Colorado Court of Appeals Opinions
June 10, 2010
|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. 06CA0697. People v. Trujillo.
Incest—Aggravated Incest—Sexual Assault on a Child—Hearsay—Victim—Age—CRS § 13-25-129.
Defendant Trujillo appealed the judgment of conviction entered on a jury verdict finding him guilty of aggravated incest and sexual assault on a child by one in a position of trust. The judgment was affirmed.
Before trial, the prosecution moved to admit separate hearsay statements that the victim, Trujillo’s daughter, had made about the assault to her mother, a physician, and a social worker. After a hearing, the trial court found that the statements were admissible under CRS § 13-25-129. They were presented to the jury, although the victim also testified at trial.
Defendant’s sole contention on appeal was that the trial court erred by admitting the victim’s hearsay statements under § 13-25-129. Trujillo asserted that the statute should be interpreted as applying to victims who were "less than fifteen years of age at the time of the offense"; here, the victim was 16 years old when the alleged assault occurred. However, the phrase "when the victim was less than fifteen years of age at the time of the commission of the offense" in § 13-25-129(1) applies only to a victim of incest under § 18-6-301. Because Trujillo was charged with aggravated incest and sexual assault on a child by one in a position of trust, the trial court did not err by admitting the victim’s hearsay statements under § 13-25-129.
No. 06CA2529. People v. Alvarado-Juarez.
Extreme Indifference Murder—Reckless Manslaughter—Elements—Equal Protection—Reasonable Doubt—Jury Instruction.
Defendant Alvarado-Juarez appealed the judgment of conviction for extreme indifference murder, attempted extreme indifference murder, assault, and two counts of reckless endangerment. The judgment was affirmed.
Defendant argued that his conviction under the extreme indifference murder statute denied him equal protection because the reckless manslaughter statute prohibits identical conduct, yet punishes that conduct less severely. However, there is a significant difference between the elements of extreme indifference murder and reckless manslaughter. Extreme indifference murder proscribes "acts that put at grave risk a number of individuals not targeted by the defendant, as well as acts putting at risk a single victim, without knowing or caring who that may be." Reckless manslaughter lacks that element. Accordingly, defendant’s conviction under the extreme indifference murder statute did not deny him equal protection.
Defendant also contended that Colorado’s pattern jury instruction defining "reasonable doubt" inaccurately described the degree of certainty required to find defendant guilty. Colorado’s pattern jury instruction defines "reasonable doubt" as one that "would cause reasonable people to hesitate to act in matters of importance to themselves." The judgment was affirmed.
No. 07CA0819. People v. Blackwell.
Evidence—Due Process—Witness—Fifth Amendment—Sixth Amendment—Hearsay.
Defendant Blackwell appealed the judgment of conviction entered on jury verdicts finding him guilty of first-degree murder after deliberation, vehicular eluding with injury, and two habitual offender counts. The judgment was affirmed.
After firing a gun at rival gang members, defendant and his accomplice, C.W., fled the scene. A high-speed car chase ensued, and the police apprehended defendant and C.W. after they crashed into a police car.
Defendant contended that he was deprived of the right to a fair trial because the trial court erroneously excluded important defense evidence. Specifically, defendant argued that he was deprived of due process because the government improperly interfered with a defense witness’s choice to testify. Defendant subpoenaed J.N., C.W.’s former cellmate, to testify concerning statements C.W. allegedly had related to him. However, J.N. was appointed counsel to represent him after the prosecution determined that J.N.’s account of the facts contained numerous inaccuracies. J.N.’s counsel advised him to invoke his Fifth Amendment right to remain silent to avoid committing perjury. Here, the prosecution did not threaten J.N.; there was record support of J.N.’s inconsistencies with the evidence; and the prosecutor properly requested that the court appoint independent counsel for J.N. Therefore, the prosecutor did not coerce J.N. into refusing to testify, and the Court of Appeals was not required to balance J.N.’s Fifth Amendment right not to testify against defendant’s Sixth Amendment right to present a defense. Accordingly, defendant was not deprived of his ability to present a defense.
Defendant also contended that the trial court erred in excluding an audio recording of J.N.’s police interview. However, there was ample evidence that the audio recording lacked reliability and trustworthiness. Further, J.N. could not be cross-examined regarding the audio recording because he had invoked his Fifth Amendment right not to testify. Therefore, the court did not abuse its discretion in excluding the recording.
Defendant further argued that the trial court erred in excluding evidence that an unidentified witness approached a security guard and reported that a black Ford Taurus with tinted windows and its headlights off sped away from the same parking lot as defendant’s car after the shooting. Because the witness was unavailable, defendant sought to elicit testimony about the unidentified car through the security guard. The trial court properly excluded the evidence because no hearsay exception applied and it raised C.R.E. 403 concerns.
No. 08CA1204. People v. Roy.
Presentence Confinement Credit—Crim.P. 35(a)—Consecutive Sentences.
