Colorado Court of Appeals Opinions
July 7, 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. 08CA1767. People v. Hopper.
Search—Suppression of Evidence—Special Offender Interrogatories—Culpable Mental State—Special Offender Statute—Newly Discovered Evidence—New Trial.
Defendant appealed the judgments of conviction entered on jury verdicts finding him guilty of two counts of possession of a controlled substance and two special offender sentencing counts. He also appealed the length of his mandatory parole term. The judgment was affirmed.
In March 2007, the police stopped the vehicle defendant was driving to execute an arrest warrant for one of the two other men (Ryan Bowler and Rodney Putney) riding in the car. After the three men were removed from the vehicle, the police searched it. They found a rifle in the back seat; a sawed-off shotgun on the front floorboard; a handgun on the rear floorboard; and a bag of cocaine and a bag of methamphetamine, both under the driver’s seat. They also found drug paraphernalia, including spoons, cotton swabs, and syringes. Defendant was charged with two counts of possession of a controlled substance, two special offender counts, and one count of possession of a dangerous weapon.
Defendant contended that, because he and his companions were outside the vehicle and in police custody at the time the vehicle was searched, and because the police had no reason to believe that evidence related to the arrest would be found in the vehicle, the evidence seized during the search must be suppressed. The search in this case occurred before Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Therefore, the police were authorized to search a vehicle’s passenger compartment incident to a recent occupant’s arrest, and defendant was not entitled to have the seized evidence suppressed.
Defendant also contended that the trial court erred in submitting to the jury two special offender interrogatories, neither of which included a culpable mental state element. The interrogatories, however, tracked the language of the applicable version of the special offender statute, and that version does not explicitly include any culpable mental state elements.
Defendant also contended that the trial court erred in denying his Crim.P. 33 motion for a new trial based on newly discovered evidence. Newly discovered evidence must be of sufficient consequence for reasons other than its ability to impeach, or cast doubt on, the evidence already presented at trial. Here, the testimony that defendant offered as new evidence—from inmates who indicated their knowledge that Bowler expressed an intent to testify falsely against defendant—would only cast doubt on Bowler’s testimony and credibility. Therefore, the trial court did not abuse its discretion in concluding that defendant was not entitled to a new trial.
No. 09CA0806. Maehal Enterprises, Inc. v. Thunder Mountain Custom Cycles, Inc.
Automobile—Manufacturer—Dealer —Amendment of Pleadings—CRS § 12-6-120(1)(d)—Damages.
Defendant Thunder Mountain Custom Cycles, Inc. (TMCC) appealed and Pikes Peak Harley-Davidson (PPHD) cross-appealed various aspects of the trial court’s judgment on PPHD’s claims of (1) violation of statutes regulating automobile dealers; (2) breach of contract; and (3) negligent misrepresentation. The judgment was affirmed in part and reversed in part, and the case was remanded.
This case arises from the parties’ agreement allowing plaintiff Maehal Enterprises, Inc., doing business as PPHD, to act as a dealer of motorcycles manufactured by TMCC. After the State Department of Revenue Auto Industry Division informed PPHD that it was not authorized to sell TMCC’s motorcycles, PPHD brought suit, and the case ultimately proceeded to a bench trial.
TMCC contended that, because the parties did not intentionally and actually try a claim under the Uniform Commercial Code (UCC), the trial court abused its discretion when it permitted PPHD to amend the pleadings after trial to include a claim of breach of implied warranties under the UCC. PPHD did not plead a breach of implied warranties claim under the UCC. It also confirmed before trial that it was not asserting any implied warranties claims. Additionally, neither party mentioned the UCC nor adduced any testimony discussing implied warranties under the UCC at trial. Accordingly, the court abused its discretion by allowing the amendment and entering judgment on the amended claim.
PPHD contended that the trial court erroneously concluded that TMCC did not violate CRS § 12-6-120(1)(d), which makes it unlawful for a manufacturer to cancel a dealer franchise agreement by nonrenewal without just cause. However, there was record support for the trial court’s finding that the one-year dealer contact had been terminated by mutual agreement of the parties. Accordingly, the trial court did not err in its conclusion that there was just cause for nonrenewal of the dealer contract. Thus, TMCC did not violate § 12-6-120(1)(d).
PPHD also contended that the trial court erroneously determined that it was not entitled to recover for its loss or damage caused by TMCC’s and its owner’s violation of the relevant statutes that make it unlawful for a manufacturer to own a motor vehicle dealer. Although the treble damages provision of §12-6-122(2) does not apply to a violation of the independent control of dealer provision, PPHD could recover for its loss or damage caused by TMCC’s and its owner’s violation of the independent control of dealer provision pursuant to §12-6-122(3).
PPHD further contended that the trial court erred in concluding that TMCC was not obligated to repurchase its motorcycles and parts following termination of the dealer contract. Because the franchise agreement expired more than twelve months after PPHD took possession of the motorcycles, TMCC was under no obligation to repurchase the motorcycles. The case was remanded, however, to permit the trial court to consider PPHD’s claim for reimbursement of parts, which is not constrained by the same twelve-month period.
