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Colorado Court of Appeals Opinions
June 5, 2014

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.

2014 COA 71. No. 09CA2208. People v. Hankins.
Change of Venue—Jury Selection—Peremptory Challenges.

In August 2007, defendant was arrested for the murder of his wife in Craig, Colorado, which is in Moffat County. Defendant moved for a change of venue, citing extensive coverage of the case in the Craig Daily Press. Defendant’s motion was denied, the case was tried in Moffat County, and defendant was convicted of first-degree murder and abuse of a corpse.

On appeal, defendant contended that the trial court’s denial of his motion for a change of venue violated his right to a fair trial. As shown by the record, the pretrial publicity in this case was extensive but not so massive, pervasive, and prejudicial as to create a presumption that defendant was denied a fair trial. Additionally, the record does not show prejudice. Only one impaneled juror said he had formed an opinion about defendant’s guilt, and he adamantly declared that he could set it aside. The remaining eleven jurors said they had not formed an opinion as to defendant’s guilt. Therefore, the trial court did not abuse its discretion when it denied the motion for change of venue.

Defendant also sought reversal of his conviction because he did not receive the full number of peremptory challenges permitted by law. Because the record was completely silent on this issue, it appears that the trial court and the attorneys simply overlooked this issue. Because both parties received the same number of challenges, defendant’s right to be tried by a fair and impartial jury was not violated. The order was affirmed.

2014 COA 72. No. 10CA0105. People v. Trujillo.
Speedy Trial—Continuance—Witness—Gang Evidence—CRE 404(b)—Res Gestae Evidence.

A jury found defendant guilty of second-degree kidnapping, robbery, third-degree assault, and menacing. On appeal, defendant contended that his convictions must be dismissed because the trial court granted the prosecution a continuance beyond his speedy trial deadline to obtain the testimony of a crucial witness (Gonzales). The prosecution moved to continue defendant’s trial to secure Gonzales’s testimony, which was crucial to the People’s case. Further, the record supports the prosecution’s exercise of due diligence to secure Gonzales’s testimony. The prosecution asserted that a plea agreement with Gonzales would soon be reached, after police could confirm her statements, and that this agreement would require her to testify against her accomplices. Therefore, the trial court did not err in continuing the trial to allow the prosecution to secure Gonzales’s testimony.

Trujillo further argued that his convictions should be reversed because the trial court erroneously admitted excessive evidence about gangs over his objection. The prosecution introduced gang evidence through Gonzales’s testimony, as well as the testimony of a police detective gang specialist, a police officer, and a gang expert, and through photographs of Trujillo’s gang tattoos. The gang expert’s testimony about the size and structure of the Sureños gang, the Sureños culture, and the rules of the Sureños, as well as Gonzales’s testimony about Trujillo’s tattoos, the meaning of “green light,” and the shooting of another gang member, were inadmissible under CRE 404(b) and as res gestae evidence, because the prosecution did not show the connection between the charged crimes and the evidence presented. This error was not harmless, so the judgment was reversed and the case was remanded for a new trial.

2014 COA 73. No. 11CA2440. People v. Lanari.
Crim.P. 35(c)—Doctrine of Laches—Prejudice.

In 1987, a jury convicted Lanari of first-degree murder, attempted first-degree murder, and four crime of violence sentencing enhancers. On November 2, 2010, Lanari filed a pro se Crim.P. 35(c) motion, alleging that trial and appellate counsel were ineffective for various reasons. The People moved to dismiss the motion, arguing that it was barred by the doctrine of laches. After a hearing, the district court agreed and dismissed the Crim.P. 35(c) motion.

