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Colorado Court of Appeals Opinions
April 11, 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 49. Nos. 07CA0422 & 11CA0725. Larimer County Board of Comm’rsv. Colorado Property Tax Administrator.
Property Tax Exemption—Charitable Use Exemption—Religious Purpose Exemption—Jurisdiction.

In this property tax exemption case, the Young Men’s Christian Association of the Rockies (YMCA) and the Colorado Property Tax Administrator (Administrator) appealed the Board of Assessment Appeals' (BAA) orders. The BAA found that the YMCA was not entitled to a charitable use exemption or a religious purposes exemption from property taxes, except for its chapels and religious activity center. The orders were vacated in part, the appeal was dismissed in part, and the case was remanded.

The YMCA owns and operates facilities in Grand and Larimer Counties. The Counties contended that the Court of Appeals did not have jurisdiction to entertain the Administrator’s appeal. Because the BAA did not determine that the matter was of statewide concern, the Administrator may not appeal. Accordingly, the Court did not have jurisdiction to hear the Administrator’s appeal and, therefore, dismissed it.

The Counties contended that the Court did not have jurisdiction to entertain the YMCA’s appeal. CRS § 39-2-117(5)(b) gives any owner of taxable property in such county the right to appeal the Administrator’s determination regarding an application for a property tax exemption. Therefore, the Court of Appeals had jurisdiction to hear the YMCA’s appeal from the BAA’s determination.

The YMCA also argued that the BAA erred when it found that the YMCA did not qualify for a religious purposes exemption. The BAA did not discuss the YMCA’s declared purpose in using the properties, whether the YMCA’s activities are in furtherance of the YMCA’s religious purposes, or whether the activities are an integral part of the YMCA’s religious worship. Further, the BAA did not address the YMCA’s declaration of religious purposes contained in its application, the effect of the declaration’s presumed validity, or whether the presumption had been overcome. Because such declarations are presumptive with regard to the religious purposes for which property is used, the BAA did not apply the proper legal standards and, therefore, erred as a matter of law.

The YMCA further contended that the BAA erred when it found that the YMCA did not qualify for a charitable use exemption. Based on the record, the BAA did not properly consider whether the YMCA used the properties solely and exclusively for charitable purposes. Accordingly, the BAA did not apply the correct legal standards and, therefore, erred as a matter of law.

2013 COA 50. No. 07CA1878. People v. Roberts III.
Uniform Mandatory Disposition of Detainers Act—Speedy Trial.

Defendant appealed the judgments of conviction entered on jury verdicts finding him guilty of violating the Colorado Organized Crime Control Act (COCCA); conspiracy to commit computer crime (two counts); conspiracy to commit theft; conspiracy to commit forgery; computer crime (two counts); theft (four counts); forgery (seventeen counts); and possession of a forged instrument (two counts). The judgments were affirmed.

Defendant contended that his convictions must be vacated because he was not brought to trial within the period allowed by the applicable version of the Uniform Mandatory Disposition of Detainers Act (UMDDA). However, defendant improperly filed his UMDDA request while represented by counsel and improperly served this request. The court and prosecutor did not receive notice of defendant’s UMDDA request until November 10, 2005. Consequently, defendant’s 180-day UMDDA period commenced that day.

Although defendant did not waive his UMDDA rights, the time for bringing defendant to trial was properly extended beyond the May 9, 2006 date as a result of two continuances requested by his attorneys. These continuances, which did not require the personal consent of defendant, were necessary to protect defendant’s constitutional right to effective assistance of counsel, and the length of the continuances were proper, as well. Therefore, there was no violation of defendant’s UMDDA or speedy trial rights.

2013 COA 51. No. 10CA2414. People v. Rainer.
Crim.P. 35(b)—Sentencing—Juvenile—Life Without Parole—Retroactive Application.

Defendant Atorrus Leon Rainer appealed the trial court’s order denying his Crim.P. 35(c) motion asserting that his 112-year sentence was unconstitutional. The order was reversed, defendant’s sentence was vacated, and the case was remanded for resentencing.

In 2000, when he was 17 years old, Rainer burglarized an apartment. During the incident, he shot two victims multiple times with a handgun, seriously injuring them and leaving them in critical condition. Rainer was arrested and was charged and tried as an adult in the district court. Following a jury trial in 2001, the jury found Rainer guilty of two counts of attempted first-degree murder, two counts of first-degree assault, one count of first-degree burglary, one count of aggravated robbery, and sentence enhancement counts for crimes of violence.

