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Colorado Court of Appeals Opinions
November 21, 2012

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.

2012 COA 202. No. 10CA1346. People v. Stackhouse.
Sexual Assault on a Child—Jury Selection—Public Exclusion—Testimony—Hearsay.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of sexual assault on a child and sexual assault on a child–position of trust. He also appealed the sentence imposed. The judgment and sentence were affirmed, and the case was remanded for correction of the mittimus

M.A., the daughter of defendant’s girlfriend, was born in 2003. Defendant lived with M.A. and her family from 2005 to 2008, during which time defendant sexually abused M.A.

On appeal, defendant contended that the court’s decision to exclude the public during jury selection constituted structural error, entitling him to automatic reversal. However, defendant waived his public trial claim by failing to object in the trial court to the closure of the courtroom during jury selection.

Defendant also challenged the admission of M.A.’s statements through her own testimony and through the testimony of other witnesses. The trial court found that M.A. understood the nature of the oath, the difference between truth and a lie, and the importance of being truthful. Additionally, based on its observations of the child’s demeanor and responses, the court further found that M.A. was able to describe, in language appropriate for a 6-year-old, the events for which she was being examined. Therefore, M.S. was competent to testify, and permitting M.A. to testify was not an abuse of discretion. Furthermore, the statements admitted through other witnesses were spontaneous statements made by M.S. without any questioning or statements consistent with her spontaneous statements and, therefore, did not constitute hearsay. Because defendant had the opportunity to cross-examine M.A. and the other witnesses regarding these statements, defendant’s rights to confrontation, to due process, and to a fair trial were not violated. The judgment and sentence were affirmed, and the case was remanded for correction of the mittimus to reflect that defendant was not found to be a sexually violent predator.

2012 COA 203. No. 10CA2120. In re the Estate of Beren: Beren v. Goodyear, Jr.
Probate—Recusal—Elective Share—Interest—Stock—Personal Representative—Compensation—Administrative Expenses—Estate Taxes—Distributions.

In this probate case, four children of decedent Sheldon Beren appealed the district court’s orders. The orders were affirmed in part and reversed in part, and the case was remanded. 

Sheldon Beren, who died testate in 1996, was the founder and sole shareholder of Berenergy Corporation. He had four sons with his first wife, who predeceased him: appellants David Beren, Zev Beren, Jonathan Beren, and Daniel Beren (collectively, four brothers). Decedent then married appellee, Miriam Beren, and adopted her two children. The couple then had one biological child together. Decedent’s will provided a life estate for Miriam and left the residuary estate to the seven children. Miriam petitioned to take an elective share in lieu of the life estate.

On appeal, David contended that the probate court judge erred by not recusing from the entire case after having referred a single motion to a senior judge. Because there was no finding of impropriety in referring the motion to another judge, the probate court did not abuse its discretion by declining to recuse.

The four brothers contended that the probate court erred by awarding Miriam an equitable adjustment to her elective share based on appreciation and income to the estate during the prolonged administration. An elective share, which is a set pecuniary amount computed as of the date of death, neither increases nor decreases based on changes in the value of the estate during administration. Further, a spouse who chooses an elective share is not entitled to any net probate income. Therefore, in a protracted probate proceeding during which the value of the estate significantly increases, the probate court’s equitable power does not include making a compensatory increase to the surviving spouse’s elective share. Here, the probate court erred when it made an equitable adjustment to Miriam’s elective share to compensate her for income to, and appreciation in the value of, the estate.

The four brothers also contended that the probate court erred in approving that portion of the distribution plan modifying the corporate structure of Berenergy by creating two classes of stock. The will required equal distribution of the residuary estate to the seven children. Because the two classes were unequal in voting rights and the plan did not offset this inequality with additional monetary or in-kind distributions, the approval of that portion of the plan was reversed.