No. 10CA0831. Honnen Equipment Company, Inc. v. Never Summer Backhoe Service, Inc.
Defendant Homestead Capital Company, Inc. (Homestead) appealed from the trial court’s judgment and decree of foreclosure of the mechanic’s lien claimed by defendant Never Summer Backhoe Service, Inc. (Never Summer). The judgment was affirmed.
Homestead argued that Never Summer’s inclusion of accrued interest in a lien statement rendered the lien void as an excessive lien pursuant to CRS § 38-22-128. CRS § 38-22-101(5) expressly provides that, once the right to a lien has been established, interest can be recovered “at the rate provided for under the terms of any contract or agreement” under which the work was performed. That interest is recoverable even if the owner of the property is not in privity with any of the contracting parties, and it begins to accrue when it becomes due. Accordingly, Never Summer’s knowing inclusion of interest, accrued from the due date to the date the lien statement was filed, did not render its lien void as excessive under § 38-22-128.
No. 10CA0879. United States Welding, Inc. v. B&C Steel, Inc.
Breach of Contract—Evidence—Damages—C.R.E. 1006.
In this breach of contract case, plaintiff United States Welding, Inc. (seller) appealed from a judgment in favor of defendants B&C Steel, Inc. and Metro Steel Fabricating, Inc. (collectively, purchasers) and Buckeye Welding Supply Company, Inc. (competitor). The judgment was affirmed in part and reversed in part, and the case was remanded.
At trial, purchasers and competitor objected to the evidence of seller’s calculation of damages because it lacked an adequate foundation and was based on a summary of documents not in evidence under C.R.E. 1006. The trial court sustained the objection, and at the conclusion of seller’s case, granted purchasers’ motion to dismiss.
Seller contended that the trial court erred in dismissing its claims at the close of its evidence on the ground that it had not presented sufficient evidence of its lost profits. Damages should place the injured party in the same position it would have enjoyed had the contract not been breached. If overhead remained unchanged, then lost gross profits would be the proper measure of damages. Here, seller’s lost gross profits from the sale of carbon dioxide and oxygen as a retailer may be awarded as net profits because the overhead expenses were fixed. However, the evidence did not include all the direct material costs, direct labor costs, and factory overhead associated with the manufacture of acetylene. Therefore, there was insufficient evidence of lost gross profits with respect to the lost sales of acetylene to survive a motion to dismiss at the close of seller’s evidence.
Seller also argued that the trial court abused its discretion in rejecting its exhibit summarizing the calculation of gross profits as to oxygen and carbon dioxide. Seller provided purchasers a copy of the summary of damages approximately four months before the commencement of the trial. The supporting documents were first produced at trial, and those pertaining to oxygen and carbon dioxide were admitted without objection. Therefore, there was substantial compliance with C.R.E. 1006, because there was sufficient evidence to support the admission of the damages summary as to oxygen and carbon dioxide before the summary was offered at trial. Thus, the trial court abused its discretion in rejecting the exhibit as to those gases.
No. 10CA1671. Sosa v. Industrial Claim Appeals Office.
Unemployment Benefits—Marijuana—Drug Test—CRS § 8-73-108(5)(e)(IX.5).
Claimant sought review of a final order of the Industrial Claim Appeals Office (Panel) disqualifying him from receiving unemployment benefits under CRS §8-73-108(5)(e)(IX.5). The order was set aside.
Swift Beef Company (employer) discharged claimant for testing positive for marijuana while at work. A deputy of the Division of Employment and Training disqualified claimant from receiving unemployment insurance benefits for violating the company’s zero tolerance policy. Although the hearing officer determined that claimant “tested positive for marijuana,” he also found that claimant was not impaired at work on August 10; that claimant had a valid medical marijuana license; and that employer failed to prove that the drug test was performed at a certified laboratory. The Panel reversed the hearing officer’s decision that claimant was not at fault in connection with his separation from employment.
On appeal, claimant contended that the Panel erred as a matter of law by imposing a disqualification under CRS § 8-73-108(5)(e)(IX.5), given the hearing officer’s finding that employer failed to prove the testing laboratory was licensed or certified. To support a disqualification, § 8-73-108(5)(e)(IX.5) expressly requires an employer to show the presence of a controlled substance through a drug test conducted by a facility or laboratory licensed or certified to conduct drug testing. There was no evidence that the laboratory performing claimant’s drug test was licensed or certified as expressly required under § 8-73-108(5)(e)(IX.5). Because claimant neither stipulated to the licensed or certified status of the facility or laboratory nor stipulated to having drugs in his system during working hours, the Panel’s disqualification order was set aside and the case was remanded with instructions to reinstate the hearing officer’s decision.
No. 10CA2070. People in the Interest of R.D., and Concerning M.D.
Dependency and Neglect—Ineffective Notice of Appeal Under C.A.R. 3.4(d)—Jurisdiction.
In this dependency and neglect proceeding, mother appealed the trial court’s judgment terminating her parent–child legal relationship with R.D. The appeal was dismissed for lack of jurisdiction.
