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Colorado Court of Appeals Opinions
September 7, 2006

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. 04CA0940. People v. Elie.
Attempted First-Degree Murder—First-Degree Assault—Felony Menacing—Testimony—Impeachment—Jury Instruction—Complicity—Aggravated Range Sentence—Blakely.

Defendant appeals the judgments of conviction entered upon jury verdicts finding him guilty of attempted first-degree murder, first-degree assault, and two counts of felony menacing. Defendant also appeals his aggravated range sentence for one of the felony menacing convictions. The judgments of conviction are affirmed, but the case is remanded for re-sentencing on the felony menacing conviction.

Defendant asserts the trial court should have admitted only those portions of the videotape given by Bellamy, one of the victims, that were consistent with Bellamy’s direct examination testimony. The impeachment of Bellamy was not limited to specific facts, but instead was a general attack on Bellamy’s credibility. Therefore, it was not error to admit the entire videotape, in which Bellamy clarified his account of the crime and explained that he could not get his "story straight" in the first statement because he was scared and upset from the shooting.

Defendant asserts that the jury instruction on complicity liability failed to inform the jury that, to be convicted as a complicitor, he must have had the same mental state that the substantive crime requires of the principal. Under a complicity theory, it is not necessary that any single person commit all the elements of the underlying offense. It is only necessary that the acts of the complicitor and the other actor or actors, together, constitute all acts necessary to complete the underlying offense. In this case, the prosecution presented evidence on which the jury could conclude that defendant either shot Bellamy or was complicit in shooting him. Therefore, there was no error.

Defendant asserts his six-year sentence for felony menacing is unconstitutional under Blakely [Blakely v. Washington, 542 U.S. 296 (2004)], because the trial court imposed an aggravated range sentence based on its finding that it was defendant who shot the other victim in the ankle. A trial court may rely on facts admitted by defendant, facts found by the jury, facts found by the court after defendant stipulates to judicial fact finding, and the fact of a prior conviction in imposing an aggravated range sentence.

The record reveals that the trial court imposed an aggravated range sentence for felony menacing based on its own finding that defendant was the one who shot the victim. However, defendant did not admit that he shot the victim, and the jury did not find such a fact. Thus, the trial court’s imposition of an aggravated range sentence is reversible error.

No. 04CA1053. People v. Reynolds.
First-Degree Kidnapping—Speedy Trial Period—Consolidation—Severance—Crim.P. 24(d)(1)—Peremptory Jury Challenges—Class 1 Felony—CRS § 16-10-104.

Defendant appeals the judgment of conviction entered on a jury verdict finding him guilty of first-degree burglary, second-degree kidnapping, false imprisonment, aggravated robbery with an armed confederate, conspiracy to commit first-degree burglary, and conspiracy to commit aggravated robbery. The judgment of conviction is reversed, and the case is remanded for a new trial.

Defendant contends the charges against him should have been dismissed because he was not brought to trial within the statutory speedy trial period and he did not waive this statutory right. Over defendant’s objection, defendant’s case was consolidated with that of two of the other men involved in the incident. One of the co-defendants requested a continuance, which was granted by the court. The new trial date fell outside defendant’s speedy trial period. However, the two-week period of delay was reasonable and there was good cause for not granting a severance of the cases. Thus, defendant was not entitled to dismissal of the charges based on a violation of his statutory speedy trial rights.

Defendant contends reversal is required because he was denied the right afforded under Crim.P. 24(d)(1) to additional peremptory jury challenges in cases where a class 1 felony is charged. Pursuant to CRS § 16-10-104, the requirement of additional peremptory challenges in "capital cases" is inapplicable to first-degree kidnapping cases where the victim had been liberated alive and the death penalty was thus statutorily unavailable. However, Crim.P. 24(d)(1) states: "For purposes of Rule 24 a capital case is a case in which a class 1 felony is charged." The statute refers to the number of challenges in capital cases, but does not define "capital case." Thus, Crim.P. 24(d)(1), which does define the term, can be given effect without producing a result irreconcilable with the plain language of the statute. Because defendant was not allowed to exercise the full number of peremptory challenges afforded under state law, his conviction requires reversal.

No. 04CA2347. Salazar v. Clancy Systems International, Inc.
Stock Certificates—Restrictive Legends—Tort Claims—Uniform Commercial Code—CRS § 4-8-401.

