Colorado Court of Appeals Opinions
September 2, 2010
|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. 07CA2324. People v. Wylie.
Jury Instruction—Assault—Mental Illness—Sentence Enhancer.
Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of four counts of second-degree assault. He also appealed the sentence imposed by the trial court. The judgment and sentenced were affirmed.
While incarcerated at the Colorado State Penitentiary, defendant assaulted correctional officers using feces and urine. He was sentenced to four consecutive ten-year prison terms to be served consecutively to the sentence he was serving at the time of the assaults.
On appeal, defendant argued that the trial court erred in refusing to give his tendered jury instruction, which stated that the jury could consider evidence of defendant’s mental illness to determine whether he had the requisite culpable mental state for assault at the time of the attacks. The Court of Appeals disagreed. Defendant’s proposed instruction was cumulative to those that were given, and the jury instructions accurately informed the jury of the governing law.
Defendant also argued that the trial court erred in applying CRS § 18-1.3-401(8)(a)(IV) to enhance his sentence. According to the statute, if a defendant is incarcerated in any correctional institution as a convicted felon when he or she commits the crime of conviction, a sentencing court is required to sentence the defendant to a term of incarceration equaling at least the midpoint and not greater than twice the maximum term authorized in the presumptive sentencing range for the crime. Defendant was charged under § 18-3-203(1)(f.5), which does not contain specific sentencing requirements that would supersede the provisions of the sentencing statute. Because defendant was incarcerated as a convicted felon when he committed the assault, the trial court did not erroneously apply the general sentence enhancer to defendant’s assault conviction.
No. 08CA2071. People v. Smith.
Motion to Suppress—Investigatory Stop—Voluntary Statements—Presentence Confinement Credit—County Jail—Discretion.
Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of first-degree criminal trespass. He also appealed the trial court’s order regarding presentence confinement credit. The judgment of conviction was affirmed, the trial court’s denial of a portion of defendant’s presentence confinement credit (PSCC) was reversed, and the case was remanded with directions.
Defendant unlocked the victim’s front door by reaching through an open window, and then confronted the victim about money the victim owed defendant. A physical confrontation ensued outside the victim’s home. The police arrived, secured the scene, and arrested defendant.
On appeal, defendant contended that the trial court erred in denying his motion to suppress because his initial encounter with police was an arrest and he was not read his Miranda rights. The officer first conducted an investigatory stop by securing the scene, which included taking possession of a shotgun and shells in defendant’s possession. The police officer’s use of force did not exceed the force necessary as a reasonable precaution during the investigatory stop. Further, after the scene was secured, the officer informed defendant that he was not under arrest. Defendant then agreed to sit in the officer’s patrol car to get out of the cold, at which point he relayed to the police his version of events. Because defendant’s statements were voluntary, the trial court did not err in denying his motion to suppress statements made in the patrol car.
Defendant also contended that the trial court erred by failing to give him PSCC for the full eighty-nine days he spent in jail before the court sentenced him to ninety days in jail as a condition of his sentence to probation. The PSCC statute requires a trial court to award PSCC if a defendant’s sentence is to be served in a state correctional facility. Here, defendant was to be sentenced to a county jail, so the trial court was permitted but not required to award PSCC. However, because the trial court chose to exercise its discretion to give defendant credit for his presentence confinement, the court was required to ensure that defendant received full credit for his presentence confinement. Therefore, the trial court abused its discretion in awarding defendant only sixty days of PSCC. The court’s ruling on PSCC was reversed and the case was remanded for correction of the mittimus to reflect PSCC of eighty-nine days.
No. 09CA0083. People v. Bowerman.
Restitution—Illegal Sentence—Crim.P. 35(a)—Time Barred.
Defendant appealed the district court’s order denying her post-conviction motion for correction of an illegal sentence. She also challenged the amount of restitution the court ordered. The order was affirmed.
Defendant originally was charged with class 4 felony theft, arising out of allegations that she stole items from the victim. At the sentencing hearing, defendant denied the amount and value of the property stolen. The trial court entered a restitution order for the full amount claimed by the victim.