Defendant Roy appealed the district court’s order denying his third post-conviction motion for additional presentence confinement credit. The order was affirmed.
In 1999, Roy was charged with multiple drug offenses in two cases, Nos. 99CR321 and 99CR867. Roy violated his probation by committing another drug-related offense on December 27, 2002, for which he was charged in a third case, No. 02CR1373. At the time of sentencing in the third case, the court awarded him credit for time served in all cases. The court also granted Roy’s request for presentence confinement credit for time served in community corrections. Thereafter, Roy filed motions for additional presentence confinement credit in all three cases, which were denied.
Roy contended that the district court erred by denying his motion for an additional 267 days of presentence confinement credit. Roy’s failure to timely appeal the 2005 order prevented the Court of Appeals from reviewing that order. As to the 2008 order, however, Roy’s post-conviction claims for presentence confinement credit were cognizable under Crim.P. 35(a). Because Roy received consecutive sentences for all three cases, and he already was awarded presentence confinement credit for the period in question in No. 02CR1373, he received full credit against the total term of imprisonment. Roy was not entitled to duplicative credit; therefore, the district court did not err in denying his request for additional presentence confinement credit.
No. 08CA2479. People v. Griffiths.
Distribution—Methamphetamine—Prior Bad Acts—Res Gestae Evidence—C.R.E. 404(b)—Drug Offender Surcharge—Inability to Pay—Incarceration.
Defendant Griffiths appealed the judgment of conviction entered on a jury verdict finding her guilty of distributing a schedule II controlled substance (methamphetamine), unlawfully possessing one gram or less of a schedule IV controlled substance (alprazolam), and possessing drug paraphernalia. She also appealed the statutory drug offender surcharge imposed. The judgment and sentence were affirmed.
During a drug task force sting operation, a police informant gave L.B. $175 to purchase methamphetamine. L.B. purchased two packages of methamphetamine from defendant for $120. Both L.B. and defendant were arrested, and the police recovered from defendant’s home two tablets of alprozolam; two syringes with blood in them; two radio scanners; and a spiral notebook containing phone numbers (commonly known as a pay-owe book).
Defendant contended the evidence was insufficient to support her distribution conviction. L.B.’s testimony, if believed, and the evidence recovered from defendant’s home—including the bills that matched the serial numbers provided to the informant—were sufficient to support defendant’s convictions.
Defendant also contended that her right to a fair and impartial jury was violated by the introduction of irrelevant and prejudicial prior bad acts. The evidence of the spiral notebook found at defendant’s home helped provide the jury a more complete understanding of the events surrounding the crime. It was relevant to show that defendant knowingly possessed the drug paraphernalia and alprazolam, and knowingly sold or distributed methamphetamine. Further, the danger of unfair prejudice did not outweigh the evidence’s relevance. Therefore, the notebook constituted admissible res gestae evidence, which is not subject to C.R.E. 404(b). Further, the prosecutor did not violate the court’s previous order excluding prior bad acts, because he did not elicit testimony suggesting that defendant had engaged in prior drug distribution and use.
Defendant further contended that the trial court erred in imposing the drug offender surcharge due to inability to pay, because she was unemployed and would be incarcerated. Incarceration does not necessarily render a defendant unable to pay the statutorily mandated drug offender surcharge. Because the record supports the court’s determination that defendant had not met her burden of proving she was unable to pay, and CRS § 16-18.5-106(1) accounts for defendant’s incarceration in calculating her ability to pay the surcharge, the trial court’s order was not disturbed on review. The judgment and sentence were affirmed.
No. 09CA0339. People v. Portillo.
Trial Record—Merger—Menacing—Lesser-Included Offense—Attempted Extreme Indifference Murder.
Defendant Portillo appealed the judgment of conviction entered on jury verdicts finding him guilty of two counts of attempted extreme indifference murder and two counts of menacing. The judgment was affirmed.
Defendant contended that the trial court erred, and thereby violated his right not to be subjected to double jeopardy, by bifurcating the attempted murder and menacing counts of the original information (each of which named two victims) into two separate counts (each of which named a single victim). Because defendant did not provide a portion of the record containing the trial court’s ruling, the Court of Appeals had no basis to question the soundness of the court’s decision.
Defendant also contended that his dual convictions with respect to each victim should be merged, because menacing is a lesser-included offense of attempted extreme indifference murder. Because the offense of menacing requires proof of an element that need not be proved to obtain a conviction for attempted extreme indifference murder (knowingly placing, or attempting to place, another person in fear of imminent serious bodily injury), the former offense is not a lesser-included offense of the latter. Therefore, the convictions for the two offenses do not merge.
Defendant finally contended that the evidence is insufficient to support the jury’s verdicts. Again, because defendant provided only a portion of the trial transcript (and none of the exhibits), it is presumed that the full record supports the jury’s verdicts. The judgment was affirmed.