David also contended that the probate court erred by approving the personal representative’s (PR) compensation request because it was based on the value of the estate, rather than on the work actually performed. Although the probate court approved the PR’s total compensation as a percentage of the estate, the probate court evaluated each of the appropriate statutory factors and made specific factual findings regarding the reasonableness of the fees. Therefore, the probate court did not abuse its discretion in approving the PR’s compensation request.

David contended that the probate court erred in approving the distribution plan because it did not properly allocate estate tax to the elective share, and it did not treat certain expenses as administrative expenses under CRS § 15-11-202(2)(a), which are deducted from the augmented estate before calculating the elective share. PRs are not permitted to deduct estate taxes from the value of the augmented estate before calculating the elective share. Therefore, the probate court properly concluded that estate taxes were not allocable, directly or indirectly, to Miriam’s elective share. Further, the probate court did not abuse its discretion in holding that some but not all of the PR’s management expenses involved “a direct administrative expense” of the estate, but most overhead expenses were not incurred in the estate’s administration. Further, the probate court did not abuse its discretion in declining to treat the litigation expenses as administrative, because the litigation concerned the contractual obligations of Berenergy, not the administration of the estate.

David further contended that the probate court erred in denying the Petition for Order Compelling Personal Representative to Collect Debts that CJD Investors Ltd. Partnership (CJD) allegedly owed to the estate for advances made by decedent to CJD, some of which had been distributed to Miriam’s children, who were its limited partners. Decedent’s unilateral actions, however, could not create an obligation on CJD or the limited partners to return the gifted property to decedent. Accordingly, the court did not err in denying the petition.

On cross-appeal, Miriam’s children contended that the probate court erred by failing to make certain offsets against the four brothers’ distributions. The record supports the probate court’s findings that the decedent’s transfers to the four brothers were loans instead of gifts. Additionally, the record supports the finding that the compromise was fair and not tainted with favoritism. Therefore, the PR acted consistent with his fiduciary duties to both the estate and Berenergy. Accordingly, the probate court did not err by failing to offset the four brothers’ distributions.

Finally, Miriam’s children contended that because a “Conveyance and Assignment” recorded in 1991 unambiguously shows decedent conveyed all of Berenergy’s interest in the Moyer A and B leases to CJD, the probate court erred by allowing the PR to determine whether decedent had intended to convey CJD only a royalty interest, and if so, to reduce their distribution by the difference in value between the interest that was conveyed and a royalty interest. Because the court did not find ambiguity in the conveyance, this ruling improperly delegated the court’s judicial power to the PR. Accordingly, this portion of the order approving the plan of distribution was set aside.

2012 COA 204. No. 10CA2287. People v. Van De Weghe.
Attempt to Influence a Public Figure—Criminal Impersonation.

Defendant Michael Van De Weghe appealed the trial court’s judgment of conviction entered on a jury verdict finding him guilty of attempt to influence a public figure. The judgment was affirmed.

Van De Weghe retired from the Denver police force in 1989. When an Arapahoe County deputy sheriff pulled over his car after observing him driving without a seatbelt and failing to use his turn signal, Van De Weghe displayed his police badge and told the deputy that he was an active-duty police officer.

On appeal, Van De Weghe asserted that the trial court erred by allowing the prosecution to add the charge of attempt to influence a public servant, because his conduct was more specifically proscribed by the offense of criminal impersonation. Criminal impersonation is not, however, a specific instance of attempt to influence a public servant. Further, the criminal impersonation statute does not supplant the attempt to influence a public servant statute. Therefore, the trial court properly allowed the attempt to influence charge. 

2012 COA 205. No. 11CA2272. In re the Marriage of Nelson.
Modification of Maintenance—Gross Income—Retroactive.

In this post-dissolution of marriage proceeding, husband appealed from the district court’s order extending the duration of maintenance payable to wife. The appeal was dismissed in part and the order was affirmed.

