Colorado Court of Appeals: Summaries of Published Opinions

The summaries of Colorado Court of Appeals published opinions are written for the CBA by licensed attorneys Teresa Wilkins (Englewood) and Paul Sachs (Steamboat Springs). They are provided as a service by the CBA; are not the official language of the Court; and are available only in The Colorado Lawyer and on the CBA website, www.cobar.org (click on “Opinions/Rules/Statutes”). The CBA cannot guarantee their accuracy or completeness. The full opinions, the lists of opinions not selected for official publication, the petitions for rehearing, and the modified opinions are available both on the CBA website and on the Colorado Judicial Branch website, www.courts.state.co.us (click on “Courts/Court of Appeals/Case Announcements”).

April 2016

April 7, 2016

2016 COA 47. No. 12CA0889. People v. Anderson. First Degree Assault—Double Jeopardy—Attempted Extreme Indifference First Degree Murder.

When a police officer pulled over Anderson’s car, Anderson got out of his car and fired multiple bullets at the officer’s patrol car. One bullet hit the officer’s arm, wounding him. As Anderson attempted to reload his gun, the officer shot Anderson twice, ending the incident. The evidence at trial established that Anderson and the officer were the only people on the road. A jury found Anderson guilty of attempted extreme indifference first degree murder; first degree assault, threatening a peace officer with a weapon; first degree assault, serious bodily injury with a deadly weapon; and first degree assault, extreme indifference. The trial court sentenced Anderson to 48 years in the custody of the Department of Corrections for the attempted extreme indifference murder conviction, and to a concurrent sentence of 30 years on the first degree assault (extreme indifference) conviction. It also imposed consecutive sentences of 30 years on the two remaining first degree assault convictions, for a total of 108 years.

On appeal, Anderson contended that the evidence was insufficient to convict him of attempted extreme indifference murder. Even if defendant meant only to effect his own suicide by provoking the officer to shoot him, Anderson’s knowing and voluntary acts of firing numerous gunshots at the officer permit his conviction for attempted extreme indifference murder. However, when a defendant’s conduct does not endanger more than one person, as here, the evidence is insufficient to sustain a conviction for attempted extreme indifference first degree murder.

Anderson next contended that he should receive a single first degree assault conviction and sentence because his three sentences for first degree assault violate double jeopardy. CRS § 18-3-202(1) establishes a single offense of first degree assault with alternative means of commission. Here, because there was one victim and one act, Anderson may be convicted and sentenced for first degree assault under CRS § 18-3-202(1) only once.

The judgment and sentence were affirmed in part and vacated in part, and the case was remanded.


2016 COA 48. No. 13CA0295. People v. Williams. CRE 404(b)—Common Plan—Modus Operandi—Other Acts Evidence—Identity.

Defendant was charged with distribution of cocaine after a police informant purchased rock cocaine from him. Before trial, the prosecution filed a CRE 404(b) motion requesting the court’s permission to present evidence of a drug deal defendant was involved in that occurred about three months before the events in this case. The court granted the motion, and thereafter, a jury convicted defendant of distributing cocaine.

On appeal, defendant contended that the trial court erred in admitting evidence of the prior drug deal to show that he had a distinctive modus operandi or that the two drug deals were part of a common plan. In cases that do not involve sexual assault or domestic violence, uncharged misconduct evidence offered to prove modus operandi is only admissible to prove that the defendant was the person who committed the crime. Here, defendant did not deny that he was the person with whom the informant met, so his identity was not at issue and was not a material fact. The uncharged misconduct of the prior drug deal was not relevant independent of the impermissible inference, prohibited by CRE 404(b), that defendant had bad character. Therefore, the trial court should not have admitted evidence of the prior drug deal. Furthermore, there was no evidence that the two drug deals were part of a common plan. Because this error was not harmless, the judgment of conviction was reversed and the case was remanded to the trial court for a new trial.


2016 COA 49. No. 14CA0231. In re the Estate of Sandstead. Surcharge—Non-Probate Funds—Fiduciary—In Terrorem Clause—Attorney Fees.

Vicki Sandstead (Sandstead) and Shauna Sandstead Corona (Corona) disagreed about matters relating to their deceased parents’ (William and Auriel Sandstead) former property. Corona filed this action, and the court thereafter entered orders regarding the parents’ wills and revocable trust.

On appeal, Sandstead contended that the district court erred by surcharging her for actions related to the farm sales proceeds, which were placed in joint bank accounts before Auriel’s death, because that money was not estate property. The Court of Appeals agreed. By law, the farm sale proceeds were never estate funds. Therefore, the court could not surcharge Sandstead for her expenditure of those funds.

Sandstead also contended that the district court erred by surcharging her for actions she took before the court appointed her personal representative (PR) of the estate. The district court ruled it could surcharge Sandstead because she acted as a fiduciary as both her mother’s agent under a durable power of attorney and as a trustee of an implied trust regarding money in joint bank accounts. The Court found there was no evidence Sandstead acted pursuant to a power of attorney regarding farm sale proceeds and there was no basis in the record for imposing or finding an implied trust regarding the farm sale proceeds. Before her appointment as PR, Sandstead was not a fiduciary of the estate. Thus, surcharging her for the estate’s benefit for acts prior to her appointment (and that related to non-estate funds) was not allowed by CRS § 15-10-504. Therefore, the district court erred by surcharging her for actions she took before she was appointed as PR.

