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Colorado Court of Appeals Opinions
April 26, 2012

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.

2012 COA 68. No. 08CA2439. People v. Green.
Trespass—Jury Instruction—Possessory Rights—Habitual Criminal Charges—Speedy Trial—Extended Proportionality Review.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of first-degree criminal trespass. He also appealed his sentence on that conviction and his adjudication and sentencing as a habitual criminal. The judgment and sentence were affirmed. 

Defendant traveled from Colorado Springs to Denver to visit the victim, with whom he had an intimate relationship. After spending several hours at the victim’s house, defendant and D.H., a friend of the victim, accompanied the victim to the restaurant where she worked. While there, defendant and the victim had a physical altercation, after which the victim told defendant never to talk to her again. Defendant left the restaurant. Later, D.H. also left the restaurant and went to the victim’s house.

After the victim returned home from work, she drove D.H. to his girlfriend’s house. She returned to her house around 3:45 a.m. After she undressed, defendant emerged from her living room and approached her, asking to talk to her. She told him to leave and called 911. After defendant left, the victim discovered that the window screen in her son’s bedroom had been broken.

The People charged defendant with second-degree burglary, first-degree criminal trespass, third-degree assault, unlawful sexual contact, criminal mischief, harassment, and three habitual criminal counts. The People later added a criminal impersonation count, to

which defendant pleaded guilty before trial. A jury found defendant guilty of first-degree criminal trespass, but acquitted him of the other charges. After several hearings, the district court adjudicated defendant a habitual criminal and sentenced him to twelve years in the custody of the Department of Corrections for the trespass conviction, plus two years mandatory parole, and six years in prison for the criminal impersonation conviction, to be served concurrently with the twelve-year sentence.

On appeal, defendant contended that the district court erred by twice refusing to give a jury instruction saying that a person who has possessory rights in or occupies a premises may authorize another person to enter. Because there was no evidence that D.H. had let the defendant into the victim’s house, the district court did not err by refusing to give the requested instruction. Furthermore, the instructions given by the court adequately explained to the jury that if defendant had been invited into the house, he could not be guilty of unlawful entry.

Defendant also contended that the district court erred by failing to dismiss the habitual criminal charges because the court set the first habitual criminal hearing beyond his speedy trial deadline. Habitual criminal charges are sentence enhancers and not offenses. Therefore, they are not subject to the speedy trial deadline set forth in CRS §18-1-405(1), and the district court did not err by refusing to dismiss the habitual criminal charges. Further, the district court’s sentencing of defendant did not violate his constitutional right to a speedy trial and defendant was not entitled to a jury trial on the habitual criminal charges.

Defendant further contended that the district court erred by failing to conduct an extended proportionality review of his sentence. The court need only conduct an extended proportionality review when the abbreviated proportionality review gives rise to an inference of gross disproportionality. Defendant’s three prior felony convictions were a 1997 Texas conviction for indecency with a child, and two Texas convictions for failure to register as a sex offender (predicated on the indecency conviction). Sexual offenses committed against children are considered grave or serious in Colorado. The district court also properly concluded that defendant’s trespass conviction was grave or serious, given the circumstances of the trespass. For this reason and because defendant had not raised an inference of gross disproportionality, the court did not err by failing to sentence him to twelve years on this class 5 felony or to conduct an extended proportionality review of his sentence.

2012 COA 69. No. 10CA1338. In re the Marriage of Leverett.
Dissolution of Marriage—Unconfirmed Arbitration Award—Contempt of Court.

In this post-dissolution of marriage contempt matter between husband and wife, husband appealed from the district court’s order denying his petition for review of a district court magistrate’s judgment. The order was vacated and the case was remanded.

The district court magistrate found husband in contempt and imposed punitive sanctions against him for violating the awards of an arbitrator. Wife had not asked the district court to confirm the arbitrator’s awards pursuant to CRS §13-22-222(1).

On appeal, husband argued that the magistrate erred in finding him in contempt of court for alleged violations of unconfirmed arbitration awards. An arbitrator’s award does not become enforceable as an order of the court unless and until (1) a party makes a motion to the court for an order confirming the award, and (2) the court issues an order confirming the arbitration award pursuant to CRS §13-22-222(1). Therefore, a person cannot be held in contempt of court for violating an unconfirmed award of an arbitrator. Because neither wife nor husband made a motion to the court for an order confirming the arbitrator’s awards, those awards were not enforceable as an order of the court, and husband may not be held in contempt on that basis.