No. 09CA0515. People v. Bloom.
Plea Agreement—Sentence—Right to Appeal.
Defendant Bloom appealed the sentence imposed following his guilty plea to second-degree kidnapping of a robbery victim and a crime of violence sentence enhancer count. The appeal was dismissed.
The district court accepted defendant’s plea, which included an agreement that defendant’s prison sentence would not exceed forty years, and sentenced him to forty years’ imprisonment. Absent the agreement, defendant could have been sentenced to up to forty-eight years in prison.
Defendant argued that the district court did not properly weigh the statutory sentencing factors listed in CRS § 18-1-102.5 when imposing his sentence. If a sentence is within a range pursuant to a plea agreement, defendant does not have the right of appellate review of the propriety of the sentence. Here, defendant acknowledges that his sentence is within the agreed range; therefore, defendant’s appeal was dismissed.
No. 09CA0596. In re the Marriage of White and Martin.
Post-Dissolution of Marriage—Motion to Modify—Child Support—Change in Residence.
In this post-dissolution of marriage matter between David D. Martin (father) and Holly Budean White (mother), father appealed from the order modifying child support. The order was affirmed.
When the parties’ marriage was dissolved, their child lived primarily with mother, and the court ordered father to pay child support. In June 2007, when the child was nearly 16 years old, mother agreed that the child could live primarily with father, and that he could stop paying child support. Father, in turn, agreed that mother would not pay child support, provided that the child continued to have overnight visits with mother. However, in August 2008, father filed a motion to modify child support, asking that mother pay child support and contribute to the child’s uninsured medical expenses. In pertinent part, the court found that the child lived primarily with father beginning in June 2007 and ordered mother to pay child support as of the date father filed his motion, August 2008, taking into account equitable considerations.
Father contended that the trial court was required to modify mother’s child support obligation as of the date the parties allowed the child to move to father’s residence. The general rule is that the provisions of any decree regarding child support may be modified only as to installments accruing after the filing of the motion for modification. CRS § 14-10-122(5) is an exception to this general rule. Under the plain meaning of § 14-10-122(5), when a mutually agreed change of physical care occurs and the court modifies the provision for child support of the obligor under an existing child support order, it must modify that provision as of the date the parties allowed the child to move. Here, because mother was not the obligor under the existing child support order, CRS § 14-10-122(1)(d) prohibited the court from ordering mother to pay child support installments accruing before father filed the motion for modification. Accordingly, the court did not err when it did not order mother to pay child support retroactively to the date of the change of custody.
No. 09CA0822. Colorado Consumer Health Initiative v. Colorado Board of Health.
Patient Copy Rule—Colorado Board of Health—Health Insurance Portability and Accountability Act—Summary Judgment—Undisputed Facts.
In this declaratory judgment action challenging the Colorado Board of Health’s "patient copy rule," plaintiff, the Colorado Consumer Health Initiative (CCHI), appealed the summary judgment entered for defendant, the Colorado Board of Health (CBH), as well as the denial of its cross motion for summary judgment. The trial court’s order denying CCHI’s summary judgment motion was affirmed, its order entering summary judgment for CBH was reversed, and the case was remanded for further proceedings.
CBH is a state regulatory board that has the authority to adopt and amend rules regarding public health. CBH’s rule, generally known as the "patient copy rule," establishes the fees that health-care facilities can charge for providing copies of a patient’s medical records. CCHI filed a complaint for declaratory relief challenging CBH’s rules amending the patient copy rule in 2001 and 2008. On cross motions for summary judgment, the court granted CBH’s motion and denied CCHI’s motion.
CCHI contended that because the patient copy rule does not comply with the federal Health Insurance Portability and Accountability Act (HIPAA), the trial court erred in entering summary judgment for CBH and against CCHI. When HIPAA took effect in 2003, the portion of the 2001 rule that applies to HIPAA-covered individuals, which the Board readopted in the 2008 rulemaking, was required to come into compliance with HIPAA. To comply with HIPAA, the portion of the patient copy rule that applies to HIPAA-covered individuals must be cost-based and must not include costs beyond supplies for and the labor of copying. Here, neither CCHI nor CBH provided the trial court with undisputed facts demonstrating that it was legally entitled to summary judgment regarding the patient copy rule’s compliance with HIPAA; therefore, neither party was entitled to summary judgment on this issue.
CCHI also contended that the trial court erred in entering summary judgment for CBH and against CCHI on the issue of the patient copy rule’s compliance with Colorado law. Colorado law provides that health-care facilities must furnish copies of medical records to the patient "upon the payment of the reasonable costs." Here, neither CCHI nor CBH provided the trial court with undisputed facts demonstrating that it was legally entitled to summary judgment regarding the patient copy rule’s compliance with Colorado law; therefore, neither party was entitled to summary judgment on this issue.
No. 09CA0830. Travelers Property Casualty Company of America v. Farmers Insurance Exchange.
