Defendant was convicted of first degree murder, conspiracy to commit first degree murder, and being an accessory to a crime. Lewis represented defendant at his trial and in the direct appeal. Defendant filed three post-conviction motions thereafter asserting ineffective assistance of counsel, which the postconviction court denied.

            On appeal, defendant argued that the postconviction court erred in finding he had not proven his ineffective assistance of counsel claim. He contended that by representing him at both trial and on appeal, Lewis’s own professional interest conflicted with defendant’s desire to argue on appeal that the trial court erred in denying Lewis’s motions to withdraw. Defendant claimed Lewis was therefore ineffective as a matter of law. There is no per se rule that holds that the same attorney may not represent a defendant at trial and on appeal. The Court of Appeals analyzed defendant’s argument under Strickland v. Washington, 466 U.S. 668 (1984), which requires a defendant to prove that he was prejudiced by his counsel’s deficient performance and to show a reasonable probability that but for counsel’s errors, the result of the proceeding would have been different. Here, the trial court’s findings of fact establish that Lewis’s personal interests had not materially limited his ability to represent defendant on appeal. Therefore, Lewis did not operate under a conflict of interest at that time and defendant failed to establish that Lewis was ineffective.

The order was affirmed.

Police arrested defendant for violating parole in an unrelated case. While incarcerated, defendant was charged with three counts of enticement of a child, three counts of attempted inducement of child prostitution, three counts of attempted sexual assault on a child, three counts of indecent exposure (third or subsequent offense), and habitual criminality. Defendant waived his right to a speedy preliminary hearing twice and proceeded to a preliminary hearing where the court found probable cause and bound the case over for arraignment. The parties agreed to continue the arraignment date. Before the arraignment, defendant filed a pro se petition for speedy disposition under the Uniform Mandatory Disposition of Detainers Act (UMDDA) and the court rescheduled the arraignment to an earlier date. Before the rescheduled arraignment date, defense counsel withdrew defendant’s request for a speedy detainer. The trial court found that the request for speedy disposition had been withdrawn and continued the matter to the original arraignment date. After several continued arraignments made at the defense’s request, defendant entered a not guilty plea. Defendant ultimately pleaded guilty to several counts in exchange for dismissal of the remaining counts and a stipulated sentence. The court accepted defendant’s guilty pleas and sentenced him accordingly.

Around the time he pleaded guilty, defendant filed a pro se motion to dismiss his case for violation of the UMDDA, asserting, in part, that counsel’s withdrawal of his UMDDA petition was against his request and was an invalid waiver of his rights, so the court lacked jurisdiction to accept his guilty pleas. Defendant did not mention this pro se motion at the providency hearing, and the record does not reflect that the court or counsel knew of its existence when defendant pleaded guilty. The trial court issued an order requesting clarification concerning whether the motion to dismiss should be ruled on in light of the guilty pleas. After receiving no response, the trial court denied the motion to dismiss as moot.

On appeal, defendant challenged the denial of his motion to dismiss. He argued that the superintendent of the institution where he was confined failed to comply with the UMDDA’s statutory requirements and this failure required dismissal of the charges against him. A prisoner may invoke his UMDDA rights through either strict or substantial compliance with the statute. Strict compliance requires the prisoner to address his request to the prosecutor and the court and to also send the request to the facility superintendent. Substantial compliance occurs when, notwithstanding the superintendent’s involvement, a prisoner substantially complies with the UMDDA’s requirements and the prosecution receives actual notice of the request for speedy disposition. Here, defendant sent his petition invoking his UMDDA rights to the court and prosecutor and the prosecutor acknowledged receipt of the petition and asked the court to reschedule the arraignment date in accordance with the UMDDA’s time requirements. Even assuming that the superintendent failed to comply with the UMDDA, defendant was not prejudiced because he invoked his UMDDA rights by substantially complying with the statute.

