Colorado Court of Appeals Opinions
May 26, 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. 07CA0759. People v. Sandoval-Candelaria.
Evidence—Transcript—Police Interview—Hearsay—C.R.E. 404(b)—Identity—Motive—Prior Inconsistent Statements—Extrinsic Evidence—Prosecutorial Misconduct—Sentencing—Crim.P. 32(b).
Defendant Robert Sandoval-Candelaria appealed the judgment of conviction entered on a jury verdict finding him guilty of manslaughter. He also appealed his sentence. The judgment was affirmed, the sentence was vacated, and the case was remanded.
Sandoval contended that the trial court abused its discretion when it excluded as evidence a witness’s transcribed police interview and thereby violated Sandoval’s right to present a defense. Prior to trial, Sandoval offered as evidence a transcript of a police interview with C.L., an unavailable witness, under the residual exception to the hearsay rule. The trial court’s finding that the evidence lacked sufficient circumstantial guarantees of trustworthiness was supported by the fact that C.L. was confused about certain facts and dates for much of the interview.
Sandoval also contended that the trial court abused its discretion when it admitted evidence of his drug dealing, because such evidence is inadmissible under C.R.E. 404(b). The proffered evidence of his drug dealing, however, was relevant to show that Sandoval had the ability to give the witnesses drugs to participate in a cover-up, and the danger of unfair prejudice did not substantially outweigh the probative value of this evidence. Accordingly, the trial court did not abuse its discretion when it admitted evidence of Sandoval’s past drug dealing pursuant to C.R.E. 404(b).
Sandoval next contended that the prosecutor improperly impeached Gomez as a witness with prior inconsistent statements by not admitting extrinsic evidence of those statements, thereby denying Sandoval a fair trial. Even if the trial court erred in permitting the prosecutor to impeach Gomez without offering extrinsic proof, its error was not plain, because no Colorado appellate case has addressed this issue.
Sandoval further contended that the trial court erred when it overruled his objections to the prosecutor’s statement during closing argument that the defense’s theory was “garbage” and “trash,” and thereby denying Sandoval’s right to a fair trial by an impartial jury. However, any error was harmless because there was no reasonable probability that they contributed to Sandoval’s conviction.
Finally, Sandoval argued that the trial court erred when it sua sponte delayed imposing a sentence for six months and seven days and thereby violated his right to speedy sentencing under Crim.P. 32(b) and the U.S. Constitution. The trial court waited to impose a sentence until Sandoval’s other case was resolved so that it could consider imposing an aggravated range sentence if he were convicted. This reason for sentencing delay was not legally justifiable because the delay violated the mandate of Crim.P. 32(b)(1) and Sandoval’s constitutional right to speedy sentencing. Because these violations constituted plain error, the case was remanded to the trial court for resentencing consistent with this opinion.
No. 09CA1917. Garcia v. Executive Director, CDOC.
Department of Corrections—Administrative Segregation—Notice—Allegations—Due Process.
Plaintiff William Garcia appealed the district court’s judgment affirming the determination by the Colorado Department of Corrections (CDOC) that his conduct warranted placement in administrative segregation. The judgment was reversed and the case was remanded.
Garcia is an inmate in the custody of the CDOC. On October 7, 2008, he was served with a “Notice for Administrative Segregation Hearing” that was scheduled for October 14, 2008. The notice provided that (1) Garcia was “a danger to the safety and security of the Sterling Correctional Facility”; (2) confidential information would be presented at the time of the hearing to support Garcia’s removal from the population; and (3) Garcia previously had been in administrative segregation at another facility from May 7, 2002 through February 2, 2005. At the hearing, Garcia was informed for the first time that (1) confidential information showed he was involved with the introduction of heroin into the correctional facility for the purpose of distribution; (2) this information was corroborated by other confidential sources; (3) multiple individuals were supposedly involved with Garcia in the introduction of drugs; (4) the incidents took place over a three- to four-month period; and (5) members of a specific gang were involved in the drug trafficking.
Garcia contended he was not given proper notice of the allegations against him, thus violating his constitutional right to due process and his rights under the CDOC’s administrative regulations. Because the notice failed to inform Garcia of even “the general substance of any confidential information,”it did not comply with the CDOC’s administrative regulations.Accordingly, the judgment was reversed and the case was remanded with directions to vacate the placement of Garcia in administrative segregation and to conduct any further proceedings consistent with this opinion.
No. 09CA2786. Weston v. T&T, LLC.
Intervention—C.R.C.P. 24(c)—Colorado Uniform Fraudulent Transfer Act—Pleading—Attorney Representation—Interest.
T&T, LLC appealed the trial court’s judgment in favor of Rick Weston (creditor). The judgment was affirmed in part and vacated in part, and the case was remanded.
Michael Shinn (entrepreneur) held interests in a variety of companies, including National Home Trust Corporation (NHTC). Entrepreneur’s two children were the sole members of T&T, and his son, Todd Shinn, was the manager. Entrepreneur transferred funds from various other accounts and entities, including NHTC, into his children’s accounts to give them the appearance of financial viability to purchase the Manor House through T&T. Creditor loaned T&T the funds for this purchase, and T&T eventually defaulted on the security agreement and promissory note (Note).
