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Colorado Court of Appeals Opinions
August 1, 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 113. No. 08CA2700. People v. Reed.
Prosecutorial Misconduct—Evidence—Testimony—Hearsay—Value of Property—Criminal Possession of a Financial Device—Aggravated Sentence—Federal Supervised Release.

Defendant John Benjamin Reed appealed the judgment of conviction entered on a jury verdict finding him guilty of second-degree murder; aggravated motor vehicle theft; criminal possession of a financial device (four or more devices) and two different names; and theft. The Court of Appeals affirmed in part and reversed in part, and the case was remanded with directions.

Reed contended that the trial court abused its discretion in denying his motion for a new trial due to prosecutorial misconduct. Before trial, the court ruled that evidence of Reed’s prior convictions and parole status was inadmissible because its probative value was substantially outweighed by the danger of unfair prejudice. Although three of the prosecution’s witnesses mentioned Reed’s prior convictions during testimony and the prosecutor did not properly advise one of the three witnesses not to mention defendant’s criminal history, the prosecutor did not elicit the inadmissible evidence from the witnesses. Because any prejudice could have been remedied by a curative instruction or by striking the improper statement, Reed’s counsel refused these remedies. Therefore, the trial court did not abuse its discretion in denying Reed’s motion for a new trial on the basis of prosecutorial misconduct.

Reed contended that the trial court abused its discretion in allowing a witness to testify that Reed made threatening remarks to her several weeks before the murder. Although evidence of Reed’s threat had minimal, if any, relevance, any error in allowing the evidence was harmless because it did not substantially influence the verdict or affect the fairness of the trial proceedings.

Reed asserted that the trial court abused its discretion in admitting hearsay evidence under the statutory exception for establishing the value of property involved in a theft. Even if the co-owner’s testimony about the estimated cost to repair the car was inadmissible, any error in its admission was harmless, because additional evidence was presented that the value of the victim’s property damage exceeded $500.

Reed argued that the trial court erred in denying his motion for judgment of acquittal on the charge of criminal possession of a financial device (four or more devices) and two different names. There was insufficient evidence to support the conviction, because the prosecution failed to prove that one of the financial devices, a Visa gift card with no available funds, was capable of being used to obtain anything of value. Accordingly, this charge was reversed and the case was remanded for resentencing on this charge only.

Reed argued further that the trial court erred in aggravating his sentences because Reed was not on parole when he committed the charged crimes. Federal supervised release is effectively the same as parole for purposes of aggravating sentences. Thus, the trial court’s imposition of aggravated range sentences was affirmed.

2013 COA 114. No. 11CA1875. People v. Back.
Crim.P. 35(c)—Sexual Assault on a Child—Probation—Revocation of Parole—Colorado Sex Offender Lifetime Supervision Act—CRS § 17-22.5-403(8)(b).

Defendant appealed the district court’s order denying his Crim.P. 35(c) motion. The Court of Appeals affirmed.

In 2004, defendant pleaded guilty to one count of sexual assault on a child, a class 4 felony. The trial court sentenced him to sex offender intensive supervised probation for ten years to life. After twice violating the terms of his probation, defendant was sentenced to two years to life in the custody of the Department of Corrections (DOC), plus parole of ten years to life. In 2009, defendant was released on parole. On October 8, 2010, the parole board revoked defendant’s parole and returned him to the DOC for the remainder of his sentence—that is, his natural life—because he had violated the conditions of his parole when he was terminated from a sex offender treatment program for noncompliance.

Defendant argued that the district court erred in deciding that CRS § 17-2-103(11)(b) authorized the revocation of his parole for the remainder of his indeterminate sentence rather than a maximum of 180 days. CRS §§ 17-2-103(11)(b) and 17-22.5-403(8)(b), which both address the length of time the parole board may return a sex offender to the DOC on revocation of his or her parole, are in conflict and cannot be reconciled. The specific and more recent statute, CRS § 17-22.5-403(8)(b), prevails when the parolee is on parole for a sex offense that falls within the purview of the Colorado Sex Offender Lifetime Supervision Act (SOLSA). The plain meaning of CRS § 17-22.5-403(8)(b) is that the General Assembly gave the parole board the discretion to revoke a sex offender’s parole for the rest of his or her indeterminate sentence.

