Colorado Court of Appeals Opinions


2018 COA 15. Nos. 16CA1521 & 17CA0066. Marso v. Homeowners Realty, Inc.

Respondeat Superior—Agent—Amendment of Answer—Affirmative Defense—Setoff—Settlement—Statutory Prejudgment Interest.

Dilbeck was employed by or associated with Homeowners Realty, Inc., d/b/a/ Coldwell Banker Home Owners Realty, Inc. (Coldwell) and acted as the Marsos’ agent in their purchase of a house. Two years after the purchase, the Marsos discovered that uranium tailings had been used as fill material, creating a potential health hazard. The Marsos filed a complaint against Dilbeck and Coldwell alleging negligence against Dilbeck and respondeat superior liability against Coldwell. Before the scheduled trial date, the Marsos settled with Dilbeck for $150,000, inclusive of interest. The jury was instructed to determine the total amount of damages sustained by the Marsos and was not informed of the amount of the settlement with Dilbeck. The jury returned a verdict of $120,000 against Coldwell. In post-trial proceedings, the trial court set off the settlement payment of $150,000 against the $120,000 jury verdict, resulting in a zero recovery for the Marsos. Because the settlement payment exceeded the jury verdict, the court entered judgment in favor of Coldwell and later entered a cost award against the Marsos of approximately $30,000.

On appeal, the Marsos contended that the court abused its discretion in allowing Coldwell to amend its answer to assert the affirmative defense of setoff over the Marsos’ timeliness objection. Because Coldwell did not obtain the settlement agreement until shortly before trial and the Marsos had no right to rely on the absence of a setoff, the amendment did not result in legal prejudice to the Marsos. Under these circumstances, the court did not abuse its discretion in allowing Coldwell to pursue its setoff defense.

The Marsos next argued that the trial court erred when it set off the settlement payment against the jury verdict. When a party’s liability is based entirely on respondeat superior, a settlement with the agent is setoff against the jury verdict entered against the principal. Therefore, the trial court did not err in this regard.

The Marsos also contended that the trial court erred when it set off the settlement payment before statutory prejudgment interest accrued on the jury verdict. Statutory prejudgment interest accrues on the jury verdict before the setoff. Here, the court must calculate the interest that accrued on the jury’s verdict from the date of the Marsos’ injury to the date of Dilbeck’s settlement payment and add it to the jury verdict

The judgment and cost award in Coldwell’s favor was reversed, and the case was remanded for further proceedings.


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2015 COA 12. No. 15CA0164. Denver Health and Hospital Authority v. City of Arvada ex rel. Arvada Police Department.

Domestic Disturbance—Custody—Medical Treatment—CRS § 16-3-401(2)—Unconstitutionally Vague—Colorado Governmental Immunity Act (CGIA).

Arvada police officers were dispatched to a residence in response to a domestic disturbance call. The victim told the officers that her husband, Terry Ross, had hit her and waved a gun back and forth during the alleged domestic violence. After the officers allowed Ross to use the restroom, he ran into the bedroom and attempted to commit suicide with a gun. The officers transported him to a hospital owned by plaintiff Denver Health and Hospital Authority (Denver Health) for medical treatment. Denver Health later filed a complaint against the City of Arvada (Arvada) for payment of Ross’s medical expenses incurred at the hospital. The trial court entered summary judgment in favor of Denver Health pursuant to CRS § 16-3-401(2).

On appeal, Arvada contended that CRS § 16-3-401(2), which provides that persons arrested or in custody shall receive medical treatment if required, is unconstitutionally vague on its face because it does not expressly define the term “in custody” and does not address the point in time at which custody is determined. Because the General Assembly has defined the term “custody” in CRS § 16-1-104(9), which applies to CRS § 16-3-401(2), the statute is not unconstitutionally vague.

Arvada next contended that the district court misinterpreted Poudre Valley Health Care Inc. v. City of Loveland, 85 P.3d 558 (Colo.App. 2003),because it incorrectly found the case to be dispositive of the issues raised in this case. Pursuant to Poudre Valley, the duty of governmental entities to provide food, shelter, and, if necessary, medical treatment extends to all individuals “arrested or in custody,” CRS § 16-3-401(2), and inherent or implicit in this duty is the duty to pay for such expenses. Ross was in custody under CRS §§ 16-3-401(2) and 16-1-104(9) from the time police significantly restrained his freedom to move about the house, and he was unquestionably in custody when he was taken to the hospital and given medical treatment there. Therefore, Colorado law requires Arvada to pay the remaining balance of Ross’s hospital expenses.