Defendant also argued that his purported waiver was invalid and the court therefore lacked jurisdiction to accept his guilty pleas. The rights afforded under the UMDDA are not fundamental constitutional rights requiring personal waiver by a defendant, and the UMDDA contains no language requiring a defendant to personally waive his rights. Thus, a defendant’s UMDDA rights may be waived either by defendant or counsel for defendant, and counsel may also waive the required statutory advisement of rights. Here, the record reflects that counsel advised the court and the district attorney that defendant intended to withdraw his UMDDA petition. Both defendant and his counsel were at the hearing when the court asked whether this remained defendant’s intent, and counsel responded that it did. Defendant neither disagreed with counsel’s representation nor objected to the petition’s withdrawal. Because defendant waived his UMDDA rights, the trial court had jurisdiction to accept his guilty pleas.

The order was affirmed.

Gandy is a Canadian citizen serving a habitual criminal life sentence in the Colorado Department of Corrections’ (CDOC) custody. Gandy appealed earlier denials of his requests to be transferred to the Canadian penal system to serve his sentence. This appeal arose from Gandy v. Raemisch, 2017 COA 110 (Gandy IV), where a Court of Appeals’ division concluded that CDOC’s regulation AR 550-05 required the prisons director to forward Gandy’s transfer application to the CDOC executive director, or his or her designee, for final review and decision. Because the prisons director had not done so, the division reversed the judgment of dismissal on this issue and remanded to the district court to issue an order directing the prisons director to forward the transfer application to the executive director.

On remand, CDOC amended regulation AR 550-05. Applying the amended regulation, the executive director considered and denied Gandy’s transfer application and issued a memo to Gandy explaining the decision. The court solicited Gandy’s view on the further handling of the case. Gandy responded by filing a status report asking for time to file an amended complaint, and subsequently filed two motions to amend his complaint. The district court denied Gandy’s first motion to amend as moot in light of his second motion. The court ultimately concluded Gandy had received all the relief ordered by the Gandy IV division, and to the extent he wished to challenge the post-remand decision, such challenge to new administrative action should be brought in a new lawsuit, after exhausting administrative remedies. Alternatively, the court denied the motion to amend because the proposed claims were futile on the merits. The court closed the case.

On appeal, Gandy first contended that the district court erred because he had a right to amend his complaint as a matter of course under CRCP 15(a). While Gandy’s original motion to dismiss (before the appeal in Gandy IV) did not terminate his right to amend, the district court’s grant of that motion and its judgment of dismissal did. Consequently, Gandy’s ability to amend his complaint after the district court entered final judgment and after remand from this court was subject to the district court’s discretion. Here, Gandy alleged enough in his amended complaint to show exhaustion as to the new claims in his amended complaint. Thus, the district court erred by denying Gandy’s motion to amend on the ground that he had not exhausted administrative remedies.

As to whether the proposed amendments were futile on the merits, Gandy sought to amend his complaint to assert (1) a request for mandamus relief under CRCP 106(a); (2) an Administrative Procedure Act (APA) violation; (3) an equal protection violation; (4) a claim alleging that the CDOC executive director violated his fiduciary duty, which was abandoned; and (5) a claim alleging that his transfer to a less desirable prison violated the First Amendment.

As to the mandamus claim, while the CDOC’s regulation entitles an inmate to review of a transfer application by the CDOC’s executive director, the decision whether to grant the application is within the executive director’s discretion. Here, it was reasonable for the executive director to conclude that it is in the public interest to treat Gandy before he is transferred out of the CDOC’s custody, so the executive director did not abuse his discretion.

On the APA claim, Gandy contended that the CDOC failed to comply with the APA’s rulemaking procedures when promulgating AR 550-05, which outlines the process under which the CDOC executive director ultimately considered and denied Gandy’s transfer application. Because Gandy’s APA claim would not withstand a motion to dismiss, the district court correctly denied this proposed amendment as futile.