Corona argued that the district court erred in enforcing the in terrorem clause to preclude her from benefiting under Auriel’s 2000 will. Because Corona did not have probable cause to challenge the validity of the will, the district court did not err in enforcing the in terrorem clause.

The order awarding Corona attorney fees and costs under CRS § 15-10-504(2)(a) was reversed, and the case was remanded for recalculation of surcharges based on Sandstead’s actions relating to estate property only while she served as PR, and to reconsider the award of attorney fees.


2016 COA 50. No. 14CA1337. People v. Yoder. Mandatory Protection Order—Conditions—CRS § 18-1-1001.

Defendant was charged in three cases with various drug, driving, and other crimes. In each case, the district court issued a Mandatory Protection Order (MPO), which prohibited defendant from (1) engaging in harassing or similar behavior or tampering with any witness to or victim of the acts charged; (2) using certain drugs; and (3) driving without a valid driver’s license. Defendant ultimately pleaded guilty to some of the charges, and the court continued the conditions of the MPOs until defendant completed his sentences.

On appeal, defendant contended that the MPOs are invalid generally because the cases did not involve any victims or witnesses who needed protection. At the sentencing hearing, defense counsel specifically stated that he was not objecting to the “standard protection order[s],” but was only objecting to the specific conditions re­garding marijuana and driving. Therefore, this argument was waived.

Defendant also contended that the district court lacked the statutory authority to impose the conditions in the MPOs prohibiting defendant from possessing or using drugs and driving without a valid driver’s license. CRS § 18-1-1001(3) provides broad authority to modify an MPO and applies generally to every MPO issued in a Title 18 case. Thus, the drug and driving conditions in the MPOs at issue did not violate CRS § 18-1-1001.

The sentences were affirmed.


2016 COA 51. No. 14CA2073. Campaign Integrity Watchdog v. Coloradans for a Better Future. Campaign—Contributions—Expenditures—Reporting.

This is the fourth in a series of complaints brought by claimant, Campaign Integrity Watchdog (CIW), or its principal officer, Matthew Arnold, against Coloradans for a Better Future (CBF), a political organization under CRS § 1-45-103(14.5), to challenge CBF’s alleged failure to report contributions and spending. Specifically, CIW challenged CBF’s spending on legal fees in 2012 and 2013, as well as donated legal services in 2013 and 2014. The administrative law judge (ALJ) found in favor of CBF.

On appeal, CIW argued that the ALJ erred in concluding that CBF did not need to report certain legal services as spending. The Court of Appeals disagreed. The money that CBF spent on legal services in 2012 or 2013 either for defending previous campaign finance complaints or for its attorney fees fell outside the category of expenditures defined by the Fair Campaign Practices Act. Therefore, it did not constitute reportable spending.

CIW also argued that the ALJ erred in concluding that CBF only needed to report contributions that were for the purpose of promoting a candidate’s nomination or election. The Court agreed. CBF received “in-kind” contribution of legal services. It is undisputed that the legal services at issue were either a gift of services for which less than equivalent value was received (if the services were billed but not paid) or they were pro bono services. Therefore, CBF received a contribution that it was required to report.

The order was affirmed in part and reversed in part, and the case was remanded.


2016 COA 52. No. 14CA2328. City of Aurora v. 1405 Hotel, LLC. Immunity from Suit Under the First Amendment—Denial of Discovery—Private versus Public Dispute—“Sham” Claims—Attorney Fees and Costs.

Eleven hotels (collectively, Hotels) petitioned the Colorado Economic Development Commission (CEDC), requesting that CEDC require the City of Aurora to submit a new application for an $81 million tax subsidy after the initial company that had been awarded the subsidy assigned its interest to RIDA Development Corporation (RIDA). The Attorney General (AG) denied the petition on behalf of the CEDC. The Hotels filed an action in the Denver District Court (Denver lawsuit). The district court and a division of the Court of Appeals affirmed the AG’s denial of the Hotels’ petition. However, alleging conspiracy to interfere with the financing and development of the project, plaintiffs, Aurora, the Aurora Urban Renewal Authority, and RIDA (collectively, Aurora parties), sued the Hotels. The district court found that the Hotels’ complaint in the Denver lawsuit was immunized under the First Amendment, based on Protect Our Mountain Environment, Inc. v. Dist. Ct., 677 P.2d 1361 (Colo. 1984) (POME), and dismissed the Aurora parties’ complaint. The Aurora parties appealed and the Hotels cross-appealed.

The Aurora parties first argued it was an abuse of discretion not to allow discovery and a hearing before granting the Hotels’ motion to dismiss. The Court agreed with the district court that because the Aurora parties were unable to articulate any need for discovery on the first, objective prong of the POME test—whether the Hotels’ claims had a reasonable basis in law or fact—they were not entitled to discovery before the court ruled on the Hotels’ motion.