Plaintiff appeals from the trial court’s summary judgment in favor of defendant Clancy Systems International, Inc. The judgment determined that plaintiff’s tort claims relating to restrictive legends on stock certificates were preempted by state statute. The judgment is reversed and the case is remanded for further proceedings.

Plaintiff alleged in his complaint that the value of his stock had depreciated by approximately $2 million between the time of his initial request for a stock certificate and the date the certificate was reissued without the restrictive legend. He asserted, as relevant here, tort claims of trespass to chattel and intentional interference with prospective advantage, alleging that defendant’s inclusion of the restrictive legend was wrongful and malicious and deprived him of his legal right to sell the stock. Defendant moved for summary judgment, asserting that plaintiff’s common law tort claims were preempted by the Uniform Commercial Code ("UCC"), specifically CRS § 4-8-401. The trial court granted summary judgment in favor of defendant.

Plaintiff contends that the trial court erred in granting defendant’s motion for summary judgment and in concluding that plaintiff’s common law tort claims were preempted by the UCC, specifically CRS § 4-8-401. Common law tort remedies remain available unless a provision of the UCC clearly states otherwise. Although CRS § 4-8-401(b) affords a remedy for a failure or refusal to register a transfer, this provision does not evince a clear intent by the General Assembly to occupy the entire field regarding the transfer of securities, particularly with respect to the placement or removal of restrictive legends. Thus, coextensive remedies under this provision and under the common law may exist and CRS § 4-8-401 does not preempt common law claims or remedies relating to the placement and removal of restrictive legends. The summary judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

No. 05CA0083. Reiff v. Colorado Department of Health Care Policy and Financing.
Medicaid—Benefits—Administrative Law Judge—Review—Hearing—Testimony—Regulation 8.057.8.G.

Plaintiff Reiff appeals the district court’s order affirming the final agency decision of the Colorado Department of Health Care Policy and Financing ("Department") terminating her Medicaid Home and Community Based Services for the Elderly, Blind, and Disabled ("HCBS") benefits. The order is reversed and the case is remanded for further proceedings.

The state administers HCBS, a Medicaid program that provides home care services to persons who otherwise would require institutionalization. To qualify for HCBS, an applicant must currently require the quality of care available in a nursing facility, or long-term care. Reiff received an annual review and was denied benefits based on the assessment. After a hearing, the administrative law judge ("ALJ") reversed the decision, the Department reversed the ALJ’s decision, and the district court affirmed the Department’s decision.

Reiff contends that the Department erred as a matter of law by restricting the scope of the ALJ’s review to the agency’s assessment documents and by reversing the ALJ for considering testimony introduced at the appeal hearing. Although Regulation 8.057.8.G provides that the ALJ’s determination must be limited to whether Reiff met the level of care on the date the level of care determination was completed, nothing in Regulation 8.057.8.G suggests that the ALJ is limited to evidence that the case manager heard. Therefore, the ALJ properly could consider testimony introduced at the hearing concerning Reiff’s condition as of the date of the level of care assessment. The order is reversed, and the case is remanded to the district court with instructions to remand the case to the Department to affirm the ALJ’s decision.

No. 05CA0298. McKenna v. Oliver.
Telephone Consumer Protection Act—Colorado Consumer Protection Act—Subject Matter Jurisdiction—Standing—Unsolicited Fax Advertisements—Assignee.

In this federal consumer protection act case, plaintiff appeals the trial court’s judgment dismissing for lack of subject matter jurisdiction his claims against defendants. Defendants cross-appeal the trial court’s denial of their motion to dismiss plaintiff’s federal claims on the ground that he lacked standing to bring the claims as an assignee. The judgment is affirmed.

Defendants sent unsolicited fax advertisements to several Colorado residents. Plaintiff did not personally receive an unsolicited fax advertisement from defendants. However, several of the fax recipients assigned plaintiff their claims, and he filed a complaint in district court alleging that defendants violated provisions of the federal Telephone Consumer Protection Act ("TCPA") and the Colorado Consumer Protection Act ("CCPA") by sending unsolicited fax advertisements to his assignors. Defendants filed a motion to dismiss plaintiff’s lawsuit, contending that violations of the TCPA and CCPA were not assignable, and that plaintiff lacked standing to bring the action as an assignee. Defendants later filed a second motion to dismiss, contending the trial court lacked subject matter jurisdiction over private actions under the TCPA. The trial court granted defendants’ motion to dismiss plaintiff’s TCPA claims for lack of subject matter jurisdiction.

