September 20, 2018
2018 COA 131. No. 15CA0210. People v. Aldridge.
C.O. and L.A. spent about three weeks camping alone with Aldridge, their maternal grandfather. At the time, C.O. was 4 years old and L.A. was 9 years old. Both girls alleged that they had touched Aldridge’s penis during the camping trip and that it got stiff. A jury found Aldridge guilty of two counts of sexual assault on a child by one in a position of trust as part of a pattern of abuse, two counts of sexual assault on a child as part of a pattern of abuse, four counts of sexual assault on a child by one in a position of trust,victim under 15, four counts of sexual assault on a child, and two counts of aggravated incest. The trial court sentenced him to 116 years to life in the custody of the Department of Corrections.
On appeal, Aldridge contended that the trial court erred by excluding him from the courtroom while C.O. and L.A. testified. Before trial, the People moved for C.O. and L.A. to testify by closed-circuit television under CRS § 16-10-402. Over Aldridge’s objection, the trial court granted the motion. Neither the trial court nor the parties indicated that Aldridge, rather than the children, would be removed from the courtroom. At trial, rather than having the witnesses testify from another room, the trial court permitted the children to testify in the courtroom while the judge and defendant watched from the judge’s chambers. The jury could not see or hear defendant during the children’s testimony. Aldridge’s exclusion from the courtroom during the children’s testimony, in the absence of a stipulation, violated CRS § 16-10-402, and this procedure violated defendant’s due process right to be present because he was denied an opportunity to exert a psychological influence on the jury. This error was not harmless beyond a reasonable doubt.
The judgment and sentence were reversed and the case was remanded for a new trial.
2018 COA 137. No. 15CA1912. People v. Koper.
While at a bar, defendant said something to Abram’s sister that offended Abram. Defendant tried to make amends by offering Abram a beer. Abram responded by punching defendant twice in the face. Defendant then drew his firearm, for which he had a concealed carry permit, and aimed it at Abram. After a short standoff, defendant handed the gun to his fiancée and the two left the bar. A jury found defendant guilty of two counts of felony menacing and prohibited possession of a firearm. The first count of felony menacing named the alleged victim as a security guard who had stepped between defendant and Abram after defendant drew his weapon; the second count named the alleged victim as another bar patron who had been sitting near Abram.
On appeal, defendant contended that the trial court erred in rejecting his jury instructions on the affirmative defense of self-defense. Here, defendant raised credible evidence that he acted in self-defense against Abram. Defendant’s intent to defend himself against Abram would, if the jury believed his testimony, allow the intent as to Abram to transfer to the encounter with the alleged victims. Thus, the trial court erred in rejecting defendant’s jury instructions on self-defense as an affirmative defense to the menacing charges. Further, the error was not harmless because while the defense’s theory of the case instruction referred generally to self-defense, the instruction did not require the prosecution to disprove self-defense beyond a reasonable doubt.
Defendant also contended that prosecutorial misconduct required reversal of his conviction for possession of a firearm while intoxicated. Here, the prosecutor asked defendant 44 times whether another witness’s testimony was incorrect, wrong, or untrue, or whether the witness had lied; this went beyond asking non-prejudicial questions designed to highlight discrepancies in the evidence. The error was plain and warranted reversal.
The judgment was reversed and the case was remanded for a new trial on all charges.
2018 COA 138. No. 17CA0130. People in the Interest of A.V.
A.V. was arrested in connection with a series of home and business burglaries. The victim businesses included Animal Attractions Pet Store (Animal Attractions) and the Country Inn Restaurant (Country Inn). Country Inn sustained extensive fire damage in the burglary, and the fire destroyed most of the business. As part of a global case disposition, A.V. pleaded guilty to some counts in exchange for dismissal of other counts, stipulating to a factual basis and agreeing to pay restitution to all victims, including those in the dismissed cases. The juvenile court ordered restitution of $1,000 to Country Inn’s owner for the deductible and $681,600 to Country Inn’s insurer for the repair work. The juvenile court further found that the loss amounts submitted by Animal Attractions and its insurer in the victim impact statements sufficiently established the victims’ losses to order restitution in the amount requested.
On appeal, A.V. contended that no facts exist to show that he caused the Country Inn fire and that the prosecution failed to meet its burden of proving proximate cause for these claimed losses. Here, A.V. waived his challenge to proximate cause by (1) stipulating to a factual basis in the plea agreement and at the providency hearing; (2) stipulating to pay restitution to the victims of the dismissed counts (in this case the arson count) in the plea agreement; (3) agreeing with the prosecutor before the restitution hearing that A.V.’s stipulated factual bases in all cases included a stipulation to causation; and (4) asking the court to order $470,874.47 for losses related to the dismissed arson count.