Commencing in November 2004, husband was ordered to pay wife $1,932 in monthly maintenance for five years. A few days after the five years expired, wife moved to modify maintenance, citing an inability to continue to be employed due to illness. At the conclusion of the hearing on wife’s motion, wife also requested an award of attorney fees under CRS § 14-10-119. The trial court granted wife’s motion to modify support. It reinstated the original award of maintenance ($1,932 per month), until the death of either party, wife’s remarriage, or her 65th birthday, and made the order retroactive to the filing date. It did not rule on the motions related to attorney fees.

The Court of Appeals first addressed its jurisdiction over the appeal. An attorney fee request sought in a post-decree modification motion is ancillary to the motion itself. Therefore, the order fully resolving wife’s motion to modify maintenance was a final appealable order, notwithstanding her unresolved request for attorney fees in this case. Accordingly, the Court has jurisdiction over husband’s appeal.

Husband contended that the district court erred when it determined his income. The district court properly considered husband’s income from his second job, because it was relevant to his ability to meet his needs while also meeting the needs of the payee-spouse. Therefore, the court did not err in determining husband’s income for this purpose.

Husband also contended that the court’s conclusion that wife established a substantial and continuing change of circumstances was unsupported by the evidence. Maintenance may be modified only on a showing of changed circumstances so substantial and continuing as to make the existing terms unfair. Wife testified that since the original order, she had been diagnosed with a number of illnesses, including fibromyalgia, which caused her to miss substantial time from work, thus making it difficult for her to maintain steady employment. Wife’s doctor also testified as to wife’s chronic medical condition. Based on these facts, the district court did not abuse its discretion in determining that wife had met her burden to establish a substantial and continuing change of circumstances warranting a continuation of her maintenance payment.

Husband also contended that the court abused its discretion by making the maintenance modification retroactive to the date wife filed her motion. There was no specific finding that a retroactive application would create a hardship for husband. However, the district court’s findings that husband’s income had increased, and its notation that his gross income did not include his military pay or benefits, support its apparent conclusion that husband had the ability to pay the retroactive maintenance. Accordingly, the district court’s decision to order retroactive payments was not an abuse of discretion.

2012 COA 206. No. 11CA2367. State of Colorado ex rel. Suthers, Colorado Attorney General v. Tulips Investments, LLC.
High-Interest Loan—Subject Matter Jurisdiction—Administrative Subpoena—Out-of-State Subpoenas—Uniform Consumer Credit Code—Colorado Consumer Protection Act.

Petitioners, the State of Colorado ex rel. John Suthers, Colorado Attorney General, and Laura E. Udis, Administrator of the Uniform Consumer Credit Code, (collectively, the State), appealed the district court’s order dismissing, on subject matter jurisdiction grounds, proceedings brought against respondents, Tulips Investments, LLC, a Delaware corporation, and its president, J. David Blevins, (collectively, Tulips), to enforce an administrative subpoena served in Delaware. The order was reversed and the case was remanded for further proceedings. 

An elderly Colorado couple obtained a high-interest (365% per annum) pay-day loan over the Internet from Tulips. The couple later complained to the Administrator of the Uniform Consumer Credit Code (UCCC) that Tulips automatically debited money from their checking account every two weeks, causing their account to be overdrawn.

The State found reasonable cause that Tulips had engaged or was engaging in conduct in Colorado that violated the UCCC by making unlicensed supervised loans and charging excessive finance charges, and had engaged or was engaging in deceptive trade practices in Colorado, in violation of the Colorado Consumer Protection Act (CCPA). As a result, the State served Tulips in Delaware with an administrative investigative subpoena ordering Tulips to produce various documents for inspection and copying. When Tulips did not comply, the State applied for and obtained an ex parte order from the district court requiring Tulips to comply with the subpoena and produce the required documents. The district court later granted Tulips’ motion to dismiss the proceedings to enforce the administrative subpoena for lack of subject matter jurisdiction.