Defendants contend that plaintiff lacks standing to bring an action for the receipt of unsolicited faxes in violation of the TCPA because other persons suffered the alleged violations and such claims are not assignable. Generally, Colorado law favors the assignability of claims. However, causes of action for invasion of privacy are an exception and are not assignable. An action based on the receipt of unsolicited faxes by individuals in violation of the TCPA is not assignable because such an action is in the nature of a violation of the right to privacy. Because plaintiff is an assignee, he lacks standing to bring these federal claims, and the trial court erred in denying defendants’ motion to dismiss based on that lack of standing. The judgment of dismissal is affirmed.

No. 05CA0485. Stokes v. The Denver Newspaper Agency, LLP.
Respondeat Superior Liability—Car Accident—Attorney Fees—Summary Judgment.

In this case involving the scope of respondeat superior liability, plaintiff appeals the trial court’s summary judgment in favor of defendant The Denver Newspaper Agency, LLP, including an award of attorney fees. The judgment is affirmed in part and vacated in part, and the case is remanded for further findings on the issue of attorney fees.

Plaintiff’s suit against defendant arose out of a car accident between plaintiff and defendant’s employee. After settling her claims against the employee, plaintiff sued defendant under a respondeat superior theory. The trial court granted defendant’s motion for summary judgment and dismissed the case. The trial court also awarded defendant attorney fees without explaining the basis for the award.

Plaintiff asserts the trial court erred in dismissing her respondeat superior claim because an issue of material fact existed as to whether the employee was acting within the scope of his employment. Employees traveling to work from home or from home to work are not within the service of their employers. Here, the trial court found the employee worked for defendant at the time of the collision and the employee used his own car to conduct defendant’s business. At the time of the accident, the employee was merely driving home from work. The trial court declined to consider information from plaintiff’s affidavit concerning the employee’s working status and hours because it contained hearsay statements inadmissible at trial. Thus, plaintiff did not provide any admissible evidence to rebut the statement in the employee’s affidavit that he was finished with his duties and driving home from work at the time of the collision. As a result, the summary judgment for defendant was proper.

Plaintiff also contends the trial court’s attorney fees award was an abuse of discretion. When awarding attorney fees, the court must make specific findings of the reasons supporting the award. Here, the trial court did not identify in its order why it awarded attorney fees. Thus, the award cannot stand, and the case is remanded to the trial court to make specific findings of whether attorney fees are warranted.

No. 05CA0487. Rigmaiden v. Colorado Dept. of Health Care Policy and Financing.
Eligibility to Receive Benefits—Findings of Evidentiary Facts—Written Transcripts Request.

The Colorado Department of Health Care Policy and Financing ("Department") appeals the judgment of the district court reversing the Department’s final agency decision determining that plaintiff no longer was eligible to receive benefits under the Home and Community Based Services for the Elderly, Blind and Disabled ("HCBS") program. The district court determined that without a written transcript, the Department could not reverse the initial decision allowing benefits. The judgment is affirmed.

Plaintiff suffered from a number of physical ailments. In November 2003, Long Term Care Options, LLC ("LTCO"), a peer review organization operating under a contract with the state, approved her for HCBS benefits. In March 2004, LTCO performed an additional assessment on plaintiff and determined that she no longer needed HCBS benefits.

Plaintiff requested a hearing before an administrative law judge ("ALJ") under CRS § 24-4-105. The ALJ determined that plaintiff was entitled to receive benefits. The ALJ’s decision included a notice to the parties stating: "If you feel that a FINDING OF FACT is wrong, you must order a transcript of the hearing. . . .If you can’t afford a transcript, you must first ask the Office of Appeals, in writing, to let you file a copy of the tape(s) from the hearing instead."

LTCO filed exceptions to the ALJ’s decision and submitted a tape recording of the hearing without asking if it could submit the recording in lieu of a transcript. The Department considered the recording and reversed the ALJ based on erroneous factual findings.

Plaintiff sought review in district court under CRS § 24-4-106(7). The district court reversed the Department’s decision, ruling it was error to reverse the ALJ’s findings in the absence of a written transcript. The Department appealed under CRS § 24-4-106(9).