Gandy’s equal protection claim asserted that denying his transfer application on the basis that he has not yet completed a sex offense-specific treatment program violates his equal protection rights because he is being treated more harshly than a person convicted of a violent offense. Gandy failed to state a claim upon which relief could be granted because he is not similarly situated with a non-sex offender.

Lastly, Gandy contended that defendants unlawfully retaliated against him in violation of the First Amendment by transferring him to the Colorado Territorial Correctional Facility (CTCF) for his continued filing of legal actions. Gandy’s allegations that he lost some privileges and income due to his transfer and must sleep on the top bunk in a third-floor cell do not assert adverse action sufficient to support a retaliation claim. Additionally, given the reason for his transfer, which was to allow him to participate in a treatment program when he became eligible, Gandy did not plausibly allege that, but for the alleged retaliatory motive, he would not have been relocated to the CTCF. The district court correctly decided that Gandy’s proposed amendment adding a First Amendment retaliation claim was futile.

The order was affirmed.

Blakesley worked as a welder on a Denver light rail project managed by BNSF Railway Co. (BNSF). BNSF employed a “flagger” to, among other things, explain BNSF’s safety policies to anyone entering the jobsite. The safety policies included a requirement that everyone in the vicinity of the railroad tracks wear a high visibility safety vest. The flagger informed Blakesley of BNSF’s high visibility safety vest requirement. Blakesley then asked if he could remove his high visibility safety vest, which was flammable, while he was welding and cutting, and the flagger said he could. While Blakesley was positioning a large pipe to be cut, an excavator ran over his foot. He was not wearing a safety vest when the accident occurred. Blakesley’s leg was ultimately amputated below the knee.

Blakesley sued several defendants, including BNSF, alleging negligence. The district court granted summary judgment in favor of all defendants. Blakesley appealed and a division affirmed as to all defendants except BNSF. The case was remanded for a determination of whether certain issues of material fact existed. On remand, the district court concluded that no issues of material fact existed, BNSF did not owe a duty of care to Blakesley, and BNSF was entitled to judgment as a matter of law.

On appeal, Blakesley contended that the trial court erred when it found that BNSF did not owe him a duty of care when giving him jobsite safety instructions regarding the high visibility vest requirement. The Court of Appeals considered the duty of care based on misfeasance because the flagger is alleged to have created a new risk of harm to Blakesley when he told him he did not have to wear the safety vest. The Court evaluated the duty of care based on (1) the risk involved; (2) the foreseeability and likelihood of injury, weighed against the social utility of the actor’s conduct; (3) the magnitude of the burden of guarding against injury or harm; and (4) the consequences of placing the burden upon the actor.

As to the risk involved, a reasonably thoughtful person providing instructions regarding the use of the high visibility safety vest would take into account that removing the vest would increase the risk of being run over by jobsite machinery. Here, by not uniformly applying BNSF’s jobsite safety standards, the flagger created the risk that an equipment or train operator would not see Blakesley because he was not wearing a high visibility safety vest and cause him serious bodily injury as a result.

Regarding the second and third factors, the likelihood of injury outweighed any social utility of the flagger’s instruction to disregard BNSF’s high visibility vest requirement. The flagger could easily have declined to authorize a departure from BNSF’s jobsite safety standards; declined to answer the question; or told Blakesley to obtain a nonflammable high visibility vest, thus avoiding the risk of harm that his permission created. For these reasons the magnitude of the burden of guarding against injury or harm was low.

As to the consequences of placing the burden on the actor, the BNSF flagger had some level of authority with respect to the wearing of high visibility vests. When he gave Blakesley safety instructions, he, and thus BNSF, owed a duty to provide reasonable instructions.

The summary judgment was reversed and the case was remanded for further proceedings on Blakesley’s negligence claim.

