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Colorado Court of Appeals Opinions
April 2, 2009

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.

No. 06CA078. People v. Scheffer.
Evidence—Suppression—Search—Consensual—Jury Instruction—Mens Rea—Felony Level—Prosecution Misconduct—Closing Argument.

Defendant appealed the judgment of conviction entered on jury verdicts. The Court of Appeals affirmed the judgment.

After defendant purchased a "large amount" of iodine from a feed store, a store employee called the police to report the purchase, giving a physical description of defendant to the police. In response, Officer Roe contacted defendant, asked defendant questions, and searched defendant’s bag, which contained drugs and drug paraphernalia. A jury convicted defendant of possession of more than one gram of a schedule II controlled substance (methamphetamine), possession of one gram or less of a schedule I controlled substance (heroin), tampering with physical evidence, possession of one ounce or less of marijuana, and possession of drug paraphernalia.

On appeal, defendant contended that the district court erred in not suppressing all evidence obtained as a result of Officer Roe’s searches of his bag and person, because the encounter was not consensual and Officer Roe seized him without reasonable suspicion, in violation of the Fourth Amendment to the U.S. Constitution and article II, § 7, of the Colorado Constitution. However, there is no indication in the record that either of the two officers who arrested him displayed authority or control over defendant or otherwise threatened defendant. Based on the totality of the circumstances, defendant consented to the encounter with the officers. Thus, defendant was not seized or placed into custody until the officers arrested him and the court did not err in denying defendant’s motion to suppress.

Defendant also argued that the district court erroneously instructed the jurors on the methamphetamine possession charge by failing to instruct them that the mens rea of "knowingly" applies to every element of the crime charged, including the amount of methamphetamine. Under the plain language of the statute, unlawful possession of a schedule II controlled substance is proved when the prosecution shows beyond a reasonable doubt that the defendant knowingly possessed a schedule II controlled substance. Use of felony levels does not transform the amount into an element of the offense. Therefore, the amount of methamphetamine was not an essential element of the offense with which defendant was charged, and the district court did not err in instructing the jury that the prosecution was not required to prove defendant knew he possessed more than one gram of methamphetamine.

Defendant contended that the prosecutor’s misconduct in closing argument violated his fundamental constitutional rights to a fair trial and a fair and impartial jury under the U.S. and Colorado Constitutions. Here, the prosecutor commented on the strength and significance of the evidence against defendant. Accordingly, none of the prosecutor’s statements was improper. The judgment was affirmed.

No. 07CA1259. People v. Huggins, Sr.
Sexual Abuse—Hearsay—Preliminary Hearing.

The People appealed the trial court’s order dismissing criminal charges against defendant. The Court of Appeals reversed the order and remanded the case with directions.

Defendant’s daughter, H.H., reported that she had been sexually abused by her father. Defendant was charged with sexual assault on a child, sexual assault on a child by one in a position of trust, and two pattern-of-abuse sentence enhancers. At the preliminary hearing, the prosecution called the investigating police officer as the sole witness. Most of the officer’s testimony was a hearsay account of H.H.’s statements. The court dismissed the charges on the ground that the prosecution had presented nothing but hearsay.

On appeal, the Court held that because the preliminary hearing is merely a screening device, the rules of evidence do not apply. However, the prosecution is not allowed to rely solely on hearsay in the preliminary hearing. The prosecution satisfies the minimum requirement for non-hearsay testimony if it (1) presents some competent non-hearsay testimony addressing essential elements of the offense; and (2) presents hearsay testimony through a witness who is connected to the offense or its investigation and is not merely reading from a report.

In this case, the People satisfied the minimum requirements. The prosecution produced competent non-hearsay testimony to establish the status elements of the charged offense: (1) that the alleged victim was under the age of 15; and (2) that the alleged victim is not defendant’s spouse. The prosecution also produced the victim’s statements through the testimony of the investigating officer, a witness who was familiar with the alleged events and did not merely read from a report. The district court misperceived the governing standard and, accordingly, abused its discretion. Further, the information presented at the preliminary hearing established probable cause to believe that defendant committed the charged offenses. The trial court’s ruling was reversed and the case was remanded with directions to reinstate the charges.

