock and announce” principle of the Fourth Amendment. Here, the no-knock method used to execute the warrant was proper because there were exigent circumstances necessitating an unannounced entry. Defendant had a history of drug dealings and the search took place at a motel where there was a bathroom nearby. The officers had a reasonable suspicion that knocking and announcing their presence likely would result in destruction of the drugs subject to seizure.

No. 09CA2783. People v. Warrick.
Possession of Weapon by Previous Offender—Booking Reports—Mittimus—Authentication—Hearsay—Confrontation Rights—Opinion Testimony—Identification.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of possession of a weapon by a previous offender (POWPO) and harassment. The judgment was affirmed. 

Defendant contended that the trial court abused its discretion in admitting the booking reports and the mittimus, both of which were used by the prosecution to convict defendant of the POWPO charge, because they were not sufficiently authenticated. The booking reports contained a certification from the Arapahoe County Sheriff’s Office that was signed by the custodian of records. This certification was sufficient evidence to authenticate the booking reports as public records under C.R.E. 901(b)(7). Further, the mittimus was self-authenticating under C.R.E. 902(4), because it was certified and signed, and contained the seal of the Arapahoe County District Court. Accordingly, there was no abuse of discretion in admitting these documents over defendant’s objection.

Defendant also contended that the booking reports and the mittimus were hearsay and that the trial court abused its discretion in admitting them under the public records exception. However, the trial court was appropriate in admitting the booking reports and mittimus under C.R.E. 803(8)(A) and (B).

Defendant contended that admission of the booking reports and the mittimus violated his confrontation rights under the U.S. and Colorado Constitutions. The booking reports and mittimus were not created to establish a material fact at any future criminal proceeding. Rather, they were created for routine administrative purposes. Therefore, the booking reports and the mittimus were not testimonial and did not trigger defendant’s confrontation rights.

Defendant contended that the trial court abused its discretion when it permitted the police officer to testify that conspiracy to commit robbery is a class 5 felony and that “F5” stands for class 5 felony. The officer’s testimony that conspiracy to commit a robbery is a class 5 felony “could be reached by any ordinary person” capable of looking up the applicable provision in the Colorado Revised Statutes. Therefore, the police officer’s testimony, even if it was an opinion, was not expert testimony within the meaning of C.R.E. 702.

Defendant further contended that the trial court abused its discretion and committed plain error requiring reversal of his conviction by admitting the police officer’s testimony identifying him from his booking photos. The police officer testified that he had come into contact with defendant during his investigation and stated that he had gotten a good look at him during that period. Therefore, the officer was personally familiar with defendant and did not err in identifying him.

No. 10CA0514. Board of County Commissioners of the County of Park v. Park County Sportsmen’s Ranch, LLP.
Colorado Uniform Fraudulent Transfer Act—Jury Verdict—Evidence—Asset—Lien—Successor Liability—Foreclosure—Notice—Accommodation Party.

Defendants appealed the jury verdicts and trial court judgments in favor of plaintiffs on their claims of fraudulent conveyance, civil conspiracy, successor liability, and quiet title. The judgment was affirmed in part and reversed in part, and the case was remanded for further findings.

Defendants contended that the jury’s verdict under the Colorado Uniform Fraudulent Transfer Act (CUFTA) was not supported by sufficient evidence. A fraudulent transfer under CUFTA includes the transfer of an asset; however, an asset does not include “property to the extent it is encumbered by a valid lien.” Here, because defendant Park County Sportsmen’s Ranch, LLP (PCSR) was encumbered by valid liens that exceeded its value at the time of foreclosure, it was not an asset under CUFTA. Further, defendants signed the 2002 note as accommodation to the parties under CRS § 4-3-419, because they did not receive any direct benefit from the loan. Therefore, the verdict was not supported by the evidence, and the judgment was reversed. Additionally, the jury’s verdict on civil conspiracy was reversed because it was based on the alleged fraudulent transfer.