Summary Judgment—Additional Insured Coverage for Liability That Arises out of a Commercial Tenant’s Use of Leased Premises.
This case involved a provision in a commercial liability insurance policy that provides for "additional insured" coverage for liability "arising out of" a commercial tenant’s use of leased premises. The Court of Appeals concluded there was no coverage provided to the landlord or its property manager and therefore affirmed the trial court’s order granting summary judgment to defendant (Farmers) and against plaintiff (Travelers).
Cherry Knolls 99, LLC (Cherry Knolls) owned a shopping center. It entered into a commercial lease agreement to lease suite 290 to a lessee. The lease was signed by Cherry Knolls’s property manager, ACF Property Management (ACF). The original lessee later assigned its interest to another entity (tenant), which operated a restaurant there.
Tenant obtained a commercial liability insurance policy from Farmers that covered the leased premises, and named "Cherry Knolls c/o ACF Property Management, Inc." as an additional insured. Cherry Knolls and ACF also obtained their own commercial liability insurance policy issued by Travelers.
A customer of tenant went to eat at the restaurant and parked her car in the shopping center’s parking lot. After eating, while walking in the parking lot to her car, the customer slipped on ice, fell, and was injured. She sued Cherry Knolls and ACF.
Travelers accepted defense and tendered a request for defense and indemnity to Farmers. After Farmers declined to defend or indemnify, Travelers settled with the customer. Travelers then brought this action for contribution against Farmers. Both parties moved for summary judgment. The trial court ruled there was no coverage for the customer’s injuries under Farmers’ policy and granted Farmers’ motion. Travelers appealed and the Court affirmed.
Farmers’ policy listed Cherry Knolls and ACF as additional insureds, but Farmers’ policy insured only the leased premises (suite 290), not the common areas such as the parking lot. The Court determined that there was no duty to defend or indemnify, because the customer’s injury did not arise "out of the ownership, maintenance or use" of the restaurant. The customer needed to show that the use of the restaurant was integrally related to her activities and the injury at the time of the accident. The Court held that the customer’s patronage of the restaurant was not integrally related to her injury at the time she slipped and fell in the parking lot. She could have had the identical injury without visiting the restaurant.
No. 09CA0991. People v. Emert.
Possession of a Weapon by a Previous Offender—People v. Curtis Advisement.
The prosecution charged defendant with: (1) possession of more than one gram of a schedule II controlled substance under CRS § 18-18-405(1) and (2)(a)(I)(A); (2) special offender-deadly weapon under CRS § 18-18-407(1)(f); (3) menacing with a deadly weapon under CRS § 18-3-206(1)(a) and (b); (4) second-degree aggravated motor vehicle theft under CRS § 18-4-409(4)(b); (5) possession of a weapon by a previous offender (POWPO) under CRS § 18-12-108(1); (6) violation of bail bond conditions under CRS § 18-8-212(1); and (7) five counts of being a habitual criminal under CRS § 18-1.3-801. Count four was dismissed at a preliminary hearing and counts five and six were severed. Defendant was granted a new trial on his POWPO conviction and an incorrect advisement under People v. Curtis, 681 P.2d 504 (Colo. 1984). The People appealed. The Court of Appeals remanded for further proceedings.
During the trial on the first three counts, the trial court gave defendant a standard Curtis advisement. Defendant initially decided not to testify. During defendant’s case-in-chief, his wife testified. The next day, the prosecution sought to introduce rebuttal evidence that defendant had communicated with his wife from jail by telephone during trial and that they had discussed her expected testimony, contrary to the court’s sequestration order. When the trial court determined it would allow the evidence, defendant decided to testify. The court repeated the Curtis advisement. During his testimony, defendant admitted he was the owner of the vehicle in which the weapon was found and that he had been convicted of the felony named in the POWPO charge.
The jury found defendant not guilty of menacing, but was unable to reach a verdict on counts one and two. The court declared a mistrial on those counts and scheduled a retrial.
Several weeks later, the trial began on the severed POWPO charge. Over defendant’s objection, the prosecution presented his testimony from the first trial. Defendant chose not to testify and the jury returned a guilty verdict on the POWPO charge. Defendant moved for a new trial, asserting that he had received an improper Curtis advisement in the first trial. The trial court found the advisement was defective and therefore defendant’s previous testimony was involuntary and inadmissible in future proceedings. The prosecution appealed.
On appeal, the People argued that the Curtis advisement was proper and there is no requirement for a trial court to advise a defendant about all collateral consequences of a decision to testify, including those that may arise in subsequent trials on separate counts. The Court agreed that the trial court’s advisement was correct insofar as the first trial was concerned, but where a severed POWPO charge is pending and untried, a trial court’s advisement that a prior felony can be used only for impeachment is misleading, because a prior felony is a vital component of the prosecution’s POWPO case. Thus, the Court held that when a severed POWPO charge is pending, a trial court misleads a defendant when it gives that part of a Curtis advisement dealing with a testifying defendant’s prior felony convictions, unless it also provides a further explanation about the use of the felony in the pending POWPO trial.