No. 08CA0506. Ritter, Colorado Governor v. Jones.
Colorado Open Records Act—Draft Legislation—Work Product—Elected Officials—Public Records.

Respondent appealed a district court order holding that the Colorado Open Records Act (CORA) does not require Governor Bill Ritter to allow respondent to inspect information redacted from a memorandum sent to the Governor’s legal counsel. The Court of Appeals affirmed the order.

Colorado State Representative Rosemary Marshall requested that the Office of Legislative Legal Services (OLLS) draft legislation to implement a state employee partnership system in Colorado. In response, an OLLS lawyer drafted legislation and, as authorized by Rep. Marshall, sent it to Steven Ury, assistant general counsel for the Service Employees International Union (SEIU), for review and comment. Ury then wrote a memorandum to two union officials regarding establishing a state employee partnership system. The memorandum’s appendix contained excerpts of the draft legislation prepared by OLLS. Respondent filed a CORA request with the Office of the Governor, seeking to obtain this document.

Rep. Marshall learned of respondent’s request and advised the Governor’s legal counsel that she believed the excerpts of draft legislation in the memorandum were confidential "work product" exempt from public disclosure under CORA. The Governor provided respondent a copy of the memorandum but redacted the appendix containing relevant excerpts of the draft legislation. The Governor then filed an application in the district court for an order determining whether CORA required disclosure of the appendix. The district court ruled that disclosure was not required.

On appeal, respondent contended that the memorandum should not be classified as work product, because it was included in correspondence from a private citizen (Ury) to the Governor. The Court of Appeals disagreed. Work product prepared for elected officials is excluded from the definition of "public records" and therefore is not subject to disclosure under CORA. Work product includes "all documents prepared or assembled in response to a request for a bill or amendment, other than the introduced version of a bill or amendment that was in fact introduced."

Here, the stipulated facts make clear that the draft legislation at issue met this definition of work product. The draft legislation was prepared by OLLS in response to a request from Rep. Marshall to draft legislation concerning a state employee partnership system. Because the draft legislation was never introduced in the Colorado General Assembly, it falls within the definition of work product. It follows that because the original draft legislation was work product exempt from disclosure under CORA, the portions of the draft legislation contained in the memorandum remained work product. Thus, the redacted portion of the memorandum, which contains excerpts of OLLS draft legislation, is exempt from disclosure.

Respondent also argued that even if the memorandum is confidential work product, Rep. Marshall cannot shield its redacted contents from disclosure, because she authorized OLLS to release its draft legislation to Ury and the Governor’s legal counsel. However, Rep. Marshall did not voluntarily release the draft legislation to the general public. Ury provided analysis to assist Rep. Marshall’s legislative effort. The advisory relationship between Rep. Marshall and Ury thus established a common legal interest or enterprise. This was not waived when Ury forwarded it to the Governor’s legal counsel. The order was affirmed.

No. 08CA0664. Dolores Huerta Preparatory High v. Colorado State Board of Education.
Charter School Contract—Funding—Standing—Judicial Review—Political Subdivision Doctrine—Colorado Constitution.

In this dispute over the terms of a charter school contract, Dolores Huerta Preparatory High (DHPH), a public charter school, and parents of three DHPH students appealed the judgment dismissing their complaint against the Colorado State Board of Education (Board) and Pueblo School District No. 60 (District). The Court of Appeals affirmed the judgment.

The District and DHPH entered into a charter school contract that contemplated funding for a long-term DHPH facility based on sharing proceeds of future mill levies or bond issues, but did not provide any specific facility funding. Instead, the District made available to DHPH modular structures that lacked a library, a science lab, and even running water, although staff and students had access to restrooms in an adjoining elementary school. To obtain specific long-term facility funding, DHPH initiated nonbinding third-party arbitration.

The arbitrator agreed with DHPH that CRS § 22-30.5-105(2)(c)(II) requires a charter school contract to include such funding, and ordered the District to provide DHPH with $900,000 in such funding. This amount had been included in DHPH’s charter application, but the District rejected it as a contract term. The District appealed to the Board, which vacated the award, holding that "the contract complied with the statute." The trial court dismissed plaintiffs’ complaint on the ground that DHPH lacked standing to sue the District or the Board.

