Defendant went to his girlfriend E.G.’s apartment to collect his belongings, which E.G. had placed outside the apartment. Defendant kicked in E.G.’s locked apartment door and physically assaulted her. E.G.’s friends arrived during the altercation and defendant left the apartment. During the trial proceedings, defendant requested several continuances to obtain counsel. Ultimately, he obtained a public defender. A jury found defendant guilty of first degree burglary, first degree criminal trespass, and third degree assault.

On appeal, defendant contended that the trial court erred by finding that he impliedly waived his right to counsel and subsequently waived his right to a preliminary hearing. While the court did find that defendant waived his right to a preliminary hearing, the court did not find that he waived his right to counsel. Defendant appeared pro se at the March, April, and May preliminary hearings only because he failed to retain private counsel after informing the court of his intention to do so. At the May preliminary hearing, defendant first disclosed that he planned to ask the public defender’s office to represent him, and the court instructed him to immediately apply there. A public defender entered her appearance as defendant’s counsel and represented him throughout the case. Thus, defendant was not deprived of his right to counsel. Defendant’s argument that he was denied his right to a preliminary hearing is moot because he failed to seek relief under Crim. P. Rule 21 before his case proceeded to trial.

Defendant also asserted that the court erred by failing to merge his convictions for first degree criminal trespass and third degree assault into his conviction for first degree burglary. Pursuant to the statutory elements test, first degree criminal trespass is a lesser included offense of first degree burglary. Thus, the court’s failure to merge these convictions was plain error. Third degree assault is a lesser included offense of first degree burglary when the assault is charged as the predicate offense for first degree burglary. Because defendant assaulted E.G. twice, first in the bedroom and later as she emerged from the bathroom after texting a friend for help, the conviction for third degree assault does not merge.

Defendant’s conviction for first degree criminal trespass was vacated. His convictions for first degree burglary and third degree assault were affirmed.

Dill sold several trade schools to Rembrandt Group, Inc. (RGI), a Colorado corporation. RGI financed the purchase by borrowing $3.69 million from Rocky Mountain Mezzanine Fund II, L.P. (RMMF), which was evidenced by a note (RMMF note). As a financing condition, RMMF required Dill to execute an Intercreditor and Subordination Agreement (IC agreement), which included provisions that it was a senior creditor to Dill and could assign its debt to any third party without notice to or consent from Dill. The IC agreement also authorized RMMF to issue a payment blockage notice to suspend RGI’s payments to Dill under any notes payable to him if RGI defaulted on the senior indebtedness, and such blockage would remain effective until RGI satisfied the senior indebtedness. RGI defaulted on its obligations to Dill. As part of a settlement with Dill, RGI executed two new promissory notes payable to Dill (Dill notes) that are secured by a stock pledge agreement. At that time, Dill reaffirmed the IC agreement.

RGI also owes money to Pikes Peak Acquisitions, LLC (PPA), its current senior creditor and intervenor in this case. PPA is wholly owned by Intellitec Executives, LLC (Intellitec), which is not a party to this case. Intellitec, in turn, is owned by five individuals who also own 81.25% of RGI’s stock (the five common owners). In 2012, PPA purchased the RMMF note for the discounted price of $1.5 million. RMMF assigned its rights under the RMMF note and the IC agreement to PPA. RGI later defaulted, and in 2015, it exercised its right to defer payment under the Dill notes for 12 months. Then, pursuant to the IC agreement, PPA issued a payment blockage notice to Dill prohibiting him, as the subordinate creditor, from receiving further payments on the Dill notes until the senior debt has been fully satisfied.

Dill sued RGI to collect on his subordinate indebtedness alleging that RMMF’s assignment of the RMMF note to PPA in 2012 extinguished the senior debt because the members of Intellitec own 81.25% of RGI. Dill contended that because they have common owners, RGI and PPA are alter egos, and RGI had essentially purchased its own debt through PPA. The trial court found RGI and PPA to be alter egos and that piercing the corporate veil would yield an equitable result by extinguishing the senior indebtedness and allowing Dill to obtain what he had bargained for contractually.

On appeal, RGI and PPA contended that the trial court erroneously pierced the corporate veil to find that RGI’s indebtedness to PPA was extinguished when RMMF assigned the RMMF note to PPA. Colorado corporate law permits horizontal veil piercing between entities that do not share direct common ownership but that indirectly share common ownership through another entity in an ownership chain. However, horizontal piercing may only occur if the veil of each corporate entity and its owners is first pierced. Because nothing in the record showed that RGI was the alter ego of the five common owners, that Intellitec was the alter ego of the five common owners, or that PPA and Intellitec were alter egos of each other, the court erred by finding that RGI and PPA were alter egos of each other and, consequently, that RGI’s senior indebtedness was extinguished. Further, even if RGI and PPA were alter egos, insufficient evidence supports the court’s finding that PPA was formed to defeat Dill’s rightful claim.

The judgment was reversed and the case was remanded for entry of judgment in favor of RGI and PPA and the computation and award of their reasonable attorney fees and costs as prevailing parties.

In the underlying case, daughter filed a petition for appointment of a conservator for her mother, alleging that son had misappropriated mother’s assets. Daughter was appointed as conservator and she filed a petition against son claiming breach of fiduciary duty, civil theft, unjust enrichment, and surcharge. A jury returned verdicts against son for breach of fiduciary duty, civil theft, and unjust enrichment. The district court entered an order on the jury verdicts but reserved on claims for fees and costs pending further submittals.

Counsel for son then filed a notice of appeal with a “motion to determine jurisdiction,” stating that there was a question whether judgment was final. On cross-appeal, daughter pointed out that the district court had not yet ruled on certain issues. The Court of Appeals deferred ruling on the motion to determine jurisdiction and ordered counsel to address why it should not award attorney fees and costs against her related to the premature notice of appeal. The motion to determine jurisdiction concedes that the issue of prejudgment interest has not been decided and an issue of attorney fees is outstanding. For both of these reasons, there is no final judgment for appeal.

Further, counsel has the obligation to determine in the first instance whether there is a final, appealable order. Instead, counsel seeks what is potentially an advisory opinion on finality from a motions division. The Court’s motions division explicitly disapproved of the practice of filing such motions.

The appeal and cross-appeal were dismissed without prejudice.