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Colorado Court of Appeals Opinions
November 21, 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 151. No. 10CA2114. People v. David Bueno.
Newly Discovered Evidence—New Trial—Crim.P. 16(I)(a)(2)—Mandatory Disclosures—Crim.P. 33(c)—Time Barred—Sentencing.

The People appealed the trial court’s order granting defendant a new trial based on newly discovered evidence. The order was affirmed.

Defendant was charged with, tried, and convicted of first-degree murder for the death of fellow inmate Jeffrey Heird at the Limon Correctional Facility (LCF). Approximately fifteen months after defendant’s trial but before sentencing, the prosecution provided discovery of a letter (ABN letter) and report (Smelser report) to the defense, both of which were exculpatory to defendant. The ABN letter was found by Nurse Linda Deatrich in the medical “kite” box at LCF approximately thirty-five minutes after Heird’s body was discovered in his cell. Nurse Deatrich filed an employee incident report about the discovery of the ABN letter (Deatrich report). It was undisputed that copies of the ABN letter and the Deatrich report were contained in the working file of Deputy District Attorney Robert Watson, the original prosecutor working on defendant’s case. Watson had this information sometime in 2004, but did not provide it to defendant until July 2009. Defendant filed a motion for a new trial based on Crim.P. 33(c), as well as the prosecution’s violation of Crim.P. 16 and Brady v. Maryland, 373 U.S. 83 (1963). The trial court granted the motion.

On appeal, the People contended that the trial court erred in granting defendant a new trial. The prosecution had copies of the ABN letter and the Deatrich report in Watson’s working file, and the information tended to negate defendant’s guilt; therefore, it was incumbent on the prosecution to provide this information to defendant. Failure to do so violated the mandatory disclosure requirement of Crim.P. 16(I)(a)(2) and Brady. Further, because defendant was prejudiced by the non-disclosure—the evidence likely would bring about an acquittal—the trial court did not abuse its discretion in granting defendant a new trial pursuant to Crim.P. 33(c).

The People also contended that the trial court abused its discretion by failing to address their argument that defendant’s motion for a new trial was time-barred. The term “entry of judgment” in Crim.P. 33(c) means more than a “verdict or finding of guilt” and must include sentencing of the defendant. Accordingly, as a matter of law, defendant’s Crim.P. 33(c) motion was timely because he had not been sentenced at the time he filed his motion.

2013 COA 152 No. 11CA2381. People v. Smoots.
Vehicular Assault—Driving Under the Influence (DUI)—Jury Instructions—Proximate Cause—Lesser Included Offense.

Defendant appealed the judgment of conviction entered on three jury verdicts finding him guilty of vehicular assault–DUI, DUI, and DUI per se. The convictions for vehicular assault and DUI per se were affirmed, and the DUI conviction was vacated.

According to the People’s evidence, defendant was driving a vehicle east on a two-lane highway while the victim was driving westbound. Defendant swerved into the victim’s lane, striking the victim’s vehicle. The victim suffered serious injuries.

Defendant argued that the jury instructions inaccurately defined proximate cause and thus lowered the prosecution’s burden of proof. The prosecution’s burden in proving vehicular assault–DUI is to establish that the defendant operated or drove a motor vehicle while under the influence of alcohol, and this conduct was the proximate cause of a serious bodily injury to another. Because vehicular assault is a strict liability crime, the prosecution’s burden is to prove only that the defendant voluntarily drove while intoxicated and that his or her driving resulted in the victim’s serious bodily injury. Here, defendant conceded at trial that he was intoxicated at the time of the accident, that he was driving one of the vehicles involved in the collision, and that the victim was injured in the accident. Therefore, taking these admissions into account, the trial court did not err in instructing the jury that “[f]or the purposes of the strict liability crime of Vehicular Assault, ‘proximate cause’ is established by the voluntary act of driving under the influence of alcohol.”

The trial court also did not err in ruling that defendant was not entitled to an intervening cause instruction based on the fact that the victim may have swerved into defendant’s lane first. Even if true, this conduct would not be considered gross negligence, which is needed for an intervening cause instruction.

The judgment was vacated as to defendant’s conviction for DUI. Defendant’s DUI conviction constituted a lesser included offense of his vehicular assault–DUI conviction.

2013 COA 153. No. 12CA0567. Lawless v. Standard Insurance Co.
Colorado Public Employees’ Retirement Association—Short-Term Disability Benefits.

