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Colorado Court of Appeals Opinions
December 5, 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 160. No. 08CA1701. People v. Perez-Hernandez.
Juvenile—Burglary—Theft—Direct File Statute—Jurisdiction—Information—Unanimous Verdict Instruction.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of burglary, theft, conspiracy, and possession of burglary tools. The judgment was affirmed.

The district attorney filed a delinquency petition in juvenile court against defendant, who was 17 years old. She later filed an information in district court, and the juvenile court dismissed the delinquency petition thereafter.

On appeal, defendant contended that the former direct file statute is unconstitutional on its face and as applied to him because it subjected him to adult criminal prosecution without notice and an opportunity to be heard, in violation of his state and federal rights to due process. Under the former direct file statute, the General Assembly established circumstances in which juvenile defendants did not have a liberty interest in being tried as juveniles. Accordingly, the former jurisdictional and direct file statutes did not vest defendant with a liberty interest in being tried as a juvenile. Therefore, due process did not require that defendant be notified and given an opportunity to be heard before the district attorney direct filed in district court.

Defendant also argued that the district court did not have jurisdiction because the information did not allege the basis on which defendant’s juvenile case was “triable” in district court. The information was sufficient to enable it to be understood that the offense was committed within the jurisdiction of the Arapahoe County District Court. The information was not required to also allege that the offense was triable in the district court. Furthermore, the record demonstrates that the district court had jurisdiction based on defendant’s prior record.

Defendant contended that the district court erred when it did not require the prosecution to elect which act supported the charge of possession of burglary tools and did not give a unanimity instruction. Defendant was charged with possession of burglary tools on one occasion related to one burglary. The evidence included items that were in defendant’s possession during this single transaction. The prosecution is not required to specify which acts serve as the basis for the offense when the acts occurred in a single transaction. Similarly, a unanimity instruction is not required when a defendant is charged with a crime encompassing incidents occurring in a single transaction. Accordingly, neither an election nor a unanimity instruction was required here.

2013 COA 161. No. 09CA0593. People v. Tunis.
Sexual Assault—Burglary—Reliability of DNA Evidence—First Impression—Expert Testimony—Jury—Sexually Violent Predator.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of sexual assault and second-degree burglary. The judgment was affirmed and the sentence was vacated in part.

Defendant challenged, as an issue of first impression in Colorado, the reliability of certain DNA evidence—specifically, the Y Chromosome-Short Tandem Repeat(Y-STR) analysis—and argued that the trial court erred by admitting it. The court acted within its discretion by determining that the scientific principles underlying the use of the Y-STR analysis, which only examines DNA types on the Y chromosome, were reliable. The statistical methods generally have been accepted by other laboratories, similar statistical methods have been used in other fields, and other jurisdictions have admitted similar evidence as reliable. In addition, the evidence was properly admitted through expert testimony.

Defendant also contended that the court erred by releasing a juror who repeatedly fell asleep and replacing him with an alternate juror. Defendant failed to prove bias in the replacement, so the trial court was well within its discretion to dismiss the sleeping juror and to replace him with the alternate juror.

The Supreme Court granted certiorari and remanded this case to the Court of Appeals to determine whether defendant is a sexually violent predator based on the criterion that he “promoted a relationship primarily for the purpose of sexual victimization.” Defendant’s actions of delivering a baby blanket to the victim a couple months before the assault at the request of his grandmother and asking the bartender the night of the assault if victim’s husband was home did not constitute “promoting a relationship primarily for the purpose of sexual victimization.” Therefore, the sexually violent predator portion of defendant’s sentence was vacated.

2013 COA 162. No. 11CA1460. People v. Clemens.
Assault—Jury—Challenge for Cause—Apparent Authority Doctrine—Warrant.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of second-degree assault of a female victim and third-degree assault of a male bystander. The judgment was reversed and the case was remanded for a new trial.