On appeal, the Court held that the trial court did not err by dismissing DHPH’s claims. DHPH, as a political subdivision, lacks standing under the political subdivision doctrine. Consequently, because the General Assembly has not granted standing to charter schools for these types of governing policy claims, courts lack jurisdiction to hear them and CRS § 22-30.5-107.5 precludes judicial review of the Board’s decision.

The Court also rejected parents’ contention that lack of specific long-term facility funding violated their rights under the Colorado Constitution. Colo. Const. art. IX, § 2, requires that Colorado’s system of public schools be "thorough and uniform"; it does not protect parents. In addition, the choice to attend a charter school is not a constitutional right, and the government need not fund the exercise of a mere statutory right. The judgment was affirmed.

No. 08CA0873. Hills v. Westminster Municipal Court.
C.R.C.P. 106—Speedy Trial—Continuance.

Following the refusal of the Westminster Municipal Court to dismiss criminal charges against him, petitioner initiated this C.R.C.P. 106 proceeding in the district court. The district court ordered the Westminster Municipal Court to dismiss charges against petitioner. The Court of Appeals reversed the district court’s order.

On January 20, 2007, the City of Westminster (City) charged petitioner with one count of battery and one count of criminal mischief, both violations of the Westminster Municipal Code. The Westminster Municipal Court advised petitioner of the charges two days later. The trial initially was scheduled for February 27, 2007, but several continuances pushed the trial date back to April 13, 2007.

Due to a conflict of interest, new counsel entered his appearance for petitioner on April 11, 2007. The trial was reset for June 8, 2007. The City and petitioner were prepared to try the case on June 8; however, the court continued the case because it had two other cases going to trial that day. Knowing that the speedy trial period would expire on July 10, the court offered July 6 as a potential trial date. Petitioner rejected that date, and the trial was reset for August 3, 2007.

Petitioner then filed a C.R.C.P. 106 petition, claiming that the Westminster Municipal Court violated his speedy trial right by setting the trial outside the speedy trial period. Defendant also filed a motion to stay the municipal court proceedings, which the district court granted. The district court found that the municipal court’s continuance on June 8 was the reason the trial date was pushed outside the speedy trial period and remanded the case to the municipal court for dismissal of the charges against plaintiff.

On appeal, the Westminster Municipal Court and Hon. Paul D. Basso argued that the district court erred in finding that the municipal court violated petitioner’s speedy trial right and in ordering the municipal court to dismiss the charges against Hills. The Court of Appeals agreed.

Although the trial court continued the case on June 8 due to docket congestion, it offered a new trial date within the speedy trial period. Because petitioner’s counsel objected to that date and proposed only dates outside the speedy trial period, defense counsel’s rejection of a new trial date within the speedy trial time period extended the speedy trial deadline. The district court’s order was reversed and the case was remanded to that court to return it to the municipal court to reinstate the charges against petitioner.

No. 08CA1020. Lavarato v. Branney, MD.
Professional Negligence Claim—Mistaken Identity Claim—Liability—Statute of Limitations—CRS § 13-80-102.5—C.R.C.P. 15(c).

Plaintiff appealed the district court’s order granting Dr. Scott Branney’s motion to dismiss. The Court of Appeals affirmed the judgment.

On September 27, 2007, plaintiff filed a complaint asserting a single claim of professional negligence and naming Dr. Vicki Mann as the sole defendant. On November 2, 2007, plaintiff moved for leave to file an amended complaint, asserting that Dr. Branney should be joined as a party defendant. Dr. Branney filed a motion to dismiss, arguing the claim was time-barred under CRS § 13-80-102.5. Plaintiff argued that under C.R.C.P. 15(c), the amended complaint related back to the date he filed the original complaint, at which point he was unaware he had a claim against Dr. Branney. The district court granted Dr. Branney’s motion to dismiss.