A.V. next contended that the juvenile court erroneously ordered him to pay the estimated repair costs to Country Inn’s insurer, rather than actual costs incurred to date. Here, the prosecution presented competent evidence of the estimated expenses, which A.V. did not rebut. Therefore, the juvenile court did not err.
A.V. also contended that the invoices submitted with Animal Attractions’ victim impact statement were insufficient to establish restitution and that the prosecution was required to present witness testimony to satisfy its burden. The restitution statute does not require the prosecution to present evidence in the form of testimony. Here, because the documents support the court’s order and A.V. offered no rebuttal evidence, the juvenile court’s order was not an abuse of discretion.
A.V. last contended that the juvenile court was required to make specific reasonableness findings before ordering restitution and that $692,806.20 was not a reasonable amount of restitution to be awarded against an incarcerated juvenile. However, the statute’s plain language mandates that the juvenile court order full restitution for the victims’ losses, and the juvenile court is not required to make specific reasonableness findings before imposing restitution.
The restitution orders were affirmed.
2018 COA 139. No. 17CA0782. People v. Chavez.
In 2004, the police obtained a warrant to search Chavez’s house as part of an investigation and seized evidence they used to charge Chavez in five separate criminal cases, none of which underlie this appeal. In the case underlying this appeal, Chavez pleaded guilty to both sexual assault and kidnapping and was sentenced for those crimes. Three years later, Chavez moved the criminal court for the return of the items seized during the search of his house. The district court denied the motion on the merits.
On appeal, Chavez contended that the district court erred in denying his motion for return of property. The imposition of sentence ends a criminal court’s subject matter jurisdiction, with the sole exception of motions brought under Crim. P. 35. Because a motion for return of property is not authorized by Crim. P. 35, criminal courts do not have jurisdiction over such motions made after sentencing. Thus, the criminal court lacked jurisdiction to address the merits of Chavez’s motion.
The order denying Chavez’s motion was vacated for lack of jurisdiction.
2018 COA 140. No. 17CA0851. Schulte v. Colorado Department of Revenue.
Police responded to a report of a car parked in the middle of a field. When an officer arrived, he found Schulte asleep in the car with the engine running. A deputy sheriff contacted Schulte and had him perform voluntary roadside maneuvers. Schulte did not perform the tests like a sober person, so the deputy asked him to submit to a chemical test under Colorado’s express consent law. Schulte refused. The deputy later arrested him, drove him to jail, turned him over to booking officers, and drove back to the scene. When the deputy returned to the jail, he completed the license revocation paperwork and began to serve Schulte with the notice of revocation. Before he could do so, Schulte asked to take a blood test. The deputy told him that it was too late. Schulte requested a Division of Motor Vehicles hearing to contest his license revocation. The hearing officer revoked his driving privileges, and the district court upheld the revocation.
On appeal, Schulte contended that the hearing officer and the district court erred when they decided, as a matter of law, that his retraction of his refusal was untimely. Colorado’s express consent law requires a driver to cooperate with law enforcement’s request to take a blood or breath test. If a licensee refuses to submit to a test, law enforcement must serve a notice of revocation on him or her and then take possession of the driver’s license. If a licensee does not offer to retract an initial refusal while the officer remains engaged in requesting or directing the completion of the test, the attempted retraction is untimely as a matter of law. Here, substantial evidence supports the hearing officer’s determination that Schulte did not cooperate with the deputy while the deputy was engaged in requesting or directing the test. The retraction of the refusal was untimely as a matter of law.
The order was affirmed.
2018 COA 141. No. 17CA0991. Herrera v. Lerma.
Defendant’s truck hit plaintiff’s car from behind as she slowed for traffic. A week later plaintiff was diagnosed with neck strain. The following year, plaintiff was involved in a second car accident in which she hit a car from behind. She testified that the second accident did not injure her.
A year later, plaintiff sought additional medical treatment for her neck and lower back. She sued defendant for negligence, claiming damages of $38,356.46. She was awarded $1,980.81 by a jury in economic damages and zero on her claims of physical impairment and noneconomic damages.
On appeal, plaintiff argued it was error to instruct the jury to consider whether the second accident worsened any injuries, damages, or losses caused by the first accident because defendant hadn’t presented any evidence supporting such an instruction. Here, neither party presented evidence that plaintiff suffered any injury or aggravation of an existing injury because of the second accident, so the evidence was insufficient to justify instructing the jury about the second accident and the trial court abused its discretion. Further, but for the trial court’s improper instruction, the jury might have reached a different verdict.