The Aurora parties then contended that POME did not apply because this was a purely private dispute. The Court disagreed. The Hotels did not sue any private party, and the dispute arose from a petition to a state agency for judicial review of state agency action regarding an award of millions of dollars in taxpayer subsidies to a city to develop a project of “major public importance.”

Finally, the Aurora parties argued that three of the Hotels’ claims in the Denver lawsuit lacked reasonable factual support or a cognizable basis in law and were “sham” claims. The Court disagreed. It also agreed with the Hotels that the one claim the district court found to be a “sham” was in fact not a sham because it had reasonable factual support and a cognizable basis in law.

The Hotels contended that the court erred in concluding their third claim was a sham and that the CRCP 12(b)(5) dismissal of RIDA’s claims should be affirmed. The Court concluded their third claim was not a sham, and because the Court affirmed the dismissal of the Aurora parties’ complaint, it did not reach the second argument.

The judgment was affirmed, and the Court awarded the Hotels attorney fees and costs.


2016 COA 53. No. 14CA2494. Lopez v. Trujillo. Dog Owner Liability—Duty of Care—Premises Liability Act Definition of Land­owner.

Plaintiffs, N.M. and his parent and legal guardian, Lopez, appealed from an order dismissing their complaint against defendant Trujillo.

Eight-year-old N.M. was walking on a sidewalk with another boy. As he passed defendant’s home, two large, loudly barking pit bulls rushed at the boys, unprovoked. The dogs jumped up and rattled a four-foot high chain-link fence. N.M. was allegedly so frightened that he darted from the sidewalk into the street and was struck by a service van, causing him serious injuries. Plaintiffs sued and settled with the driver and owner of the van.

On appeal, plaintiffs argued the district court erred in concluding as a matter of law that defendant owed no duty to N.M and was not subject to liability as a “landowner” under the Premises Liability Act (PLA).

Deciding an issue of first impression, the Court of Appeals considered whether a dog owner owes a duty to exercise reasonable care to an injured party when the injured party was not directly injured by the dogs or on the dog owner’s property and the dogs remained confined and never left the landowner’s property. The Court held there was no such duty.

The Court also agreed with the district court that public sidewalks adjacent to a landowner’s property are not property of the land­owner under the PLA.

The judgment was affirmed.


2016 COA 54. No. 15CA0034. Friends of the Black Forest Preservation Plan, Inc. v. Board of County Commissioners of El Paso County. CRCP 106(a)(4)—Special Use Permit Appeal—Binding Nature of Master Plans.

Under CRCP 106(a)(4), plaintiffs, Friends of Black Forest Preservation Plan, Inc. and several residents of the Black Forest area, appealed the district court’s judgment affirming the decision of defendant Board of County Commissioners of El Paso County (Board) approving the special use permit application of defendant Black Forest Mission, LLC (BFM) to construct a greenhouse operation in the Black Forest Preservation area.

BFM proposed to construct a 1.19-acre greenhouse on a 4.87-acre lot it owned in an area governed by the Black Forest Preservation Plan (BFPP), which is contained within El Paso County’s overall master plan. Greenhouses are allowed if less than one acre in size, but a special use permit is required for larger greenhouses.

The Planning Commission recommended by a 6–2 vote that the Board deny BFM’s application for a special use permit because of its inconsistency with both El Paso County’s Policy Plan and the BFPP. At the first hearing before the Board, BFM was granted a continuance to amend its application to attempt to ameliorate various concerns of the Planning Commission and residents. At the next hearing, BFM presented a revised plan proposing three smaller greenhouses that collectively would be larger and would be built on two parcels instead of one. BFM also modified the location to address concerns about light pollution, view obstruction, and traffic congestion. The Board approved BFM’s amended special use application by a vote of 3–2.

Plaintiffs filed this action, arguing the Board misapplied governing law and abused its discretion because of its belief, as relayed by a county attorney, that the county’s master plan was merely advisory. The district court affirmed the Board’s decision, agreeing that the county’s master plan was advisory and there was competent evidence in the record supporting the Board’s decision to approve BFM’s special use permit application. Plaintiffs appealed.

The Court of Appeals noted that CRS § 30-28-106 provides that master plans may be made binding by formal inclusion in county land use regulations. The Court undertook an extensive analysis of El Paso County’s land use regulation scheme and re­jected plaintiffs’ argument that the Board’s approval was based on an erroneous legal standard, concluding there was a reasonable basis for the Board’s interpretation of its own regulatory framework. It held that the master plan was advisory and the Board has discretion in deciding how to apply the master plan in its decisions on special use applications.

Plaintiffs also argued it was error for the district court to find competent evidence in the record to support the Board’s decision. The Court disagreed.

The judgment was affirmed.


2016 COA 55. No. 15CA0283. Khelik v. City and County of Denver. CRCP 106—Reasonable Interpretation of Rules—City and County of Denver Career Service Board.

