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Colorado Court of Appeals Opinions
May 12, 2011

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. 08CA1326. People v. Hill.
Restitution—Appeal—Timeliness.

Defendant Kevin Hill appealed the trial court’s order granting restitution. The appeal was denied.

On May 9, 2008, the trial court sentenced Hill to six years in the custody of the Department of Corrections (DOC), plus three years of mandatory parole, on his plea of guilty to second-degree assault, serious bodily injury. The sentence included restitution, but the court gave Hill thirty days to object to the amount. He did so. He also moved to withdraw his guilty plea and vacate the sentence, which the court denied. Hill appealed this order on June 23, 2008, before the court had addressed the restitution dispute. The court entered a restitution order on November 24, 2009. On February 9, 2011, Hill moved for leave to file an amended notice of appeal “to include issues relating to the restitution order,” which was denied. Hill appealed the denial of his motion to file the amended notice of appeal.

Hill argued that he had good cause for filing a late notice of appeal of the restitution order, and that the trial court erred in denying his request. Although the People will not suffer any prejudice from the late filing, judicial economy will not be served by allowing the late filing. In addition, Hill may otherwise pursue his claims by filing a Crim.P. 35(a) or (c) motion. Therefore, Hill did not show good cause for his failure to timely file an amended notice of appeal of the restitution order. Hill’s motion for leave to file an amended notice of appeal was denied.

No. 09CA2088. In re the Parental Responsibilities of E.S., and Concerning Lauzon.
Dissolution of Marriage—Parental Responsibilities—Nonparent—Standing—Clear and Convincing Evidence.

In this post-dissolution of marriage matter concerning parental responsibilities for E.S., who is the child of Auriel Lauzon and Timothy Smith, Smith appealed from the order allocating primary parenting time to Laura Silvernail, a nonparent. The portion of the order finding that Silvernail has standing was affirmed. The remainder of the order was vacated and the case was remanded for further findings.

Smith and Lauzon’s marriage was dissolved in 2006, and Lauzon was allocated majority parenting time with E.S. In 2008, Lauzon moved to relocate out of state. Smith objected, contending that E.S. should remain in Colorado. Silvernail, who is the adoptive parent of two other children of Smith and Lauzon, moved to intervene, contending that E.S. spent substantial time with her and with E.S.’s siblings, and that she was concerned that the proposed relocation would prevent E.S. from continuing to do so in the future. The trial court ordered that (1) Silvernail had standing to request parental responsibilities for E.S.; and (2) it was in E.S.’s best interests for Silvernail to be her primary residential custodian, with limited parenting time for Smith and Lauzon. Smith’s appeal followed.

Smith contended that the trial court erred by concluding that Silvernail had standing to request parental responsibilities for E.S. It was undisputed that E.S. was living with Silvernail, and not with either parent, when Silvernail sought parental responsibilities for her. It also was undisputed that Smith requested that Silvernail take E.S. into her home and assume physical care of E.S. under temporary guardianship. Accordingly, Silvernail had standing under CRS § 14-10-123(1)(b).

Smith also contended that the trial court erred by allocating primary parental responsibilities to Silvernail, over his objections, without recognizing his constitutional preference as the child’s parent and without finding by clear and convincing evidence that doing so was in the child’s best interests. The court’s order did not indicate that the court used a clear and convincing evidence standard of proof or found special factors to justify its allocation of parental responsibilities. Accordingly, that part of the order was vacated and the case was remanded for further findings.

No. 10CA0093. Mathers Family Trust v. Cagle.
Investments—Colorado Securities Act—Anti-waiver Provision—Forum Selection Clause.

Plaintiffs, purchasers of investments sold by HEI Resources, Inc. (HEI), appealed the dismissal of their claims against defendants, HEI and others involved in the investments, based on the forum selection clauses in the parties’ agreements requiring litigation in Texas. The order was reversed and the case was remanded.

Plaintiffs are out-of-state investors who purchased joint venture interests sold by HEI, a Colorado corporation headquartered in Colorado Springs. Defendant Martin Harper was the accountant and Joel Held was the attorney for each of the joint ventures in which plaintiffs invested; the other defendants are persons or entities closely related to HEI. The “Application Agreement” and “Joint Venture Agreement” both contained a forum selection clause providing that the courts in Texas have exclusive jurisdiction to hear any claims. After losing substantial sums of money on the ventures, plaintiffs filed suit in Colorado. The district court dismissed all of plaintiffs’ claims based on the forum selection clauses.