The State contended that, contrary to the district court’s determination, Colorado courts have subject matter jurisdiction to enforce investigative subpoenas issued to nonresidents and served out-of-state. The provisions of CRS § 5-6-106 of the UCCC authorize the Administrator to issue, and Colorado courts to enforce, investigative subpoenas served out-of-state on out-of-state entities. Thus, the district court erred in dismissing the proceedings brought by the State to enforce the investigative subpoena in this case.

2012 COA 207. No. 11CA2553. Shoen v. Shoen, MD.
Defamation—Choice of Law—Matter of Public Concern.

Plaintiff Mark Shoen appealed the judgment entered in favor of defendant Dr. Sam Shoen following a jury trial on Mark’s defamation claims. The judgment was affirmed.

L.S. Shoen, the founder of U-Haul International, Inc., had twelve children, including Sam and Mark. L.S. distributed U-Haul stock shares to each of his children.

In the mid-1970s, a rivalry over U-Haul’s management began among L.S.’s four eldest sons: Sam, Mark, Joe and Michael. L.S. and Sam aligned with other family members as the “outsiders,” and Mark and Joe aligned with the “insiders.” The insiders obtained a controlling interest and determined that L.S. was no longer fit to run U-Haul. The outsiders filed a shareholders’ derivative suit against U-Haul’s parent company, AMERCO. This litigation and the Shoen family rivalry were the subject of many media reports, including a July 1990 front-page story in The Wall Street Journal.

In August 1990, Sam’s wife, Eva, was murdered in their home in Telluride. Under Mark’s direction, U-Haul sent its attorney and private investigators to Telluride. The Telluride Sheriff’s Department declined U-Haul’s investigators’ request to work with them. The U-Haul investigators conducted surveillance on Sam and passed inaccurate or unsubstantiated information about Sam to the Sheriff’s Department, including allegations that Sam had affairs while he was married to Eva, was stopped for speeding in Phoenix on the day she was murdered, and was overheard confessing to the murder.

In 1993, the murder was the subject of Unsolved Mysteries, which led to a tip that led to the arrest of Frank Marquis, who eventually confessed to the murder. In 1994, Marquis pleaded guilty to manslaughter and burglary of other Telluride homes and received a twenty-four-year sentence. His confession contained numerous inconsistencies with the evidence at the murder scene.

In 2007, Sam was interviewed about Eva’s murder on Dominick Dunne’s Power, Privilege, and Justice. The episode—entitled “Tragedy in Telluride”—was broadcast nationwide in January 2008. This defamation suit followed.

Before trial, the court ruled that some statements made by Sam on the episode were defamatory per se. Following a two-week jury trial, a jury found that Mark did not prove (1) by a preponderance of the evidence that the defamatory statements caused him damages, (2) by clear and convincing evidence that the statements were false, and (3) by clear and convincing evidence that Sam knew the statements were false or made the statements with reckless disregard as to whether they were false.

On appeal, Mark argued that Arizona law should have applied. Mark resides in Arizona and Sam resides in Washington. Mark filed his complaint in Colorado on January 23, 2009. He asked the court to apply Arizona law on May 11, 2011, almost twenty-eight months later. Multiple pleadings, motions, and rulings had issued before the request, all relying on and applying Colorado law without objection. The Court of Appeals found on this issue of first impression that a party waives a choice of law argument if it fails to raise the issue before the trial court rules on dispositive issues relying on the disputed state law. Here, Mark waived his argument that Arizona law applied.

Mark also argued it was error to find that the matter was of public concern and that he was a limited-purpose public figure. The Court held that the matter was of public concern and it therefore didn’t need to reach the issue of whether he was a public figure, because the heightened burden of proof applied if either conclusion was affirmed. The Court noted that, in general, a matter is of public concern when “it embraces an issue about which information is needed or is appropriate” or when “the public may reasonably be expected to have a legitimate interest in what is being published.” The Court found that it was not error to rule that the case involved matters of public concern.     The judgment was affirmed.