Plaintiff also argued that the trial court erred by excluding her expert’s testimony about her 15% permanent whole body impairment rating. Before trial, defendant requested that the court exclude testimony about plaintiff’s impairment rating. While it allowed testimony that plaintiff suffered an impairment, the court excluded testimony about the impairment rating as irrelevant under CRE 401 and prejudicial under CRE 403. The Court of Appeals could not discern any reason that the percentage rating of the impairment would not be relevant, and found reasons why it would be relevant. The Court similarly found no support for the trial court’s belief that such testimony would be unfairly prejudicial, confusing, or misleading. The trial court abused its discretion by excluding the testimony.
Plaintiff finally contended that it was error for the trial court to prevent her counsel from asking prospective jurors during voir dire whether they had an interest in defendant’s insurance carrier. Counsel was entitled to ask the insurance question during voir dire to determine the biases and prejudices of the prospective jurors, so the trial court abused its discretion.
The judgment was reversed and the case was remanded.
2018 COA 142. No. 17CA1111. Digital Landscape Inc. v. Media Kings LLC.
Media Kings LLC (Media) entered into a contract to provide marketing services to Transcendent Marketing, LLC (Transcendent). Media then contracted with Digital Landscape Inc. (Digital) to provide advertising services to Transcendent. The contract between Media and Digital had an arbitration clause providing that any disputes arising under the agreement would be resolved by binding arbitration. Per the contract, Media agreed to pay Digital a portion of its earnings from Transcendent in exchange for Digital’s work on the project. Media failed to pay Digital, and Transcendent proposed that Digital take over the project. Digital’s principal officer agreed, but had one of his other companies take over the work. Thus, Media was effectively cut out of its agreement with Transcendent.
Digital sued Media for breach of contract, and as relevant here, Media filed a counterclaim alleging that Digital had breached the implied covenant of good faith and fair dealing. The district court ordered the parties to arbitrate the dispute. The arbitrator awarded Digital $68,197.41. While discussing the counterclaim, the arbitrator also referred to it as addressing a breach of Digital’s duty of loyalty to Media. The arbitrator decided that Digital still owed a duty of loyalty to Media that it had breached, and she awarded Media damages on the counterclaim. Lastly, finding that there was no prevailing party, she declined to award either party attorney fees. The district court confirmed the order.
On appeal, Digital contended that the arbitrator lacked jurisdiction to consider whether Digital had breached a duty of loyalty to Media because this claim did not “arise under” the arbitration clause. The Court of Appeals analyzed the phrase “arising under” and concluded that it was sufficiently broad to include the duty-of-loyalty counterclaim. Further, the arbitration clause was unrestricted.
Digital further contended that the arbitrator improperly converted the counterclaim alleging breach of implied covenant of good faith and fair dealing to a different one, breach of loyalty, which Media had not raised. It alleged that the ruling on this different claim was unfair and the award to Media was therefore void. The Court found as an initial matter that the arbitrator did not intend to rule on a facially different counterclaim. But even assuming that she had, the different claim was within the issues that the parties had agreed to submit. The arbitrator did not exceed her powers because the substituted counterclaim “arose under” the contract between Digital and Media. Further, the evidence and arguments were encompassed in the breach-of-the-duty-of-good-faith-and-fair-dealing claim. The district court did not err when it confirmed the arbitrator’s award.
Finally, Digital argued that the arbitrator exceeded her authority by refusing to award attorney fees because neither party had prevailed. The Court concluded there was clearly no prevailing party, so the arbitrator did not have to award attorney fees.
The judgment was affirmed.
2018 COA 143. No. 17CA1295. In re Marriage of Durie.
Three years after a decree was entered incorporating a separation agreement dividing the parties’ marital property, wife moved under CRCP 16.2(e)(10) to reallocate proceeds from husband’s post-decree sale of business assets. She alleged that husband had failed to disclose facts that materially impacted the value of the parties’ business assets. In response, husband filed a motion to dismiss wife’s motion. The district court applied the plausibility standard in Warne and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554–56 (2007), and granted husband’s motion to dismiss. Wife moved for attorney fees, but the district court did not rule on her request.
On appeal, wife contended that the district court erred in dismissing her motion. After briefing, but before argument, a division of the Court of Appeals decided In re Marriage of Runge, 415 P.3d 884 (Colo.App. 2018), concluding that Rule 12(b)(5) and the Warne plausibility standard do not apply to a Rule 16.2(e)(10) motion. The Court agreed with Runge and concluded that the district court erred in dismissing wife’s motion under that standard.
The Court also rejected husband’s argument that CRCP 9(b), which requires that pleadings asserting fraud or mistake must allege the circumstances with particularity, applied in this context. Rule 16(e)(10) does not refer to fraud, but to misstatements or omissions. While some claims not denominated as fraud may be subject to the Rule 9(b) pleading requirements, the Rule 9(b) particularity requirement does not apply to Rule 16.2(e)(10) motions.