On appeal, plaintiffs contended that the forum selection clauses were void because they conflict with the public policy behind the Colorado Securities Act (CSA) and its anti-waiver provision. The CSA’s anti-waiver provision protects investors against the possibility that a different forum might not enforce their rights; thus, agreements that would prevent enforcing the CSA in Colorado courts are void. For the anti-waiver provision of the CSA to adequately protect investors’ rights under the act, when those rights may not be enforceable in a different jurisdiction, investors must be permitted to bring their claims in Colorado. Therefore, the district court’s order dismissing plaintiffs’ claims was reversed.

No. 10CA0369. Jackson v. American Family Mutual Insurance Company.
Breach of Contract—Personal Injury Protection—Statute of Limitations—Tolling—Claim Preclusion—Class Action—Judgment Notwithstanding the Verdict.

Plaintiff Rebecca Jackson appealed the trial court’s judgment notwithstanding the verdict (JNOV) in favor of defendant American Family Mutual Insurance Company (American Family) on her breach of contract claim. The judgment was affirmed.

In March 2002, Jackson was seriously injured in a car accident. At the time, she was insured under an American Family automobile policy that provided basic personal injury protection (PIP) benefits. The policy did not, however, provide (as was then required by law) an option to purchase extended PIP coverage. Jackson filed suit against the claims analyst employed by American Family and added American Family itself as a party. After a trial, a jury returned verdicts awarding Jackson $61,300 on her breach of contract claim and $300,000 on some of her tort claims. American Family moved for a JNOV on the ground that Jackson’s claims were barred by the statute of limitations. The trial court ultimately granted the motion only on Jackson’s breach of contract claim. Jackson appealed only the JNOV entered on her contract claim.

Jackson contended that American Family was barred, under the doctrine of claim preclusion, from relitigating a statute of limitations issue that was or could have been resolved in Hicks v. American Family Mutual Insurance Co. (Boulder County Dist. Ct. No. 04CV879), whichwas filed in June 2004 and sought reformation of insurance policies on behalf of a class that included Jackson. She also contended that the trial court erred in its application of the statute of limitations. Because the Hicks court excluded from its judgment any consideration of damages claims (or defenses thereto), Jackson’s damages claim was not a matter that either was or could have been adjudicated in Hicks. Consequently, the judgment rendered in Hicks could not, under the doctrine of claim preclusion, bar either Jackson’s action or American Family’s assertion of a statute of limitations defense thereto.

Jackson’s claim accrued on March 28, 2002, when Jackson was informed by American Family of the limits of her PIP benefits, and the statute of limitations period expired no later than three years after that date. Jackson did not file her lawsuit until April 2008. Because Jackson also was a putative member of the class in French v. American Family Mutual Insurance Co. (El Paso County Dist. Ct. No. 00CV3162) regarding this same issue, and her claim accrued prior to French, she was entitled to have her limitations period tolled during French but not during Hicks. Because the limitations period was not tolled during the pendency of the Hicks case, Jackson’s contract claim was untimely filed and, consequently, the trial court properly entered JNOV on that claim. The judgment was affirmed.

No. 10CA0592. Munoz v. Industrial Claim Appeals Office.
Workers’ Compensation—Division-Sponsored Independent Medical Examination—Automatic Stay.

In this workers’ compensation proceeding brought against JBS Swift & Company and its insurer, Zurich American Insurance Company, (collectively, employer), claimant sought review of a final order of the Industrial Claim Appeals Office (Panel). The order was affirmed in part and reversed in part, and the case was remanded.

The Panel affirmed the order of the administrative law judge (ALJ), which concluded that claimant waived his right to a division-sponsored independent medical examination (DIME) and dismissed his claim for penalties against the DIME Unit for the Division of Workers’ Compensation.