Defendant argued that the trial court abused its discretion in denying defendant’s challenges for cause to three prospective jurors. The initial statements by the three jurors that they would hold it against defendant if he did not testify established sufficient grounds to challenge them for cause. The trial court responded to the jurors’ statements with a lengthy admonishment and then asked the entire venire whether it could apply the law as explained. The three jurors remained silent. Because a juror’s silence following a question or questions to the entire panel does not constitute sufficient rehabilitation, the trial court abused its discretion in denying defendant’s challenges for cause.

Defendant also contended that the trial court erred in denying his motion to suppress. Without obtaining a warrant, the officers immediately and forcefully entered defendant’s house, which he shared with the female victim. However, there was sufficient evidence admitted at the suppression hearing supporting the trial court’s finding that the officers reasonably believed the female victim had authority to consent to the entry. Under the apparent authority doctrine, the officers properly entered defendant’s house without a warrant. Therefore, the trial court did not err in denying defendant’s motion to suppress.

2013 COA 163. No. 12CA0453. Commercial Research, LLC v. Roup.
Garnishment—Health Savings Account—Retirement Plan—Exemption.

Gary S. Roup appealed the trial court’s order denying his claim of garnishment exemption in favor of Commercial Research, LLC (creditor). The order was affirmed.

Creditor obtained an assignment of a default judgment that had been entered against Roup in a Texas court. Creditor then filed the judgment in Colorado and began collection proceedings against Roup’s assets, including $3,729 held in a health savings account (HSA).

On appeal, Roup contended that his HSA is a “retirement plan” and therefore exempt from garnishment under CRS § 13-54-102(1)(s). An HSA is not intended to replace income lost as a result of retirement; it is intended to cover medical costs incurred at any point during an individual’s lifetime. Therefore an HSA is not a “retirement plan” and is not exempt from garnishment.

2013 COA 164. No. 12CA1014. Van Rees, Sr. v. Unleaded Software, Inc.
Negligence—Fraud—Fraudulent Concealment—Constructive Fraud—Negligent Misrepresentation—Colorado Consumer Protection Act—Civil Theft—Contract—Economic Loss Rule—Duty of Care.

Plaintiff John Van Rees, Sr. appealed the trial court’s dismissal of his claims against defendant Unleaded Software, Inc. (Unleaded). The judgment was affirmed.

Van Rees and Unleaded executed three contracts wherein Unleaded agreed to design and build a website, perform “search engine optimization” (SEO) services for the website, and host the website on a dedicated server. Van Rees brought this action due to the lack of work performed. Unleaded moved to dismiss the seven tort claims—all the claims except the three breach-of-contract claims—as barred by the “economic loss rule,” which the court granted.

Van Rees contended that the trial court erred in dismissing his claims without sufficient written analysis. A trial court, however, need not make findings of fact and conclusions of law when it dismisses a complaint for failure to state a claim under CRCP 12(b)(5).

Van Rees argued that the trial court erred in dismissing his claims of fraud, fraudulent concealment, constructive fraud, and negligent misrepresentation because he alleged duties independent of the three contracts. Here, all alleged misrepresentations related directly to contractual duties. Because Van Rees failed to allege any independent duty on which to base his tort claims, the trial court did not err in dismissing those four claims.

Van Rees also contended that the trial court erred when it dismissed his negligence claim. Van Rees, however, failed to allege that Unleaded owed him a duty of care independent of its contractual duties.

Van Rees further argued that the trial court erred in dismissing his claim under the Colorado Consumer Protection Act (CCPA). This dispute pertains to a private contract between two sophisticated business entities, and Van Rees does not allege any harm or potential harm to identifiable segments of the public. Therefore, Van Rees failed to allege sufficient facts to support a CCPA claim.

Finally, Van Rees contended that the trial court erred in dismissing his civil theft claim. Van Rees’s civil theft claim fails, however, because it arises out of the alleged breaches of contract, and nothing in the complaint could be construed to establish an independent legal duty.

2013 COA 165. No. 12CA1582. People v. Hargrove.
Habitual Criminal Statute—Abbreviated Proportionality Review—Gross Disproportionality—Extended Proportionality Review.