This consolidated appeal arose from the denials of plaintiffs’ applications for benefits under the disability program established by PERA. Plaintiffs argued that the district court erred in finding that PERA Rule 7.45(E) and the insurance policy do not violate CRS § 24-51-702(1). Specifically, plaintiffs argued that although § 702(1)(a) provides that members who are incapable of performing their jobs are entitled to short-term disability benefits, Rule 7.45(E) and the insurance policy do not provide benefits to this class of people. Under the authority delegated to it, PERA determined that an employee would not be considered “disabled” for the purpose of short-term disability benefit eligibility if the employee was medically able to perform any job, based on the employee’s existing education, training, and experience, that would earn the employee at least 75% of the employee’s pre-disability earnings. Additionally, because § 702(1)(a) provides for a “reasonable” short-term disability benefit for a period to be determined by PERA, it is reasonable to provide for no benefit in the circumstance where an employee is medically capable of earning substantially the same income. Because PERA’s interpretation and implementation of the statute are reasonable, the district court correctly held that Rule 7.45(E) and the policy comply with the statutory requirements.

2013 COA 154. No. 12CA1302. Todd Creek Village Metropolitan District v. Valley Bank & Trust Co.
Municipal District—Colo. Const. art. XI, § 6(1)—Collateral—Service Plan—General Obligation Debt.

Defendant Valley Bank & Trust Company (bank) appealed the judgment entered in favor of plaintiff Todd Creek Village Metropolitan District (special district). The judgment was reversed.

The bank contended that the district court erred in concluding that the loans made to the special district and the security agreements that it signed were invalid because they were not submitted to the voters in accordance with the Colorado Constitution. It was undisputed that (1) the board of the special district adopted a measure approving the debt; (2) the ballot issue specified the purposes of the debt; and (3) the voters approved the ballot issue. Therefore, the district court erred in reaching this conclusion.

The bank also contended that the district court erred in ruling that the loan to the special district was invalid based on the special district’s service plan. The service plan, however, did not prohibit the issuance of the general obligation debt, and the loan issued by the bank did not dramatically expand or change the special district’s service authority. Therefore, the loans to the special district did not violate the plan, and the special district had the statutory authority and voter approval to enter into the loans. Accordingly, the district court erred in invalidating the loan.

2013 COA 155. No. 12CA1628. Colorado Mining Ass'n v. Urbina, Exec. Dir., Colorado Dep't of Public Health and Environment
Environmental Air Quality Regulations—Challenge to Validity of Procedural Rules and Legislation.

Plaintiff Colorado Mining Association (CMA), a trade association representing coal producers, appealed the trial court’s judgment dismissing as moot its claims against defendants Colorado Department of Public Health and Environment (CDPHE), CDPHE Executive Director Christopher E. Urbina, the Colorado Air Quality Control Commission (AQCC), and the Air Pollution Control Division (collectively, agencies). The judgment was affirmed.

CMA alleged that the rulemaking process employed by the agencies in promulgating environmental air quality regulations violated procedural rules, resulting in harm to CMA members. Pursuant to CRS § 25-7-133, a hearing was requested, a bill was introduced, and the bill was enacted into law. Significantly, there has been no challenge to the validity of the statute or the procedures employed to enact it. Therefore, subsequent legislation adopting the regulations—CRS § 25-7-133.5—mooted any procedural challenge to the agencies’ rulemaking. Because an order declaring the AQCC’s procedures invalid would not affect § 25-7-133.5, and the CMA has not challenged the validity of that statute, the relief sought in this appeal—invalidation of the regulations—would have no practical effect. Accordingly, the trial court did not err in dismissing CMA’s claims as moot.

2013 COA 156. No. 12CA1875. Rieger v. Wat Buddhawararam of Denver, Inc.
Premises Liability—Summary Judgment—Licensee Versus Invitee—Vicarious Liability.

On July 26, 2010, Martin Rieger and his friend Chris Margotta volunteered their time to trim a large tree on property owned by Wat Buddhawararam of Denver, Inc. (Temple). While Rieger was holding a ladder for Margotta so he could cut branches, one of the branches fell off and struck Rieger, causing him serious injuries.

Rieger sued the Temple, which designated Margotta as a nonparty at fault. Rieger then amended the complaint to name Margotta as a defendant but subsequently voluntarily dismissed him, acknowledging that Margotta was immune from liability under the Volunteer Service Act and the Federal Volunteer Protection Act. Rieger still maintained that the Temple was vicariously liable for Margotta’s negligence.

The Temple filed for summary judgment pursuant to the Colorado Premises Liability Act (CPLA). The district court granted the Temple’s motion, and Rieger appealed.

Rieger argued that the district court erred by finding he was a licensee rather than an invitee for purposes of the CPLA. The district court concluded that Rieger was a volunteer, and Rieger offered no evidence that would contradict that conclusion. Volunteers generally are classified as licensees under the CPLA. Therefore, the court did not err.

Rieger also argued that the district court erred in holding that the Temple was not vicariously liable for Margotta’s negligence. The Court of Appeals found that CRS § 13-21-115(2) clearly manifests the General Assembly’s intent to abrogate the common law of landowner duties and that it is the sole remedy for plaintiffs bringing claims against landowners for injuries occurring on their property. Rieger only argued he was an invitee, which the Court concluded he was not. He made no argument that the Temple had a duty to him as a licensee. Even if he had, the undisputed evidence was that the Temple did not create any danger nor did Rieger allege any failure to warn on the part of the Temple. The summary judgment was affirmed.