On appeal, Lanari argued in his opening brief that his Crim.P. 35(c) motion was not barred by the doctrine of laches. There is no statutory time limit to file a post-conviction motion if a defendant has been convicted of a class 1 felony. However, the doctrine of laches is still available to bar such motions based on prejudice to the prosecution. Here, Lanari conceded that he knew about the facts underlying his ineffective assistance of trial counsel claims either before or by the conclusion of his trial in 1987. Additionally, he knew about the facts that formed the basis of his ineffective assistance of appellate counsel claims by the conclusion of his appeal in 1997. The People were not required to show that they detrimentally relied on Lanari’s failure to file a post-conviction motion within a reasonable time. Because Lanari filed his post-trial motion almost twenty-four years after his trial in January 1987, the district court did not abuse its discretion in finding that the People were prejudiced by such delay. The judgment was affirmed.

2014 COA 74. No. 13CA0875. Armed Forces Bank, N.A. v. Hicks.
CRS § 38-38-306(6)—Waiver—Motion to Amend Answer—Counterclaim—Discovery.

In December 2006, Glenwood Commercial, LLC borrowed $6 million from Bank Midwest to build a condominium complex in Glenwood Springs. The loan was secured by a deed of trust on the property where the complex was to be built. The Hickses, who were principals of Glenwood Commercial, provided separate but identical personal guaranties for the loan. Bank Midwest assigned the loan and guaranties to Armed Forces Bank, which later filed suit against Glenwood Commercial and the Hickses for defaulting under the loan agreement. The district court thereafter granted the bank’s motion for summary judgment against the Hickses.

On appeal, the Hickses contended that the district court erred as a matter of law because the bank’s statutory obligations under CRS § 38-38-106(6) could not be waived, and that, in any event, the Hickses’ guaranty documents do not contain a waiver of the bank’s statutory obligations under CRS § 38-38-106(6). CRS § 38-38-106(6) does not contain a prohibition against waiver, and the ability to waive the provisions of CRS § 38-38-106(6) would not violate public policy. Here, the plain language in the guaranty agreements unambiguously waived all of the Hickses’ defenses against the bank other than actual payment of the debt. Therefore, the Hickses waived their defenses based on CRS § 38-38-106(6) in their guaranty agreements and the district court properly granted summary judgment in the bank’s favor.

The Hickses also contended that the district court erred by denying their motion to amend their answer to assert a counterclaim against the bank. The bank was presented the proposed final plat after the January 1, 2010 deadline had passed and after it had filed suit for breach of the note. Therefore, it had the right to repudiate the modification and forbearance agreements and proceed with its contractual remedies. The district court’s denial of the motion to amend on the basis that the counterclaim as alleged was futile and would not survive a motion to dismiss was not an abuse of discretion.

The Hickses further argued that the district court abused its discretion by denying their motion to compel production of documents requiring the bank to produce documents pursuant to its obligations under CRCP 26(a)(1). However, production of the documents was not required under CRCP 26(a)(1) and the Hickses had not requested such documents under CRCP 34 or by any other discovery mechanism. Thus, the district court did not abuse its discretion in denying the motion to compel. The judgment was affirmed.

2014 COA 75. No. 13CA0958. Sinclair Transportation Co. v. Sandberg.
Condemnation—Interest on Attorney Fees—Surface Damage Bond—Dismissal by Petitioner.

Sinclair Pipeline Company (Sinclair) owns a pipeline system that transports petroleum products from Wyoming to Denver. Sinclair uses an easement that passes through respondents’ (landowners) property. Sinclair initiated this condemnation proceeding to secure the rights to lay a second pipeline on landowners’ property and use some of their property that, though underlying the original pipeline, was not within the easement. The district court found that Sinclair had condemnation authority to build the new pipeline and entered an order allowing it to take immediate possession of the properties to install it while continuing to use the original pipeline. In 2007, while the case was on appeal, Sinclair installed the new pipeline but did not put it to use.

Five years later, the Supreme Court concluded that Sinclair did not have statutory condemnation authority under CRS § 38-5-105. On remand, landowners sought $192,573.95 in attorney fees and costs, plus interest. Before the court ruled, Sinclair paid all the fees and costs without interest, which the district court determined landowners were not entitled to.

Sinclair filed a notice of abandonment of condemnation proceedings and a declaratory judgment action seeking to enjoin the landowners from removing the new pipeline and seeking recognition of its rights under the easement to operate the new pipeline. Landowners objected and filed counterclaims. The district court dismissed the condemnation action.

