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Colorado Supreme Court Opinions
December 20, 2012

2012 CO 68M. No. 10SC403. General Steel Domestic Sales, LLC v. Bacheller III.
First Amendment—Right to Petition—Trebled Exemplary Damages.

The Supreme Court held that Protect Our Mountain Environment, Inc. v. District Court, 677 P.2d 1361 (Colo. 1984) (POME), is inapplicable where, as here, the underlying alleged petitioning activity was the filing of an arbitration complaint that led to a purely private dispute. Under POME, a plaintiff must meet a “heightened standard” when suing a defendant for the “alleged misuse or abuse of the administrative or judicial processes of government.” Here, Bacheller sued General Steel Domestic Sales, LLC (General Steel), Discount Steel Buildings, LLC (Discount Steel), and the presidents of both companies for abuse of process, malicious prosecution, and civil conspiracy, based on their filing an arbitration complaint against him. The trial court denied defendants’ request to include additional elements reflecting POME’s heightened standard in the malicious prosecution jury instruction. Because POME is inapplicable here, the Court affirmed the trial court’s ruling. 

The Court also held that the trial court did not abuse its discretion by trebling the exemplary damages award against General Steel and Discount Steel. After the jury returned verdicts in Bacheller’s favor on several claims and awarded actual and exemplary damages, the trial court granted Bacheller’s motion to treble the exemplary damages award but only against General Steel and Discount Steel. Because the record supports the trial court’s finding that defendants acted willfully and wantonly during the pendency of the action and further aggravated Bacheller’s damages, the Court affirmed the trial court’s ruling.

2012 CO 73. No. 11SC264. Kazadi v. People.
Criminal Law—Post-Conviction Review—Crim.P. 35(c) and 32(d)—Deferred Judgment—CRS § 18-1.3-102—Withdrawal of Guilty Plea—Ineffective Assistance of Counsel.

In this appeal, petitioner Yanick Kazadi, a legal permanent resident born in the Congo, sought Crim.P. 35(c) post-conviction review of his felony plea leading to a deferred judgment. Kazadi claimed ineffective assistance of counsel for his counsel’s failure to notify him of possible deportation consequences for pleading guilty to obtain a deferred judgment and sentence.

The Supreme Court affirmed the ruling of the court of appeals, holding that Kazadi may not seek review of his deferred judgment and sentence under Crim.P. 35(c) while in the deferred judgment period because, in a deferred judgment situation, there has not been a judgment of conviction that makes Crim.P. 35(c) review available. Kazadi may, alternatively, seek to withdraw his guilty plea under Crim.P. 32(d). This rule allows a defendant to move to withdraw a guilty plea before sentence is imposed. In the unique situation of a deferred judgment, the defendant’s case is continued and there is no imposition of sentence and entry of judgment while the deferred judgment is in effect. Therefore, Kazadi may seek to withdraw his guilty plea pursuant to Crim.P. 32(d) for a “fair and just reason.”

2012 CO 74. No. 12SA199. In re Warden v. Exempla, Inc.
Scope of Discovery—CRCP 37—Rebuttal Disclosures—Late Disclosures—CRCP 26.

The Supreme Court vacated the trial court’s order striking the testimony of plaintiff’s rebuttal expert witness and the testimony of two previously disclosed expert witnesses. The Court held that the trial court abused its discretion when it excluded the expert witness’s rebuttal testimony because her testimony properly refuted a central theory of defendants’ case. It also held that the trial court abused its discretion when it excluded the new testimony of two previously disclosed experts, because the late disclosure did not harm defendants, as required for sanctions under CRCP 37. The Court therefore made the rule absolute and remanded the case for further proceedings.

2012 CO 75. No. 11SC382. Tate v. People.
Criminal Law—Search and Seizure.

Walter Tate sought review of the district court’s judgment reversing a suppression order of the Arapahoe County Court. In a prosecution of Tate for driving under the influence, the trial court found that he had been stopped without reasonable articulable suspicion the moment a patrol car parked behind him, hemming in his car, even though he was asleep and unaware of the officer at the time. On interlocutory appeal by the People, the district court concluded that the earliest moment at which defendant could have been seized occurred when he awoke and became aware of his circumstances, and by then, the officer had acquired at least reasonable suspicion to justify a stop.

The Supreme Court affirmed the district court’s judgment. The Court held that a person cannot be seized within the meaning of the Fourth Amendment—even if his freedom of movement is actually restricted—without perceiving a show of authority as directed at him or his car. The case therefore was remanded for return to the county court and implementation of the district court’s remand order.

Colorado Supreme Court Opinions