On appeal, claimant contended that the ALJ erroneously concluded that (1) the filing of an application for hearing concerning the propriety of the DIME selection process did not automatically stay the DIME proceedings; and (2) claimant waived his right to a DIME. Imposition of a stay under Rule 11-3(O) requires “a motion involving a pending IME proceeding.” An application for a hearing serves the same function as a motion. Here, claimant’s application for hearing on the DIME selection issue sufficed as a “motion” for purposes of Rule 11-3(O). Once that application was filed and the DIME Unit was copied, the DIME process was automatically stayed. The ALJ erred in concluding otherwise. Further, because the DIME process was stayed, the finding of waiver was not supported and must be set aside. Claimant could not knowingly waive the DIME when the DIME process was stayed. Employer’s request for attorney fees was denied and the case was remanded for the ALJ’s reconsideration of the DIME issue in claimant’s first application for hearing.

No. 10CA1187. Holley v. Huang, MD.
Informed Consent for Surgery—New Trial—Expert Opinion—Exclusion of Testimony—Habit Instruction.

Plaintiff Joan Holley appealed from the trial court’s judgment in favor of defendant Dr. Linda Huang. The judgment was affirmed.

Dr. Huang performed breast augmentation surgery on Holley. Holley later sued for damages—not for poor performance of the surgery, but for failure to obtain an informed consent for the procedure used on her right breast (a circumareolar mastopexy). To prevail, Holley was required to prove that: (1) Huang negligently failed to obtain Holley’s informed consent before making an incision around the areola to place an implant and to lift her right breast; (2) a reasonable person in the same or similar circumstances as Holley would not have consented to the procedure if given the necessary information; and (3) Huang’s negligent failure caused Holley’s injuries or damages.

A jury found in Dr. Huang’s favor, concluding that she obtained Holley’s informed consent before performing the surgery. On appeal, Holley requested a new trial based on more than forty arguments. The Court of Appeals addressed three in detail, disposed of several others summarily, and disregarded the rest.

Holley proffered expert opinion to prove Dr. Huang was negligent in failing to document the informed consent. The Court held that the trial court correctly disallowed that testimony. Under Colorado law, although a doctor must obtain a patient’s informed consent before performing any medical procedure, the means of obtaining that consent is not specified. The Court recognized that most informed consent is obtained in writing, for many good reasons; however, documentation is not required. Therefore, expert testimony on this issue was properly disallowed.

Holley wanted to testify that she never would have consented to the procedure had she been properly informed of its risks. The trial court excluded this testimony, finding it was not relevant and its minimal probative value was outweighed by the risk of prejudice to the defense. The Court found the ruling erroneous, but harmless. Holley’s testimony about what she would have done would serve as evidence of what a reasonable person in her position would have done. In addition, the proffered testimony presented no risk of unfair prejudice. The error was harmless, however, because Holley did not establish that excluding this testimony “influenced the outcome of the case or impaired the basic fairness of the trial itself.” The jury found that Holley had been informed of the risks and this testimony would not have altered that finding.

Holley argued that the trial court’s habit testimony instruction constituted reversible error because it required the jury to credit habit testimony over other types of evidence. The Court disapproved of the instruction but declined to reverse. The trial court instruction stated: “In case of doubt as to what a person has done, it may be considered more probable that he has done what he has been in the habit of doing, than that he acted otherwise.” The Court held that although the instruction is an accurate statement about the relevance of habit testimony, it should not have been given because it was intended to guide judicial review and not jury deliberations. The Court did not reverse because (1) the trial objection did not preserve this argument; and (2) any error or prejudice from the instruction did not warrant reversal given the totality of the instructions and closing arguments.

No. 10CA1555. People in the Interest of J.C.R., and Concerning B.R.
Dependency and Neglect—Termination of Parent–Child Relationships—Indian Child Welfare Act—Compliance With Treatment Plan.

In this dependency and neglect proceeding, mother appealed from the judgment terminating her parent–child legal relationships with J.C.R. and her twin children. Father appealed from the judgment terminating his parent-child legal relationship with J.C.R. The judgment was affirmed.

In April 2009, the twins, then 7 months old, were removed from mother’s and father’s care after police responded to a domestic violence incident between mother and M.E., the twins’ father. Two days later, 6-year-old J.C.R. also was removed. The Arapahoe County Department of Human Services (ACDHS) was familiar with the three parents because of multiple previous referrals for domestic violence and suspected drug use .

Father and mother entered into extensive treatment plans. In January 2010, ACDHS moved to terminate each parent’s parental rights, alleging that either they had not complied with the treatment plans or the plans had not been successful. The trial court terminated each parent’s parental rights. Mother and father appealed.