R.D. was approximately 8 months old when he was removed from mother’s care; therefore, the case fell under the expedited permanency planning statutes. If mother’s parental rights were terminated, the permanency plan was for the maternal grandparents, who had custody of the child, to adopt. On August 30, 2010, mother’s parental rights were terminated in a written order that was served on the parties by mail on September 2, 2010. Based on that date, mother’s notice of appeal was due on or before September 27, 2010.
On October 8, 2010 (eleven days late), mother’s counsel filed a notice of appeal. As good cause for the untimely filing, counsel alleged she had not heard from mother since the termination hearing on August 4, and needed to confirm that mother intended to appeal, because it would delay the adoption by the grandparents. Counsel attached a certificate documenting her efforts to locate mother.
Rather than ruling on the motion, the Court of Appeals ordered counsel to show cause why the appeal should not be dismissed for failure to secure mother’s signature or specific authorization to appeal. Counsel did not respond, and the appeal was dismissed on January 11, 2011.
On January 19, 2011 (114 days late), mother’s counsel filed a motion requesting the Court to reconsider the dismissal of appeal. The motion stated that mother had contacted counsel on January 3, but did not explain why she failed to contact counsel sooner. Counsel attached an amended notice of appeal with mother’s signature. On April 20, 2011, a motions division of the Court of Appeals granted the motion and noted an opinion would issue in due course. The Court dismissed the appeal for failure to timely appeal.
The Court reviewed C.A.R. 3.4(d) and determined that the initial notice of appeal was noncompliant because it lacked mother’s signature or a statement from counsel that mother had authorized the appeal. The notice therefore was ineffective and did not invoke the Court’s jurisdiction.
The Court then considered whether the amended notice of appeal invoked the Court’s jurisdiction. It concluded that it did not. The delay was attributable solely to mother and no explanation was given for her conduct; therefore, no good cause under either C.A.R. 2 or C.A.R. 26(b) was shown for the untimely filing of the amended notice of appeal.
No. 10CA2408. People in the Interest of L.A.N., and Concerning L.M.B.
Dependency and Neglect—Indian Child Welfare Act Notice Requirements—Psychotherapist–Patient Privilege.
In this dependency and neglect (D&N) proceeding, mother appealed from the judgment terminating her parent–child legal relationship with L.A.N. The judgment was vacated and the case was remanded with directions.
On December 9, 2008, the Denver Department of Human Services (DDHS) received a referral regarding L.A.N., then 7 years old. Staff members at Children’s Hospital reported that the child had been brought to the hospital because of out-of-control behavior and suicidal statements; that mother had refused the hospital’s treatment recommendations; and that mother had attempted to flee with the child when told that the hospital was considering transferring the child to a mental health facility.
On December 12, DDHS filed a D&N petition. After the child’s release from the hospital, she was placed in the custody of her maternal aunt. The aunt hired a therapist to treat the child. On March 11, 2009, based on mother’s no-fault admission, the child was adjudicated dependent and neglected as to mother, and a treatment plan was adopted. In November 2010, the court found mother had not achieved many of the plan’s objectives, and terminated her parental rights.
On appeal, mother argued that the juvenile court erred in failing to ensure that the notice requirements of the Indian Child Welfare Act (ICWA) were met. Specifically, she contended that no notice was sent to the Cherokee Nation of Oklahoma after the court was informed that she was affiliated with that tribe, and no determination was made as to whether the child’s biological father had Indian heritage. The Court of Appeals agreed.
When mother appeared before a magistrate, it was determined that notice needed to be sent to the Cherokee Nation; however, DDHS did not comply with that order. Instead, eight months after the order, DDHS filed a motion requesting a finding that the case was not subject to the ICWA. The record did not reflect whether the motion was ruled on. Accordingly, the Court vacated the judgment and remanded the case to give notice to the Cherokee Nation and for an inquiry as to possible Indian heritage on the child’s paternal side.
Mother also argued it was error for the juvenile court to deny her request for production of the therapist’s file. The Court found she was entitled to at least a portion of the file and remanded for further proceedings.
During the course of treatment, the therapist submitted a letter to the guardian ad litem (GAL) to “share some of [her] observations” regarding the case. The GAL provided the letter to the court and the other parties without attempting to reserve the privilege between the child and the therapist. In June 2010, mother’s attorney subpoenaed the therapist for a deposition and to produce her entire case file. The therapist moved to quash the subpoena, arguing that the information and documents were privileged under CRS § 13-90-107(1)(g).
Following a hearing, the court ordered the therapist to participate in a deposition or a “chat” with mother’s attorney, but not to produce any record. Following the deposition, mother’s counsel renewed the request for the release of the therapist’s file, citing C.R.E. 612. The juvenile court affirmed its earlier order.
The Court concluded that because DDHS and the GAL had disclosed privileged information that was adverse to mother in seeking to terminate her parental rights, the privilege was waived; therefore, it was an abuse of discretion to deny mother access to the therapist’s file because it deprived her of a fundamentally fair opportunity to protect her rights. The case was remanded for the court to conduct an in-camera review of the therapist’s file and to identify the portions of the file that are discoverable.
Colorado Court of Appeals Opinions