The Court of Appeals holds that pursuant to CRS § 24-4-105(15)(a), LTCO was required to file a written transcript of the hearing to support a challenge to the ALJ’s factual, evidentiary findings (a transcript is not necessary if challenging the ALJ’s conclusions of law and findings of ultimate fact). Further, a tape recording of the hearing does not constitute a transcript that satisfies § 24-4-105(15)(a).

No. 05CA0564. Walker v. Laningham.
Abuse of Process—Civil Conspiracy—Attorney Fees.

Plaintiffs ("Walkers") appeal the district court’s judgment granting the motion to dismiss defendants ("neighbors") and awarding neighbors attorney fees. The judgment is affirmed and the case is remanded for an award of appellate attorney fees.

The Walkers purchased a forty-acre parcel of land in Teller County, on which they operated a dog kennel and raised, trained, and raced sled dogs. Neighbors complained repeatedly to Teller County Animal Control officials about the barking of more than 100 dogs housed in the kennel, as well as conditions for the dogs and various licensing matters. As a result, criminal charges were brought in county court against Samuel Walker.

Following a trial in which several neighbors testified, Samuel Walker was convicted of a number of barking dog violations and a charge of cruelty to animals. The county court imposed a civil fine, ordered Samuel Walker to reduce the number of dogs on the property to thirty or fewer, and ordered him to comply with all ordinances and laws related to the dogs. Walker unsuccessfully appealed to the El Paso County District Court, and the Colorado Supreme Court denied his petition for certiorari in March 2005.

In the interim, the Walkers filed the instant complaint against neighbors, alleging abuse of process and civil conspiracy. In February 2005, the district court granted neighbors’ motion to dismiss for failure to state a claim, finding that: (1) reporting an alleged crime that results in a successful criminal prosecution cannot serve as the basis for an abuse of process claim; (2) filing grievances with a governmental agency is protected by the federal and state constitutions; and (3) neighbors’ filing of complaints with animal control authorities did not constitute commencement of a judicial proceeding. The court also awarded neighbors their reasonable attorney fees and costs. The Court of Appeals affirms the motion to dismiss on different grounds.

The essence of the tort of abuse of process is the use of a legal proceeding primarily to accomplish a purpose that the proceeding was not designed to achieve. In this case, neighbors filed complaints about barking dogs and cruelty to animals under the applicable ordinance in the manner prescribed therein. Therefore, neighbors did not use a legal proceeding in an improper manner and could not be liable on an abuse of process claim.

The Court of Appeals also finds no alleged unlawful overt acts that would support a claim of civil conspiracy. Because there was no abuse of process, this cannot support a conspiracy claim. The Walkers contend that neighbors filed unfounded barking dog complaints. Given that Samuel Walker was convicted of these complaints, they cannot be unfounded.

Finally, the Walkers contend that because matters outside the pleadings were presented, neighbors’ motion should be treated as one for summary judgment and therefore attorney fees should not be awarded. The Court of Appeals concludes that the district court’s consideration of the animal ordinances and Samuel Walker’s prior convictions did not convert the motion into one for summary judgment. The district court was permitted to take judicial notice of the previous convictions of Samuel Walker without converting the motion into one for summary judgment. Because neighbors were properly awarded attorney fees by the district court, they also are entitled to reasonable attorney fees for defending the appeal.

No. 05CA0607. Plaza del Lago Townhomes Assoc., Inc. v. Highwood Builders, LLC.
Default Judgment—Notice of Motion—Standstill Agreement—"Appearance in the Action."

Defendant Highwood Builders, LLC ("owner") appeals the trial court’s default judgment in favor of plaintiff Plaza del Lago Townhomes Association, Inc. ("HOA"). Owner also appeals the trial court’s order denying its motion to set aside default judgment. The judgment is affirmed in part, the order is vacated, and the case is remanded with directions.

Owner owns thirty lots in a development that is subject to assessments by the HOA. The HOA filed a complaint against owner seeking damages based on the foreclosure of an assessment lien resulting from owner’s failure to pay its association dues. On December 8, 2004, the HOA served an attorney in Colorado Springs who was the owner’s registered agent.

Owner asserts that its Colorado Springs counsel retained a Denver attorney for assistance; the parties entered into a "standstill agreement"; and, based on that agreement, owner did not file an answer. The HOA contends there was only an agreement to discuss settlement.

On January 20, 2005, the HOA moved for default judgment based on lack of an answer. On January 28, the parties met to discuss settlement and owner provided the HOA with a draft of its answer and counterclaims. The HOA did not inform owner that it had filed a motion for default judgment.