The Court remanded for defendant to demonstrate that he reasonably and detrimentally relied on the trial court’s misleading advisement in deciding to testify. If he so demonstrates, a new trial should be held on the POWPO charge; if not, his conviction should be reinstated.
In contrast, the Court concluded that defendant’s admission that he owned the vehicle in which the weapon was found is admissible in future proceedings. The misleading Curtis advisement concerning the use of a prior felony conviction could not have induced any detrimental reliance concerning this admission.
No. 09CA1066. Town of Erie v. Town of Frederick.
Annexation—Proper Notice of Hearings.
The Court of Appeals affirmed the trial court’s approval of annexations by defendant. The Court remanded for calculations of attorney fees and costs.
In January 2007, the mayor of the Town of Frederick (Frederick), Eric Doering, executed four petitions to annex land known as the Yardley Wetlands, which are located in the southwest portion of Frederick’s planning area and are bisected by State Highway 52. Frederick’s Town Board approved the petitions and adopted resolutions in March. In April, the Town of Erie (Erie) submitted four motions for reconsideration regarding the annexations, which the town board denied the next week. However, Frederick repealed the annexations because it had failed to publish proper notice.
In May, after providing notice, Frederick again adopted resolutions adopting the Yardley Wetlands. Erie submitted another set of motions for reconsideration, which also were denied. On May 25, 2007, a group of landowners known as SMT sued Frederick over the annexations. Erie also sued, and the cases were consolidated. SMT was dismissed for lack of subject matter jurisdiction, a trial was held, and judgment was entered in favor of Frederick in April 2009. Erie appealed.
Notice to abutting landowners of an annexation hearing under the Municipal Annexation Act (Act) must be given ninety days before the hearing. An inadvertent failure to comply with this notice provision may be excused. Erie argued the trial court erred in finding that Frederick’s short notice to landowners was inadvertent. The Court disagreed.
One provision of the Act requires that a hearing be held thirty to sixty days after the effective date of a resolution setting an annexation hearing, and that notice be published at least thirty days prior to the hearing. Another provision requires annexations using a public road to achieve contiguity (as was the case here) to provide ninety days’ written notice to abutting landowners. The section also provides: "Inadvertent failure to provide such notice shall neither create a cause of action in favor of any landowner nor invalidate any annexation proceedings." Only the ninety-day notice was at issue on appeal.
The Court concluded, in affirming the trial court, that the evidence in the record supported the trial court’s finding that the failure to give ninety days' notice was inadvertent. The Court also affirmed the trial court’s legal conclusions: (1) that Erie did not have standing to raise issues on behalf of third parties; (2) that contiguity for an annexation is not affected by the existence of a public right-of-way and that consent is not required from the owners of such a public right-of-way; (3) that Frederick’s comprehensive plan, updated annually, satisfied the Act’s requirement for a plan of development even though it was not titled "Three-Mile Plan"; that Frederick’s petitions substantially complied with the Act even though they had minor deficiencies (not having four copies of the annexation maps, not having an address for Frederick’s mayor or a date accompanying his signature). Finally, the Court agreed with Frederick that it was entitled to its reasonable appellate attorney fees and costs.
No. 09CA1369. Weize Company, LLC v. Colorado Regional Construction, Inc.
Construction Dispute—Mechanics’ Lien Foreclosure—Trust Fund Statute—Lis Pendens.
In this construction dispute, the Court of Appeals affirmed the trial court’s dismissal of a lien foreclosure claim and the award of damages. The case was remanded.
Colorado Regional Construction, Inc. (CRC) hired Weize Company, LLC (Weize) as a plumbing subcontractor. Plaintiff-intervenor, Martz Supply Company (Martz) provided plumbing materials to Weize. After Weize had completed all of the underground plumbing and some of the above-ground plumbing, CRC replaced it with a different subcontractor.
When CRC failed to pay Weize for the completed work, Weize recorded mechanics’ liens against the project and commenced this action. Martz intervened, joining in the claims for breach of contract and lien foreclosure. It added a claim against CRC for treble damages and attorney fees under the trust fund statute.
CRC argued the trial court erred by precluding its defense that all claims were barred because Weize’s principal, John Neiberger, was not licensed as a master plumber and Weize did not employ a master plumber on the project. The Court disagreed.
CRC relied on CRS § 12-58-105. The Court rejected CRC’s argument that, because lack of licensure rendered the contract illegal, Weize did not have standing. Standing is a jurisdictional limitation. The Court rejected the one case relied on by Weize in this regard and found that all other cases and jurisdictions treat an illegal contract as an affirmative defense, not a basis for lack of standing.