On appeal, defendant contended that the court’s restitution order constituted an illegal sentence. The Court of Appeals disagreed, finding that the district court’s restitution order was authorized by law. The trial court imposed a restitution order at the time of sentencing and did not subsequently increase that order after it had become final and defendant had begun serving her sentence. The court did not ignore the victim’s actual losses and arbitrarily cap the restitution figure, nor did it transfer a restitution order from a juvenile case to an adult case. Moreover, the restitution order was not imposed in excess of the trial court’s subject matter jurisdiction. The trial court had a statutorily mandated obligation to enter a restitution order under CRS § 18-1-603(1). In doing so, it acted within its jurisdiction. In addition, defendant’s Crim.P. 35(a) claim alleging that her sentence had been imposed in an illegal manner was not filed within 120 days of her conviction; therefore, it was time barred. The trial court’s order was affirmed.
No. 09CA0162. Fisher v. Community Banks of Colorado, Inc.
Credit Agreement Act—Loan—Ambiguous—Statute of Frauds—Extrinsic Evidence—Standing.
Plaintiff (borrower) appealed a judgment entered following a jury trial in a lender liability case brought against defendant Community Banks of Colorado, Inc. (bank). The jury, following legal and evidentiary rulings adverse to borrower, rejected borrower’s claims and found in favor of the bank on a counterclaim. The judgment was reversed and the case was remanded for a new trial.
The bank loaned borrower approximately $3.4 million to build a luxury home in Cherry Hills Village. As security, borrower executed deeds of trust to that land and to his Telluride vacation home. The loan was modified and extended three times, through documents titled "Change in Terms Agreement." The bank ultimately initiated foreclosure proceedings and thereafter sold the loan to Western Real Estate Equities, LLC (Western). Borrower and Western reached a settlement whereby borrower paid approximately $4.5 million under the note and relinquished any claims against Western but not against the bank.
Borrower contended that the trial court was incorrect in ruling that (1) the loan agreements unambiguously set a 36 percent default interest rate; and (2) the Credit Agreement Act precluded evidence that the parties never intended that rate. Although the Colorado Credit Agreement Act contains an expansive statute of frauds provision, the Act does not limit extrinsic evidence to resolve facially ambiguous credit agreements. The agreement here was ambiguous because the original loan agreement and the three change agreements contained inconsistent provisions regarding the interest due on borrower’s default. Therefore, borrower was entitled to a new trial in which the jury considers otherwise admissible extrinsic evidence relevant to resolving the agreements’ ambiguity. Because the trial court erroneously prohibited this evidence, the case was reversed and remanded for a new trial on borrower’s claims against the bank. On remand, the jury must determine which interest rate the parties intended to control on default.
Borrower also contended that the bank lacked standing to maintain a fraudulent inducement counterclaim because it assigned the loan and all related claims to Western. The counterclaim judgment against borrower was reversed because the bank unequivocally assigned that claim to a third party.
No. 09CA0690. In re the Marriage of Kanefsky, and Concerning Fremerman.
Conservator—Unauthorized Practice of Law.
Judith Fremerman and Kerry Fremerman (conservators), in their capacities as co-conservators of Leslie Fanelli Kanefsky (wife), appealed the permanent orders entered in connection with the dissolution of wife’s marriage to Barry Kanefsky (husband). The appeal was stayed.
The court appointed a guardian ad litem (GAL) in the divorce case and issued letters in a probate case naming conservators—wife’s mother and sister—as her co-conservators and co-guardians for the limited purpose of assisting wife in her dissolution proceedings. Wife was assisted by her GAL and her attorney at the permanent orders hearing. After the permanent orders hearing, the court terminated the GAL’s appointment and granted counsel’s motion to withdraw. The dissolution decree entered on March 24, 2009. On March 31, 2009, conservators filed an entry of appearance in the dissolution case. On that same date, they filed a notice of appeal on behalf of wife, seeking to reverse portions of the permanent orders.