Plaintiff Khelik appealed from the district court’s judgment affirming an order of the City and County of Denver’s Career Service Board (Board) relating to disciplinary proceedings against him by the Denver Sheriff Department (DSD). The sole issue on appeal was whether the Board abused its discretion by misinterpreting a DSD disciplinary rule and concluding that a charge of conduct un­becoming does not require the DSD to prove actual harm to the City or the DSD. Khelik was a sergeant in the DSD. He was given a disciplinary notice suspending him without pay for inappropriate in­teractions with a female officer under his command and retaliating against her for stating her intention to file a sexual harassment complaint. Khelik appealed his suspension to a hearing officer in the Career Service Authority. The hearing officer concluded that because the DSD had not made a showing of actual harm, Khelik had not violated DSD Rule 300.11.16 (the retaliation claim was also denied and that was not appealed). The DSD petitioned for re­view with the Board, and the Board vacated the hearing officer’s determination, concluding there was no requirement of a showing of actual harm to the City or the DSD to find a violation of the rule concerning conduct unbecoming. The district court affirmed. ­Khelik appealed under CRCP 106.

The Court of Appeals concluded that the Board did not abuse its discretion. In interpreting DSD Rule 300.11.16, the Board’s reasoning was consistent with principles of statutory interpretation and reflects the plain language of the rule, the drafters’ intent, and the policy considerations behind the rule.

The judgment was affirmed.


2016 COA 56. No. 15CA0554. Campaign Integrity Watchdog v. Coloradans for a Better Future. Reporting Contributions and Spend­ing—Fair Campaign Practices Act.

In 2012, Arnold lost the Republican primary election for University of Colorado Regent to Davidson. During the run-up to the election, Coloradans for a Better Future (CBF) purchased a radio advertisement supporting Davidson and other radio advertisements un­favorable to Arnold. After the election, Arnold, and later Campaign Integrity Watchdog (CIW) with Arnold as its principal officer, filed a series of complaints with the Colorado Secretary of State (Secretary) alleging violations of Colorado’s Fair Campaign Practices Act (FCPA). This is the third such complaint.

Specifically, CIW challenged CBF’s failure to report funds donated to CBF to pay Arnold’s court costs from an earlier case, arguing those funds were a contribution and spending and were incorrectly reported in CBF’s initial January 2014 contributions and ex­penditures report. The administrative law judge (ALJ) dismissed the complaint. The ALJ found that on January 22, 2014, CBF filed a contribution and expenditures report with the Secretary. Its report wasn’t due until May 5, but it intended to terminate its activities as a political organization and thus filed early. On the same day, CBF’s legal counsel sent an email to the Secretary seeking to amend the re­port to show that Colorado Justice Alliance (CJA) contributed $200.20 to pay Arnold’s court costs. The Secretary’s electronic re­porting system didn’t allow the change to be made by CBF, and the Secretary’s staff couldn’t change the report either. CIW filed its complaint on March 3, 2014 and CBF’s report was publicly amended on March 6, 2014. The ALJ concluded that CBF had already reported the CJA contribution to the Secretary when CIW filed its complaint and that the complaint was premature because the report was not due until May 2014. The ALJ further concluded that the payment of Arnold’s court costs did not meet the FCPA definition of spending and did not have to be reported as such.

On appeal, CIW contended that the $200.20 CJA donated to help CBF satisfy its obligation to pay Arnold’s court costs was a contribution that was incorrectly reported on the initial report. Specifically, CIW argued that the ALJ (1) invented findings of fact, (2) misrepresented facts regarding CBF’s request to amend its re­port, and (3) erred in concluding the complaint was premature. As to the first argument, CIW failed to cite specific findings or record support; as to the second argument, the allegation concerned a question of law rather than fact; and as to the third argument, the Court of Appeals concluded the report was corrected on January 22, when CBF notified the Secretary of its mistake. CIW also argued that CBF violated the FCPA because it listed the payee of the $200.20 as the Denver District Court rather than Arnold; the Court found this too insignificant to amount to a violation of the reporting law. Thus, the Court concluded that the ALJ did not err when he concluded CBF correctly reported the $200.20.

CIW also argued that the $200.20 CBF paid to Arnold constituted spending and should have been reported. The Court found the funds were not “expended influencing or attempting to influence the selection, nomination, election, or appointment of any in­dividual to any state or local public office in the state,” and thus concluded they were not reportable spending.

CIW’s request for costs and fees was denied. CBF’s request for attorney fees was denied, but its request for costs was granted.

The judgment was affirmed.


April 21, 2016

2016 COA 57. No. 11CA2476. People v. Sandoval. Juvenile—Direct Filing—Subject Matter Jurisdiction—Crime of Violence.

Defendant was 16 years old when, at a party, he brought the victim a drink mixed with a crushed pill, which she drank. Afterward, the victim appeared to be dizzy, stumbled, and had difficulty talking. Then defendant, along with two other male teenagers, sexually assaulted the victim. The prosecution directly filed two charges against defendant: (1) sexual assault by causing submission of the victim through the application of physical force and (2) sexual assault of the victim while he knew she was incapable of appraising the nature of her conduct. The prosecution later dismissed the first charge, and a jury found defendant guilty of the second charge. The district court sentenced defendant to eight years of sex offender specific intensive probation and 90 days in jail.