Weize moved to compel CRC to make initial disclosures three months after Weize and Martz had made their disclosures. When CRC did not respond, the trial court ordered it to submit initial disclosures by September 4, 2008. On October 24, Weize requested that the court enter a default judgment because CRC still had not made its disclosures. The Court declined to enter default judgment, but after CRC finally submitted its disclosures on November 12, the court struck all of CRC’s counterclaims and affirmative defenses as a sanction for the discovery abuse. The Court found no abuse of discretion in the sanction.
CRC then argued it was error to find that it violated the trust fund statute because the record did not support rejecting CRC’s good faith defense under subsection 2 of the trust fund statute, and because substituting bonds for liens released CRC from the requirement to hold funds in trust under subsection 3. The Court rejected both arguments, finding that the evidence in the record supported the trial court’s findings rejecting the good faith defense and that CRC’s lien release bonds did not support exemption from the trust fund statute. The Court also affirmed the trial court’s treble damages and attorney fees award as supported by the evidence.
On cross-appeal, Weize and Martz argued the trial court erred in directing a verdict on Weizes’s lien foreclosure claim for failure to have recorded a lis pendens as required by CRS § 38-22-110. The Court found no error.
No. 09CA1541. Bruce v. City of Colorado Springs.
Single Subject Ordinance—Disqualification of Trial Judge.
This was an appeal of a trial court order issued after remand from an earlier appeal to the Court of Appeals (Bruce I), which concluded that the City of Colorado Spring’s (City) single subject ordinance is not unconstitutional and that plaintiff’s petition for an initiated ordinance violated the single subject rule. Plaintiff also appealed the trial court’s order denying his motion seeking disqualification of the trial court judge. The Court affirmed.
Plaintiff had unsuccessfully attempted to place an initiative on the municipal ballot intended to prevent the City’s use of non-business enterprises to serve as "fronts for traditional governmental public works projects paid for by force fees (taxes) outside TABOR’s spending limit." Plaintiff argued that the City’s single subject ordinance is unconstitutional because it was adopted without first holding a public election to allow voters to decide the matter through a state constitutional amendment and because it violates the right to petition. The Court disagreed.
Colo. Const. art. XX, § 6, grants a home rule city or town broad powers, including all those of the General Assembly, with regard to local and municipal electoral matters. Colo. Const. art. V, § 1(9), also permits cities to provide for the manner of exercising the initiative and referendum powers as to their municipal legislation. The City is authorized to enact ordinances establishing the manner in which municipal legislation is exercised, which clearly includes ordinances that require initiatives submitted for voter approval to contain only single subjects. The Court adopted the reasoning of the Tenth Circuit in Campbell v. Buckley, 203 F.3d 738, 746-47 (10th Cir. 2000), in further finding that a single subject requirement does not violate the right to petition.
The Court rejected plaintiff’s argument that the trial court erred in concluding that his initiative contains more than a single subject in violation of the City’s ordinance. An initiative violates the requirement when it (1) relates to more than one subject and (2) has at least two distinct and separate purposes. The Court agreed that the initiative contained more than one subject with distinct and separate purposes.
Finally, the Court rejected plaintiff’s contention that the trial judge should have disqualified himself. The test under C.R.C.P. 97 is whether the motion and supporting affidavits allege sufficient facts from which it may reasonably be inferred that the judge is prejudiced or biased, or appears to be prejudiced or biased, against a party to the litigation. Plaintiff’s motion was accompanied by his own affidavit alleging the trial judge was biased and prejudiced against him based on his prior rulings and his facial expressions. The motion was insufficient to warrant recusal.
No. 09CA1663. Thompson Creek Townhomes, LLC v. Tabernash Meadows Water and Sanitation District.
Summary Judgment—Specific Performance Regarding Water Taps—Governmental Immunity From Specific Performance.
Thompson Creek Townhomes, LLC (Thompson Creek) filed a suit for breach of contract and promissory estoppel against the Tabernash Meadows Water and Sanitation District (District), seeking specific performance and money damages for the District’s failure to reserve water taps for Thompson Creek’s residential development. The District filed a motion to dismiss, which the court considered a motion for summary judgment because the underlying operative facts were undisputed. The court granted summary judgment, dismissing Thompson Creek’s specific performance and promissory estoppel claims; the remaining claims were dismissed by stipulation. The Court of Appeals affirmed the lower court’s decision.
In 2005, First Community Bank (Bank) acquired a parcel of real property known as Lot 16 through foreclosure. The District then had a policy of reserving water and sewer taps for landowners who paid "availability of service charges." These charges were based on 50 percent of the monthly cost for the sewer and water service, and were to be paid quarterly. When the Bank acquired the Lot, these charges had not been paid for approximately three years. The Bank paid past due amounts to the District when it foreclosed, but it elected to defer any newly accumulating charges until the lot was sold.