A nonlawyer conservator or guardian in Colorado is a statutory legal representative only and cannot serve as legal counsel in court proceedings. Because the conservators in this case are not licensed to practice law, the appeal was stayed for sixty days to allow conservators to obtain an attorney.
No. 09CA1071. Estate of Grimm v. Evans.
The Estate of Albert F. Grimm (estate) appealed an order compelling arbitration and dismissing its action against defendant John Evans. The order was vacated and the case was remanded for a hearing.
Albert Grimm and his son hired Evans to perform legal services. They signed a contract that had an arbitration clause. Grimm died several months later, and his estate sued Evans, alleging that Grimm had lacked sufficient mental capacity to comprehend the nature and effect of Evans’s advice and the nature and effect of the documents drafted by Evans. In support of its position, the estate attached an affidavit of Grimm’s physician, who stated that it was his professional opinion that Grimm did not understand what he was signing. The district court dismissed the action and ordered the parties to arbitrate.
On appeal, the estate contended that, before ordering arbitration, the court should have held a hearing to determine whether the arbitration agreement was unconscionable and whether Grimm was competent when he signed the contract. The Court of Appeals agreed. The court was first required to determine whether the arbitration provision was unconscionable. This includes making a determination as to whether a party had the required mental capacity to enter into a contract. Without a valid agreement, the arbitrator cannot act. Therefore, the court erred by not holding a hearing to determine this issue. The order was vacated and the case was remanded for an evidentiary hearing wherein the trial court must determine whether Grimm lacked the mental capacity to enter into a contract when he signed the agreement.
No. 09CA1081. Whiting Oil and Gas Corporation v. Atlantic Richfield Company.
Contract—Option—Real Property—Material Breach—Reformation—Common Law Rule Against Perpetuities—Retrospective—Unclean Hands.
In this action concerning the exercise of a contractual option to purchase real property, defendant Atlantic Richfield Company (ARCO) appealed the trial court’s judgment in favor of plaintiff Whiting Oil and Gas Corporation, formerly Equity Oil Company (Equity). The judgment was affirmed.
In 1968, ARCO and Equity entered into an agreement (1968 agreement) whereby ARCO purchased a portion of Equity’s interest in the Boies Block and the Figure Four Claims, as well as an option to purchase 80 percent of Equity’s interest in the Sunset claims. ARCO and Equity twice amended the 1968 agreement (1977 amendment and 1983 amendment). In April 2006, Equity sent a letter to ARCO exercising the option in the 1983 amendment. In October 2006, ARCO sent Equity a letter exercising its right to cancel the option. The trial court reformed the option and entered judgment in favor of Equity. This appeal followed.
ARCO contended that the trial court erroneously concluded that Equity’s breaches were not materially related to the option, and therefore did not excuse ARCO from its obligation to honor it. However, the record supports the trial court’s finding that Equity’s breaches, which concerned only oil shale research and its obligations under the R&D project, were not materially related to the option. Accordingly, Equity’s breaches did not excuse ARCO from its obligation to honor the option.
ARCO contended that the trial court erred when it reformed the option pursuant to the reformation provision, because that statute applies only to probate instruments. The reformation provision of the Colorado Statutory Rule Against Perpetuities Act, CRS § 15-11-1106(2), does not exclude from its application nondonative transfers or any other kind of transfer, such as the option in this case. Therefore, the trial court did not err when it reformed the option pursuant to the Act.
ARCO also contended that the trial court’s application of the reformation provision to the option was unconstitutionally retrospective because it took away ARCO’s vested rights in the Boies Block. However, the statute reveals a clear legislative intent to retroactively apply the reformation provision to interests and powers of appointment created before its effective date. Additionally, the reformation provision is remedial in nature, and its application did not take away or impair ARCO’s vested interests. Accordingly, the trial court’s application of the reformation provision was not unconstitutionally retrospective.