Here, defendant is a sex offender under SOLSA subject to CRS § 17-22.5-403(8)(b) because he committed the offense in 2003 (after the effective date of SOLSA), and his conviction of sexual assault on a child is a sex offense under SOLSA. Therefore, the parole board was authorized to revoke defendant’s parole for the remainder of his sentence under CRS § 17-22.5-403(8)(b) and the district court did not err in denying his Crim.P. 35(c) motion.

2013 COA 115. No. 12CA0549. Marks v. Gessler, Colorado Secretary of State.
Help America Vote Act—Administrative Complaint—State Administrative Procedure Act—Summary Judgment—Standing—42 USC § 1983.

In this case involving the filing of a citizen complaint under the Colorado Help America Vote Act, CRS §§ 1-1.5-101 to -106 (state HAVA), and its federal counterpart, the Help America Vote Act, 42 USC §§ 15301 to 15545 (federal HAVA), defendants Scott Gessler, in his official capacity as the Colorado Secretary of State (Secretary), the Colorado Department of State (CDOS), and Judd Choate, in his official capacity as a person representing or acting on behalf of the CDOS, appealed the district court’s judgment in favor of plaintiff Marilyn Marks. The judgment was affirmed.

Marks filed an administrative complaint with the Secretary, alleging her belief that violations of Title III of the federal HAVA had occurred or were occurring in the 2010 general election conducted in Saguache County, Colorado. Without holding a hearing, defendants dismissed Marks’s complaint for lack of standing. The district court held that defendants had erred in dismissing Marks’s complaint on standing grounds and that she was entitled to a hearing.

On appeal, defendants asserted that the district court erred in proceeding under the state Administrative Procedure Act (APA) to summarily reverse the Secretary’s dismissal of Marks’s administrative complaint and remand the case for further proceedings. Although the APA rules and procedures do not apply to the Secretary’s resolution of a state HAVA administrative complaint at the agency level, the APA does apply to judicial review in the district court of the Secretary’s determination. Thus, the district court did not err in considering Marks’s first and third claims under the APA’s principles of judicial review.

Defendants also contended that the district court was not empowered to grant judgment on the pleadings or summary judgment in favor of Marks on her first and third claims absent a motion requesting such relief. However, it was not reversible error for the district court to proceed essentially on summary judgment without a dispositive motion, given the relevant part of the agency record before the court and lack of disputed issues of fact before the court.

Defendants also argued that the district court erred in concluding that they should not have dismissed Marks’s state HAVA administrative complaint for lack of standing, and that she was entitled to a hearing on the issues she alleged in that complaint. The federal and state requirements for standing to file an administrative HAVA complaint conflicted, and therefore, the federal standing requirement controlled, which entitled Marks to a hearing. Furthermore, the district court had subject matter jurisdiction to determine whether a conflict existed between the state HAVA and the federal HAVA.

Defendants further contended that Marks lacked standing to maintain her first claim for relief, in which she sought judicial review of the administrative determination. Any person who believes a violation of Title III of the federal HAVA has occurred has a right to file a complaint. Here, Marks alleged a sufficient injury in fact. Thus, she satisfied the jurisdictional prerequisites for standing, as well as the standing requirements to obtain judicial review of an agency action under the APA and HAVA.