T&T argued that the trial court erred when it permitted creditor to intervene on the filing of a complaint without filing a motion seeking intervention as required by C.R.C.P. 24(c). Although creditor did not strictly comply with the rule, his complaint stated the grounds and facts on which intervention was sought, together with his claim. Therefore, any failure to comply precisely with the rule was not to the detriment of T&T’s substantial rights.
T&T next argued that creditor’s complaint in intervention failed to state a claim under the Colorado Uniform Fraudulent Transfer Act (CUFTA). However, T&T was aware of the substance of creditor’s claim, and it suffered no prejudice due to the form of creditor’s pleading.
T&T further contended that it is entitled to a new trial because the trial court erred in permitting a non-attorney to represent it. Creditor’s complaint requested damages in the amount of $150,000. Thus, T&T could not have satisfied the statutory exception mandating that an attorney represent T&T, and entrepreneur should not have been permitted to represent T&T in these proceedings. However, because T&T affirmatively requested and pursued representation by entrepreneur despite admonishments from the trial court, any error in permitting entrepreneur to represent T&T was invited by T&T and the granting of a new trial on that basis was not an appropriate remedy.
T&T also argued that the trial court erred in its award because the amount exceeded $150,000, the original loan amount authorized by CUFTA. The trial court awarded creditor $160,666.67, the amount of the default judgment, plus the 20% interest that had accrued from the date the original default judgment was entered against NHTC. T&T failed to preserve this issue on appeal.
T&T also contended that the trial court erred in awarding creditor 20% interest on his attorney fees and costs, accruing from the date of the default judgment against NHTC. The promissory note clearly indicated that the 20% interest rate would apply only to the unpaid principal and accrued but unpaid interest. Because the 20% interest rate did not apply to attorney fees, that portion of the judgment was vacated.
T&T further argued that creditor did not provide sufficient evidence that his attorney and expert witness fees were reasonable. Creditor’s evidence, which comprised attorney fees affidavits, invoices, billing agreements, timekeeping sheets, documentation of payments, and related documents, was sufficient to allow the court to make a reasoned determination about whether the requested fees were reasonable and necessary. Therefore, the trial court did not abuse its discretion in awarding the requested attorney and expert witness fees to creditor.
No. 10CA0325. People in the Interest of A.H., and Concerning G.H.
Dependency and Neglect—Jurisdiction—Court-Appointed Counsel.
In this dependency and neglect (D&N) case, father appealed the judgment of the trial court that declined to return his child to him after he prevailed at his adjudicatory trials on the allegations of the petition, and instead awarded permanent legal custody of the child to his paternal grandfather. The judgment was reversed.
Father contended that the trial court exceeded its jurisdiction when it (1) refused to return the child to him after two juries failed to find that the child was dependent and neglected; and (2) effectively forced him to re-enter the case as an intervenor to vindicate his parental rights. Mother’s no-fault admission to the D&N allegations only was sufficient to continue the court’s jurisdiction in this matter until father’s rights were determined by the jury. After two juries found that the D&N allegations were not proven by a preponderance of the evidence as to father, the status of the child was not considered “dependent and neglected.” Hence, the court’s limited jurisdiction over the case ended, and the court was required to order the petition dismissed and the child and father discharged from any previously ordered detention or restriction. Accordingly, the judgment was reversed and the case was remanded with directions to dismiss the D&N petition. In addition, the order granting permanent custody of the child to the paternal grandfather was vacated and the child and father were discharged from any existing temporary orders.
Father, who has been determined to be indigent at the remand proceedings and on appeal, was entitled to appointed counsel at both stages of the proceedings. Accordingly, the trial court’s order declining to appoint counsel for father during the remand proceedings and on appeal was reversed and counsel was appointed retroactively.
No. 10CA0803. Timm v. Prudential Insurance Company of America.
Insurance—Bad Faith—Disability—Preemtion—ERISA—Claim Preclusion—Jurisdiction—Ripeness.
In this insurance bad-faith insurance case, plaintiff Sherry M. Timm appealed the order of the trial court dismissing her complaint against defendant Prudential Insurance Company of America (Prudential). The order was affirmed in part and reversed in part, and the case was remanded for further proceedings.
Prudential denied Timm’s claim for disability benefits. After exhausting her administrative remedies, Timm filed a civil action in federal court. The federal court entered a declaratory judgment vacating Prudential’s decision and declaring Timm disabled. The federal court remanded the case to Prudential for a determination of benefits due under the plan. Timm later filed this action because Prudential failed to determine Timm’s entitlement of benefits. Prudential moved to dismiss this action pursuant to C.R.C.P. 12(b)(5), contending that Timm’s complaint failed to state a claim for which relief can be granted. The trial court agreed and dismissed the complaint. This appeal followed.