Finally, ARCO contended that it prevailed, as a matter of law, on its unclean hands defense, because the trial court found that Equity breached its duty of good faith and fair dealing, which was the basis for ARCO’s unclean hands defense. Whether the unclean hands doctrine applies is a separate inquiry from whether a party to a contract has breached the implied duty of good faith and fair dealing. Here, the trial court determined that the evidence did not establish that Equity came to court with unclean hands, and the trial court did not abuse its discretion in making this finding. The judgment was affirmed.
No. 09CA1622. Vecellio v. Regents of the University of Colorado.
Employer/Employee—Personnel Board Rules 6-10 and 6-12(A)—Predisciplinary Meeting.
Respondents, the Regents of the University of Colorado, University of Colorado at Colorado Springs, and University Police (collectively, University), sought review of an order of the Colorado State Personnel Board (Board). The Board upheld the decision of an administrative law judge (ALJ) to reinstate the employment of complainant Todd Vecellio with pay. The order was affirmed in part and reversed in part.
The University employed Vecellio as a police officer. On September 24, 2008, Vecellio was arrested without a warrant when he arrived at a predetermined location with the intention of having sexual contact with a child. The arresting officer prepared a four-page statement of probable cause. On September 25, 2008, the chief of police of the University sent Vecellio a notice of suspension without pay, citing State Personnel Rule 6-12A.
On September 26, 2008, the district court held an advisement hearing and set bail. The court informed Vecellio that no charges had been filed, but that he was being held for investigation of sexual offenses.
On October 6, 2008, Vecellio filed an appeal of his suspension without pay. On October 7, the district attorney filed an information detailing felony charges against Vecellio. On October 16, Vecellio was arraigned and served with the information.
In his appeal before the ALJ, Vecellio sought partial summary judgment on the ground that he had not been charged with a felony and thus was entitled to a predisciplinary meeting under Board Rule 6-10 prior to suspension without pay. The ALJ agreed with Vecellio and ordered the University to retroactively place Vecellio on paid administrative leave for the period between September 25 and October 16, and to reimburse him for the lost salary and benefits during that period.
The University appealed the decision to the Board, which adopted the ALJ’s findings and affirmed. The University appealed.
The University argued it was authorized to suspend Vecellio without pay as of the date of his arrest because the statement of probable cause constituted a charge for purposes of Board Rule 6-12(A). The Court of Appeals disagreed. CRS § 16-1-104(6) defines "charge" as "a formal written statement presented to a court accusing a person of the commission of a crime [that] may be made by complaint, information or indictment." Therefore, for purposes of the Board Rule, a person is charged when a complaint, information, or indictment is filed in the appropriate county or district court. Accordingly, the statement of probable cause was not a charge. The Court held that the University was entitled to suspend Vecellio without pay as of October 7, the date the district attorney filed the information in the district court. The Board’s order was remanded to the University to retroactively place Vecellio on paid administrative leave from September 25 to October 7.
No. 09CA1690. Steward Software Company, LLC v. Kopcho.
Civil Theft—Breach of Contract—Breach of Fiduciary Duty—Damages—Attorney Fees—Economic Loss Rule—Jury Instructions—Copyright.
This case involves a dispute between Steward Software Company (SSC) and Richard Kopcho concerning the development of certain software and related marketing materials. A jury found for SSC and against Kopcho on claims for civil theft, breach of contract, and breach of fiduciary duty. It awarded damages on the civil theft claim and nominal damages on the remaining claims. The court awarded SSC treble damages on its civil theft claim, costs, and prejudgment interest, but denied SSC’s motion for attorney fees. The Court of Appeals affirmed in part and vacated in part.
In June 2006, SSC hired Kopcho’s company to help it market a computer program it developed to help the banking industry with tracking assets. The parties signed a nondisclosure agreement. The agreement allowed Kopcho’s company the limited right to use the confidential information received to develop a marketing plan. There was no written contract for the marketing work, but Kopcho began performing and SSC began paying.
Later in 2006, SSC hired a software development company called Ruffdogs, Inc. to undertake development of the software. There was no written agreement. Shortly thereafter, unbeknownst to SSC, Kopcho purchased Ruffdogs and formed a new corporation (Holonyx) and rolled his various entities into it, including Ruffdogs.