On appeal, defendant contended that his sentence violates the Cruel and Unusual Punishments Clause of the U.S. Constitution’s Eighth Amendment. Defendant filed his Crim.P. 35(c) motion after the Supreme Court held in Graham v. Florida, ___ U.S. ___, 130 S.Ct. 2011 (2010), that juveniles may not be sentenced to life without parole (LWOP) for non-homicide crimes. Defendant argued that his 112-year sentence constitutes a de facto LWOP sentence because his life expectancy is between 63.8 years and 72 years (based on Center for Disease Control life expectancy tables).

The rule announced in Graham is a new substantive rule that must be applied retroactively to all cases involving juvenile offenders under the age of 18 at the time of the offense, including those cases on collateral review. Therefore, the trial court erred when it found that Graham did not retroactively apply to defendant’s sentence.

In addition, although defendant’s motion was untimely, it was based on the new substantive rule of law announced in Graham. Therefore, he established justifiable excuse, his claim was not successive, and his motion was considered on its merits.

Finally, defendant’s aggregate sentence did not offer him, as a juvenile non-homicide offender, a “meaningful opportunity to obtain release” before the end of his expected life span. Thus, it constituted the functional equivalent of a life sentence without parole and was unconstitutional under Graham and its reasoning.

2013 COA 52. No. 11CA1581. BDG International, Inc v. Bowers.
Subject Matter Jurisdiction—Maritime Law—Finality of Judgment—Contract—Duress—Offsetting—Attorney Fees.

Defendants Robert J. Bowers and Auxiliary Graphic Equipment, Inc. (AGE) appealed the judgment entered after a bench trial in favor of plaintiff BDG International, Inc. (BDG). The judgment was affirmed.

AGE purchased printing presses from a seller in Australia for a client located in Colorado. AGE contracted with Fortner Graphic Solutions, Inc. (Fortner) to dismantle the printing presses and transport them to Colorado. Fortner then subcontracted with BDG and other firms to perform its contractual duties. BDG was responsible for transoceanic shipping, and another company was responsible for packing and inland transportation to the client’s site in Colorado. BDG brought this action after defendants failed to pay all costs for inland and ocean freight for the dismantling and shipping of the presses and failed to make payment as required by the agreements to release the resulting liens. The court entered a judgment in favor of BDG and against defendants, jointly and severally.

On appeal, defendants contended that the trial court lacked subject matter jurisdiction over this case, because it involved admiralty or maritime law and exclusive jurisdiction resided with the federal courts. Contrary to defendants’ arguments, however, this action is not in rem in nature; rather, it is a proceeding in personam, because it sought to enforce the contractual agreements against defendants personally and not against the cargo or another type of property of a maritime nature. Accordingly, jurisdiction in this case did not lie exclusively in the federal courts, and the trial court did not lack subject matter jurisdiction to hear this case.

Defendants also contended that the judgment was not final because it does not dispose of the litigation. The judgment entered by the trial court resolved BDG’s and the third-party claim; dismissed the counterclaim with prejudice; and awarded a sum certain for damages, collection costs, and prejudgment interest. Although the trial court provided directions with regard to how the proceeds of any sums recovered by Bowers or AGE should be applied to the judgments they obtained against Fortner in Colorado and Missouri, those directions do not alter the finality of the underlying judgment.

Defendants also contended that the trial court erred in not finding the contracts voidable on the basis of duress. Although defendants may have felt economic pressure to sign the releases to obtain possession of the cargo, the lienholders did not engage in wrongful conduct to coerce payment from defendants.

Defendants further contended that the trial court erred in failing to set off against one another the judgments in this case. Contrary to defendants’ contention, however, the principle of offsetting judgments does not apply, because the judgments are not against the same parties.

BDG collection costs primarily were attorney fees amounting to 40% of the principal due under the agreements signed by defendants. The Court of Appeals therefore ruled that the trial court did not err in awarding BDG collection costs.