Without a hearing, the court entered default judgment in favor of the HOA and awarded $540,000 in damages. One day later, owner filed its answer and counterclaims. On February 7, 2005, the HOA filed a motion to amend the default judgment and asked the court to reduce the damages to $102,000. Two days later, owner filed motions to quash the HOA’s motion to amend judgment, to set aside the original default judgment, and for sanctions. On March 14, without a hearing, the court found that owner failed to file an answer, the parties had not agreed to an extension, and the failure to file was not the result of excusable neglect. The court denied all of owner’s motions.

On appeal, owner contends that the default judgment was error because: (1) the HOA did not give owner’s counsel notice of its motion for default judgment; (2) the HOA provided insufficient evidence to the court for the default and amended default judgments; and (3) the clerk did not enter a default pursuant to C.R.C.P. 55(a). The Court of Appeals rejects all these contentions.

Owner contends that because it appeared in the action, in was entitled to three days written notice prior to the entry of default. The Court of Appeals holds that a plaintiff’s knowledge that a defendant intends to defend itself is insufficient to constitute an appearance under C.R.C.P. 55(a). The defendant must communicate with the court in a manner that demonstrates to the court that the defendant is aware of the proceedings and intends to participate in them. The Court of Appeals also holds that the trial court’s findings were sufficient to support the amount of the damages.

Owner finally contends that it was error not to hold a hearing on its motion to set aside the default judgment. The Court of Appeals concludes that a hearing was not required regarding the existence of the "standstill agreement" and the amount of damages. However, because the court’s order did not address owner’s argument that the HOA fraudulently used the communications regarding settlement to "entrap" owner into a default position and falsely induced the court to enter a personal judgment against owner, contrary to the HOA’s covenants, the case is remanded for a ruling on those issues. In addition, the court’s order is insufficient to enable the Court of Appeals to resolve whether the failure to file an answer was the result of mistake or excusable neglect. On remand, the court is instructed to make further findings as to whether, even in the absence of an agreement, the default should be set aside based on mistake.

No. 05CA0780. Bourgeron v. City and County of Denver.
Judicial and Administrative Review—Administrative Procedure Act—C.R.C.P. 106(a)(4)—Ultra Vires Acts.

Plaintiff Bourgeron appeals the court’s order affirming the decision of a hearing officer who had upheld a decision by the Career Service Board ("Board") revoking plaintiff’s promotion to the position of deputy manager of marketing and governmental affairs. The order is affirmed.

In 1998, Bourgeron was employed by the City and County of Denver as a marketing, public, and employee relations coordinator in the Department of Public Works. That year, the manager of Public Works, Baumgartner, was appointed by Mayor Webb as manager of the Department of Aviation. At Baumgartner’s request, the Mayor appointed Bourgeron as deputy manager of marketing and governmental affairs; she reported directly to Baumgartner. While Bourgeron was a mayoral appointee, she was considered to be on unpaid leave from the Department of Public Works, with the right to return to her position when the appointment ended. When her appointment ended, the deputy manager position was opened to new applicants, but it was to be filled as a career service position. The Career Service Authority ("CSA") administers the day-to-day functions of the career service personnel system. Bourgeron did not have a college degree. While she was serving her appointment, she contacted the head of the CSA and requested that the CSA modify the minimum qualifications for the deputy manager to permit experience to substitute for education. The request was denied.

In 2002, the Board adopted Education and Experience Requirements and Equivalencies Policies and Guidelines, which permitted experience to substitute for education for many career service positions but not high-level executive positions. Baumgartner requested that an exception be made for Bourgeron under the new guidelines and the director, against the recommendations of his staff, approved the request. Bourgeron was hired as deputy manager.

In 2003, the Board gave the director an unfavorable performance evaluation and investigated his alleged failure to comply with some personnel rules. The Board met in two executive sessions with its attorney to determine whether it had the authority and duty to rescind the waiver granted Bourgeron. It concluded that (1) Bourgeron did not meet the educational requirements for the deputy manager position; (2) the director lacked the authority to waive the education requirement; (3) his action was ultra vires and void; and (4) the Board had the authority and obligation to revoke the waiver. The Board revoked the waiver and returned Bourgeron to her previous position.