In 2007, the preliminary version of the software was completed. As changes were requested, the relationship between the parties began to go downhill. Ultimately, Holonyx registered the copyright for the software program in the name of Ruffdogs.
SSC sued Holonyx and Kopcho for breach of contract, breach of fiduciary duty, conversion, and theft. SSC also asserted a replevin claim. The latter claim was litigated and in the course of that litigation, SSC asserted copyright interests. The case was removed to federal court but then remanded by the federal court to the state district court after a finding that the complaint did not raise a federal copyright question.
As the case neared trial, jury instructions were tendered, including instructions related to copyright law. The district court ultimately determined that copyright law was inapplicable and thereby precluded Holonyx from pursuing a copyright ownership defense.
The jury awarded SSC $168,025 on the civil theft claim. The court trebled those damages, awarded prejudgment interest and costs, and denied the request for attorney fees.
Kopcho first argued that Holonyx owned the program under federal copyright law and that ownership is a complete defense to the theft claim. The Court agreed. The jury verdicts did not allow the Court to discern, without speculation, whether it found that the theft was of tangible property, trade secrets, copyrights, or any combination of the foregoing. Therefore, it was error to not allow Kopcho his requested instruction on copyright ownership.
Kopcho then argued that it was error for the court to refuse to instruct the jury on the economic loss rule. He contended that the essence of SSC’s claims arose out of the agreement between the parties and all alleged losses were economic losses; therefore, SSC could recover only for breach of contract. SSC argued that the rule was inapplicable because there was no signed contract. The Court rejected SSC’s contention that a written contract is necessary for the application of the economic loss rule, but left it for the trial court to determine the appropriate manner by which to consider the defense.
Kopcho contended that it was error for the trial court to give two additional instructions regarding ownership of the property at issue. The Court considered and rejected this contention, finding that the tendered instructions were encompassed within the elemental civil theft instruction given to the jury and, therefore, it was well within the trial court’s discretion to not give them.
On its cross-appeal, SSC argued that it was error for the trial court to effectively prevent the jury from awarding the same damages on all three of its claims. The Court agreed and ordered a new trial on damages.
SSC also argued it was error to deny its request for attorney fees because they are mandatory to the prevailing plaintiff under the civil theft statute. The Court agreed, holding that, should SSC prevail on its civil theft claim on remand, it is entitled to recover its reasonable fees, including fees in the appeal allocable to the issues on which it prevailed.
No. 09CA1997. Morris–Schindler, LLC v. City and County of Denver.
Hotel and Restaurant Liquor License—Good Cause for Nonrenewal.
Morris-Schindler, LLC (licensee), doing business as Roslyn Grill, appealed the court order upholding the nonrenewal of its hotel and restaurant liquor license by the City and County of Denver. The order was affirmed in part and reversed in part.
For more than twenty-six years, licensee operated Roslyn Grill in Denver. In 2008, it applied for the renewal of its hotel and restaurant liquor license. The Director of Excise and Licenses for Denver (Director) issued an order directing licensee to show cause why the renewal of the license should not be denied. The order cited the following alleged violations: (1) an undercover narcotics transaction that took place inside the restaurant and resulted in a declaration of public nuisance; (2) two sales of alcohol to a minor; (3) thirteen emergency calls involving fights, assaults, and drug sales; and (4) the regular presence of drunken or unconscious customers.
The hearing officer recommended nonrenewal of the license. The Director adopted the recommendation and issued a final decision.
The licensee commenced an action under C.R.C.P. 106(a)(4), asserting that (1) the Director misapplied the law by applying a strict liability standard to the alleged violations; (2) there was no competent evidence supporting the Director’s final order; and (3) the liquor law was unconstitutional as applied. The trial court concluded that it was not an abuse of discretion for the Director to deny the renewal based on the sales to minors and the regular presence of drunken patrons. However, it held that the narcotics transaction did not constitute good cause for nonrenewal.