On appeal, plaintiff argued that but for a mistake concerning the identity of the proper party, he would have named Dr. Branney as a defendant. In response, Dr. Branney stated that plaintiff failed to establish that he made a mistake concerning his proper identity or that Dr. Branney should have known, but for such a mistake, that plaintiff would have named him as a defendant. The Court of Appeals agreed with Dr. Branney.

CRS § 13-80-102.5 provides that an action for negligence against a health-care professional must be brought within two years after it accrues. For an amended complaint to relate back to the filing of an original complaint under C.R.C.P. 15(c): (1) the claim must have arisen out of the same transaction or conduct set forth in the original complaint; (2) the new party must have received notice of the action within the period provided by law for commencing the action; and (3) the new party must have known or reasonably should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against him or her.

The Court held that the third requirement clearly was not met. C.R.C.P. 15(c) is meant to allow changes only where they result from an error such as misnomer or misidentification. A plaintiff’s ignorance or misunderstanding about who is liable for his injury is not a "mistake" as to defendant’s identity. The plaintiff is responsible for determining who is liable for the injury and for doing so before the statute of limitations expires. The order of dismissal was affirmed.

No. 08CA1098. Lauric v. USAA Casualty Insurance Company.
Underinsured Motorist Benefits—Summary Judgment—Notice-Prejudice Rule.

In this underinsured motorist (UIM) benefits action, Greg and Robin Lauric (insureds) appealed the trial court’s summary judgment in favor of USAA Casualty Insurance Company (insurer). The Court of Appeals reversed the judgment and remanded the case with directions.

Greg Lauric was involved in an automobile accident on June 19, 2002. He gave timely notice to his insurer, but afterward and without notice, he made a "full and final settlement" with the tortfeasor for $25,000, the policy limits of the tortfeasor’s insurance.

Insureds brought this action, seeking UIM benefits from insurer. Insurer moved for summary judgment, arguing that insureds had violated the consent-to-settle clause in the insurance contract and that Artery v. Allstate Insurance Co., 984 P.2d 1187 (Colo.App. 1999), required dismissal. In Artery, the Court held that an insurer is not required to show prejudice to enforce such a clause. The trial court granted summary judgment to insurer.

On appeal, the Court declined to follow Artery. It held that the notice-prejudice rule applies to insured’s failure to notify the insurer and obtain its consent to a settlement, in violation of notice and consent-to-settle clauses in a UIM case.

The Court also applied the standard adopted by the Supreme Court in Friedland v. Travelers Indemnity Co., 105 P.3d 639 (Colo. 2005), with regard to the burden of proof. When an insured settles in breach of notice and consent-to-settle clauses, there arises a presumption of prejudice. The insured must then have the opportunity to come forward with evidence to dispel the presumption based on the specific facts of the case. If the insured presents such evidence, the presumption loses any probative force it may have and the insurer must go forward with evidence that actual prejudice existed. Because the trial court did not apply this standard, the case was remanded for further proceedings allowing for application of the standard.

No. 08CA1301. Munoz-Hoyos v. Munoz de Cortez.
Cost Bond for Nonresidents—CRS § 13-16-101.

Plaintiff appealed the trial court’s judgment dismissing her tort action against defendants. The Court of Appeals reversed the judgment and remanded the case with directions.

Plaintiff, who lives in Colorado but is not a U.S. citizen, asserted claims against defendants for assault, false imprisonment, and involuntary servitude. Because of her noncitizen status, defendants filed a motion to require her to post a cost bond as a nonresident of Colorado. The trial court granted the motion and ordered plaintiff to post a $20,000 bond. When she failed to do so, the court dismissed the complaint.

On appeal, plaintiff argued it was error to rule as a matter of law that a noncitizen could not be a resident of Colorado under CRS § 13-16-101. The Court of Appeals agreed. Whether a person is a resident of a particular state is determined, for state law purposes, by reference to the laws of that state. Therefore, a person’s immigration status under federal laws does not in itself preclude a finding of residency under state law. In Colorado, whether a person is a resident is determined by that person’s physical presence and intent to remain. Thus, it was error for the trial court to rule that plaintiff’s noncitizen status alone precluded her from qualifying as a resident for purposes of CRS § 13-16-101. On remand, the court is to apply the proper criteria.

