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Colorado Court of Appeals Opinions
July 3, 2013

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.

2013 COA 102. No. 10CA1481. People v. Vigil.
Habitual Domestic Violence Offender—County Court—Felony.

Defendant challenged his convictions under the habitual domestic violence offender (HDVO) statute. The judgment was reversed and the case was remanded for further proceedings. 

Defendant was charged in county court with misdemeanor counts in two cases, both arising from his conduct with his wife, the victim. Both cases went to trial in county court, and in each case, defendant was convicted of violating a protection order and the court found that his acts were an incident of domestic violence. The county court judge found that defendant was subject to HDVO sentencing.

Defendant contended that because he was charged with misdemeanor and felony counts pursuant to the HDVO statute, he was entitled to be tried in accordance with felony trial procedures, and the court’s failure to do so violated his statutory and constitutional rights. The HDVO statute is a sentence enhancement statute, not a substantive offense, which mandates a class 5 felony offense. The HDVO statute, as applied here, denied him critical constitutional and statutory protections required for felony convictions. Accordingly, defendant’s convictions were reversed and the case was remanded to the district court for a jury trial, should the People elect to pursue the prosecution.

2013 COA 103. Nos. 12CA0156 & 12CA0157. Smith v. Kinningham.
Car Accident—Collateral Source Rule—Medicaid Benefits—Evidence—Sudden Emergency Doctrine—Costs—Evidentiary Hearing—Prevailing Party—Attorney Fees.

Defendants Alan W. Kinningham and Accelerated Network Solutions, Inc. (ANS) appealed the trial court’s entry of judgment in favor of plaintiffs James C. Smith and Dona Laurita. They also appealed several of the trial court’s orders. ANS further appealed the trial court’s order denying its motion to deem it a prevailing party and award costs and attorney fees. The orders were affirmed in part and reversed in part, and the case was remanded with directions.

Kinningham and Smith were involved in a car accident on a one-way street in Denver. Smith braked suddenly to avoid hitting a third vehicle going the wrong way on the one-way street. Kinningham also braked, but he was unable to stop in time and rear-ended Smith’s car. Kinningham was part owner of ANS, but ANS did not own the car that Kinningham was driving. Smith and his wife, Laurita, brought this action against Kinningham and ANS.

Defendants argued that the trial court erred in granting plaintiffs’ pretrial motion to exclude evidence of Medicaid benefits that were paid on Smith’s behalf for medical services he received. Under CRS § 10-1-135(10)(a), evidence of Medicaid benefits paid on behalf of a plaintiff is inadmissible at trial for any purpose. Thus, the trial court did not err in excluding evidence of Medicaid benefits paid on Smith’s behalf.

Defendants also contended that the trial court erred in declining to give their tendered instruction on the sudden emergency doctrine. However, the sudden emergency doctrine was abolished. Therefore, there was no error.

Defendants further contended that the trial court erred in awarding plaintiffs their costs without holding an evidentiary hearing to determine the reasonableness of those costs. The trial court erred in awarding plaintiffs their costs and expert witness fees without conducting an evidentiary hearing, as requested.

ANS argued that the trial court erred in denying its motion to be declared a prevailing party, and in denying its request for attorney fees and costs. The Court of Appeals agreed that ANS was a prevailing party and was entitled to recover its costs pursuant to CRS § 13-16-105. However, it was not entitled to an attorney fees award, because plaintiffs’ claims against ANS were not frivolous and were not made in bad faith.

Finally, the court did not abuse its discretion in denying defendants’ motion for enlargement of time to designate a non-party at fault; denying defendants’ motion for sanctions concerning tax returns and alleged false statements; sustaining defendants’ objection to a question about liability insurance; and admitting Kinningham’s testimony regarding his own blood alcohol content. It also did not err in denying defendants’ motions for mistrial and for a new trial.

2013 COA 104. No. 12CA0786. People v. Henry.
Presentence Confinement Credit.

Defendant appealed his sentence,arguing that the district court erred in denying him any presentence confinement credit (PSCC).The sentence was reversed in part and the case was remanded for amendment of the mittimus.

While on mandatory parole in another case, defendant was charged with numerous offenses in this case. After defendant pleaded guilty to an added count of attempted sexual assault on a child, the district court sentenced defendant according to the agreement, but denied his request for 397 days of PSCC for the time he had spent in jail between the date of his arrest and the date of sentencing.

Defendant argued that the district court erred in denying him any PSCC. There was no dispute that defendant’s confinement from the date of his arrest (February 3, 2011) to the date of his sentencing (March 5, 2012) was caused by the charges filed in this case. Therefore, the district court erred both in concluding that defendant was not entitled to PSCC credit and in failing to include such credit in the mittimus. Because the court misapprehended its authority under the PSCC statute, that portion of defendant’s sentence was reversed and the case was remanded for the court to amend the mittimus to reflect 397 days of PSCC.