On appeal, defendant contended that the district court lacked subject matter jurisdiction to sentence him because neither offense charged in the complaint was a crime of violence under CRS 18-1.3-406 and thus did not qualify for direct filing in the district court. Because neither count was a crime of violence under CRS 18-1.3-406, the charges were not eligible for direct filing in the district court. The Court of Appeals held that (1) the juvenile court had exclusive jurisdiction over the charge on which defendant was tried, convicted, and sentenced in the district court; (2) the district court lacked subject matter jurisdiction; and (3) therefore, the judgment was a nullity and required dismissal.

The judgment and sentence were vacated and the case was re­manded to the district court for dismissal.


2016 COA 58. No. 13CA1922. People v. Ortiz. Vehicular Eluding—Victim—Restitution—Evidence—Hearsay.

After a deputy sheriff stopped defendant’s vehicle to investigate a re­port of shots fired by a person driving a vehicle like defendant’s, defendant sped away. The officer gave chase, bumping into defendant’s car several times before defendant stopped. The People charged defendant with a number of crimes. Defendant and the People reached a plea agreement under which defendant agreed to plead guilty to one count of aggravated driving after revocation prohibited (reckless driving) and one count of violation of a protection order and the People agreed to drop the other charges. The district court accepted the agreement and sentenced defendant. On request of the People, the court ordered restitution for the damages to the patrol car.

On appeal, defendant contended that because he did not plead guilty to an offense that specifically identified the state patrol as a victim, the state patrol was not a victim within the meaning of the restitution statutes. However, the state patrol was a victim of vehicular eluding, which was included among the charges against defendant. Therefore, it was a victim for purposes of the restitution statutes, even though defendant pleaded guilty to other charges. Accordingly, the district court did not err in allowing the state patrol to seek restitution.

Defendant also contended that the evidence was insufficient to support the restitution award because it was entirely hearsay and basing the award on hearsay violated his right to due process. The prosecution is not limited by the rules of evidence in proving an amount of restitution, and an award of restitution may be based solely on a victim’s impact statement, which is hearsay. Considered as a whole, the evidence sufficiently showed the cost of the damage and that defendant caused it. In addition, defendant’s counsel conducted thorough cross-examination about the damage to the patrol car and defendant chose not to rebut the evidence; therefore, there is no due process violation.

The order was affirmed.

2016 COA 59. No. 14CA0012. People v. Douglas. Collision—Injuries—Animation—Simulation—Evidence—Restitution.

While driving his car, defendant looked down for a moment and struck a bicyclist with his vehicle, causing her injuries. Defendant drove away, claiming he had not seen the bicyclist. A jury convicted de­fendant of leaving the scene of an accident, failure to report an accident, and careless driving.

Defendant appealed the judgment and restitution order, contending that the trial court should not have allowed the prosecution to show the jury three short video depictions of an automobile–bicycle collision. He asserted that the videos were simulations—which are scientific evidence offered as substantive proof and must meet more rigorous foundational requirements for admission than animations, which are demonstrative evidence—and that the prosecution did not lay an adequate foundation to support the court’s decision to admit them. Defendant asserted alternatively that if the videos were animations, they were inadmissible because they were an unfair and inaccurate depiction. The Court of Appeals de­cided the videos were animations. The videos were prepared by a state trooper, who was an accident reconstruction specialist, to represent the trooper’s opinion about how the collision had occurred. The videos were substantially similar to the collision they depicted. The trial court did not abuse its discretion when it decided the videos were animations and admitted them into evidence as demonstrative exhibits.

Defendant also contended that the trial court abused its discretion when it ordered him to pay restitution to the insurer. The restitution amount only included the bicyclist’s lost wages, the replacement cost of her bicycle and some equipment that was damaged by the collision, and her medical expenses. The amount did not include reimbursement for pain and suffering. Therefore, the court did not abuse its discretion.

The judgment and order were affirmed.


2016 COA 60. No. 14CA1559. Calvert v. Mayberry. Disciplinary Proceeding—Oral Contract—Colo. RPC 1.8(a)—Issue Preclusion—Void Agreement—Equitable Lien—Unclean Hands.

In a question of first impression, the Court of Appeals decided that an attorney who enters into a contract with a client that violates Colo. RPC 1.8(a) cannot later enforce the contract against the client.

The Colorado Supreme Court disbarred the attorney after a hearing board determined he had committed ethical violations, in­cluding some against the former client in this case. Specifically, the hearing board found that the attorney had loaned the former client over $100,000 and secured his interest in the loan funds by recording a false deed of trust in the chain of title on her house. The hearing board also found that the attorney had not complied with Colo. RPC 1.8(a) when he made the loans to the former client. The attorney then filed this case to recoup money he had loaned to the former client, claiming that he had an oral agreement with the client for repayment of the loans, and alternatively asserting that the trial court should impose an equitable lien on the former client’s house. The trial court granted summary judgment for the former client and her daughter (to whom she had quitclaimed her interest in the house), finding that because the oral contract between the former client and the attorney violated Colo. RPC 1.8(a), the attorney was ethically prohibited from enforcing that agreement.