Filatov entered into a contract to buy a condominium unit. Under the terms of the condominium declaration, Filatov’s purchase was subject to the right of first refusal by the owners of other units in the same building. In accordance with the condominium association’s bylaws, the selling owners notified the condominium board of managers (the Board) on November 7, 2016 that they had accepted an offer to purchase their unit. Also consistent with the bylaws, the Board advised owners on November 8, 2016 that they would have to exercise the right of first refusal by November 27, 2016. The Turnages, who owned another unit in the building, notified the condominium association of their intent to exercise the right of first refusal on Friday, November 25, and they deposited the required earnest money the following Monday, November 28.

Filatov sued the Turnages seeking a declaration that because the Turnages deposited their earnest money after the deadline their right of first refusal was ineffective. The parties filed cross-motions for summary judgment. The district court concluded that the Turnages had timely exercised their right of first refusal and granted their motion for summary judgment.

On appeal, Filatov contended that the district court erred in granting summary judgment for the Turnages because the earnest money was not timely deposited with the seller. Filatov argued that the triggering event that started the 21-day clock was the date of the sellers’ notice to the Board rather than the date the Board advised owners of the pending offer. The Court of Appeals strictly construed the condominium declaration and concluded that the sellers’ notice to the board triggered the 21-day clock. Under the plain language of the declaration and settled principles of contract interpretation, the day that the sellers delivered the notice to the board was excluded from the period in which the Turnages could exercise their right of first refusal. Therefore, the Turnages could exercise their right of first refusal at any point during the next 20 days, beginning on November 8 and ending on November 27. Thus, the Turnages failed to meet the deadline.

The order granting summary judgment for the Turnages was reversed and the case was remanded with instructions to enter judgment in Filatov’s favor.

Bolt Factory Loft Owners Association Inc. (the Association) sued six contractors for alleged construction defects at one of its condominium projects. Two of those contractors then asserted negligence and breach of contract third-party claims against several subcontractors, including Sierra Glass Co., Inc. (Sierra Glass). The insurer for Sierra Glass, Auto-Owners Insurance Company (AOIC), refused to pay a $1.9 million settlement demand the Association presented to Sierra Glass. Thereafter, the Association and Sierra Glass entered into a settlement agreement under which Sierra Glass agreed not to offer a defense at trial and to assign any bad faith claims it had against AOIC to the Association in exchange for the Association’s promise that it would not pursue recovery against Sierra Glass. AOIC learned of this agreement and filed a motion to intervene, which the trial court denied. The trial proceeded, and the trial court entered judgment in favor of the Association.

On appeal, AOIC contended that the trial court erred in denying its motion to intervene because it met the requirements for intervention as a matter of right. For purposes of a CRCP 24(a)(2) motion to intervene as a matter of right, where an insurer reserves the right to deny coverage, its interest is contingent. Here, it is undisputed that AOIC reserved the right to deny coverage. Thus, its interest in the litigation was contingent on the liability phase of the proceedings, so it failed to meet the Rule 24(a)(2) requirements, and the trial court properly denied its motion to intervene.

The order was affirmed.

Johnson suffers from severe mental illness and has lived in an assisted care facility since 1997. Her husband Robert served as her court-appointed guardian until his death in 2012. That same year, Johnson failed to pay property taxes on a house that she owned. The county placed a tax lien on the property and then sold it. Actarus LLC (Actarus) bought the lien from its original buyer and, when the lien went unredeemed, received a treasurer’s deed from the county in 2017. Although the probate court had received notice of Robert’s death and Johnson’s son, Bret, filed a guardianship report in February 2013 acting as replacement guardian, the probate court took no action to formally appoint Bret or anyone else as Johnson’s guardian.

After the treasurer’s deed was issued, Bret formally petitioned the probate court to be appointed Johnson’s conservator and for his sister to be appointed guardian. Actarus then filed this quiet title action seeking a declaration that it was the sole legal owner of Johnson’s home. Actarus moved for partial summary judgment, asking the court to decree that Johnson had no right of redemption. The district court concluded that Johnson was under a legal disability and without a guardian when the treasurer’s deed was issued, and that CRS § 39-12-104 applied to extend Johnson’s redemption period nine years beyond the date on which Actarus recorded the treasurer’s deed. Accordingly, the district denied the motion.