The People appealed the trial court’s determination that a forty-eight-year prison sentence under the habitual criminal statute would be grossly disproportionate to defendant’s crimes. The order was reversed and the case was remanded.

The People charged defendant with felony escape after his parole officer could not locate him when the battery on the GPS monitor on his ankle bracelet had not been charged. The People also charged defendant with four habitual criminal counts based on his previous felony convictions for sexual assault—force, criminal impersonation, failing to register as a sex offender, and possession of a schedule II controlled substance. The jury found defendant guilty of escape, and the trial court imposed a sentence of twelve years in prison.

The People contended that the trial court erred by concluding that a forty-eight-year prison sentence under the habitual criminal statute would be grossly disproportionate to defendant’s crimes. The People also contended that, even if the trial court’s abbreviated proportionality review raised an inference of gross disproportionality, the trial court was required, but failed, to conduct an extended proportionality review. Because the Court of Appeals could not determine whether a forty-eight-year prison sentence gave rise to an inference of gross disproportionality based on the record, it reversed the order and remanded the case to the trial court for further factual development of the record as to three of defendant’s four previous felony convictions.

The trial court was directed to conduct an abbreviated proportionality review after further factual development. If that abbreviated proportionality review gives rise to an inference of gross disproportionality, the trial court must conduct an extended proportionality review. If the abbreviated proportionality review does not give rise to an inference of gross disproportionality, the trial court must sentence defendant to forty-eight years in prison under the habitual criminal statute.

2013 COA 166. No. 12CA1912. In re the Estate of Beren: Beren v. Beren.
Probate—Contribution/Garnishment—Spendthrift Provision—Appellate Attorney Fees.

This appeal involved the estate of Sheldon Beren, who died testate in 1996 and whose estate has been the subject of previous litigation (Beren I). This appeal involved defendant David Beren, who is one of decedent’s sons; Robert Goodyear, Jr., the estate’s personal representative in his capacity as liquidating trustee,; and the decedent’s surviving spouse, Miriam Beren (garnishor).

On September 2, 2010, the probate court approved Goodyear’s petition for final settlement and distribution (Final Distribution Plan), which called for the creation of liquidating trusts, including the Beren Estate Residuary Liquidating Trust Agreement (Liquidating Trust), because of Goodyear’s concern over a contingent income tax liability of the estate. Over defendant’s objections to the creation of the trusts, the probate court ordered Goodyear to distribute the estate assets as outlined in the Final Distribution Plan.

On appeal, defendant argued that garnishor could not garnish his interest in the Liquidating Trust to collect the contribution amounts that he owed her until she obtained a judgment establishing his liability in a separate contribution action. The Court of Appeals found that because the September 2 order fixed the contribution liability, garnishor was not required to obtain a separate judgment before she could garnish his account.

CRS § 15-11-205(4) provides for determination by the probate court of the elective-share and empowers it to “order its payment from the assets of the augmented estate or by contribution.” Under this authority, the probate court, in its September 2, 2010 order, had shown a 1997 distribution of $1 million to defendant subject to contribution of $459,546.51 for funding garnishor’s elective share. Defendant argued that this order was not an executable judgment and that under § 15-11-205(5), garnishor was required to bring a separate contribution action and obtain a judgment on which she could execute, before serving a writ of garnishment. The Court of Appeals found this section did not require a separate action but addressed only whether an order or judgment on contribution liability may be enforced in other Colorado state courts or other jurisdictions.

Alternatively, defendant argued that his bequest should not have been subject to contribution because the 1997 stipulation did not reserve to garnishor any right to seek contribution. This argument was foreclosed by Beren I. The division there declined to address this issue and he was precluded from raising it again.

Garnishor sought a portion of her appellate attorney fees under CRS § 13-17-102 because defendant’s assertion that the 1997 stipulation precluded contribution liability lacked substantial justification. The Court agreed and remanded the case for a determination of the amount.