Marks contended that the district court erred in dismissing her 42 USC § 1983 claims against the Secretary and co-defendant Choate. Marks alleged in her district court complaint that by dismissing her administrative complaint on state-law standing grounds, defendants had deprived her of a federally secured right, under 42 USC § 15512(a)(2)(B), to file a HAVA complaint using Colorado’s administrative complaint procedure. She also asserted that by dismissing her complaint, defendants had deprived her of her federally secured right, under 42 USC § 15512(a)(2)(E), to receive a hearing on the record in connection with her state HAVA complaint. Marks claims were properly dismissed, however, because §§ 15512(a)(2)(B) and 15512(a)(2)(E) do not create federal rights of action enforceable under § 1983.

2013 COA 116. No. 12CA1023. Stapleton, Colorado State Treasurer v. Public Employees Retirement Association.
Unfettered Access toRecords—Trustee.

Plaintiff Walker Stapleton, in his capacities as Colorado State Treasurer and as a trustee of defendant Public Employees’ Retirement Association (PERA), appealed the district court’s order upholding the decision of the PERA Board of Trustees (Board) denying his request for unfettered access to PERA records. The Court of Appeals affirmed.

In 2010, Stapleton was elected as state treasurer. By statute, the state treasurer is one of the members of the Board. In June 2011, Stapleton wrote a letter to the Board president requesting unfettered access to PERA records. Stapleton’s request was denied.

Stapleton argued that the district court erred in ruling as a matter of law that Stapleton is not entitled to unfettered access to PERA records. Although a PERA trustee may need to access PERA records to fulfill his or her statutory duties, such access is guided by the statutory requirements that it be (1) solely in the interest of the members and benefit recipients, and (2) for the exclusive purpose of providing benefits and defraying reasonable expenses incurred in performing such duties as required by law. Therefore, the Board may place reasonable conditions on, or refuse, a co-trustee’s wholesale request for information. Thus, Stapleton was not entitled to unfettered access to the PERA records that he requested.

2013 COA 117. No. 12CA1509. Mauro v. State Farm Mutual Auto Insurance.
Intervention in Personal Injury Action—CRCP 24(b)—Protective Order.

State Farm Mutual Automobile Insurance Company (State Farm) appealed from the district court’s order denying its motion to intervene in this personal injury action filed by plaintiffs Maranda G. Mauro, by and through her father, Walter J. Mauro, Jr., and Walter J. Mauro, Jr., individually. The Court of Appeals reversed and the case was remanded with directions.

State Farm sought to intervene in the litigation pursuant to CRCP 24(b) for the limited purpose of opposing the protective order sought by Walter Mauro approving a proposed confidentiality agreement covering his and his daughter’s medical, school, employment, and tax records.

State Farm contended that the district court erred by denying its motion to intervene as a matter of right to challenge the protective order. State Farm’s ability to comply with state law and insurance regulations, as applicable to Maranda Mauro’s claim, is “an interest relating to the property or transaction which is the subject of the action,” as required under the first prong of CRCP 24(a)(2). In addition, State Farm has no other practical alternative for challenging the protective order but to request intervention. Finally, State Farm’s interest is not adequately represented by the existing parties to the action. Therefore, State Farm met all the requirements of CRCP 24(a) and had a limited right to intervene in this case. Accordingly, the district court’s order denying its renewed motion to intervene was reversed and the case was remanded to the district court to allow State Farm to challenge the protective order.

2013 COA 118. No. 12CA1632. Durango & Silverton Narrow Gauge Railroad Co. v. Wolf.
Railroad Right-of-Way—Non-Exclusive Easement—Summary Judgment—Incidental Use Doctrine.

Defendants Timothy Wolf and Katherine Turner (collectively, Wolf) appealed the trial court’s summary judgment in favor of plaintiff Durango & Silverton Narrow Gauge Railroad (DSNGRR). The Court of Appeals affirmed.

In 1881, DSNGRR’s predecessor in interest acquired a right-of-way from plaintiff’s predecessor in interest. In 2009, DSNGRR agreed to grant the City of Durango a nonexclusive easement to extend a public recreation trail over its right-of-way and adjacent to the railroad tracks (which are still in use), part of which would run through Wolf’s property. In return, Durango paid DSNGRR $1 million specifically for continued operations and maintenance. The trail also will promote safe use of the right-of-way by pedestrians and bicyclists who walk and ride directly on the railroad tracks.

