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Colorado Court of Appeals Opinions
August 15, 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 120. No. 10CA0131. People v. Presson.
Murder—Competency Examination.

Defendant appealed the judgment of conviction entered on jury verdicts finding her guilty of first-degree murder after deliberation and felony menacing. She also appealed her convictions for possession of a weapon by a previous offender, attempted second-degree assault, and attempted escape, entered pursuant to her guilty plea. The Court of Appeals reversed and the case was remanded with directions.

After fatally shooting the victim, defendant entered a plea of not guilty by reason of insanity. After a sanity examination and an initial competency examination, the court ordered a second competency evaluation. Defendant refused to meet with the evaluator, Dr. Bradley. Dr. Bradley submitted a report to the court stating that although he had reviewed voluminous medical and other records, he lacked sufficient information to provide an opinion concerning defendant’s competency.

On appeal, defendant contended that reversal was required because Dr. Bradley’s competency evaluation report was statutorily deficient. Dr. Bradley’s report did not contain the statutorily required diagnosis, prognosis, and opinions. On receiving an incomplete second evaluation, a court is required to order (1) that the evaluator render an opinion based on the available information, if possible, despite the defendant’s noncooperation; or (2) that the defendant be returned to the appropriate facility for further observation so that a competency opinion can be rendered. In this case, Dr. Bradley stated that he had insufficient information from which to render an opinion, and the trial court declined to return defendant to the Colorado Mental Health Institute to complete the evaluation. This error was not harmless. Therefore, reversal was required. Thus, the case was remanded for further proceedings.

2013 COA 121. No. 11CA2315. People v. Russell.
Restitution—Order—Unemployment Benefits—Statutory Penalty.

Defendant Beau Thomas Russell appealed the trial court’s restitution order, which included a mandated statutory penalty following his plea of guilty to one count of forgery. The Court of Appeals affirmed in part and reversed in part, and the case was remanded for further proceedings.

Russell’s plea resulted from his receipt of $3,321 of unemployment compensation benefits over a two-month period, after he falsely reported himself as unemployed to the Unemployment Benefits Division of the Colorado Department of Labor and Employment. Russell asserted that the trial court erred when it included the statutory penalty in the restitution order. The trial court could not impose the statutory penalty without proof of a correlation between Russel’s actions and the amount of the statutory penalty. Because there was no evidence in the record that the statutory penalty relates in any way to the cost of investigating Russell’s conduct, the trial court abused its discretion by including the statutory penalty in the restitution order. Therefore, the restitution order was reversed as to the penalty, and the case was remanded for the trial court to amend the order by deleting the 50% penalty amount from the restitution award. The order was affirmed in all other respects.

2013 COA 122. No. 11CA2366. People v. Johnson.
Escape—Statute of Limitations—Continuing Offense—Custody—Choice of Evils.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of escape. The Court of Appeals affirmed.

In 1973, defendant was convicted of second-degree murder and sent to prison. He escaped two years later and evaded authorities until 2007, when he was arrested and returned to custody in Colorado.

On appeal, defendant contended that the statute of limitations for escape barred his prosecution. The statute of limitations for escape is three years. The crime of escape under CRS § 18-8-208 is a continuing offense for purposes of the statute of limitations. Therefore, the statute of limitations does not begin to run so long as the illegal conduct was continuing. Accordingly, the statute of limitations did not begin to run until defendant was returned to custody in Colorado.

Defendant also argued that, even if escape is a continuing offense, he was “returned to custody” following his arrest in California in 1990 for public intoxication. The plain meaning of the word “return” indicates that an escape ends when a suspect is transferred to the custody of the jurisdiction from which he escaped. Therefore, because defendant was not returned to the custody of the Department of Corrections in Colorado until 2007, the statute of limitations did not begin to run until that time.

Defendant further contended that the trial court erred in not giving the jury an instruction on the “choice of evils” affirmative defense. Because defendant presented no evidence that he voluntarily submitted to authorities as soon as he reached a position of safety, this affirmative defense was not available to him.

2013 COA 123. No. 12CA1034. Mountain-Plains Investment Corp. v. Parker Jordan Metropolitan District.
Colorado Open Records Act—Fee—Deposit—Privilege Log.

Plaintiffs Mountain-Plains Investment Corporation, John Robert Fetters, Jr., Joann Dransfeldt Fetters, A. Sue Fetters, and John R. Fetters III (collectively, Mountain-Plains) appealed the summary judgment entered in favor of defendant Parker Jordan Metropolitan District (District). The Court of Appeals affirmed in part and reversed in part.

Plaintiffs alleged a violation of the Colorado Open Records Act (CORA) after defendants refused to provide documents in response to two CORA requests until plaintiffs paid a fee to research, review, and make available the requested public records. Plaintiffs contended that the trial court erred in requiring the District to make some, but not all, e-mails concerning the stream development project available to plaintiffs for inspection and review. E-mails may be deemed public records if, like other writings, they were made, maintained, or kept by the government for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds. Here, CliftonLarsonAllen LLP (Clifton)is a private entity that serves as the custodian of records for the District. Communications not received, possessed, or maintained by the District, through Clifton, are not public records. Therefore, the District could not produce what it did not possess.

Plaintiffs further contended that the trial court erred in ruling that the District did not violate CORA. The trial court weighed the cost to plaintiffs against the reasonable time for retrieving and reviewing the documents, and found the $25-per-hour fee to be reasonable. Additionally, charging an advance deposit in a reasonable amount was not a violation of CORA. Therefore, the trial court did not err when it found the District did not violate CORA by failing to respond to the CORA request without plaintiffs first paying a deposit.