The parties also disagreed as to whether a movant under Rule 16.2(e)(10) can make allegations based on information and belief. The Court concluded that Rule 8(e)(1) allows allegations based on information and belief in the context of a Rule 16.2(e)(10) motion, and wife properly included allegations based on information and belief in her motion.
However, wife’s allegations here did not enable the district court to conclude that her motion was sufficient on its face. The Court instructed that (1) given Rule 16.2(e)(10)’s lack of applicable standard for determining a motion under the rule, a preponderance of the evidence
standard should apply and the moving party bears the burden of proof; and (2) wife is entitled to undertake discovery in support of her motion.
The Court further concluded that wife is entitled to seek attorney fees under CRS § 14-10-119 on remand, but is not entitled to attorney fees under CRS § 13-17-102. The district court may also award wife appellate attorney fees in its discretion under CRS § 14-10-119.
The order was reversed and the case was remanded.
2018 COA 144. No. 17CA1672. Andres Trucking Co. v. United Fire and Casualty Co.
Andres Trucking Co. (Andres) operated a dump truck that caught fire while it was insured by United Fire and Casualty Co. (United). The parties agreed that the truck was a total loss but disagreed about its value. Ultimately, Andres filed an amended complaint alleging breach of contract and bad faith denial and delay of an insurance claim under CRS §§ 10-3-1115 and -1116 and challenging the enforceability of the contractual appraisal provision. The district court struck the amended complaint on the ground that the insurance policy required an appraisal. Following an appraisal, United paid Andres the truck’s appraised value and moved for entry of judgment under CRCP 12(b)(5), contending that as a matter of law the appraisal process had resolved Andres’s claims. While this motion was pending, Andres moved to amend its complaint. The district court again denied the motion, reasoning that the appraisal process concluded the issues before the court, and entered judgment for United.
On appeal, Andres argued that the district court erred in dismissing its complaint because the appraisal process did not resolve whether United had breached the insurance policy or unreasonably denied or delayed payment of benefits. The Court concluded that the appraisal process did not determine United’s liability for breach of contract or statutory bad faith delay. The district court erred in determining that the appraisal precluded Andres from pursuing these claims.
Andres also raised various challenges to the appraisal process itself. The Court rejected the arguments that (1) the appraisal provisions are unconstitutional; (2) United did not properly invoke the appraisal because it never demanded it; and (3) the appraisal process did not result in a binding loss valuation. The appraisal award is a binding determination of the value of the insured property, and thus Andres may not further litigate that issue. The district court did not err in enforcing the appraisal provision.
The Court also determined that the district court did not err in awarding United attorney fees, but it denied United’s request for appellate attorney fees.
The order approving the appraisal value was affirmed but the judgment was reversed and the case was remanded for reinstatement of the complaint. The order awarding United costs as the prevailing party was vacated but the order awarding United attorney fees for its response to Andres’ motion for clerk’s entry of default was affirmed.
2018 COA 145. No. 17CA2147. Dos Almas LLC v. Industrial Claim Appeals Office.
Dos Almas LLC began operating a restaurant after it acquired nearly all of the assets of WooPig LLC, which had operated a different restaurant at the same location. After the acquisition, Dos Almas applied for an unemployment compensation insurance account and a determination of employer liability by submitting a form along with a copy of the asset purchase agreement to the Department of Labor and Employment (Department).
A deputy ruled that Dos Almas was a successor employer to WooPig for unemployment compensation tax rate liability purposes because it met the requirements of CRS § 8-76-104(1)(a) due to the acquisition. Dos Almas appealed more than eight months after the applicable 21-day time limit. Nevertheless, a hearing officer ruled that good cause was shown for the delay, and following a hearing the officer found that Dos Almas was not a successor entity to WooPig under the statutory criteria largely because it did not retain the employees as part of the asset sale. A panel of the Industrial Claims Appeal Office (the Panel) reversed. The Panel upheld the factual findings, but based on Dos Almas having acquired 90% of WooPig’s physical and intangible assets, ruled that it had acquired substantially all of WooPig’s assets and thereby met the statutory criteria to be considered a successor employer for unemployment compensation tax rate liability purposes.
On appeal, Dos Almas contended that the Panel erred in ruling that it is a successor to WooPig for unemployment tax rate liability purposes. The hearing officer’s factual findings support the conclusion that Dos Almas is a successor employer to WooPig for unemployment compensation tax rate liability purposes under the applicable statutory criteria in CRS § 8-76-104(1)(a). Further, the lack of employee retention in the asset purchase transaction is irrelevant to the successor issues in this case. The Panel did not err.
The order was affirmed.