Defendants contended that the jury’s verdict on successor liability must be reversed. Generally, a corporation that acquires the assets of another corporation does not become liable for its debts. Here, however, the indirect transfer of assets through a foreclosure sale supports successor liability despite the fact that the property lacked any equity. Additionally, the evidence supports the jury’s verdict that defendant JJWM, LLP was liable as a successor corporation, because (1) the original four partners of PCSR, the previous corporation, also were the only four partners of JJWM; (2) both partnerships had the same purpose; (3) JJWM acquired the sole asset of PCSR; and (4) PCSR also was JJWM’s sole asset. This evidence was sufficient to support the jury’s verdict on successor liability under the mere continuation exception.

Defendants argued that the trial court erred by reattaching plaintiffs’ original judgment liens to the ranch owned by JJWM. Because the individual defendants were accommodation parties, the foreclosure sale was valid and, except for Thornton’s lien due to defective notice, the foreclosure extinguished the other plaintiffs’ judgment liens. Based on this conclusion, the trial court’s order attaching plaintiffs’ original judgment liens to the ranch was reversed, except as to Thornton.

Defendant City of Aurora contended that the trial court erred by (1) finding lack of notice to Thornton of the foreclosure; and (2) voiding Aurora’s quitclaim deed from JJWM for a portion of the ranch. Because the record shows that the notice to Thornton was defective, the foreclosure did not extinguish its judgment lien. Because no fraudulent transfer occurred under CUFTA, the court’s order voiding the quitclaim deed was reversed.

No. 10CA1848. Planning Partners International, LLC v. QED, Inc.
Breach of Contract—Attorney Fees—Counterclaims.

In this breach of contract case, defendant QED, Inc. (QED) appealed the trial court’s judgment awarding $188,748.80 in attorney fees to plaintiff Planning Partners International, LLC (PPI). The judgment was reversed and the case was remanded with directions.

QED, an electrical supply company, decided to host a Mediterranean cruise for its employees and customers. QED hired PPI to plan and coordinate the air travel from Colorado to Spain. PPI entered into a standard charter agreement with Omni Air International, Inc. (Omni), a charter flight company. Three days before the scheduled departure, Omni informed PPI that it was assessing a fuel surcharge of $122,428 and threatened to delay service until it received payment pursuant to the charter agreement. PPI agreed to pay it on QED’s behalf if QED signed a promissory note and loan agreement (Agreement), which it did. In July 2008, PPI filed this lawsuit alleging that QED had refused to repay PPI. QED filed counterclaims against PPI for breach of contract relating to the letter of agreement, breach of fiduciary duty, and negligence. The jury returned a verdict awarding PPI $137,725 on its breach of contract claim and awarding QED $58,535 on its breach of contract counterclaim, for a net judgment to PPI of $79,190.

QED argued that a significant portion of PPI’s attorney fees were incurred in defending all of its counterclaims, including the ancillary ones, and that the trial court erred as a matter of law in refusing to apportion the fees on that basis. The attorney fee provision at issue here shifts the burden of fees to the borrower (QED), regardless of which party prevails. Where reasonable attorney fees are provided for in a promissory note or contract and the judgment based on the note or contract has been reduced by a counterclaim arising out of the transaction, an apportionment of attorney fees is required in proportion to the amount recovered on the note less the amount recovered on the counterclaim. The trial court found that PPI incurred reasonable and necessary attorney fees of $188,748.80, but it erred in failing to reduce PPI’s award proportionately. The judgment was reversed and the case was remanded for correction of the award of attorney fees.

No. 11CA1284. People in the Interest of Strodtman.
Forcible Administration of Antipsychotic Medications—Due Process—Automatic Stay.

Respondent Joyce A. Strodtman appealed the magistrate’s order authorizing the Denver Health Medical Center (DHMC) to forcibly administer her antipsychotic medications. The order was affirmed.