2012 COA 208. No. 12CA0153. Collard v. Vista Paving Corp.
Personal Injury—Summary Judgment—Premises Liability Act—Common Law Negligence—Duty of Care.

In this personal injury action involving a road construction project, plaintiff Gail Collard appealed the summary judgment entered in favor of defendant Vista Paving Corporation (Vista). The judgment was affirmed in part and reversed in part, the order was vacated, and the case was remanded with directions.

In 2007, the City of Grand Junction (City) initiated a large sidewalk improvement construction project. Vista was hired to construct two road medians on Wellington Avenue according to plans, designs, and specifications developed and provided by the City. They were to be built in the center of the road, approximately eight inches high and eleven feet wide.

Vista began work around July 9, 2007 and was responsible for traffic control. On July 19, 2007, Vista completed the Wellington medians. On that date, the City’s project inspector, Pat McGarry, conducted an inspection and told Vista its work had been completed and Vista was authorized to leave the site. Vista requested permission to remove the traffic control devices “because they were going to be in the way,” and it “had to pick them up one way or another.” Permission was granted. At that time, the yellow dividing line continued straight into the medians.

McGarry testified in his deposition that he notified the City’s traffic control division that Vista’s construction was completed and that it could “come in at any time and do their striping [and] do the delineations that they were going to put at the end of the island” to ensure the site was safe for motorists. Both McGarry and the City’s project manager for the medians submitted affidavits stating that Vista was no longer responsible for traffic control at the medians on completion of its work.

The City didn’t put in any traffic control for at least five days after Vista’s work was completed. Around 3:30 a.m. on July 24, 2007, a truck collided with the new median, flattening two tires and damaging its tire rims. At 5:30 a.m. that morning, Collard was driving on Wellington Avenue and collided with the medians, totaling her vehicle and suffering injuries. She was cited for careless driving. After the accident, the City repainted the center line on Wellington to direct traffic around the new medians, installed two white poles with reflective tape at the front of the medians, and installed a flashing walk for pedestrians.

Collard sued, alleging claims against the City and Vista under Colorado’s Premises Liability Act (PLA) and common law negligence. She asserted Vista breached its duty to her when it created a hazardous condition by leaving the construction site without safety signage, and that the City breached its duty to properly maintain, supervise, and care for the construction and condition of its streets. The City was dismissed from the suit based on immunity under Colorado’s Governmental Immunity Act.

Vista moved for summary judgment, arguing that as a matter of law it was not a landowner and therefore could not be liable under the PLA and that it owed no common law tort duties to Collard. The district court granted summary judgment in favor of Vista.

The Court of Appeals first affirmed the district court’s holding that Collard “failed to raise any genuine issues of fact as to Vista’s status as a landowner” based on the evidence that Vista had been authorized by the City to leave the work site and remove its traffic control signage and devices. Therefore, summary judgment was appropriate on the PLA claim.

Collard then argued it was error to rule as a matter of law that Vista did not owe her a duty of care under her common law negligence claim. As a matter of first impression, the Court held that when a road contractor such as Vista completes its contracted work and then leaves the site in a dangerous condition as a result of its work, the contractor has a tort duty to third parties for a reasonable period of time either to eliminate the condition or warn foreseeable users of the dangers that could foreseeably result in injuries, even if its work has been accepted by the owner or other contracting party. However, the Court also concluded that no such duty exists if the contractor had a good-faith reasonable belief that, after the contractor completed its work, another party, authorized to do so, would promptly take the necessary measures to eliminate the danger or provide adequate warnings to foreseeable users of the road. Because the district court applied the wrong legal standard for assessing whether Vista had a duty to Collard, the summary judgment was reversed as to the common law negligence claim.

2012 COA 209. No. 12CA0191. In re the Estate of Johnson: Christensen v. Wilson.
Probate—Life Insurance Policy Proceeds—CRS § 15-11-804(2).