Bourgeron filed two grievances with the Department of Aviation and later filed appeals of the denials of those grievances. She also filed a direct appeal with the Board’s Hearing Office. The three appeals were consolidated, and an independent hearing officer conducted the proceedings and upheld the Board’s actions. Bourgeron then filed this action in district court pursuant to C.R.C.P. 106(a)(4).

The Board argued that the decisions to revoke the waiver and demote Bourgeron were administrative and not quasi-judicial decisions and, therefore, not subject to judicial review under C.R.C.P. 106. The court agreed but further concluded that Bourgeron was entitled to judicial review of the hearing officer’s decision under the Administrative Procedure Act. The court conducted such a review and affirmed.

The Court of Appeals finds that the Board’s sole purpose in conducting the executive sessions was to enforce its personnel policies and that it did not need to exercise its discretion. This was a purely administrative action, subject to review by the hearing officer but not judicial review under C.R.C.P. 106. Bourgeron was entitled to review by the district court of the hearing officer’s decision and review of that decision by the Court of Appeals. The Court of Appeals affirms the district court’s affirmation of the hearing officer’s conclusions.

No. 05CA1066. Kennedy v. King Soopers Inc.
Attorney Fees and Costs—Order of Dismissal—Deposition Costs—Pre- and Post-Judgment Interest.

Plaintiff appeals the trial court’s order awarding attorney fees and costs against plaintiff and her attorney. The order is affirmed in part and reversed in part, and the case is remanded with directions.

Plaintiff sued her work supervisor in state court, alleging that the supervisor had tortiously interfered in her employment relationship with King Soopers Inc. ("employer"). The supervisor removed the case to federal court and filed a motion to dismiss, arguing that the federal Labor Relations Management Act preempted plaintiff’s complaint. Following litigation in the federal trial and appellate courts, the case was remanded to the state court.

On remand, the supervisor again moved for dismissal based on federal preemption. On July 16, 2002, the court granted the motion and dismissed under C.R.C.P. 12(b)(1). Plaintiff did not appeal.

Several months later, plaintiff filed a motion for relief from judgment under C.R.C.P. 60. The motion was denied and the Court of Appeals affirmed. Because employer had paid for supervisor’s legal defense, it sought an award of attorney fees and costs under CRS § 13-17-102 and -201. On December 3, 2002, the court ruled employer was entitled to attorney fees and costs. On April 14, 2005, the court ordered plaintiff to pay $211,306.12 in attorney fees and $30,253.95 in costs, with interest from the date of dismissal, July 16, 2002.

The court ruled that plaintiff and her attorney were jointly and severally liable for the total award. Plaintiff and her attorney appeal. The Court of Appeals notes that plaintiff’s attorney did not contest the imposition of joint and several liability and, therefore, treats both plaintiff and her attorney as one and assumes their interests are identical.

Plaintiff argues that the court erred in dismissing her complaint. The Court of Appeals concludes the order of dismissal was a final, appealable judgment. Because plaintiff did not appeal the judgment, the underlying order of dismissal is final and may not be collaterally attacked.

CRS § 13-17-201 mandates an award of fees and costs against any plaintiff whose tort action is dismissed pursuant to C.R.C.P. 12(b). Plaintiff argues that the court effectively determined that plaintiff’s action was grounded not on tort law but on the federal laws governing collective bargaining agreements, and § 13-17-201 is itself preempted by federal law. The Court of Appeals finds that plaintiff pled tort claims and therefore triggered the mandatory award and that the statutory section applies only to state tort actions, thereby implicating no federal preemption claims.

The Court of Appeals rejects most of plaintiff’s arguments contesting the amount of fees and costs but does conclude it was error to award interest from the date of dismissal. The interest award was governed by CRS § 5-12-102(4). The Court of Appeals concludes that the pertinent "judgment" was issued on April 14, 2005, when the trial court issued its final appealable order determining the amount of fees and costs.

Finally, employer is entitled to appellate attorney fees and costs, but the trial court should consider that employer was unsuccessful in defending the order awarding post-judgment interest and therefore reduce the award appropriately.

No. 05CA1474. Kahland v. Villarreal.
Negligence—Colorado Governmental Immunity Act—Waiver of Immunity—Vicarious Liability.

Plaintiff Kahland appeals the trial court’s order dismissing two claims against defendants Villarreal and the City and County of Denver Wastewater Management Division ("Denver") on the basis of governmental immunity. The order is affirmed.

This action arises from a motor vehicle accident involving Kahland and Villarreal on November 13, 2001. At the time of the accident, Villarreal was an employee operating a vehicle owned by Denver within the course and scope of his employment.