2012 COA 70. Nos. 10CA1625 & 10CA2514. Davis v. GuideOne Mutual Insurance Co.
Colorado Auto Accident Reparations Act—Personal Injury Protection Benefits—Preferred Provider Organization—Insured—Punitive Damages—Attorney Fees.

In these consolidated appeals, GuideOne Mutual Insurance Company (GuideOne) appealed the trial court’s judgment and award of attorney fees in favor of plaintiff Patricia Davis. The judgment was affirmed in part and vacated in part, and the case was remanded with directions.

In 1995, GuideOne issued an automobile insurance policy covering Davis’s husband as the named insured and Davis as a resident spouse. When the husband applied for the policy, he opted for basic personal injury protection (PIP) coverage with a preferred provider organization (PPO) option that would require him and his wife to use certain preapproved medical providers in the event of an accident. The husband executed a disclosure form with that option, as required by law.

In January 1999, the husband requested that GuideOne make Davis the named insured on the policy because he and Davis had divorced and no longer lived together. GuideOne did so and sent Davis documents informing her of the terms of coverage under the policy but not alerting her to any personal injury protection (PIP) option beyond the PPO-restricted one contained in the policy. Davis later was involved in an accident, and GuideOne declined to pay some of her bills from her non-PPO doctors.

On appeal, GuideOne contended that the trial court erred in granting summary judgment for Davis on her claims that (1) GuideOne violated the former Colorado Auto Accident Reparations Act (CAARA) by not disclosing to her the managed care PIP options when she became the named insured under the policy; and (2) she was entitled to have her policy reformed, as of the date she became the named insured, to provide for unlimited PIP benefits. When the husband was removed from the policy and Davis was added to the policy as a named insured, GuideOne was required to treat her as though she were making an initial application for insurance. Therefore, GuideOne was required to disclose PIP options to Davis and allow her to accept or reject such options. GuideOne’s failure to make such an offer, however, did not entitle Davis to unlimited PIP benefits, because the husband’s original policy contained the $200,000 aggregate cap. Accordingly, the trial court erred in reforming the policy without any limitation as to the amount of payable benefits. However, the trial court did not abuse its discretion in reforming the policy to provide for enhanced PIP benefits as of the day Davis became the named insured.

GuideOne also contended that the trial court abused its discretion in allowing Davis to amend her complaint after the close of evidence to include a punitive damages claim. The record reveals that, throughout trial, Davis alleged that GuideOne conducted itself willfully and wantonly with respect to more than just its failure to comply with CAARA, and GuideOne did not object to this evidence. Because GuideOne failed to show that it was prejudiced by this decision, the trial court did not abuse its discretion in allowing Davis to go forward on her punitive damages claim.

Finally, GuideOne contended that the trial court erred when it awarded Davis attorney fees in violation of former CAARA §10-4-708(1.7)(c). Because Davis was the prevailing party and her attorney fees were reasonable, the trial court did not err in awarding fees to Davis under this section.

2012 COA 71. No. 11CA0205. In re the Marriage of Beatty and Turner.
Post-Dissolution—Modification—Child Support—Service of Process—Equitable Estoppel Doctrine.

In this post-dissolution decree proceeding to modify child support, mother appealed from the district court’s order adopting a magistrate’s calculation of child support arrearages owed by father. The order was affirmed in part and reversed in part, and the case was remanded for further proceedings.

Mother contended that the magistrate erred by finding that service of process was proper and by denying her request for a continuance. Mother, however, waived the improper service of process defense by failing to challenge the service’s sufficiency in a responsive pleading before the hearing. Mother also failed to provide the transcript in support of her request for a continuance.

Mother contended that the magistrate erred by applying the equitable estoppel doctrine to enforce the parties’ oral agreements to reduce child support. The magistrate’s order contains no findings that father had detrimentallyrelied on mother’s acts or representations. Further, father did not prove that he either was unaware of his continuing obligation under the original support order or lacked the knowledge and means to seek modification of it. Therefore, the magistrate erroneously abated the arrearages father owed under the original support order, and the district court’s order in that regard was reversed.