On appeal, licensee argued that the Director abused her discretion by applying a strict liability standard for violations of the Colorado Code of Regulations (Code). Specifically, it contended that each alleged violation required some level of knowledge of the licensee. The Court agreed, holding that the regulations or statutes defining the alleged violations all contain the word "permit," which requires a showing of actual or constructive knowledge. Therefore, the Director misconstrued and misapplied the law by applying a strict liability standard to violations of the Code.
The Court also agreed with licensee that it was error for the Director to conclude that permitting or failing to prevent illegal drug sales in the establishment was a proper basis for nonrenewal. The licensee argued, and the Court agreed, that there was no competent evidence in the record to establish that it had actual or constructive knowledge of the narcotics transaction. Accordingly, the order was affirmed in part and reversed in part, and the case was remanded to the district court with orders to remand to the Director for further proceedings.
No. 09CA2184. AC Excavating, Inc. v. Yale.
Trust Fund Statute—Civil Theft.
Plaintiff AC Excavating, Inc. (AC) appealed the trial court’s judgment in favor of defendant Donald A. Yale on an alleged violation of the trust fund statute, CRS § 38-22-127, and the civil theft statute, CRS § 18-4-401. The judgment was reversed.
In the late 1990s, Antelope Development, LLC (Antelope) began developing the Antelope Hills Subdivision, a residential golf course community in Bennett. Keystone Development, LLC managed Antelope. Antelope formed and managed Antelope Hills Golf Course LLC (Antelope GC) to build the golf course.
Antelope received initial financing through construction loans from First National Bank of Colorado (First National). In 2003, when First National opted not to renew the loans, Horizon Bank (now Mile High Bank) replaced the loans. In 2004, the Horizon loan reached its limit.
In 2005, Antelope GC sold the golf course to Ironwood Golf Properties of Colorado, LLC. A term of the sale required Antelope to construct a retention pond on the property (Pond Project). In 2006, AC entered into an oral agreement with Keystone and Antelope to work on the Pond Project. AC ultimately received $150,000 of the $190,680.30 it charged.
In mid-2006, AC entered into a separate oral agreement with Keystone and Antelope to perform remedial grading work on the development’s residential lots (Coxsey Project). AC did not receive any of the $7,707.50 it charged.
Yale was a 44 percent shareholder in Antelope. On June 30, 2006, Yale replaced Keystone as the manager of Antelope and learned that Antelope had $100,000 in the bank and unpaid invoices on the Pond Project alone of more than $250,000. During the next six months, Yale personally loaned Antelope $157,500, the proceeds of which were applied to general business expenses and some of the outstanding subcontractor invoices.
Later in 2006, Yale foreclosed on a series of municipal bonds held as collateral for loans he had made to Antelope before assuming the role of sole manager. Yale withdrew $50,000 from the Antelope account to cover the interest on the municipal bonds.
AC sued Yale for violations of the trust fund and civil theft statutes. The trial court entered judgment in favor of Yale.
On appeal, AC argued the trial court erred in narrowly interpreting the trust fund statute. The Court of Appeals agreed. Under the statute, a contractor cannot use any of the funds on a project to pay corporate overhead, compensation, or other expenses unless and until the suppliers and laborers are paid in full.
AC argued that it was error to find that Yale’s loans to Antelope did not fall under the trust fund statute because they were not construction loans but general purpose survival loans for the company. The Court agreed. The statute covers "all funds disbursed" on a construction project, not just construction loans.
AC also argued it was error for the trial court to rely on Yale’s stated purpose for the use of his loans in determining he was not liable under the Trust Fund Statute. The Court agreed. The intent of the disburser of funds is not relevant to the determination of whether they fall under the statute, because it covers all funds disbursed.
AC also contended that the trial court erred in determining that Yale was not liable for civil theft when he withdrew $50,000 from the Antelope account rather than pay the subcontractors. The Court agreed, finding that the trial court failed to determine whether Yale knowingly used the money in such a manner as to permanently deprive AC of its use or benefit. The judgment was reversed and the case was remanded for further proceedings.
No. 10CA0079. People v. Maclaren.