The attorney appealed. On appeal, the former client contended that the doctrine of issue preclusion barred the attorney from relitigating factual issues that were litigated during the disciplinary proceeding. The Court agreed; therefore, the hearing board’s factual findings bind the attorney in this case, including its finding that the attorney violated Rule 1.8(a) when he entered into the oral contract with the former client, and the oral contract between the attorney and the former client is void and unenforceable. The attorney contended that the trial court erred in applying the doctrine of unclean hands to bar his request for an equitable lien. Based on the attorney’s misconduct, the Court disagreed. The attorney also asserted a fraud claim against the former client’s daughter, but his allegations did not support this claim, and it failed as a matter of law. The district court properly entered summary judgment.

The judgment was affirmed and the case was remanded to the trial court to determine whether fees should be awarded to the former client and her daughter.


2016 COA 61. Nos. 14CA2099 & 14CA2463. Landmark Towers Association, Inc. v. UMB Bank. Real Estate—Special District—Property Taxes—Time Bar—Waiver—Bill of Costs—Prevailing Party—Taxpayer’s Bill of Rights—Notice.

A real estate developer created a special district, the Marin Metro­politan District (District), as a vehicle for financing the infrastructure of a to-be-developed residential community, the European Village. The District issued bonds to finance the development, which were to be paid for by property taxes imposed on landowners within the District. A group of condominium owners who did not live in European Village learned that their properties had been included in the District under suspicious circumstances. The condominium owners received no benefit from the European Village development, and they had not been notified of and did not vote in the elections to create the District and approve the bonds and taxes. Acting through their homeowners association, plaintiff Landmark Towers Association, Inc. (Landmark), they brought two actions, one to invalidate the creation of the District and the other—this case—to invalidate the approval of the bonds and taxes and to re­cover taxes they had paid to the District. Following a bench trial, the district court granted Landmark part of the relief it requested, ordering partial refund of taxes paid and enjoining the District from continuing to collect taxes from the Landmark condominium owners.

On appeal, defendants, UMB Bank (UMB), Colorado Bondshares (Bondshares), and the District contended that all of Landmark’s challenges to the validity of the taxes are barred by the 30-day time limit in CRS § 11-57-212. However, defendants waived this issue by not raising it at trial.

Bondshares and UMB contended that the district court erred in denying their bill of costs because they prevailed on Landmark’s fraudulent transfer and unjust enrichment claims against them. While no specific claims were asserted against Bondshares and UMB at trial, they were aligned with the District’s position and had not prevailed in the overall context of the litigation. The district court did not abuse its discretion in denying this claim.

Landmark contended that the district court erred in ruling that the District’s Taxpayer’s Bill of Rights (TABOR) election was valid. The Court of Appeals determined that the organizers who voted in the election were not eligible electors because the organizers’ contracts for options to purchase parcels were sham agreements. Therefore, the organizers illegally participated in the District’s TABOR election and their votes are void. It follows that the TABOR election was invalid. The Court also held that those under contract to purchase units in the Landmark Towers were eligible electors in the TABOR election who did not receive constitutionally required notice. Therefore, the district court erred; the TABOR election it­self was illegal and the District’s taxes to pay the bonds were illegally levied. The District must refund all taxes paid illegally with simple interest, and the Landmark buyers are entitled to an order en­­joining the District from levying any further taxes without proper voter approval.

The judgment was affirmed in part and reversed in part, and the case was remanded.


2016 COA 62. No. 14CA2396. People v. Valadez. Consecutive Sentencing—Department of Corrections—Misdemeanor—County Jail.

While serving a prison sentence in the custody of the Department of Corrections (DOC), defendant committed a misdemeanor assault. The district court imposed a consecutive county jail sentence on the misdemeanor and ordered defendant to serve the re­mainder of his prison sentence before his jail sentence. Defendant subsequently filed a motion to amend the mittimus to reflect time served on the jail sentence so the detainer would be removed from his prison sentence. The court denied the motion.

On appeal, defendant argued that the district court erred by not ordering him to serve his jail sentence first. This pending county jail sentence created a detainer on defendant’s prison sentence that affected his parole eligibility date and his eligibility for transitional placements in the community. When a district court determines that a concurrent sentence is not warranted for a misdemeanor committed by a prisoner in a state prison facility, as here, the court must toll the prison sentence, order that the county jail sentence for the misdemeanor be served before the remainder of the prison sentence, and send a mittimus to the DOC reflecting its sentence. After fully serving the jail sentence, the prisoner must then be transferred back to the custody of the DOC to serve the remainder of his prison sentence.

The order was reversed and the case was remanded for resentencing.


2016 COA 63. No. 15CA0161. People v. August. Double Jeopardy—Prosecution Intentionally Seeking a Mistrial.

Defendant was tried twice on charges of kidnapping and sexual assault of his former wife. The first trial was declared a mistrial and the charges were dismissed on federal double jeopardy grounds based on a finding that the prosecution had willfully violated a court order. On appeal, a division of the Court of Appeals concluded that the reprosecution would only be barred if the prosecutor had acted with the intent to provoke a mistrial, and the case was remanded with directions to make findings on this issue. On remand, the trial court found that the prosecutor had not intended to provoke defendant into moving for a mistrial, denied defendant’s motion to dismiss the charges, and held a second trial.