Kahland asserted six claims for relief in his complaint: (1) negligence; (2) negligence per se; (3) vicarious liability of Denver pursuant to respondeat superior; (4) negligent entrustment; (5) negligent hiring, training, and supervision; and (6) property damage to his vehicle and loss of use. Defendants moved to dismiss the fourth and fifth claims, arguing they were barred by the Colorado Governmental Immunity Act and did not fall within the waiver of immunity set forth in CRS § 24-10-106(1)(a) for the operation of a motor vehicle.

The court held that the waiver of immunity applied only to the acts or omissions of a public employee and not to the acts or omissions of the public entity itself. Therefore, the defendants’ immunity had not been waived with regard to plaintiffs’ claims for negligent entrustment and negligent hiring, training, and supervision. Kahland appealed pursuant to CRS § 24-10-108.

The Court of Appeals notes that § 24-10-106(1)(a) waives immunity for injuries resulting from the operation of a motor vehicle, owned or leased by a public entity, by a public employee while in the course of employment. The Court of Appeals concludes that the alleged conduct of Denver in (1) negligently entrusting Villareal with the vehicle; or (2) negligently hiring, training, or supervising him does not constitute the "operation" of a motor vehicle and affirms the dismissal of those claims based on governmental immunity.

No. 05CA1586. People v. MacLeod.
Admission of Evidence—Hearsay—CRS § 16-12-102(1)—Rape Shield Statute.

The People appeal pursuant to CRS § 16-12-102(1), contending that the trial court erred in admitting certain evidence notwithstanding the failure of defendant to comply with the procedural requirements of the rape shield statute. The Court of Appeals disagrees and approves the trial court’s ruling.

Defendant was charged with multiple counts of sexual assault and related offenses, all arising out of alleged sexual abuse of his daughter. He ultimately was found not guilty of the two counts that went to the jury (sexual assault on a child and sexual assault on a child by one in a position of trust).

Before trial, the People filed a notice of intent to introduce hearsay statements made by the daughter to her mother and others. At a pretrial motions hearing, mother testified that daughter had told her that defendant had sexually assaulted her. On cross, mother testified she previously had told her daughter: (1) that she herself had been molested; (2) that she had made a "bad decision" by not disclosing that to anyone; and (3) that she wanted her daughter "not to be put in the same position that I was."

Six months later, in his opening statement, defense counsel told the jury they would hear evidence that the daughter had never said anything about sexual abuse to her mother, even though mother had told her about her own prior abuse. The prosecutor objected, citing the rape shield statute, but the court overruled the objection.

Before defendant’s cross of the daughter, the prosecutor objected to any testimony about mother’s prior molestation. He pointed out that defendant had never filed a rape shield motion as required under the statute. Defendant responded that the statute was inapplicable as the questioning was intended to discredit the daughter’s testimony by showing she had never reported the abuse even after being urged by mother to do so. The court ruled the evidence would be admitted, as its only purpose was to show whether the daughter had been told about it and encouraged to report. Neither mother nor daughter testified as to any specifics about the molestation mother had referred to in her statement.

The Court of Appeals concludes that the testimony properly was admitted. In this case,  mother’s statement was relevant to the defense theory; whether the molestation of mother occurred was irrelevant; and evidence was not offered to show that it had in fact happened. The evidence went to the victim’s motive for claiming she had been sexually assaulted and did not implicate the concerns underlying the statute.

No. 05CA1843. In the Interest of F.A.G.: Granado, Jr. and Granado.
Parental Responsibilities—Parenting Time—Ex Parte Motion.

In this parental responsibilities proceeding, father appeals from the denial of his motion to modify parental responsibilities and parenting time. The order is vacated and the case is remanded to the trial court to hold a hearing and decide the motion on its merits.

The marriage of mother and father was dissolved in Texas in 2003 and mother was given "the exclusive right to designate the primary residence of the child without regard to geographic location." Mother moved to Colorado with the child, and father followed.

In March 2005, father registered the Texas decree in Colorado and filed an emergency ex parte motion to prohibit mother from removing the child from Colorado. He then moved for modification of parental responsibilities, alleging mother intended to move to California. He argued it would not be in the child’s best interests to be moved again and from him. Father requested that he be awarded primary residential custody or that parenting time should be shared to conform to the actual parenting time usage. Mother questioned the court’s jurisdiction, arguing that parenting time could not be modified until two years after the initial divorce decree.