Vehicular Assault—Driving Under the Influence of Alcohol—Express Consent Statute.
The prosecution appealed the dismissal of defendant’s convictions of vehicular assault and driving under the influence of alcohol. The judgment was affirmed in part and vacated in part.
Defendant was driving when he crossed a double yellow line into oncoming traffic and hit the victim’s car, causing her to suffer a broken wrist. Defendant told a responding emergency medical technician (EMT) that he had consumed beer earlier in the day. He also told the EMT that he had experienced a coughing fit that caused him to black out while he was driving. The investigating officer detected the odor of alcohol on defendant’s breath.
The officer followed the ambulance to the hospital. Without advising defendant or requesting that he submit to a test of his blood alcohol level, the officer had the hospital phlebotomist draw two vials of defendant’s blood for testing. On receiving the results, the officer informed defendant that his license was being revoked.
Defendant filed a motion to suppress the results of the blood test on the grounds that the investigating officer did not have probable cause and, alternatively, that she failed to comply with the requirements of the express consent statute. The trial court found there was probable cause but suppressed the results of the tests after finding the officer had failed to request that defendant submit to breath or blood testing as required by the express consent statute. The court then dismissed the vehicular assault and driving under the influence charges.
The Court of Appeals noted that consent is not a constitutional prerequisite to the collection of a blood sample. Both express consent statutes allow an unauthorized sample to be taken after a refusal by the driver to give a breath or blood sample.
The officer violated the express consent statutes by obtaining a blood sample from defendant when there was neither a request nor a refusal. However, suppression of evidence is generally reserved to remedy violations of constitutional rights, not statutory rights. Suppression for a violation of a statute is not a proper remedy unless the statute requires exclusion of such evidence. Where a statute does not expressly provide for suppression, however, trial courts have broad discretion to suppress evidence as a sanction for improper police conduct.
Here, the trial court found that the officer committed misconduct without justification by extraordinary circumstances or good cause. Therefore, it did not abuse its discretion by suppressing the results of the blood test. However, dismissal was not an appropriate sanction. Accordingly, the suppression of the blood alcohol test was affirmed and the judgment dismissing the cases was vacated. The case was remanded for reinstatement of the charges and further proceedings.
Nos. 09CA2059 & 09CA2522. Braata, Inc. v. Oneida Cold Storage Company, LLP.
Defendant Oneida Cold Storage Co., LLP (Oneida) appealed the district court order vacating an arbitration award for lack of proper notice and confirming the award in favor plaintiff Braata, Inc. The order was vacated.
Oneida had a contract with Braata for janitorial services. The contract stated that any controversies arising from it would be decided by arbitration. In 2008, a dispute arose concerning payment. On August 12, Oneida sent Braata a check for "payment in full," reduced for unsatisfactory and unperformed work. On August 29, Braata sent Oneida a certified letter asserting that Oneida was past due in paying $2,538.39. Oneida did not respond to the letter.
Braata then contacted the Judicial Arbiter Group (JAG), and a JAG arbiter conducted a hearing on April 10, 2009. Oneida did not appear. The arbiter found that Oneida had been given notice of the arbitration and the claim, and entered an award in Braata’s favor.
Braata filed a motion in district court to confirm the award. Oneida objected and moved to vacate, arguing that the August 29 letter did not constitute an initiation of arbitration and that Braata had sent no other certified letters. The trial court denied the motion to vacate and confirmed the award.
On appeal, Oneida argued that the district court erred by not making an independent finding as to compliance with the notice provisions of CRS § 13-22-223(1)(f), and that the August 29 letter did not constitute an initiation of arbitration as a matter of law. The Court agreed. When a party moves to vacate an award for inadequacy of notice, the district court is required to make a de novo determination as to whether there was improper notice of initiation of arbitration proceedings that resulted in substantial prejudice to the moving party. Here, the district court failed to make such a determination. The Court remanded the case to the district court to determine whether the failure to provide statutory notice resulted in substantial prejudice to Oneida.
Colorado Court of Appeals Opinions