2013 COA 53. No. 11CA2030. People v. Lucero, Jr.
Crim.P. 35(b)—Sentencing—Juvenile—Life Without Parole.

Defendant appealed the trial court’s order denying his Crim.P. 35(b) post-conviction motion seeking reduction of his aggregate eighty-four-year sentence for non-homicide crimes he committed as a juvenile. The order was affirmed.

In 2008, defendant was convicted of conspiracy to commit first-degree murder, attempted first-degree murder, and two counts of second-degree assault. The sentences for all were aggravated as crimes of violence. Defendant was 15 at the time of the incident giving rise to his convictions, but he was charged and tried as an adult.

On appeal, defendant asserted that his sentence violates the Cruel and Unusual Punishments Clause of the U.S. Constitution’s Eighth Amendment and article II, § 20 of the Colorado Constitution. In Graham v. Florida, ___ U.S. ___, 130 S.Ct. 2011 (2010),the U.S. Supreme Court held that juveniles may not be sentenced to life without parole (LWOP) for non-homicide crimes. Defendant argued that his sentence constitutes a de facto LWOP sentence. Defendant will be eligible for parole when he is 57 years old. Because defendant’s sentence provides a meaningful opportunity for release, however, it does not amount to LWOP.

2013 COA 54.No. 12CA0257. Youngs v. Industrial Claim Appeals Office.
Workers’ Compensation—Worsening Condition—CRS § 8-43-301(2).

In this workers’ compensation action, claimant sought review of a final order of the Industrial Claim Appeals Office (Panel). The order was affirmed.

This was claimant’s third appeal arising from his 2005 workers’ compensation claim. Claimant filed a petition to reopen his claim based on worsening condition and fraud. Employer and its insurer sought to have the fraud claim dismissed for failure to establish the elements to support his request to reopen. The administrative law judge (ALJ) agreed and dismissed the fraud claim. The Industrial Claim Appeals Office (Panel) affirmed the ALJ’s order rejecting claimant’s evidentiary and due process challenges.

A hearing was conducted on the worsening condition claim. The ALJ found employer’s retained independent medical examination (IME) physician’s testimony credible and persuasive, and discredited claimant’s testimony as “implausible, inconsistent, and unsupported by the medical records.” She denied and dismissed his petition to reopen based on worsening condition.

On July 15, 2011, claimant filed his petition to review the ALJ’s order regarding fraud, and on July 18, 2011, he filed his petition regarding worsening condition. The Panel affirmed the latter order and determined it lacked jurisdiction to review the former. Claimant appealed.

The Panel dismissed claimant’s appeal for lack of jurisdiction because it was interlocutory and he had failed to file his petition to review within the applicable twenty-day statutory time period after it became final. On June 24, 2011, ALJ Cain granted partial summary judgment to employer, dismissing the petition to review based on fraud, but allowed the remaining claim to proceed (the interlocutory order). On June 27, that order was mailed. On June 29, a hearing on the worsening condition claim was heard by ALJ Jones. On July 15, claimant submitted his petition to review ALJ Cain’s order. On the same day, ALJ Jones denied and dismissed the petition to review based on worsening condition. On July 18, that order was mailed. On July 18, claimant submitted his petition to review only ALJ Jones’s order.

CRS § 8-43-301(2) provides that a petition to review an ALJ order “shall be filed within twenty days after the date of the certificate of mailing of the order.” A party missing this time limit is jurisdictionally barred from obtaining further review of the order.

Claimant argued that he was entitled to automatic review of ALJ Cain’s order when he filed a timely petition for review of ALJ Jones’s order. The Court of Appeals disagreed, finding no authority for such an argument. The Panel correctly determined it had no jurisdiction to review ALJ Cain’s order.

In addition, under CRS § 8-43-301(2), claimant was required to submit a petition to review ALJ Cain’s order after ALJ Jones issued her final order. Filing the petition before ALJ Cain’s interlocutory order became final and appealable does not satisfy the statutory requirement, because it was not within the permissible twenty-day filing period. The Panel therefore had no jurisdiction.

Claimant also challenged the merits of ALJ Jones’s order denying and dismissing his petition to re-open based on worsening condition. ALJ Jones found that claimant failed to establish that his right shoulder pain was related to and caused by his work-related injury to his left shoulder. The Court found the record supported the ALJ’s decision and there was no abuse of discretion in her evidentiary rulings.

Colorado Court of Appeals Opinions

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