No. 08CA1461. O’Neil v. Wolpoff & Abramson, L.L.P.
Fair Debt Collection Practices Act—Telephone Consumer Protection Act—Summary Judgment—Claim Preclusion.

Plaintiff appeals the trial court’s summary judgment in favor of defendant Wolpoff & Abramson, L.L.P. on the ground that prior federal court litigation precluded plaintiff’s claims. The Court of Appeals reversed the judgment and remanded the case with directions.

Defendant is a multi-state law firm practicing primarily in the field of debt collection. In 2006, plaintiff filed a complaint against defendant in the U.S. District Court for the District of Colorado, alleging that a series of debt collection phone calls made to plaintiff’s cell phone by agents of defendant violated the federal Fair Debt Collection Practices Act. In May 2007, the parties settled those claims. One week later, plaintiff moved for leave to amend his complaint to assert violations of the Telephone Consumer Protection Act (TCPA).

Defendant moved the U.S. District Court to enforce the settlement agreement. The court granted the motion in October 2007. The court also denied plaintiff’s motion for leave to amend his complaint, holding that the request was untimely and that plaintiff failed to show "good cause." The court stated that the TCPA claims were not resolved by the settlement agreement and that plaintiff could assert them in the future.

In December 2007, plaintiff filed his complaint in the instant state court case, asserting claims under the TCPA. Plaintiff and defendant filed cross-motions for summary judgment. The trial court granted defendant’s motion for summary judgment on the basis of claim preclusion, holding that the TCPA claims could have been asserted in the federal court litigation.

On appeal, plaintiff argued that claim preclusion does not bar his claims. The Court agreed. In this case, claim preclusion was asserted on the basis of the settlement agreement and the Court looked to that agreement to determine the scope of its preclusive effect. The settlement agreement, as noted in the federal district court order, clearly did not resolve the TCPA claims. In fact, that order stated that the parties "agree that the settlement agreement excludes claims which could be asserted under the [TCPA]." The summary judgment was reversed and the case was remanded.

No. 08CA2335 & 08CA2336. People in the Interest of T.M.W., Upon the Petition of the Denver Dept. of Human Services, and Concerning B.M.S-J.
Termination of Parent–Child Relationship—Indian Child Welfare Act Notice Requirement.

Mother appealed the trial court’s judgments terminating her parent–child relationship with her children, T.M.W. and S.A.W. The Court of Appeals vacated the judgments and remanded the case with directions.

A petition was filed in January 2007 concerning T.M.W. The petition alleged that when T.M.W. was 5 months old and in mother’s care, he suffered a severe gash requiring four stitches; however, mother did not seek medical attention for him and stated she could not care for him. A second petition was filed one year later, after mother’s younger son, S.A.W., was born. The second petition was filed during the pendency of the first action.

Mother entered no-fault admissions to both petitions, and the children were placed with the paternal grandparents. The Denver Department of Human Services (Department) initially sought an allocation of parental responsibilities to grandparents, but later pursued termination. In 2008, the juvenile court entered identical but separate judgments concerning each child.

The juvenile court held that this was not an Indian Child Welfare Act (ICWA) case. The court made no findings as to whether the ICWA notice requirement was met; however, the parties were permitted to appeal this issue.

The Department represented that it sent ICWA notices regarding T.M.W. to two tribes, based on mother’s belief that the father might have been a member of both tribes. The record contained a response from only one of the tribes. The People conceded that notice regarding S.A.W. was not sent to either tribe. Therefore, because it was undisputed in both appeals that the proper notices were not sent to all relevant tribes, the judgments were vacated and the cases were remanded so that notice could be given in accordance with the ICWA.

The Court also addressed the merits of the appeal in the event the trial court determines the ICWA does not apply. Mother asserted that the Department did not make reasonable efforts to reunite her with the children. However, mother waived this issue by not bringing it to the juvenile court’s attention. Therefore, if it is determined that either child is not an Indian child, the judgments terminating parental rights must be reinstated.

Colorado Court of Appeals Opinions

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