Defendant argued that because the Liquidating Trust Agreement contained a spendthrift provision, the probate court erred by allowing his interest in the Liquidating Trust to be garnished before any distribution to him. The Court held that this provision did not protect funds that Goodyear was required to distribute under the Agreement. The Agreement provided that as soon as all applicable statutes of limitations on the contingent tax liabilities had expired, the Liquidating Trustee must distribute the remaining balance of each beneficiary’s separate share. The statute of limitations ran, and Goodyear told the beneficiaries he planned to make a distribution to each of them. Before he did so, garnishor served a writ of garnishment on Goodyear requiring him to pay her any personal property belonging to defendant up to the amount of his contribution liability from the September 2 order, plus interest. Defendant filed a claim of exemption relying on the spendthrift provision in the Agreement.

The probate court found that the spendthrift provision was invalid, or, even if the provision was valid, the trust funds could be garnished once Goodyear exercised his discretion to make a distribution. On appeal, the Court noted that funds under the discretionary control of a trustee subject to a spendthrift provision cannot be garnished. Once distributed, such funds are within the reach of creditors. The Court ruled that once the trust funds had become subject to mandatory distribution, they could be garnished. The order was affirmed and the case was remanded for further proceedings.

2013 COA 167. No. 12CA2008. Roaring Fork Club, LLC v. Pitkin County Board of Equalization.
Valuing a Private, Non-equity Golf Club Property for Property Taxes.

The Pitkin County Assessor determined the value of a golf club property owned by the Roaring Fork Club, LLC for tax year 2011. The Pitkin County Board of Equalization (BOE) affirmed this value over the club’s objection. The Board of Assessment Appeals (Board) agreed with the BOE. On appeal, the club asserted that the assessor should not have included the value of sold club memberships in the assessment of the club’s property. The Court of Appeals agreed.

The club’s property is open only to its members. Membership rights are retained for life unless sold or relinquished or revoked by the club. The club uses membership deposits to improve the property and maintain the improvements. The deposits are treated as a liability for accounting purposes because all or a part of them are refunded if members maintain their membership for at least thirty years or if they resign earlier and replacement members fill their spots.

The club’s amenities were completed in 1999 and the club had sold about 82% of the memberships by 2011. The club argued that the value of the sold memberships should not be considered in determining the actual value of the club’s property for property tax purposes because they are not interests in the real property. The BOE contended the membership deposits were effectively prepaid rent on leasehold interests and they would escape taxation if not included in the property value.

On appeal, the Court interpreted the membership agreement and then determined how that interpretation fit into the requirements of the property tax statute. The club and the BOE agreed that the income approach was the proper method to value the club’s property. However, the BOE argued that the memberships are an interest in land, like a leasehold, and should be included in the value under the “unit assessment rule.” The club contended the sold memberships are licenses and licenses are not an interest in land. The Court agreed with the club. Specifically, it found: (1) the membership agreement is not a lease; (2) memberships are not life estates; (3) the membership agreement does not give members any other taxable interest in the club’s property; (4) the membership agreement establishes that memberships are revocable licenses; (5) the unit assessment rule does not apply to these memberships; and (6) the sold memberships are not usufructory interests. Accordingly, the Board’s order was reversed and the case was remanded to hold a hearing to determine the actual value of the club’s property without taking into account the value of the sold memberships.

2013 COA 168. No. 12CA2463. Regional Transportation District v. 750 West 48th Ave., LLC.
Eminent Domain—Just Compensation—Evidentiary and Instructional Rulings—Commissioner Standards.

In April 2011, Regional Transportation District (RTD) filed a petition in condemnation and acquired from Landowner approximately 1.6 acres for RTD’s FasTracks Gold Line light rail project. It was agreed that RTD would take possession in exchange for a deposit of $1.8 million. The only issue at trial was determining the amount owed to Landowner for the condemned property. Landowner elected to have a commission trial, and the trial court appointed a commission of three freeholders to determine the property’s reasonable market value. RTD appealed pretrial and instructional rulings by the trial court and certain evidentiary rulings of the commission.