The District contended that the trial court erred in holding that the $25-per-hour fee could not be assessed for time spent identifying and segregating privileged material. A custodian may charge a reasonable fee for retrieving and researching records, including the time it takes to identify and segregate records that need not be disclosed. Therefore, the trial court erred by not allowing the District to assess this fee when responding to plaintiff’s CORA request.

Plaintiffs asserted that the trial court erred in ordering that any expenses associated with producing a privilege log may be charged to plaintiffs. Because the District did not maintain a privilege log in its normal course of business, the District may charge an additional fee for the process of producing a privilege log. Furthermore, the $25-per-hour fee was reasonable for creating the privilege log, because it did not exceed the actual cost of generating the log.

2013 COA 124. No. 12CA1047. Yotes, Inc. v. Industrial Claim Appeals Office.
Unemployment Compensation—Resignation—Personal Harassment—Delayed Employer Response to Employee Complaint— “Coworker” Vs. “Employer.”

In this unemployment compensation case, petitioner Yotes, Inc. (employer) sought review of a final order of the Industrial Claim Appeals Office (Panel) reversing a hearing officer’s decision and awarding unemployment compensation benefits to claimant under CRS § 8-73-108(4). The Court of Appeals set aside the order.

The hearing officer found that claimant resigned because he believed that employer was not acting quickly enough in responding to his complaint of sexual harassment from a coworker. The hearing officer also found that employer was taking the complaint seriously and claimant did not allow employer reasonable time to conduct an investigation and determine the appropriate action. Therefore, the hearing officer concluded that claimant was at fault for the separation and that a disqualification of unemployment benefits was warranted. The Panel reversed the hearing officer’s decision and awarded benefits to claimant.

Employer contended that the Panel erred when it awarded benefits to claimant under CRS § 8-73-108(4)(o). When an employee quits “because of personal harassment by the employernot related to the performance of the job,” benefits must be awarded to the employee. Here, claimant’s coworker was not an employer under the statute. Therefore, the Panel erred as a matter of law when it defined “employer” to include claimant’s coworker. Further, there was no evidence of personal harassment by employer. Because employer had indefinitely removed claimant from the adverse working conditions and claimant did not remain at the job long enough to learn whether the adverse conditions would be eliminated, claimant was not entitled to benefits. Accordingly, the Panel erred in awarding benefits to claimant and the order was set aside.

2013 COA 125. No. 12CA1396. CapitalValue Advisors, LLC v. K2D, Inc.
Summary Judgment—Severable Provisions in Contracts—Void Contracts.

Plaintiff CapitalValue Advisors, LLC, doing business as CapitalValue M & A, LLC (CapitalValue), appealed the district court’s orders granting summary judgment in favor of defendants, K2D, Inc., doing business as Colorado Premium Foods, and its owners, Kevin LaFleur and Don Babcock (collectively, CPF), and Triton Capital Partners, Ltd. (Triton). The Court of Appeals reversed and the case was remanded with directions.

CapitalValue is a capital advisory firm. In December 2008, CapitalValue and CPF entered into an engagement agreement (Agreement) whereby CapitalValue contracted to help sell K2D, Inc. or otherwise obtain funding to alleviate its seasonal cash flow shortages.

In July 2012, CPF hired Triton and terminated the Agreement with CapitalValue. CPF then obtained a $57 million line of credit from U.S. Bank. CapitalValue informed CPF that under a twenty-four-month “tail provision” in the Agreement, CPF owed it 4.5% of the total value of the loan. CapitalValue sued CPF, alleging breach of the Agreement, unjust enrichment, and tortious interference with contract and prospective business advantage. CPF counterclaimed, in part, asserting that because CapitalValue did not hold the requisite securities or real estate licenses, the Agreement was void. CapitalValue later amended its complaint, adding Triton as a defendant.

CPF and Triton filed summary judgment motions. CapitalValue responded that it was not a licensed securities or real estate broker at the time it entered the Agreement, but that securing the loan required no licenses and that portion of the Agreement was severable and enforceable. In a series of three orders, the district court granted CPF’s and Triton’s motions for summary judgment. CapitalValue appealed.

CapitalValue argued that it was error to conclude that, as a matter of law, the Agreement was not severable. The Court agreed. Contrary to CPF’s contention, the plain language of the Agreement provided that CapitalValue would seek to secure a loan on CPF’s behalf and would receive 4.5% of the total amount secured for “debt financing for [CPF].”

The Court then considered whether this portion of the Agreement was severable and enforceable. It disagreed with the district court’s conclusion that severing the Agreement would eviscerate real estate licensing laws. Rather, it concluded that the Agreement provided for multiple agreements, one of which was for help in obtaining debt financing. Even though the Agreement did not have a severability provision, whether the parties intended the Agreement to be severable was a disputed issue of material fact that precluded summary judgment.

CapitalValue also contended it was error to determine the Agreement was void because it violated state and federal securities laws. The Court agreed based on similar reasoning as its severability analysis. Because the Agreement contained multiple promises, each of which may constitute a separate agreement or contract, the fact that some of the agreements were void does not mean that the entire Agreement is void. The judgment was reversed and the case was remanded for further proceedings.

2013 COA 126. No. 12CA2437. Winter v. Industrial Claim Appeals Office.
Workers’ Compensation—Prepayment of Hotel and Meal Expenses.

In this workers’ compensation proceeding, claimant sought review of the final order issued by the Industrial Claim Appeals Office (Panel) in favor of his employer, the City of Trinidad, and its insurer, CIRSA, which upheld the denial of his request for prepayment of the hotel and meal expenses he incurred while traveling to see his authorized treating physician. The Court of Appeals affirmed.

Colorado Court of Appeals Opinions

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