Mother also challenged the income that the magistrate attributed to father and used for calculating his current child support obligation. Because the hearing transcript was not in the record on appeal, however, the Court of Appeals presumed that the determination of father’s income was supported by the evidence and was not clearly erroneous.

Mother further argued that the magistrate erred by setting aside the requirement that father attend a parenting class. The magistrate had authority to preside over all motions to modify permanent orders and did not abuse discretion in modifying this order.

2012 COA 72. No. 11CA0508. St. John’s Church in the Wilderness v. Scott.
First Amendment—Law of the Case Doctrine.

This appeal followed the remand ordered in St. John’s in the Wilderness v. Scott, 194 P.3d 475 (Colo.App. 2008) (St. John’s I).The order was affirmed.

Plaintiffs, St. John’s Church in the Wilderness and two parishioners, Charles I. Thompson and Charles W. Berberich, brought claims for private nuisance and conspiracy to commit private nuisance against defendants Kenneth Tyler Scott and Clifton Powell. Specifically, defendants had demonstrated their opposition to abortion and homosexuality on the public street and sidewalk across the street from the church during an outdoor Palm Sunday service that began on Church property. Defendants shouted and carried signs, some of which included images of aborted fetuses.

On appeal, defendants contended that St. John’s I wrongly abridged their First Amendment rights and, because controlling law had changed since St. John’s I was decided, the Court of Appeals need not follow it as law of the case. St. John’s I expressly addressed the arguments that defendants raised here, and the new cases cited by defendants follow established precedent. Therefore, the Court declined to address those issues decided by St. John’s I.

Defendants also contended that the trial court failed to obey directions imposed in St. John’s I. On remand, the trial court removed “at all times on all days” and added “on days on which they engage in any conduct proscribed by this injunction.” Although the original prohibition was vacated, the court did not abuse its discretion with this new language.

Defendants further contended that prohibiting speech that causes parishioners “to become physically upset” and the prohibition from carrying posters “depicting gruesome images of mutilated fetuses or dead bodies” impermissibly restrict their First Amendment rights. The prohibition related to speech causing members of the congregation “to become physically upset” was vacated. Plaintiffs conceded that prohibiting “shouting or yelling . . . in a manner reasonably calculated to . . . disrupt parishioners’ ability to worship” and the church’s “ability to use its property for worship services” adequately protects their interests. On the other hand, the language prohibiting the gruesome posters was affirmed. The Court determined the prohibition was narrowly tailored, and was supported by a compelling governmental interest in protecting children from disturbing images.

2012 COA 73. No. 11CA0640. Berumen v. Dep’t of Human Services, Wheat Ridge Regional Center.
Termination—Notice of Pre-Disciplinary Meeting—Hearsay—Persons Making Decision to Discharge.

The Department of Human Services, Wheat Ridge Regional Center (WRRC) appealed the State Personnel Board’s (Board) award of back pay and benefits to complainants Maria Berumen and Dawn Adams, employees whom WRRC discharged. Complainants cross-appealed the Board’s determinations upholding their terminations and denying their request for attorney fees. The order was affirmed in part and reversed in part.

WRRC operated a house for developmentally disabled residents, including Client 1 and Client 2. Berumen was a certified Health Care Technician I, and Adams was a certified Client Care Aide II for those residents. After a hearing, the administrative law judge (ALJ) issued an order denying all of complainants’ requests for relief. Complainants then appealed the ALJ’s ruling to the Board. The Board ultimately adopted all of the ALJ’s findings of fact and conclusions of law, except for her conclusion that WRRC gave complainants adequate notice of the pre-disciplinary meeting. The Board thus awarded complainants back pay and benefits from their respective dates of termination up to the first day of the hearing. The Board denied their remaining requests for relief.

On appeal, WRRC contended that the Board abused its discretion in holding that complainants did not receive adequate notice of their pre-disciplinary meetings and in awarding back pay and benefits to them for this alleged violation. The Board’s determination that a public employer must provide a certified public employee advance notice of all of the rights that he or she has at a pre-disciplinary meeting was contrary to the plain language of the applicable Board rule and was not required by due process. Board Rule 6-10 requires that the appointing authority provide notice at the meeting of “the reason for potential discipline” and “the source of that information,” unless disclosure of the source of the information is prohibited by law. The record here reveals that the notices that were given to complainants pursuant to Rule 6-10 comported with the requirements of due process. Because the Board erred in concluding that the complainants’ due process rights were violated, the award of back pay and benefits to complainants was reversed.