2013 COA 105. No. 12CA0816. U.S. Taekwondo Committee v. Kukkiwon.
Interlocutory Appeal—Jurisdiction—Foreign Sovereign Immunities Act—Final Judgment—State Doctrine Ruling—Pendent Appellate Jurisdiction—Commercial Activity.

This was an interlocutory appeal of a trial court order denying motions to dismiss a breach of contract action brought against a foreign entity. The appeal was dismissed in part and affirmed in part, and the case was remanded.

Kukkiwon is a South Korean organization that promotes the martial art of Taekwondo. It initially existed as a nongovernmental entity, and so constituted, it contracted with plaintiffs U.S. Taekwondo Committee and U.S. Kukkiwon, making plaintiffs its overseas branch in the United States. Shortly after the contract with plaintiffs was formed, the South Korean government passed a law making Kukkiwon a “special corporation,” and giving the South Korean Minister of Culture, Sports, and Tourism authority over several of Kukkiwon’s activities. Subsequently, Kukkiwon notified plaintiffs that it was unilaterally cancelling the contract, and plaintiffs filed this action for breach.

Plaintiffs contended that the Court of Appeals lacked jurisdiction to determine this appeal because it was interlocutory. An interlocutory appeal from a ruling denying Foreign Sovereign Immunities Act (FSIA) immunity is immediately reviewable as a final judgment, pursuant to CRS § 13-4-102(1). Therefore, the Court had appellate jurisdiction to review this issue. On the other hand, it did not have the authority to review a related act of state doctrine ruling, because it did not have pendent appellate jurisdiction.

Defendant argued that the trial court erred in finding that it did not have FSIA immunity. FSIA is a federal statute that provides immunity to any “agency or instrumentality” of a foreign state unless, as pertinent here, the claim is based on “commercial activity.” The contract at issue here constituted commercial activity because it made plaintiffs an overseas branch of Kukkiwon and contemplated activity in the United States that could create revenue and profits. Therefore, defendants were not entitled to FSIA immunity. The case was remanded to the trial court for completion of the trial.

2013 COA 106. No. 12CA1251. Strudley v. Antero Resources Corporation.
Toxic-Tort Case—Modified Case Management Order—Prima FacieEvidence—Discovery.

In this toxic-tort case, plaintiffs William G. Strudley and Beth E. Strudley, individually and as the parents and guardians of William Strudley and Charles Strudley, appealed the trial court’s orders requiring them to present prima facie evidence to support their claims before the initiation of full discovery, and dismissing their claims with prejudice for not meeting this burden. The orders were reversed and the case was remanded with directions.

The Strudleys sued defendants, Antero Resources Corporation and three other companies, claiming negligence, negligence per se, nuisance, strict liability, and trespass related to physical and property injuries allegedly caused by the companies’ natural gas drilling operations near their home.

The Strudleys asserted that the trial court erred by entering a modified case management order, which required the Strudleys to present prima facie evidence to support their claims before full discovery could commence, because such orders are not permitted as a matter of Colorado law. A trial court may not require a showing of a prima facie case before allowing discovery on matters central to a plaintiff’s claims. Here, although the initial disclosures provided the Strudleys with some information related to their claims, the disclosed information was insufficient to enable them to respond fully to the modified case managementorder. The modified case managementorder, therefore, interfered with the full truth-seeking purpose of discovery regarding Strudleys’ claims. Thus, the trial court erred as a matter of law when it entered the modified case management order.

2013 COA 107. No. 12CA1412. In re the Parental Responsibilities of I.M., and Concerning R.A.M.
Paternity—Statute of Limitations.

In this paternity action, Rebecca A. McKenzie (mother) appealed the order granting judgment on the pleadings in favor of Mark A. Russo (Russo), which held that her action to determine the existence of a father–child relationship with I.M. was barred by the statute of limitations. The order was affirmed.

I.M. was born on October 2, 1992. Russo and mother were not married. On March 11, 2011, mother, as next friend, sought to establish paternity under CRS § 19-4-105(1)(d). Russo responded that because I.M. was over age 18, mother’s action was barred by the statute of limitations under CRS § 19-4-108. The trial court granted Russo’s motion for judgment on the pleadings because the action was barred by the statute of limitations. Mother appealed.

Mother argued that the trial court should have considered CRS § 19-4-107(1) and (2), which allow her to bring an action “at any time.” The Court of Appeals disagreed. The Court held that CRS § 19-4-107(1) is inapplicable because the prerequisite allegation that Russo and mother were married or attempted to marry was not made. CRS § 19-4-107(2) allows an action to be brought at any time for the purpose of determining the existence of the father–child relationship presumed under CRS § 19-4-105(1)(d). However, CRS § 19-4-108 requires such an action be brought before a child’s 18th birthday.