Mother asserted that the Indian Child Welfare Act (ICWA) notice requirements were not met. The Court of Appeals disagreed. Mother made no assertion of possible Indian heritage at trial, nor did she provide any information supporting her Indian heritage during the proceedings. Therefore, there was no reason for the trial court to find that the ICWA notice requirements applied.

Mother also argued (1) there was no credible evidence of domestic violence; (2) she would have been found a fit parent had she been given an additional six months to work on her treatment plan; (3) evidence did not support the trial court’s conclusion that there were no less drastic alternatives to terminating her parental rights; and (4) ACDHS failed to provide “diligent supportive services” to her because it required that she and father have no contact, which rendered her virtually homeless. The Court disagreed with each of these contentions, holding that the grounds for terminating mother’s parental rights were proven by clear and convincing evidence.

Father argued, like mother, that it was error to conclude he had failed to reasonably comply with his treatment plan within a reasonable time. The Court found ample evidence in the record to support the trial court’s findings. Accordingly, the judgment was affirmed.

No. 11CA0690. Romero v. City of Fountain.
Colorado Open Records Act—Temporary Restraining Order—Colorado Criminal Justice Records Act—Stay Pending Appeal.

Plaintiff Frank Romero sought a temporary restraining order (TRO) against the City of Fountain from releasing an internal investigative report concerning his actions while he was a police officer. The district court entered a TRO precluding release of the report. After a closed hearing, the court denied the preliminary injunction request, but stayed the order, giving Romero through April 6, 2011 to file an appeal with the Court of Appeals. Romero filed a notice of appeal on April 1. The Court’s motions division denied the request for a stay pending appeal.

Romero is a former police officer with the City of Fountain. He filed a complaint to preclude the City of Fountain and the Fountain Police Department from releasing an internal investigation report concerning allegations that he had inappropriate conduct with two women while in uniform. The report had been requested by a local television station under the Colorado Open Records Act (CORA). Defendants notified Romero by letter dated March 11, 2011 that they intended to release two summaries of the investigation to the station on March 18, 2011.

Romero filed his complaint on March 17, 2011. He sought to preclude disclosure under CORA and the Colorado Criminal Justice Records Act (CCJRA), contending the report contained personal information that would irreparably harm him if released. On March 18, the district court entered a temporary restraining order and set a hearing for March 23.

At the hearing, the district court consolidated the case with a separate case in which Romero sought permanent injunctive relief and held a closed hearing. The court then denied the preliminary injunction after applying the factors set forth in Rathke v. MacFarlane, 648 P.2d 648 (Colo. 1982).The court gave detailed reasons on the record for its ruling but stayed its order for fourteen days to allow Romero sufficient time to file an appeal with the Court of Appeals.

On April 6, the Chief Judge granted a temporary stay through April 15 and directed Romero to obtain and file, under seal, a transcript of the March 23 hearing. On receipt of the transcript, the Court’s motions division granted continuances of stay through May 20 to give adequate time to rule on the motion for a stay pending appeal. The motions division determined that the stay should be denied.

C.A.R. 8(a) sets forth the standards for a stay pending appeal. The Court found no Colorado appellate decisions setting forth the standards regarding a request for a stay from an order denying a preliminary injunction. The Court looked to the “traditional standards” in the federal courts for a stay: (1) whether the applicant has made a strong showing that he or she is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

The Court found that Romero demonstrated a risk that he will be harmed if the stay is not granted and the summaries are released. However, it agreed with the trial court that Romero could not show a likelihood that he would prevail on the merits of his claim under the CCJRA.

The Court found that the district court correctly determined that the CCJRA was the applicable statute, not CORA. The record supported the finding that the police chief took into account Romero’s privacy interest and the public interest in disclosure, and exercised his discretion in recommending disclosure. Because a court is not to substitute its judgment in balancing these interests for those of the police chief, the Court could not conclude that Romero likely would succeed in showing that the district court abused its discretion in denying a preliminary injunction. Moreover, given the allegations in the complaint against Romero, the Court found that a lengthy delay of the disclosure of the reports while the case makes its way through the appellate courts might disserve the public interest.

The motion for a stay pending appeal was denied. However, because the release of the summaries likely would terminate Romero’s right to injunctive relief as a practical matter, the Court extended the stay through May 20 to allow Romero to seek relief from the Colorado Supreme Court with respect to this order.

Colorado Court of Appeals Opinions

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