At a status conference in June 2005, the court determined that father’s motion to modify parenting time was time-barred under CRS § 14-10-129, and that any request to modify parental responsibilities was time-barred under CRS § 14-10-131.

Preliminarily, the Court of Appeals determines that a properly docketed divorce decree from Texas may be treated as if the case had commenced in Colorado. The Court of Appeals then agrees with father that CRS § 14-10-131(1) does not apply to a motion to modify parenting time and that absent a previous motion of the type described in § 14-10-129(1.5), father’s motion was not subject to the two-year rule set forth in that subsection. CRS § 14-10-129(1.5) neither states nor implies that the first motion to modify parenting time filed after the permanent orders have been entered is subject to the two-year limitation.

No. 05CA2328. Bunch v. Industrial Claim Appeals Office.
Workers’ Compensation Act—Occupational Exposure—Compensable Treatment.

Dorothy Bunch ("claimant"), wife of the deceased employee, Billy Bunch ("decedent"), seeks review of a final order of the Industrial Claim Appeals Office ("Panel") denying medical benefits for the period before decedent gave notice of his occupational disease to Dow Chemical Company or its insurer (collectively, "employer"). The order is affirmed.

Decedent worked at the Rocky Flats Nuclear Weapons Plant from 1957 to 1973, when he was laid off. Decedent developed lung cancer in 1996. The administrative law judge ("ALJ") found that decedent’s occupational exposure to asbestos was the cause of his cancer and caused his death. However, the ALJ found that the medical care decedent received prior to March 31, 1999, the date he filed his claim, was not authorized by CRS § 8-42-101 and, therefore, employer was not liable for that medical treatment. He also found that prior to the filing of the claim, employer was not aware of facts that would lead a reasonably conscientious manager to recognize that decedent might have a compensable claim. The Panel affirmed.

Treatment is compensable under the Workers’ Compensation Act where an "authorized treating physician" provides it. CRS § 8-43-404(5)(a) gives employers or insurers the right to choose treating physicians in the first instance. An employer has the obligation to designate a treating physician upon notice of the injury. If the employee obtains unauthorized treatment, the employer or insurer is not required to pay for it.

Here, the decedent received treatment before he was aware of the compensable nature of the disease and before he reported it by filing a claim. The Court of Appeals finds no authority for an exception that would require an employer to pay for several years of treatment received prior to the time that either employer or employee had knowledge of the nature, seriousness, and compensable character of the injury.

No. 06CA0118. Dewhurst v. Industrial Claim Appeals Office.
Unemployment Benefits—Employee Discharge—Interstate Transfer.

Claimant seeks review of the final order of the Industrial Claim Appeals Office ("Panel") that upheld a hearing officer’s decision disqualifying her from receiving unemployment benefits attributable to her employment in Montana. The Court of Appeals sets aside the Panel’s order and remands.

Claimant worked as a photo-lab specialist for Wal-Mart Associates, Inc. ("employer") in Montana. She requested a transfer to Colorado. Employer granted the request in December 2004 and claimant began working for employer in Colorado.

In August 2005, employer discharged claimant. The Division of Employment and Training awarded claimant unemployment benefits based on a determination that she was not at fault. In a subsequent decision, a hearing officer concluded the amount of claimant’s benefits could not be calculated based on wages attributable to claimant’s work for employer in Montana.

Claimant appealed to the Panel, arguing that the transfer did not constitute a separation from employer. The Panel disagreed and affirmed the hearing officer’s decision.

On appeal, claimant contends it was error to treat her transfer as a separation from employment and her tenure with employer as separate periods of employment with different employers. The Court of Appeals agrees.

The Panel relied on CRS § 8-70-114(1). The Court of Appeals concludes that the section merely defines an employing unit for purposes of determining benefits for those working in Colorado but does not address interstate employment transfers within the same company, nor does it do so "by implication." Similar reliance by the Panel on CRS § 8-70-117 is misplaced.

Colorado regulations provide that, to qualify for benefits, unemployed workers with covered employment wages in more than one state may combine all such employment and wages in one state. Therefore, the Panel’s order is set aside and the case is remanded for recalculation of claimant’s benefit amount, which shall include any wage credits during the claim’s base period attributable to her work for employer in Montana.

Colorado Court of Appeals Opinions

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