In 2006, Lot 16 was sold to Thompson Creek. Before the closing, the District announced that it would no longer reserve taps in exchange for availability of service charges and would reserve them only if they were purchased outright. The District notified the Bank that no taps would be reserved for the Lot until they were purchased.
The closing occurred in early 2007. The Bank tendered payment for the accrued availability of service charges on closing, but the payment was rejected by the District. Thompson Creek filed suit, asserting claims for breach of contract and promissory estoppel, seeking specific performance and money damages. Thompson Creek appealed the judgment dismissing the claim for specific performance.
Thompson Creek argued that a contracting party may seek specific performance against a governmental entity, notwithstanding governmental immunity, if the performance it seeks involves a non-core governmental power. Thompson Creek contended that a contractual obligation to reserve water taps is such a non-core governmental power. The Court disagreed, finding no exception for governmental immunity from specific performance for such so-called non-core powers. The judgment was affirmed.
No. 09CA2620. In re the Petition of J.M.A., and Concerning E.B.R.A.
Termination of Parental Rights—CRS § 19-5-105(4) Limitations Period—Due Process.
Father, a possible father of E.B.R.A., appealed from the order denying his C.R.C.P. 60(b) motion for relief from a March 25, 2009 order terminating his parental rights after the child’s birth mother relinquished custody of the child pursuant to CRS § 19-5-103.5. There was no evidentiary hearing and no factual findings were made; therefore, the Court of Appeals relied on father’s allegations in his verified motion and statements made in the response filed by Bethany Christian Services of Colorado (Bethany). Father alleged that after mother became pregnant, he attended prenatal appointments and ultrasounds with her.
Mother ceased all contact with him months before the child’s birth. Without father’s knowledge, prior to the birth, she retained the services of Bethany to assist her in placing the child for adoption. She represented to Bethany that she did not know the identity of the father. Bethany stated that notice of the relinquishment and termination proceeding was given to the unknown father by publication in a newspaper in El Paso County. No one replied and the court terminated father’s parental rights and granted Bethany legal custody and guardianship of the child and authority to place him for adoption. He was placed in March 2009.
Father learned the child had been born and tried to contact mother, but she refused to speak to him. He filed a paternity action in El Paso County District Court on October 2, 2009, and served mother on October 13, 2009. On October 15, Bethany contacted father’s counsel to advise him that his parental rights had been terminated in a proceeding in Clear Creek County and that an adoption proceeding was set for October 19 in Arapahoe County District Court. Father stated that was his first notice of either proceeding.
On October 16, 2009, father filed a Rule 60(b) motion seeking relief from the Clear Creek County judgment. He argued his right to due process had been violated. Bethany did not dispute that mother had perpetrated a fraud. On November 2, the court denied father’s motion, citing CRS § 19-5-105(4), and noted that the termination order had entered on March 25, 2009 and that father’s motion for relief was filed on October 16, 2009, more than ninety days after the order had entered. Father appealed.
The Court construed father’s argument as one that contended that applying the ninety-day limitations period unconstitutionally deprived him of due process under the circumstances of this case. To ensure proper notice is given when one parent relinquishes or proposes to relinquish or consent to the adoption of a child, the court is required to "cause inquiry to be made" to identify the other parent so that notice of the proceeding may be given to the other parent. Notice by publication is proper only if the other parent has not been identified or if his location has not been determined after diligent efforts. Under the facts of this case, where mother knew how to contact father and where publication notice was attempted one-and-a-half months before the child was born, it was error for the district court to conclude it did not have discretion to determine whether father was denied due process.
The Court rejected the argument that father, being a putative father, was not entitled to notice. In Colorado, the requirement is that "all possible parents" be given notice and an opportunity to participate in a termination proceeding. The judgment was reversed and the case was remanded for a hearing on father’s motion for relief from the order terminating his parental rights. If the court determines father’s right to due process was not violated, the order may stand; however, if the court determines that his right was violated, it must determine whether father is entitled to relief from the termination order.
No. 09CA2709. People in the Interest of T.M. and J.M., and Concerning S.M.
Termination of Parent–Child Relationship—Summary Judgment—CRS § 19-3-604(1)(b)(III).
Father, S.M., appealed the termination of his parent–child relationship. The Court of Appeals affirmed in part the trial court’s summary judgment, reversed it in part, and remanded the case.
In April 2009, a dependency and neglect petition was filed. T.M was 3 years old and J.M was 8. In June 2009, the children were adjudicated dependent and neglected as to their mother. She confessed to the termination of her parental rights in January 2010. The court adjudicated T.M. and J.M dependent and neglected as to father in August 2009.
The Boulder County Department of Housing and Human Services (Department) moved for summary judgment to terminate father’s parental rights under CRS § 19-3-604(1)(b)(III). In support, the Department asserted that it was undisputed that father was serving two consecutive twelve-year sentences in the Department of Corrections (DOC), and an additional concurrent sentence of six years related to a habitual offender count, with 771 days credit for time served. The Department averred that the sentences were far in excess of the statutory criteria, and it attached certified copies of the sentencing order and the mittimus.