At the second trial, the defense objected to the prosecution’s closing statement referencing a prior assault and remark that “history re­peats itself” as an impermissible reference to propensity. The court agreed with the defense, declared a mistrial, and heard argument as to whether the charges should be dismissed under the double jeopardy provisions of the U.S. and Colorado constitutions. The trial court dismissed the charges on double jeopardy grounds, finding that the prosecutor had willfully goaded the defense into asking for a mistrial in order to try the case a third time and benefit from the ex­perience of the second trial’s weaknesses.

On appeal, the People argued that the trial court erred. The Court agreed, finding that the state and federal standard on this issue is the same: a retrial is barred only if prosecutorial misconduct giving rise to the mistrial was intended to provoke the defense into moving for a mistrial. Double jeopardy bars retrial in the mistrial context only where the prosecutor’s intent is to avoid a jury verdict. In evaluating the prosecutor’s conduct, the trial court used an im­proper legal standard and may not have considered the totality of the circumstances surrounding the prosecutor’s conduct.

The order of dismissal was vacated and the case was remanded to the trial court for reconsideration of its ruling and further findings of fact consistent with the Court’s opinion.


2016 COA 64. No. 15CA0288. Colorado Insurance Guaranty Ass’n v. Sunstate Equipment Co., LLC. Recoupment—Insolvent Insurer—High Net Worth—First Party Insured—Equal Protection—Procedural Due Process—Special Legislation—Summary Judgment—Attorney Fees.

This was a recoupment action under CRS § 10-4-511(4)(a)(I) (net worth provision) in which the trial court entered summary judgment in favor of plaintiff Colorado Insurance Guaranty Association (CIGA) and against defendant Sunstate Equipment Company, LLC (Sunstate) for workers’ compensation benefits that CIGA paid to a Sunstate employee. Sunstate had paid the benefits after its workers’ compensation insurer became insolvent and was liquidated. The court allowed Sunstate an offset based on liquidation proceeds paid to CIGA and refused to award CIGA its attorney fees incurred in connection with the employee’s claim.

Sunstate appealed on four grounds: (1) the net worth provision is un­constitutional; (2) the immunity created by CRS § 10-4-517 (immunity provision) is unconstitutional special legislation, and the trial court erred in holding that it bars Sunstate from raising affirmative defenses based on CIGA’s alleged mishandling of the em­ployee’s claim; (3) it was error to decline to require CIGA to show that it had reviewed the applicable insurance policy to determine the “covered benefits” to which the employee was entitled; and (4) the trial court miscalculated the offset. On cross-appeal, CIGA asserted that the trial court erred in allowing Sunstate any offset for the liquidation proceeds and refusing to award CIGA its attorney fees.

On the constitutional issues, the Court of Appeals looked at opinions from other states that have net worth statutes similar to Colorado’s and held that there was no violation of equal protection or procedural due process.

On the immunity provision, the Court determined that providing CIGA with immunity is rationally and reasonably related to a legitimate government purpose and concluded Sunstate did not show beyond a reasonable doubt how the immunity provision violates the constitutional ban on special legislation. The Court also concluded that under the immunity provision, the court properly barred Sunstate from raising its affirmative defenses.

The argument that CIGA failed to prove covered benefits by reference to the insurance policy was without merit. But while CIGA was entitled to recover for covered claims, the trial court erred in concluding that CIGA was immune from challenges to whether payments were for covered claims, and it was error to simply accept the spreadsheet provided as a basis for entering summary judgment on the amount. This issue was therefore remanded for further proceedings.

The Court held as a matter of law that Sunstate was not entitled to an offset. Under the net worth provision, CIGA had the right to re­cover from Sunstate “the amount of any covered claim.” Sunstate argued that allowing CIGA to recover the full amount of the claimant’s claims without accounting for the early access distributions (EADs) in the bankrupt insurer’s bankruptcy would result in a double recovery for CIGA. But California law, which controlled the liquidation of the bankrupt insurer, does not allow for such a double recovery; to the extent that CIGA recovered its payments on the claim from Sunstate, it would have to return any EADs paid to the bankruptcy estate.

Finally, the Court rejected CIGA’s assertion that the attorney fees it incurred in defending and handling the claim were part of a “covered claim” and therefore were recoverable from Sunstate. The Court concluded that the plain language of the Colorado Insurance Guaranty Association Act precludes including such attorney fees in a covered claim.

The judgment was affirmed in part and reversed in part, and the case was remanded.


2016 COA 65. No. 15CA1210. Amerigas Propane and Indemnity Insurance Co. of North America v. Industrial Claim Appeals Office. Mutual Mistake—Workers’ Compensation Claim—Reopening Settlement Agreement.