Wolf opposed the agreement, arguing that the 1881 right-of-way permitted use only for “railroad purposes” and that a recreation trail is not such a purpose. On cross-motions for summary judgment, the trial court held that the original deed conveyed an easement that gave DSNGRR exclusive use and control of its right-of-way as long as it continues to operate a railroad. It also found that the use by the public was a railroad purpose, because it eliminated safety and liability problems and increased efficiency on any rail repairs.

On appeal, the Court agreed with the trial court that the right-of-way was more expansive than a typical easement and that DSNGRR had the right to exclusive use and control of it. The Court noted Colorado and federal precedent that railroad rights-of-way are more expansive than ordinary easements and include the right to exclusive use and control. This expansive easement includes the right to lease portions of the right-of-way.

The Court did not address whether a public recreation trail is a “railroad purpose,” because it found the trail satisfied the incidental use doctrine. This doctrine, applied here for the first time in Colorado, states that a railroad may lease a portion of its right-of-way where the use is incidental to or not inconsistent with the railroad’s continued use of its right-of-way for railroad purposes. The public recreation trail meets both of these criteria.

Wolf then argued that the trial court erred by not requiring the joinder of five indispensable parties whose property also was subject to DSNGRR’s right-of-way and were affected by the public recreation trail. The Court disagreed, finding that this dispute centered on the interpretation of the deed from Wolf’s predecessor, which only concerned the right-of-way on Wolf’s property. The judgment was affirmed.

2013 COA 119. No. 13CA0519. Mid Valley Real Estate Solutions V, LLC v. Hepworth-Pawlak Geotechnical, Inc.
“Homeowner” for Purposes of Construction Negligence Action—Summary Judgment—Economic Loss Rule.

Defendants, Hepworth-Pawlak Geotechnical, Inc., Steve Pawlak, and Daniel E. Hardin (collectively, H-P), the project soils engineer; and S K Peightal Engineers, LTD (SKPE), the project structural engineer, challenged an order denying their motion for summary judgment on the negligence claim of plaintiff, Mid Valley Real Estate Solutions V, LLC (Mid Valley), a wholly-owned subsidiary of Alpine Bank (bank), the construction lender. The Court of Appeals affirmed and remanded the case with directions.

A developer entered into a written contract with H-P to analyze the soils on which houses would be built for resale. H-P’s report recommended a particular type of foundation. The developer’s general contractor entered into an oral contract with SKPE to provide structural engineering services, including foundation design. The general contractor built the house at issue according to H-P’s recommendations and SKPE’s design.

The developer couldn’t sell the house and eventually defaulted on the construction loan agreement with the bank. The default was resolved with a deed-in-lieu agreement. The bank received $355,000 and title to the house was transferred to Mid Valley, which entity was created to hold the house, its sole asset, for resale. The balance of the construction loan was forgiven.

Structural damage then began to appear, beginning with foundation cracks. Mid Valley sued defendants for negligence in failing to indentify expansive soils and specify an appropriate foundation and sought costs of repair.

The Court reviewed the economic loss rule and found that there is clearly an independent duty of care on the part of a builder in residential construction that renders the economic loss rule inapplicable in that context. This is not the case, however, in the commercial construction context.

The Court then looked to whether Mid Valley fell within the class of plaintiffs who may enforce this independent duty of care. It concluded that because the duty arises from the services provided and the residential nature of a project, the attributes of the owner harmed when the latent defect ripens does not limit the scope of the duty. Thus, while Mid Valley was not a traditional homeowner, allowing defendants to avoid liability for this reason would afford them a windfall resulting from the fortuity that the latent defect caused damage before Mid Valley sold the house. Accordingly, the denial of summary judgment was affirmed and the case was remanded for further proceedings.

Colorado Court of Appeals Opinions

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