On appeal, landowners argued it was error to deny them interest on their attorney fees and costs. The Court disagreed. The fees were awarded under CRS § 38-1-122. There is no provision in any sections pointed to by landowners for a right to interest. Therefore, the district court correctly denied the request.

Landowners also argued it was error to dismiss the condemnation action instead of consolidating it with the declaratory judgment action. The Court disagreed. Condemnors have an absolute right to abandon condemnation proceedings at any point before title has vested.

Landowners further argued it was error for the district court not to determine their surface damages and apply Sinclair’s surface damage bond to reimburse them before dismissing the condemnation action. The district court based its decision on agreement by the parties that there were issues of material fact concerning the surface damages that could be resolved in the declaratory judgment action. Moreover, the surface damage bond and additional money deposited by Sinclair as security for its taking immediate possession of the property was transferred to the court registry for the declaratory judgment action. The Court perceived no error in proceeding in this manner. The judgment of dismissal and the orders were affirmed.

2014 COA 76. No. 13CA1235. Sinclair Transportation v. Sandberg.
Easement — Partial Summary Judgment.

Sinclair Pipeline Company (Sinclair) operates a pipeline system that transports petroleum products from Wyoming to Denver and uses an easement that passes through defendants’ (landowners) properties. The easement was created by agreement in 1963 and provided its owner and “its successors and assigns” the right to “construct, maintain, inspect, operate, protect, repair, replace, change the size of, and remove” a six-inch pipeline across landowners’ property (original pipeline).

In 2006, Sinclair approached landowners to propose amending the easement to allow it to build a ten-inch pipeline on the property (new pipeline). Landowners declined, and Sinclair sought the right through a condemnation proceeding. The district court determined Sinclair had condemnation authority. In 2007, while the case was on appeal, Sinclair installed the new pipeline but did not put it to use. Ultimately, the Supreme Court determined Sinclair did not have statutory condemnation authority.

Sinclair then abandoned the condemnation proceeding and instituted this declaratory judgment action under CRCP 57 and CRS § 13-51-106 to determine its rights under the easement and prevent landowners from removing the new pipeline. The district court dismissed the condemnation action and addressed all other claims in this case.

Sinclair moved for partial summary judgment and the district court ruled, as a matter of law, that Sinclair had the right to treat the new pipeline as a replacement of the original one, as long as it removed the original one. The partial summary judgment was certified as a final judgment under CRCP 54(b) for purposes of appeal.

Sinclair removed the original pipeline and began using the new one. Four months after the summary judgment order was issued and Sinclair had begun using the new pipeline, landowners moved to stay the order, which the district court denied because Sinclair had “already fully executed” it and there “was nothing left . . . to stay.”

On appeal, landowners argued Sinclair lacked standing because factual disputes existed as to whether Sinclair was a successor in interest to the original owner of the easement, and an easement of the type involved in this case could not be assigned. The Court of Appeals disagreed, finding that the evidence presented by Sinclair was sufficient to prove its successorship interest in the easement.

The Court rejected landowners’ argument that Sinclair lacked standing, because ownership interests in this type of easement cannot be assigned. The language of the easement itself was a conveyance to Old Sinclair and its “successors and assigns.”

Landowners argued that partial summary judgment was inappropriate because any right to replace the pipeline was subject to numerous conditions as to which factual disputes exist and was defeated by Sinclair’s non-compliance with other parts of the agreement. The Court disagreed, finding that the reasonable expectation of the parties to such an agreement would be that the new pipeline could be put in before the old one was removed, so as not to disrupt service.

Landowners further contended that Sinclair abandoned the contract right to the easement because it acted as though that right had expired when it sought to use condemnation authority to install the new pipeline. The Court disagreed. Sinclair’s condemnation action was an attempt to install the new pipeline and not remove the old pipeline after landowners had denied them the permission to do so. The order was affirmed.

Colorado Court of Appeals Opinions

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