Complainants contended that they were denied an opportunity to be heard at their pre-disciplinary meetings because the decision to discharge them was made not by the appointing authority after the pre-disciplinary meetings, but by his supervisor and by WRRC’s investigator before the meetings took place. The ALJ’s finding that the appointing authority made the decision to terminate complainants was supported by the record.

Complainants also contended that the ALJ erred when, over their objection, she allowed WRRC to admit hearsay evidence of statements made by Client 1 and Client 2. Administrative hearings need not comply with the strict rules of evidence. Here, the ALJ found that the clients were not known to have made false statements in the past, probably would refuse to testify, and likely would become physically aggressive toward themselves and others if pushed to answer questions. Therefore, the ALJ did not abuse its discretion in admitting the hearsay statements of Client 1 and Client 2.

2012 COA 74. No. 11CA0727. Rost v. Atkinson.
Enforcement of Settlement Agreement—Summary Judgment Does Not Terminate Settlement Offer.

Defendant Lynn Atkinson appealed the trial court’s order enforcing the settlement agreement she entered into with plaintiff Kristine Rost on her minor daughter’s behalf. The order was affirmed.

Plaintiff sued defendant for injuries her daughter sustained on defendant’s property. Defendant served plaintiff with a statutory settlement offer. The next day, the court issued an order granting summary judgment for defendant, resolving all issues in the case. Plaintiff accepted the settlement offer after receiving notice of the summary judgment order. Later that same day, defendant e-mailed plaintiff’s counsel and withdrew the settlement offer. The court rejected defendant’s argument that the summary judgment order terminated the settlement offer and entered an order enforcing the settlement agreement.

Defendant contended that the court erred in enforcing the settlement agreement because the entry of summary judgment in her favor nullified the settlement offer before she accepted it. A summary judgment order resolving all issues in a case does not terminate a valid statutory settlement offer. Only two conditions terminate a valid settlement offer under CRS §13-17-202(1)(a): (1) the offer’s withdrawal, or (2) expiration of the fourteen-day period. Here, neither condition occurred before plaintiff’s acceptance, and the offer therefore became a binding settlement agreement once plaintiff accepted it. Accordingly, the court did not err in enforcing such an agreement.

2012 COA 75. No. 11CA0928. People in the Interest of C.F.
False Reporting of Bomb—Location of Person When Threats Made—Failure to Prove Elements of Offenses.

The People appealed the district court’s rulings that the prosecution had not proved that C.F., a juvenile, had committed acts that, if committed by an adult, would constitute the offenses of (1) falsely reporting an explosive, weapon, or harmful substance; and (2) interfering with the staff, faculty, or students of an educational institution. The rulings were approved.

C.F. left telephone messages for two schools threatening to blow up the schools. At trial, C.F. essentially conceded that he had made the calls and did not dispute the substance of what he had said. The district court acquitted C.F. of all charges, however, finding that the prosecution had failed to prove an element of the charges.

The People argued that CRS §18-8-110 does not require proof that C.F. reported that a bomb (or other prohibited item or substance) had been placed. The statute specifically requires, however, that the People prove that the defendant reported that the bomb (or other prohibited item or substance) “has been placed in any public or private place or vehicle designed for the transportation of persons or property.” The substance of C.F.’s reports did not support an inference that bombs had been, at the time of the reports, placed somewhere.

The People also argued that CRS §18-9-109(2) does not require proof that C.F. was at the schools when he interfered with school operations. The clause in this statute, however, unambiguously concerns where the person charged is located when he engages in activity proscribed by the statute. Because C.F. was not at the schools when he made these threats, the prosecution failed to prove this element of the charges. Therefore, the district court did not err in finding that the prosecution had failed to prove all elements of these offenses beyond a reasonable doubt.

2012 COA 76. No. 11CA0930. Gleason, Supreme Court Regulation Counsel v. Judicial Watch, Inc.
Colorado Open Records Act—Colorado Judicial Branch.