In this probate action concerning the disposition of the proceeds of a life insurance policy, petitioner Laurel Christensen appealed the trial court’s dismissal of her claims and the grant of partial summary judgment in favor of Dawn Wilson, in her capacity as personal representative of her brother Jeffrey Johnson’s estate. The judgment was affirmed.

Johnson and Christensen married in 2000. In 2001, Johnson purchased a life insurance policy and named Christensen as primary beneficiary and his mother, Judith, as contingent beneficiary. Judith died in 2006; Johnson and Christensen divorced in 2008; and Johnson died on May 18, 2010. He had no surviving children or parents, but had at least one sibling.

On June 2, 2010, filed a petition for appointment and was appointed personal representative of Johnson’s estate. On December 20, 2010, Christensen filed a claim to the proceeds of Johnson’s insurance policy. The trial court granted partial summary judgment to the estate, ruling that CRS § 15-11-804(2) removed Christensen as beneficiary of Johnson’s insurance policy after the 2008 divorce.

On appeal, Christensen argued the partial summary judgment was error. The Court of Appeals agreed with the trial court’s determination that Christensen’s expectancy interest as a beneficiary of Johnson’s life insurance policy was statutorily revoked on divorce and therefore affirmed. Subject to exceptions, CRS § 15-11-804(2) provides that divorce revokes any revocable disposition of property made by the divorced individual to the former spouse in a governing instrument, including beneficiary designations in insurance policies. Christensen argued that the insurance policy prevented modification of beneficiaries without written notification by the insured and express agreement by the company. The Court rejected this contention based on the clear and well understood language of the statutory section. 

2012 COA 210. No. 12CA0829. People in the Interest of A.V., and Concerning M.V.
Termination of Parent–Child Legal Relationship—Indian Child Welfare Act— “Active Efforts.”

Father appealed the trial court’s judgment terminating the parent–child legal relationship between him and his children A.V. and J.V. The judgment was affirmed.

In February 2009, the Weld County Department of Human Services (Department) filed a petition in dependency and neglect regarding A.V., a 2-year-old; J.V., a 1-year-old; and an older half-sibling. The petition alleged numerous concerns with the mother and alleged the caseworker was unable to reach father, who reportedly used methamphetamines.

The court adjudicated the children dependent and neglected and adopted a treatment plan for father. Father’s visits were subsequently suspended until he demonstrated thirty consecutive days of sobriety.

In May 2010, the Cherokee Nation intervened after the children were enrolled in the tribe. In December 2011, the Department moved to terminate the parent–child relationship between father and the children. Following a contested hearing in February 2012, the court granted the Department’s motion. Father appealed.

Father argued that the Department and the court failed to make active efforts to prevent the breakup of the Indian family as required by the Indian Child Welfare Act (ICWA) because (1) he was prevented from visiting the children once he was in community corrections in March 2011; and (2) no efforts were made to reunite him with the children between August 2010 and the termination hearing. The ICWA does not define “active efforts” and divisions of the Court have disagreed as to whether it is more demanding than the non-ICWA “reasonable efforts” standard. Here, the trial court found, by evidence beyond a reasonable doubt, that the Department made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, including multiple relative home studies, but these efforts were unsuccessful. The Court determined that the record supported this finding. The judgment was affirmed.

2012 COA 211. No. 12CA1015. People in the Interest of M.S., and Concerning S.S.
Dependency and Neglect—Dismissal for Lack of Final Order.

S.S. and L.H. appealed from an order adjudicating their child, M.S., dependent and neglected and from an order that did not terminate their parental rights but found that no appropriate treatment plan could be devised for them. The appeal was dismissed for lack of a final order.

CRS § 19-1-109(2)(c) provides that “[a]n order decreeing a child to be neglected or dependent shall be a final and appealable order after the entry of the disposition pursuant to section 19-3-508.” Because the termination hearing had not been held, the disposition had not entered and the matter was not ripe for review. The appeal was dismissed without prejudice. 

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