Arvada also contended that the district court erred in ruling that Denver Health’s implied contract claim was not barred by the Colorado Governmental Immunity Act (CGIA). The nature of injury and the relief sought by Denver Health are both based solely in contract. Denver Health does not allege any tortious conduct by Arvada, nor does it seek any tort remedies. Therefore, Denver Health’s implied contract claim is not barred by the CGIA. The judgment was affirmed.

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2015 COA 156. No. 13CA1920. People v. Evans.

Department of Corrections—Attempt to Escape—Jurisdiction—Concurrent or Consecutive Sentence—Double Jeopardy.

Defendant was in the custody of the Department of Corrections (DOC) serving a 16-year sentence when he left the Centennial Community Transition Center (CCTC) and reported to work as scheduled; however, he did not return to CCTC after completing his shift. Defendant pleaded guilty to one count of attempt to escape, and the trial court imposed a three-year prison sentence without stating whether it was to be served concurrently or consecutively. The trial court thereafter ordered the sentence to be served consecutively to his original 16-year sentence.

On appeal, defendant contended that the trial court did not have jurisdiction to change the sentence so that the sentence for attempt to escape would be served consecutively. The Court of Appeals held that the initial sentence—which was presumptively concurrent because the court did not order otherwise—was valid. Therefore, the trial court lacked jurisdiction to later impose a consecutive sentence.

Defendant also argued, and the Court agreed, that his right to be free from double jeopardy was violated because his valid sentence was increased after he had begun serving it. The sentence was reversed, and the case was remanded with the direction that the trial court amend the mittimusto provide that defendant’s sentence for attempted escape be served concurrently with his underlying sentence.

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2015 COA 157. No. 14CA0487. People v. Larsen.

Juvenile—Sexual Assault—Juror Poll—Prejudicial News Article—Cross-Examination.

Victims A.H. and K.H. moved to Colorado with their mother S.L. to live with S.L.’s father, defendant. After learning that K.H. was sexually abused previously, defendant put K.H. in therapy. A.H. and K.H. thereafter accused defendant of touching them inappropriately. The jury convicted defendant of both charges involving the sexual assault of A.H., and he was sentenced to eight years to life in prison.

On appeal, defendant asserted that the court erred by declining to poll the jurors to ask whether they were exposed to an allegedly prejudicial news article released midtrial. The prejudicial information contained in the news article was not part of the evidence at trial, and there was a reasonable probability that the jury was exposed to the article. Accordingly, the trial court abused its discretion by not polling the jury and such error was not harmless beyond a reasonable doubt. The judgment of conviction was reversed and the case was remanded for a new trial.

Defendant also argued that the trial court denied his right to confront multiple witnesses by excluding evidence of the Department of Human Services’ attempt to remove the victims from S.L.’s custody. However, because there was record evidence that the Department sought to take custody of S.L.’s children, the court did not abuse its discretion when it limited the cross-examination of witnesses by barring questions about the Department’s attempt to remove the victims from S.L.’s custody.

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2015 COA 158. No. 14CA0811. People v. Parks.

Vehicle—Inventory Search—Suppression of Evidence—State and Federal Constitutions.

Parks was driving a van when officers pulled him over on suspicion of fictitious license plates after observing expired plates on the van. Parks did not have a valid driver’s license or registration. In preparation to impound the van, the officers searched and inventoried the contents of the van. They seized nine plastic baggies of methamphetamine, two pipes, a digital scale, a scoop, a spoon, an empty pill bottle, two wiretap detection devices, and a receipt listing a credit card allegedly belonging to Parks. The evidence gathered from the inventory search was admitted at trial. Parks was convicted of possession with intent to distribute a controlled substance, driving under suspension, failing to provide insurance, displaying fictitious license plates, driving an unregistered vehicle, and six habitual criminal counts.

On appeal, Parks contended that the trial court erred by declining to suppress the evidence gathered from the inventory search of the cooler found in his van. The state and federal constitutions are coextensive in the context of inventory searches. The Colorado Constitution does not prohibit the opening and inspection of a closed container found during a vehicle inventory search if the search was conducted in accordance with a standardized departmental policy and there is no showing that the police acted in bad faith or for the sole purpose of investigation. Here, the trial court found, with record support, that the officer’s opening of the cooler was authorized by a standardized departmental policy and the officer did not act in bad faith or solely as pretext for investigation. Accordingly, the court’s denial of the motions to suppress was affirmed.

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