RTD contended the trial court erred in not disqualifying Kittie Hook, a real estate broker with Cassidy Turley, as a commissioner because it did not employ the “appearance of impropriety” disqualification standard applicable to judges. The court denied the request. CRS § 13-1-105(1) requires disqualification if the court determines that any of the proposed commissioners is not impartial. The trial court held that the applicable standard was not an “appearance of partiality,” but whether the commissioner was in fact interested and partial. The Court of Appeals agreed, concluding that the plain language of the statute required RTD to demonstrate that Hook was interested and partial. Because no such showing was made, it was not an abuse of discretion to not disqualify Hook.

RTD also argued that trial court erred by instructing the commission not to consider evidence concerning amenities at the property leased by Landowner’s lessee after condemnation. The Court found no abuse of discretion. The trial court’s instruction on the relevancy of evidence constituted a legal issue. Because CRS § 38-1-105(1) requires the trial court to instruct the commission on the applicable law, the court properly instructed the commission how to determine the reasonable value of the property.

RTD argued that the commission erred in reversing the trial court’s motion in limine ruling to admit an expert witness’s testimony as to the average value of industrial properties under the income approach. The Court disagreed. The Court held that the commissioners can modify the court’s determination of a motion in limine after hearing further evidence, and that the commission’s ruling was not an abuse of discretion.

Landowner requested attorney fees in defending the appeal. A landowner is entitled to recover its attorney fees where the award by the commission equals or exceeds 130% of the last written offer given to the property owner before the filing of the condemnation action. That was the case here, so the trial court awarded Landowner attorney fees. CAR 39.5 provides for an award of appellate attorney fees when there is a legal basis for such an award. Landowner therefore was entitled to appellate attorney fees, and the case was remanded for a determination of the amount. The judgment otherwise was affirmed.

2013 COA 169. No. 12CA2593. McCarville v. City of Colorado Springs.
Home Rule Charter Amendment Process.

Roger McCarville filed with the City of Colorado Springs (City) a letter demanding to petition the City’s electors to amend its charter. He attached a draft of his charter amendment that addressed several municipal issues. McCarville also announced his refusal to participate in the procedures applicable to citizen initiatives outlined by the City’s ordinances, contending they did not apply to amending the charter. Nonetheless, the City clerk followed the City ordinance and scheduled his draft initiative for a public meeting with the City’s Initiative Review Committee.

Instead of participating, McCarville filed an action in the district court requesting the court to declare that the City’s ordinances related to citizen-initiated charter amendments conflict with the Colorado Constitution and related statutes. The City moved for summary judgment on the ground that its process for initiated charter amendments is consistent with the applicable constitutional and statutory provisions. The motion was granted.

On appeal, McCarville argued that the Colorado Constitution permits only the General Assembly to legislate on charter amendments and that the City’s ordinances conflict with CRS § 31-2-210. The City responded that it may enact ordinances addressing the charter amendment process because: (1) this is a matter of local concern; or (2) this is a matter of mixed state and local concern, and its ordinances do not conflict with the statute.

The Court construed Colo. Const. art. XX, § 6 and art. V, § 1(9) to authorize a home rule municipality to enact legislation related to charter amendments. Thus, even if this matter were of statewide concern, the City may regulate charter amendments as long as the City’s legislation does not conflict with the state’s. If there is no conflict between the state statute and City ordinances, then they may coexist within the City, regardless of whether the legislation concerns a matter of local, state, or mixed concern. The judgment was affirmed.

2013 COA 170. No. 13CA0342. In re the Parental Responsibilities of A.R.L., and Concerning Limberis.
Biological Versus Presumptive Mother in Same-Sex Relationship—Uniform Parentage Act.

Elizabeth Limberis and Sabrina Havens began living together as a couple in 2000. Several years later, Havens unsuccessfully underwent one round of artificial insemination. Her friend, Marc Bolt, then agreed to inseminate her through sexual intercourse. Neither Havens nor Bolt revealed their sexual encounter to Limberis. Havens conceived and gave birth to A.R.L. in 2008. Limberis was present at the birth, and the child was given her last name. The birth certificate identifies Havens as the mother and does not name the father.