Timm contended that the trial court erred by determining that her claim for bad faith under CRS § 10-3-1116(1) is preempted by ERISA. Because § 10-3-1116(1) allows a double recovery of benefits, it supplements and conflicts with ERISA’s remedies and therefore is preempted. Accordingly, because ERISA preempts § 10-3-1116(1), the trial court did not err in dismissing Timm’s statutory bad-faith claim.
Timm also contended that the trial court erred by dismissing her ERISA claim for benefits under principles of claim preclusion. Claims that would or could have been based on Prudential’s conduct in the administrative process up to the date the federal court issued its declaratory judgment are precluded. However, Timm’s ERISA claim is not based on conduct occurring before the federal court’s declaratory judgment. Further, ERISA provides for concurrent jurisdiction of both state and federal courts to adjudicate and enforce ERISA claims. Accordingly, to the extent the trial court held that Timm may bring her ERISA claim only in federal court, it erred.
Timm further argued that the trial court erred by dismissing her claim for lack of ripeness. The complaint states that Timm “reasonably sought the payment of benefits” from Prudential after the federal court’s decision and that Prudential refused to decide the matter for more than twenty-one months. Because of the delay by Prudential, Timm asserted it would have been useless for her either to have waited longer for a decision in the first instance from Prudential, or to have appealed through administrative channels to the appeals board of Prudential. Accordingly, Timm’s claim was ripe for judicial review and the trial court erred by dismissing Timm’s claim on that basis.
No. 10CA1139 Strunk v. Goldberg.
CRS § 13-17-202—Costs—Nonmonetary Condition.
Plaintiff appealed the trial court’s order awarding defendant costs under CRS § 13-17-202. The judgment was affirmed.
Defendant caused a multiple-car accident in which plaintiff was injured. Plaintiff sued, alleging negligence and seeking compensation for physical injuries, medical expenses, and loss of income and earning potential. Defendant admitted liability but contested the amount of damages.
In his C.R.C.P. 26(a)(1) disclosures, plaintiff identified lien documents from Alliance Health Partners (Alliance) and Optima Rehabilitation (Optima); a lien document from HR Medical (HR); and medical payment documents from GMAC Insurance (insurer). Additional information established that insurer had compensated plaintiff for some of his medical costs and that neither Alliance, Optima, nor HR had filed liens.
Before trial, defendant gave plaintiff an offer of settlement pursuant to CRS § 13-17-202 in the amount of $145,000. Plaintiff rejected the offer, the case was tried to a jury, and plaintiff was awarded $98,000. With interest, the total judgment came to $114,528.63.
Plaintiff requested court costs as the prevailing party. Defendant argued that he was entitled to costs accrued after plaintiff rejected his offer of settlement. Plaintiff countered that because the offer had included a nonmonetary condition, he was entitled to costs before and after the offer. The trial court determined the offer was a valid statutory offer and awarded plaintiff $4,090.11 for his costs accrued before the offer and defendant $14,885.68 for costs accrued after the offer was rejected.
On appeal, plaintiff renewed his argument that the nonmonetary conditions of the offer took it out of the scope of § 13-17-202. The Court of Appeals disagreed. Nonmonetary conditions can remove offers from the scope of § 13-17-202; however, in this case, the inclusion of references in the offer to settlement of all “subrogation interests” and “liens” did not implicate nonmonetary conditions.
As to the “subrogation interests,” the Court held that the subrogation interests were not nonmonetary because (1) the injuries plaintiff suffered gave rise to the insurer’s subrogation interests; (2) the portion of the settlement agreement referring to subrogation interests did not impose unknown risks on plaintiff; (3) the insurer paid some of plaintiff’s medical bills; (4) the amount owed to the insurer could be determined with relative exactitude; (5) under the doctrine of subrogation, the insurer would be entitled to recover that amount from defendant via settlement or litigation; (6) once that claim is resolved, plaintiff is no longer entitled to recover the reimbursed amount from defendant; and (7) this eventual setoff would be “part and parcel of the damages stemming from the claim disputed by” plaintiff and defendant.
As to the liens, the Court first noted that the record established that no liens had been filed by the medical providers and, therefore, the reference to them in the settlement offer imposed no condition, let alone a nonmonetary one. The Court then noted that even if liens were filed in the future, this was not a nonmonetary condition for essentially the same reasons as the subrogation interests. Accordingly, the order was affirmed.
No. 10CA1887. One Creative Place, LLC v. Jet Center Partners, LLC.
Colorado Consumer Protection Act—Question of Law Versus Fact.
To establish a claim under the Colorado Consumer Protection Act (CCPA), a private citizen must prove five elements, one of which is that the deceptive trade practice had a significant impact on the public as actual or potential customers of the defendant’s business. This appeal questioned whether this element is an issue of law or a question of fact. The Court of Appeals held it is a question of fact. As a result, the Court’s review was limited to whether the trial court committed clear error by finding that the intervenor, Jet Center Partners, LLC, had not proved this element. Because the Court concluded the trial court did not commit clear error, it affirmed the judgment in favor of plaintiffs.
Colorado Court of Appeals Opinions