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Colorado Court of Appeals Opinions
August 29, 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 127. No. 10CA0588. People v. Jauch.
Identity Theft—Unauthorized Use of a Financial Transaction Device—Equal Protection—Motion to Suppress—Search Warrant—Plain View Doctrine.

Defendant Kathy Lynn Jauch appealed the judgment of conviction entered on jury verdicts finding her guilty of theft, two counts of identity theft, and two counts of unauthorized use of a financial transaction device. The Court of Appeals affirmed.

The victim’s backpack was stolen from the parking lot in front of his workplace. It contained, among other things, a computer and a credit card. The credit card was used at a gas station shortly after it was stolen, and a woman who police later identified as Jauch was observed wearing a turquoise shirt with ruffles and attempting to use the credit card to order food from a restaurant.

On appeal, Jauch contended that the identity theft statute imposes a harsher penalty for the same conduct proscribed by the unauthorized use of a financial transaction device statute, and therefore, her identity theft conviction violates her equal protection rights. The two statutes, however, do not prohibit identical conduct. To prove identity theft, the prosecution must show that a defendant knowingly used the identifying information or a financial device belonging to another person or entity. By contrast, the unauthorized use statute requires no similar showing. Therefore, Jauch’s equal protection rights were not violated.

Jauch also contended that the trial court erred in denying her motion to suppress a turquoise shirt found during the search of her home. Because the officers had a lawful right of access to Jauch’s home through a valid search warrant and based on her fellow officer’s reasonable belief that the shirt was connected to the criminal activity under investigation, the officers had a lawful right of access to the turquoise shirt, which was found in Jauch’s home. Accordingly, the trial court did not err in admitting the turquoise shirt under the plain view exception.

2013 COA 128. No. 12CA0906. Premier Members Federal Credit Union v. Block.
Fraud—Indemnification—Employer—Jury Trial—Jury Fee—Enlargement of Time—CRCP 6(b)—Vicariously Liable.

Defendant Darrell Einspahr appealed the judgment entered after a bench trial on the fraud claim of plaintiff Premier Members Federal Credit Union (Premier). He also appealed the court’s dismissal of his cross-claim that sought indemnification from Broadway Automotive Group, Inc., doing business as Quality Mitsubishi, Inc., and its owner Henry Block (collectively, Quality). The Court of Appeals affirmed.

Einspahr was the manager of the special finance department of Quality’s car dealership. He and another employee in the department recommended high-risk buyers for car loans from Premier. The fraud claim was based on their conduct of “power booking,” in which they artificially inflated the values of vehicles (which would create a better loan-to-value ratio) to induce Premier to approve the car loans.

On appeal, Einspahr contended that the trial court erred when it denied his request for a jury trial on the basis that he had failed to timely pay his jury fee. CRCP 6(b), which governs enlargements of time, does not apply to the statutory deadline for payment of jury fees. Einspahr’s failure to pay the jury fee at the time of filing of the jury demand constituted his waiver of a jury trial. Therefore, the court did not have discretion to grant defendant’s request for a jury trial on a showing of excusable neglect for his untimely payment of a jury fee, and properly denied Einspahr’s request for a jury trial.

Einspahr also contended that, following the bench trial, the court erroneously dismissed his cross-claim for indemnification against Quality, despite finding that Quality was vicariously liable for Einsphahr’s fraudulent “power booking.” An employee-tortfeasor is barred from seeking indemnification from his or her vicariously liable employer when, as here, that employee knew he or she was engaging in wrongful conduct. Based on the court’s findings that Einspahr knew he was engaging in a wrongful act, Einspahr was not an “innocent agent.” Accordingly, he had no right to seek indemnification from Quality.

2013 COA 129. No. 13CA0939. Hickman v. Catholic Health Initiatives.
Immunity—Credentialing—CRS § 12-36.5-203(2)—Retroactive Application.

In this interlocutory appeal under CAR 4.2, defendant Catholic Health Initiatives, doing business as St. Anthony Hospital (hospital), appealed the trial court’s order denying the hospital’s assertion of immunity. The Court of Appeals affirmed.

In 2011, Kathleen Hickman sustained a knee injury. She sought treatment from a physician who was credentialed to practice as a vascular surgeon at the hospital. Allegedly as a result of the physician’s failure to diagnose and treat a circulatory problem, Hickman’s leg was amputated on November 18, 2011. Hickman and her husband sued the hospital and the physician on January 23, 2013 for negligent credentialing.

The hospital asserted that the current statute does not apply because the credentialing decision and injury at issue occurred before the statute’s effective date, although the action was filed after that date. Since 1989, Colorado hospitals have been statutorily immune from damages in any civil action brought against them with respect to peer review proceedings. CRS § 12-36.5-203(2) (current statute) abrogated this immunity as to credentialing decisions, effective July 1, 2012. The plain language shows that the General Assembly clearly intended the current statute to apply retroactively. Because such application is not unconstitutionally retrospective and the current statute applied to this matter, the trial court correctly rejected the hospital’s assertion of immunity.

Colorado Court of Appeals Opinions