In 2011, the couple separated and Limberis filed a petition for parental responsibilities. Havens contested Limberis’s request for allocation of parental responsibilities and joined Bolt as a party. Bolt responded, describing himself as a sperm donor, and later filed a petition to relinquish his parental rights.

Limberis then petitioned for maternity under the Colorado Uniform Parentage Act (UPA), arguing that she was a presumed parent under the UPA. Havens moved to dismiss for failure to state a claim on which relief could be granted. Havens argued that because A.R.L. had a father and a mother, Limberis could not be a second mother and third parent under the UPA. The trial court agreed and dismissed Limberis’s petition. Following a hearing, the court allocated all parental responsibilities to Havens and granted Bolt’s petition to relinquish his parental rights.

The Court of Appeals found that the trial court erred in denying Limberis’s maternity petition on legal grounds without considering the merits. Limberis alleged facts in her petition that, if true, demonstrated she was an interested party. Therefore, she did not lack capacity under the UPA. The UPA’s purpose is to establish and protect the parent–child relationship. A person may be a presumed parent without being a biological or adoptive parent.

The Court rejected the argument that granting Limberis’s maternity petition would have left A.R.L. with three legal parents. First, Bolt was, at most, an alleged father. Second, no other statutory presumption applied to Bolt. Third, even if Bolt claimed a presumption as the father, that presumption is rebuttable. Fourth, if Bolt had filed a petition for parentage, it would have just been a competing petition, not the possibility of three parents. Finally, Bolt never claimed paternity.

The Court also rejected the argument that there is no authority in Colorado to support substituting a second legal mother for a child’s legal father. At most, the trial court had two competing presumptions to consider.

Finally, the Court addressed the underlying implicit premise of the trial court’s ruling—that a child may not have two legal mothers under the UPA. The Court found nothing in the UPA that would prohibit a child from having two same-sex parents. Accordingly, the order denying Limberis’s maternity petition was reversed. On remand, the trial court must determine whether Limberis is A.R.L.’s presumptive mother under the UPA’s holding-out provision.

2013 COA 171. No. 13CA0847. People in the Interest of J.G.C., and Concerning J.C.H.
Dependency and Neglect—Subject Matter Jurisdiction for Paternity Determination.

The Logan County Department of Social Services (LCDSS) filed a petition in dependency and neglect and a motion seeking temporary custody of a child who had been born eight days earlier. LCDSS identified J.C.H. as the child’s father because his name was on the birth certificate, but alleged that he might not be the biological father. Paternity tests were ordered, and results showed that J.C.H. was not the biological father. LCDSS then filed a motion to dismiss J.C.H. from the petition, which the trial court granted.

On its own motion, the Court of Appeals considered whether the district court had subject matter jurisdiction to make a paternity determination, and ruled that it did not. Colorado’s Uniform Parentage Act (UPA) vests exclusive original jurisdiction in parentage proceedings in the juvenile court. However, a paternity proceeding “may be joined with an action in another court of competent jurisdiction for dissolution of marriage, legal separation, declaration of invalidity of marriage, or support.” When a paternity action arises in a non-paternity proceeding, as here, the court must follow the procedures outlined in the UPA.

The UPA provides that before paternity can be determined, each man presumed to be the father and each man alleged to be the natural father must be made a party to the action, or be given notice and an opportunity to be heard. Here, an alleged father had been identified by mother and therefore his joinder was required. Because the record did not show that he was given legal notice that a paternity determination was being sought and he was made a party to the proceeding only after J.C.H.’s dismissal, the Court concluded that the district court lacked subject matter jurisdiction to decide the issue of paternity. The order dismissing J.C.H. from the petition therefore was void. The dismissal order was vacated and the case was remanded.

In anticipation of an issue that might be raised on remand, the Court addressed J.C.H.’s contention that the trial court erred in dismissing him based on the genetic test results. Under the UPA, a presumption of fatherhood may arise from several sets of circumstances. Here, the claim was based on J.C.H.’s acknowledgment of paternity on the birth certificate. His acknowledgment that he was not the biological father did not rebut this presumption, and there was no such evidence at the time he was dismissed from the case.

Colorado Court of Appeals Opinions