The court granted summary judgment. Based on clear and convincing evidence, the court found that no appropriate treatment plan could be devised; that father was subject to long-term confinement of such duration that he would not be eligible for parole for at least thirty-six months after the children’s adjudication date; that termination was in the children’s best interests; and that there were no less drastic alternatives.
On appeal, father first argued it was error to grant summary judgment, because a genuine issue of material fact existed regarding his parole eligibility date and the length of his actual confinement. The Court agreed in part.
In his response to the summary judgment motion, father disputed the description of his present sentence and indicated he intended to appeal the six-year sentence he received for being a habitual offender, which he claimed would bring him under the minimum thirty-six month period of incarceration until parole eligibility. Father’s response was not verified, he provided no opposing affidavits or other support, and the court had nothing before it to suggest that the Department had incorrectly represented his sentence. Thus, the Court concluded the Department met its burden as to T.M. and that termination was appropriate.
The Court reached a different conclusion as to J.M. (who was older than 6 years). The Department presented no specific evidence that father would not become eligible for parole for at least six years after the date of the adjudication. Also, the trial court made no specific findings. It was clear father would be confined for mroe than thirty-six months; however, the Court could not conclude his confinement would exceed six years. The summary judgment as to J.M. was reversed and remanded for further proceedings.
Father also argued that the trial court erred in applying to both children the thirty-six month incarceration period that applies only to T.M. The Court agreed. Therefore it was error for the court to apply to both children the expedited procedures that are to be applied only to children under the age of 6.
No. 09CA2725. Mounkes v. Industrial Claim Appeals Office.
Unemployment Compensation—CRS § 8-73-108(5)(e)(VII)—Other Records or Reports.
The Industrial Claim Appeals Office (Panel) affirmed a decision that disqualified claimant from receiving unemployment benefits because he had falsified a letter notifying his employer about his arrest. The Court of Appeals set aside the Panel’s order and remanded for an award of benefits.
Claimant worked as a customer service representative for Sears Roebuck & Co. (employer). His job required him to occasionally drive customers’ automobiles. The hearing officer found that employer discharged claimant because he violated employer’s policy by intentionally failing to disclose that his arrest involved driving under the influence of alcohol (DUI) and possession of marijuana. Specifically, the hearing officer found that claimant reported only the DUI charge and not the marijuana possession charge.
The hearing officer determined the claimant was disqualified from receiving benefits pursuant to CRS § 8-73-108(5)(e)(VII), which provides for disqualification based on the "intentional falsification of expense accounts, inventories, or other records or reports whether or not substantial harm or injury was incurred." Claimant appealed and the Panel affirmed, and claimant appealed.
Claimant argued that the Panel erred in concluding that the letter through which he initially reported his arrest to employer constituted a "report" under CRS § 8-73-108(5)(e)(VII). The Court agreed.
Under the doctrine of ejusdem generis, the Court determined the meaning of "other reports and records" in its context following "expense accounts" and "inventories." The Court concluded that "other reports or records" means only those documents, such as expense accounts and inventories, that relate directly to an employer’s assets and liabilities.
Claimant’s letter notifying employer of his arrest, under this definition, is not a record or report that would result in disqualification. The order was set aside and the case was remanded for an award of unemployment benefits to claimant.
Nos. 09CA0315 & 09CA1477. Quizno’s Franchising II, LLC v. Zig Zag Restaurant Group, LLC.
Order to Show Cause—Appeal—Dismissal—Notice—Sanctions.
This case came before the Court of Appeals on its order to show cause why (1) appellant, Quizno’s Franchising II LLC (Quiznos), did not file a motion to dismiss within a reasonable time, and (2) this court should not impose sanctions. Sanctions were not imposed, the order to show cause was discharged, and the appeal was dismissed.
This case involved consolidated appeals by Quiznos. The matter was fully briefed; the case was at issue as of February 8, 2010; and on March 12, 2010, oral argument was set for May 12, 2010. The parties reached an agreement and signed a Settlement, Release, and Termination Agreement on March 22, 2010. On May 5, 2010, Quiznos filed a motion to dismiss and to vacate the oral argument. Because Quiznos offered no explanation for its long delay in filing its motion to dismiss, the Court issued an order to show cause. Quiznos filed a response apologizing and explaining that although the settlement agreement was signed on March 22, 2010, the settlement resolution was not completed until a number of other actions, including a payment, were complete. Quiznos further explained that counsel for Quiznos contacted the Court and verbally informed it of the settlement on April 7, 2010. Oral notification of the settlement of a pending appeal is insufficient. A party must provide the court with notice of the settlement of a pending appeal immediately and in writing. In the circumstances presented here, however, the Court declined to impose such sanctions. Accordingly, the order to show cause was discharged and the appeal was dismissed.
Colorado Court of Appeals Opinions