Actarus appealed the district court’s order denying its motion for summary judgment and declaration that Johnson has a right of redemption. CRS § 39-12-104(1) provides that a property owner who is under legal disability at the time of execution and delivery of a tax deed has the right to redeem the property any time within nine years from the date of the recording of the tax deed. An owner of real property who is under legal disability includes an individual who a court has determined is incapacitated and who does not have a legal guardian who can advocate on her behalf. Here, Bret did not become Johnson’s guardian by filing guardianship reports and subjecting himself to the court’s jurisdiction. Because Bret did not submit the information required by the statute to act as a successor guardian and letters of guardianship were never issued, Bret was never authorized to act as Johnson’s guardian. Thus, Johnson was under a legal disability when the treasurer’s deed was issued. Accordingly, she had nine years to exercise her right of redemption following recordation of the treasurer’s deed.

Actarus also asserted that Bret was a de facto guardian under the common law. However, the probate code has procedures for filling a vacancy in the office of guardian, so it displaced the common law to the extent that it would allow for recognition of a de facto guardian under the circumstances here.

Actarus further asserted that the district court erred in disregarding Bret’s “judicial admissions” that Johnson was under the protection of her court-appointed guardian. Actarus bases this argument on statements Bret made in guardian’s reports that he filed in the probate court and statements in a motion Johnson’s attorney filed in the district court. But whether Bret succeeded his father as guardian, and, if so, at what point his succession was effective, turns on whether his putative appointment complied with the statute, which it did not. The district court correctly declined to treat statements by Bret and Johnson’s attorney as judicial admissions.

The order was affirmed.

The Ferraros entered into an oral contract with Frias Drywall, LLC (Frias) to remove the popcorn ceiling from their home. After Frias completed the work, the Ferraros discovered asbestos and hired an asbestos abatement company to remove the asbestos from their home. The Ferraros filed this action alleging that Frias negligently failed to test for asbestos before beginning construction. Frias never responded, and the clerk entered a default. Before entering default judgment, the district court sua sponte held a hearing on damages, denied the motion to enter default judgment, and dismissed the case without prejudice, finding that the contractor did not have a duty to inspect for asbestos.

On appeal, the Ferraros contended that the clerk’s entry of default established liability as a matter of law and precluded the court from further considering this issue. A complaint’s legal insufficiency constitutes good cause under CRCP 55(c) to set aside the entry of default and dismiss the case. Therefore, after an entry of default but before entry of the default judgment, a court may sua sponte reconsider the sufficiency of a complaint. Further, a complaint’s legal insufficiency constitutes good cause under CRCP 55(c) to set aside the default.

The Ferraros next contended that the district court erroneously found that homeowners of single-family dwellings have a duty to inspect for asbestos and contractors do not. Amendments to the Department of Public Health and Environment Regulations that added “single-family residential dwellings” to the asbestos regulations did not create a duty to inspect for asbestos before beginning construction. Therefore, neither the homeowner nor the contractor had a duty to inspect for asbestos before beginning construction.

The Ferraros further argued that the district court should have adopted their expert’s opinion that the standard of care is that contractors are to investigate for asbestos. However, this argument is contrary to relevant case law and regulations.

The Ferraros also asserted that the district court should have found a common law duty for contractors to inspect for asbestos. The case law principle that there is no basis to impose a duty on contractors to inspect a single-family residence for asbestos has been the law for more than 26 years, and the Court of Appeals declined to depart from this precedent.

The Ferraros also contended that Occupational Safety and Health Administration standards require asbestos testing. However, these standards govern the duty of employers to employees, not the duty an independent contractor owes a homeowner.

The judgment was affirmed.