2013 COA 157. No. 12CA2078. People In the Interest of S.N., and Concerning S.N.
Dependency and Neglect—Summary Judgment—Prospective Harm.

The Boulder County Department of Human Services (Department) removed S.N. from her parents at birth because a hearing on termination of parental rights involving their three older children was pending. The Department then petitioned the trial court to adjudicate S.N. dependent and neglected, alleging there was a risk of prospective harm to S.N. if she were placed in the parents’ care. The parents denied the allegations and sought a jury trial, but the Department sought summary judgment. The trial court granted the Department’s motion.

On appeal, the parents argued that prospective harm is a factual question that precludes summary judgment. The Court of Appeals first reviewed the analysis of a summary judgment motion on appeal. It then analyzed “prospective harm” in a dependency and neglect proceeding, finding that the fact-finder must determine whether it is “likely” or “expected” that the child will be dependent or neglected in a parent’s care in the future. In other words, the fact-finder must predict whether, based on the parent’s past conduct and current circumstances, it is reasonably likely or expected that the parent will mistreat or fail to provide proper care for the child in the future. A parent’s past conduct and care of other children, while probative, is not necessarily dispositive on this issue. Therefore, the Court concluded, the question of prospective harm is inappropriate for summary judgment. The Department’s motion for summary judgment did not establish the absence of a genuine issue of material fact. The trial court’s summary judgment was reversed and the case was remanded for an adjudicatory jury trial.

2013 COA 158. No. 13CA0085. Barnhart v. American Furniture Warehouse Co.
Wrongful Death Act—Summary Judgment—Claim of Heir if Spouse has Settled.

On January 19, 2011, Mildred Fernandez sustained injuries in an American Furniture Warehouse (AFW) store. She died shortly thereafter. She was survived by her husband and son.

Husband’s counsel informed AFW’s insurer that he had been retained and would be asserting a wrongful death claim under Colorado’s Wrongful Death Act (Act). In December 2011, husband agreed to settle his claim in return for $400,000, and executed a release of all claims against AFW.

Son then brought an action, also asserting a wrongful death claim under the Act. AFW moved for summary judgment on the ground that son’s claim was barred by the Act’s limitation that “only one civil action” may be brought for recovery of damages for the wrongful death of one decedent. The district court granted the motion.

On appeal, son argued that his claim was not barred because husband’s settlement was not an “action” within the meaning of CRS § 13-21-203(1)(a). The Court of Appeals disagreed.

The Act provides that a decedent’s surviving spouse has the exclusive right to bring an action under the Act within the first year after the date of death. During the second year, a decedent’s spouse and heirs have equal rights to bring an action. However, only one civil action may be brought to recover damages for the wrongful death of any one decedent.

Husband settled his claim without filing suit. Son argued that only a spouse’s lawsuit or settlement of a lawsuit can bar a subsequent claim under the Act. Based on the plain language of the statute, the Court agreed with son that an “action” is commonly regarded as referring to a judicial proceeding. However, this limiting interpretation would lead to an absurd result. Son offered no rational reason why the General Assembly would have intended to treat pre-litigation and litigation settlements differently, and none was apparent to the Court.

The Court concluded that a beneficiary with the primary right of action has the power to settle his claim with or without filing suit and that such settlement is binding on all other beneficiaries. The judgment was affirmed.

2013 COA 159. No. 13CA1177. People In the Interest of J.J.M., and Concerning J.D.G.M.
Dependency and Neglect—Peremptory Challenges Under CRJP 4.3(b).

The Denver Department of Human Services (Department) filed a petition in dependency or neglect with regard to J.J.M., an 8-month-old, based on allegations that the child had been brought to the emergency room and diagnosed with retinal hemorrhaging, a subdural hematoma with a brain shift, and chronic and acute brain bleeds. The Department also alleged that the child’s injuries were not consistent with father’s explanation of the injuries. Additionally, the Department alleged father used marijuana. Father denied the allegations and requested a jury trial. After a three-day jury trial and based on the verdict, the juvenile court adjudicated the child dependent and neglected. Father appealed.

Colorado Rule of Juvenile Procedure4.3(b) provides, “Examination, selection, and challenges for jurors in such cases shall be as provided by C.R.C.P. 47, except that the petitioner, all respondents, and the guardian ad litem shall be entitled to three peremptory challenges. No more than nine peremptory challenges are authorized.” Here, before voir dire, the juvenile court ruled that father and the child’s mother would have three peremptory challenges, the Department would have three peremptory challenges, and the guardian ad litem (GAL) would have three peremptory challenges.

Father argued that the court erred in its allocation of peremptory challenges. The Court of Appeals discerned no error, ruling that the challenges were in keeping with the plain language of the statute. The order was affirmed.

Colorado Court of Appeals Opinions