Strodtman contended that the magistrate’s order was void for lack of subject matter jurisdiction. The court in which a short-term certification is filed pursuant to CRS § 27-65-107 has original and continuing jurisdiction under CRS § 27-65-111(4) to decide matters concerning forcible administration of medication. Under C.R.M. 6(e)(2)(B), magistrates also possess jurisdiction over these matters. Therefore, the magistrate did not lack jurisdiction to hear and decide Strodtman’s case.

Strodtman also contended that the magistrate violated her due process rights because he failed to conduct a full and fair adversary hearing. When the administration of involuntary antipsychotic medication is at issue, due process requires notice, the right to be present at an adversary hearing, and the right to present and cross-examine witnesses. Here, it was not error for the People to call Strodtman as a witness, because Strodtman had no privilege against self-incrimination in a forcible administration of medication hearing. The court also did not err in qualifying Dr. O’Flaherty, a first-year psychiatry resident at the University of Colorado–Denver, as an expert in medicine, because she had specialized knowledge in treating psychiatric patients. Further, the court did not err in allowing the People’s medical experts to provide hearsay testimony, because it formed the basis of their opinion. In addition, Strodtman did not prove bias merely by showing that the magistrate made a passing comment about the People’s expertise in the matter. Finally, although the magistrate’s comments regarding his personal experience with therapy were inappropriate, the magistrate decided the case based on the proper elements and his personal experience ultimately did not prejudice Strodtman so as to depart from the required impartiality.

Strodtman also argued that the magistrate erred in finding that the People had proved all four elements by clear and convincing evidence. However, the evidence in the record indicates that (1) Strodtman was not competent to participate in treatment decisions because she disagreed with her diagnosis and refused to take medications in the past; (2) Strodtman was not taking medication when she was hospitalized; (3) the medication effectively treated the symptoms that caused her to be hospitalized; (4) without this medication, she would experience significant, long-term deterioration; and (5) Strodtman lacked the capacity to consistently self-medicate, so oral medication taken voluntarily was not an available effectivetreatment. Strodtman’s need for treatment by antipsychotic injections to keep her from being hospitalized was sufficiently compelling to override Strodtman’s interest in refusing treatment.

Strodtman also argued that the magistrate erred by denying her post-hearing motion seeking an order automatically staying forcible administration pursuant to C.R.C.P. 62. However, a forcible medication administration order is not the type of action contemplated in Rule 62(a). Accordingly, orders for forcible medication administration are not automatically stayed for fourteen days after entry.

No. 11CA1847. Tomar Development, Inc. v. Bent Tree, LLC.
Interlocutory Review Under C.A.R. 4.2.

Plaintiffs filed a petition for interlocutory review of several district court orders. The petition was denied and the case was dismissed.

This case involved a complex series of loans, deeds of trust, and subordination agreements. As relevant to the appeal, plaintiffs sought a declaratory judgment of their lien priority based on their view of applicable subordination principles and on equitable principles. Defendants moved to dismiss, arguing that the “partial subordination approach” should apply here. Under that approach, a subordinating creditor is viewed as having effectively assigned its higher priority to the holder of a junior lien. Plaintiffs argued that the “complete subordination approach” should apply.

The district court dismissed plaintiffs’ request for declaratory relief, concluding that the Colorado appellate courts would most likely adopt the partial subordination approach. The court also denied the motion to dismiss on equitable principles, stating that it could not conclude at the pleading stage that a set of facts could not be proven that would lead to the requested judgment.

The parties filed, and the district court granted, a stipulated motion for interlocutory appeal pursuant to C.A.R. 4.2. Under the Rule, the Court may grant an interlocutory appeal in its discretion 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) the order from which an appeal is sought involves an unresolved question of law.

The Court of Appeals found that the question of whether Colorado follows the complete or partial subordination approach appeared to be an issue of first impression. However, on the record presented, the Court could not conclude either (1) that immediate review may promote a more orderly disposition or establish a final disposition of the litigation; or (2) that the question presented was controlling. Because of other pending claims, the Court could not find that accepting the appeal would promote a more orderly or final disposition of the litigation or how the question was controlling. Accordingly, the petition was denied and the appeal was dismissed.

Colorado Court of Appeals Opinions

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