The Court denied Russo’s request for an award of appellate attorney fees under CRS §§ 13-17-102(4) and 19-4-117. The order was affirmed.

2013 COA 108. No. 12CA1674. In re Parental Responsibilities of L.K.Y., and Concerning Peabody.
Temporary Child Support.

In this action to determine parental responsibilities for L.K.Y. and J.R.Y., who are the children of Angela Francis Young and Karen Elizabeth Peabody, Peabody appealed from the order for temporary child support. The order was affirmed.

The parties entered into a domestic partnership in California in 2005 and are the parents of twins born in 2006. The parties moved to Colorado with their children in 2008. In 2011, a California court dissolved the parties’ domestic partnership, and Peabody petitioned the Colorado district court to allocate parental responsibilities. Young moved for temporary child support.

Following a hearing, a district court magistrate awarded temporary child support and denied Peabody’s petition for review. On appeal, Peabody argued it was error to include Young’s military allowances for housing and food, as well as part of Young’s income, for purposes of calculating temporary child support. Peabody’s petition was to deduct the allowances as additional factors that diminish the children’s basic needs under CRS § 14-10-115(11)(b). The Court of Appeals disagreed.

CRS § 14-10-115(5)(a)(I)(X) includes in “gross income”: “[e]xpense reimbursements or in-kind payments received by a parent in the course of employment . . . if they are significant and reduce personal living expenses.” Young, who is serving in the U.S. Army, lived off base and received housing and food allowances in addition to her salary. The allowances were included in calculating Young’s gross income over Peabody’s objection.

The Court found no error. The allowances, as admitted by Peabody, reduced Young’s personal living expenses and therefore were part of Young’s gross income under the plain language of the statute. Peabody argued that the allowances should have been deducted from the parties’ basic child support obligation as resources of the children; however, the Court noted that the allowances were paid to Young as part of her salary to spend as she chooses. The order was affirmed.

2013 COA 109. No. 12CA2190. Town of Castle Rock v. Industrial Claim Appeals Office.
Workers’ Compensation—Presumption of Compensability in CRS § 8-41-209.

The Town of Castle Rock and its insurer (collectively, Town) appealed the judgment of the Industrial Claim Appeals Office (Panel) affirming the ruling of an administrative law judge (ALJ). The order was set aside and the case was remanded with directions.

Claimant had worked as a firefighter, engineer, and paramedic for the Town of Castle Rock since November 2000. He grew up in Albuquerque, New Mexico, and served as a firefighter there before moving to Colorado. During his off hours, claimant worked in construction, framing and building decks.

In 2011, claimant was diagnosed with malignant melanoma on his right outer calf. He underwent three surgeries to remove the growth and subsequently was released to work full duty. He appears to be cancer free.

Claimant sought both medical benefits and temporary total disability (TTD) benefits under CRS § 8-41-209. The parties stipulated that CRS § 8-41-209’s presumption of compensability applied. The only issue at the hearing was whether the Town had overcome the presumption.

The ALJ ruled that to overcome the presumption, a specific non-work-related cause of the cancer had to be established. The Town’s expert opined that claimant’s various other exposures and risk factors placed him at far greater risk of developing melanoma than his activities as a firefighter. The ALJ ruled that the opinion testimony was insufficient to overcome the presumption. The ALJ noted the statute required showing “by a preponderance of the medical evidence that such condition or impairment did not occur on the job.” The ALJ interpreted this to mean an employer must show that “a claimant’s cancer comes from a specific cause not occurring on the job.” The introduction of other risk factors was not enough. The Panel affirmed the ALJ’s ruling.

The Town and its insurer, CIRSA, argued that the ALJ misinterpreted the statute. Collectively, they asserted that the ALJ should have considered the evidence of risk factors it introduced to determine whether the presumption was overcome. The Court of Appeals agreed.

The statute provides that an otherwise compensable cancer “[s]hall not be deemed to result from the firefighter’s employment if the firefighter’s employer or insurer shows by a preponderance of the medical evidence that such condition or impairment did not occur on the job.” The Court held that evidence of risk factors can be sufficient to overcome the presumption under this language and that it was error to require the Town to prove that the cause of claimant’s cancer arose outside work. The standard applied by the ALJ is nearly insurmountable because the cause of most cancers cannot be determined. Such a standard would amount to a strict liability statute mandating that every firefighter who develops one of the prescribed cancers is entitled to workers’ compensation coverage.

The Court held that an employer may overcome the statutory presumption of compensability with specific risk evidence demonstrating that a particular firefighter’s cancer probably was caused by a source outside work. The case was remanded to the Panel to remand to the ALJ to review the evidence under the standard articulated by the Court.

Colorado Court of Appeals Opinions