The worker was injured while working for Amerigas Propane and filed a claim for compensation. The worker and the employer (in­cluding the insurer) agreed to settle the claim. The settlement agreement clearly stated that the worker would forever waive his right to request compensation for unknown injuries. It also stipulated that the claim could only be reopened on grounds of fraud or mistake of fact. The worker later moved to reopen the settlement, alleging a mistake of fact in that he had a newly discovered injury that was unknown at the time of the settlement and it was related to the original injury. An administrative law judge (ALJ) reopened the claim. The employer appealed to the Industrial Claim Appeals Office (Panel) and the Panel affirmed. The employer then filed this appeal.

The Court of Appeals examined the language of the settlement agreement, specifically its statement that the worker waived his right to compensation for “unknown injuries” that arose “as a consequence of” or “result[ed]” from the original injury. The Court found the newly discovered injury was clearly and unequivocally covered by this language and therefore the case could not be re­opened.

The Panel’s order was set aside and the case was remanded to the Panel to direct the ALJ to vacate the worker’s benefits award and to deny his motion to reopen the settlement.


2016 COA 66. No. 15CA1347. Archuletta v. Industrial Claim Appeals Office. Workers’ Compensation—Temporary Total Disability Benefits—CRS 8-42-105(3)(c)—CRS § 8-42-103—CRS § 8-42-105(1).

Claimant sustained a work-related injury in February 2014. His physician imposed temporary restrictions and released him to modified duty. On March 5, the attending physician released him to full duty work with no restrictions. On May 21, the attending physician determined claimant had reached maximum medical improvement (MMI) with no impairment restrictions. Employer filed a final admission of liability.

Claimant continued to maintain that he could perform only light duty work because of his injury. He was laid off one week after reaching MMI because, according to him, he was “hurt on the job,” could no longer perform his duties, and was on “light duty.” He re­quested a division-sponsored independent medical examination (DIME) to challenge the MMI finding. The DIME physician concluded he was not at MMI. An administrative law judge (ALJ) then awarded claimant temporary total disability (TTD) benefits, finding that he was laid off because of his industrial injury. On review, the Industrial Claim Appeals Office (Panel) reversed, finding that under CRS § 8-42-105(3)(c), once a claimant has been re­leased to full duty work TTD benefits must cease.

On appeal, claimant argued that CRS § 8-42-105(3)(c) applies only to the termination of benefits and because he didn’t have any benefits when the attending physician released him to work, his case should have been analyzed under CRS §§ 8-42-103 and
-105(1), which apply to the commencement of benefits and do not have a restriction based on release to full duty. The Court of Appeals agreed, holding that CRS § 8-42-105(3)(c) did not apply to claimant’s case because the statute can only terminate benefits that have already commenced and therefore can only be applied prospectively.

The order was set aside and the case was remanded with directions to reinstate the ALJ’s order.


2016 COA 67. No. 15CA1869. Boustred v. Align Corporation Limited. Interlocutory Appeal—CRCP 12(b)(2) Lack of Personal Jurisdiction—Minimum Contacts—Due Process Clause.

Align Corporation Limited (Align) is a Taiwanese company that manufactures and sells remote control helicopters and related parts. Align has no physical corporate presence in the United States, but it engages U.S. distributors to sell its products to retailers, which then sell them to consumers. One of Align’s distributors was defendant Horizon Hobby, Inc. (Horizon).

Boustred purchased a remote control helicopter and a main rotor holder, manufactured by Align, through Horizon. Boustred alleged the main rotor holder broke during testing and caused him to lose an eye. He filed strict liability and negligence claims against Align and Horizon in Larimer County. After service in Taiwan, Align asked the trial court to quash service and dismiss all claims against it for lack of personal jurisdiction. The trial court found that under Archangel Diamond Corp. v. Lukoil it could assert specific jurisdiction over Align, and denied the motion. This interlocutory appeal followed. Align petitioned the Court of Appeals to address the effect of the U.S. Supreme Court’s plurality opinion in J. McIntyre Machinery, Ltd. v. Nicastro on Colorado’s personal jurisdiction framework under Archangel.

Colorado’s long-arm statute is intended to confer the maximum jurisdiction allowable by the Due Process Clauses of the U.S. and Colorado constitutions. Specific jurisdiction exists when the alleged injuries resulting in litigation arise out of and are related to a defendant’s activities that are significant and purposefully directed at residents of the forum state. If the requisite minimum contacts are established, a court must determine whether its exercise of personal jurisdiction over a defendant is reasonable and comports with notions of fair play and substantial justice. Align argued that merely placing a product into the stream of commerce, without more, is insufficient for a court to assert personal jurisdiction.

The Court cited World-Wide Volkswagon v. Woodson, which held that a “forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the ex­pectation that they will be purchased by consumers in the forum State.” Subsequent Supreme Court plurality decisions have differed on the scope of this theory. The Court concluded that the narrowest grounds articulated in the plurality opinions, those of Justice Breyer in J. McIntyre and Justice Brennan in Asahi Metal Industry Co. v. Superior Court, are controlling and together hold that World-Wide Volkswagon remains the prevailing decision articulating the stream of commerce theory.

Applying that standard, the Court found that Boustred made a sufficient prima facie showing of Colorado’s specific jurisdiction over Align and that asserting such jurisdiction is reasonable and does not offend traditional notions of fair play and substantial justice.

The order was affirmed.

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