The Supreme Court Regulation Counsel and the Office of Attorney Regulation Counsel (collectively, regulation counsel) and Judicial Watch, Inc. appealed the trial court’s order granting most of Judicial Watch's request for records and denying the rest. The order was affirmed in part and reversed in part, and the case was remanded.

Judicial Watch requested that regulation counsel grant it access to certain records under the Colorado Open Records Act (CORA). The records pertained to the appointment of regulation counsel by the Chief Justice of the Colorado Supreme Court, at the request of the Chief Justice of the Arizona Supreme Court, to investigate the conduct of lawyers in Arizona. Regulation counsel denied Judicial Watch’s request.

Regulation counsel asserted that the trial court erred in granting any of Judicial Watch’s request for records. Regulation counsel is subject to the direction of the Supreme Court, and participates in the process of regulating attorneys. Thus, regulation counsel is part of Colorado’s Judicial Branch of government. CORA does not include the judiciary within the terms “state” and “state agency.” Because regulation counsel is part of the Judicial Branch, it likewise is not part of the state or a state agency for the purposes of CORA. Therefore, the trial court erred when it concluded that CORA governed Judicial Watch’s request for regulation counsel’s records and that those records must be disclosed under CORA. The case was remanded to the trial court to enter an order denying Judicial Watch’s entire request.

2012 COA 77. No. 11CA0935. SW v. Towers Boat Club, Inc.
Attractive Nuisance Doctrine—Child Licensee—Not Trespassing Child Enticed Onto Property.

Plaintiffs SW, David Wacker, and Rhonda Wacker appealed the trial court’s summary judgment in favor of defendant Towers Boat Club, Inc. (landowner). The judgment was affirmed.

On August 2, 2008, SW, who was 11 years old, attended a social gathering at Poudre Reservoir Number 6. While he was playing on an inflatable structure rented by landowner for the gathering, wind lifted the structure into the air and SW fell to the ground, sustaining severe injuries. Plaintiffs asserted claims against the landowner, including a claim for attractive nuisance.

Plaintiffs contended that the trial court erred in granting landowner’s motion for summary judgment and dismissing their attractive nuisance claim against landowner. As an issue of first impression, the Court of Appeals held that under the premises liability statute, a child licensee may not assert a claim based on the attractive nuisance doctrine. The doctrine unequivocally applies only to children enticed by an attractive nuisance to trespass on another’s property. Because SW was not a trespassing child who was enticed onto the property by an attractive nuisance, he could not assert a claim for attractive nuisance.

2012 COA 78. No. 11CA1777. Zerba v. Dillon Companies, Inc.
Offsetting Social Security Payments Against Permanent Total Disability Benefits—Offsetting Military Retirement Benefits—Equal Protection.

Both parties sought review of the final decision of the Industrial Claim Appeals Office (Panel). The Panel’s decision allowed employer, Dillon Companies, Inc., doing business as King Soopers, to offset the old-age Social Security payments (SSA) received by claimant Robert Zerba against his permanent total disability (PTD) benefits, but denied King Soopers’ request to offset Zerba’s military retirement benefits. The order was affirmed.

Zerba contended that the administrative law judge (ALJ) and Panel erred in granting King Soopers an offset of his SSA benefits against the PTD benefits he was awarded. Specifically, Zerba claimed that this offset disproportionately harms elderly and poor workers by depriving them of the full sum they were receiving when they supplemented their SSA benefits with income. However, Zerba failed to establish that his right to equal protection under the law was violated because the SSA offset has a rational basis and therefore met constitutional scrutiny. Therefore, neither the Panel nor the ALJ erred in determining that King Soopers was entitled to an offset of Zerba’s SSA benefits against the PTD award. Additionally, the ALJ did not abuse its discretion in calculating Zerba’s PTD benefits before offsetting his SSA benefits.

In its cross-appeal, King Soopers contended that the ALJ and the Panel erred in denying it an offset for Zerba’s military retirement benefits. CRS §8-42-103(1)(c)(II.5), however, does not provide for an offset of military retirement benefits because that provision permits an offset only of “employer-paid retirement benefits.” Because King Soopers is not the employer providing Zerba with the retirement benefits in question, it was not entitled to the statutory offset. Therefore, neither the Panel nor the ALJ erred in denying King Soopers’ request for an offset of Zerba’s military retirement benefits.

Colorado Court of Appeals Opinions

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