We have since received Plotkin’s materials and we thought his “Outline of FTC Online Fair Information Practices and COPPA Rule” was too good not to share, below. We hope to see you next week.
Archives for May 2010
The Colorado Court of Appeals issued its opinion in People v. Vigil on May 27, 2010.
Defendant Vigil appealed the judgment of conviction entered on a jury verdict finding him guilty of forgery, three counts of offering a false instrument for recording, and five counts of theft. He also appealed his sentence to fifteen years in prison. The judgment was affirmed in part and vacated in part, the sentence was vacated, and the case was remanded for resentencing.
Vigil obtained cars to sell on consignment. He sold some of the cars without telling the owners, and then kept the proceeds. He also falsified documents and took money from several buyers without conveying title.
Vigil contended that some of his convictions must be reversed because the charging document—a felony information—did not allege certain facts. Here, the information satisfied the necessary requirements. The charges were filed under authority of the elected district attorney. Each of the pertinent counts identified Vigil by name and alleged the necessary jurisdictional facts; each identified the elements of filing a false instrument for recording; and each contained sufficient detail to apprise Vigil of the particular offense of which he was accused; therefore, the information was sufficient. Further, any defect in the charges did not create a reversible error. Vigil was able to identify the unlawful transactions so that he could form his defense and guard against further prosecution for these offenses.
Vigil also contended that the court should have given a special unanimity instruction to guide the jury’s deliberations on the theft charges. However, it is not necessary that jurors unanimously agree on the theory that supports a single conviction of theft, and the evidence is sufficient to support the jury’s verdict on the disputed charges.
The Court of Appeals raised the issue of multiplicity on its own motion. All thefts committed by the same person within a six-month period must be joined and prosecuted as a single felony. Because some of Vigil’s thefts occurred within six months of each other, two of his theft convictions must be merged into one.
The Colorado Court of Appeals issued its opinion in People v. Moore on May 27, 2010.
Assault—Right to Counsel—Prejudice—Sentence—Mitigating Factor.
Defendant Moore appealed the judgment of conviction entered on jury verdicts finding him guilty of first-degree assault on a peace officer, vehicular eluding, driving under the influence, and reckless endangerment. He also appealed the district court’s order denying his request for a reduction in sentence. The judgment and order were affirmed.
Defendant contended that he was denied his constitutional right to counsel when the trial court entered a plea of not guilty for him while he was unrepresented. Here, defendant was without counsel at his arraignment and at several subsequent hearings where substantive matters were not addressed; however, he was represented by counsel at the motions hearings and throughout trial. This does not amount to a “total deprivation” of counsel and, therefore, was not structural error. Additionally, there was no indication in the record that defendant requested and was denied a change of plea, a change of venue, a bill of particulars, any defense or objection based on a non-jurisdictional defect in the prosecution, or any other procedural or substantive right or privilege. Therefore, because defendant did not state a claim of prejudice, the error was harmless beyond a reasonable doubt.
Defendant further contended that the trial court misinterpreted the law when it denied his motion to reduce his sentence; however, a perpetrator’s failure to inflict injury when his or her intent was to inflict serious bodily injury cannot, as a matter of law, be considered a mitigating fact, much less an extraordinary mitigating fact. That was the basis of defendant’s motion; therefore, the trial court did not err in sentencing defendant.
The Colorado Court of Appeals issues its opinion in People v. Davis on May 27, 2010.
Witness Testimony—Veracity Comments—Opening Statement—Opinion Evidence—Defendant’s Silence—Fifth Amendment.
Defendant Davis appealed the judgment of conviction entered on jury verdicts finding him guilty of reckless manslaughter as a lesser-included offense of a first-degree murder charge, accessory to a crime, and reckless endangerment for his participation as a driver in a drive-by shooting. The district court’s judgment was affirmed.
Defendant argued that the court erred in admitting statements by witnesses commenting on the veracity of other witnesses. Because the veracity comments were elicited to explain investigative techniques of police officers and to rebut the facts asserted by defense counsel in his opening statement, the trial court did not err.
Defendant also argued that the trial court erred in failing to admit C.R.E. 608(a) opinion evidence regarding a witness’s truthfulness. If given a proper foundation, the question for witness Q.W. about witness E.W.’s reputation would have been proper under the plain text of C.R.E. 608(a). The exclusion of proper opinion testimony is harmless, however, where the defense can fully cross-examine the witness whose credibility was to be impeached, and where that witness’s credibility otherwise was impeached through the testifying witness. Here, the error was harmless because the defense had the opportunity fully to cross-examine E.W., and had the opportunity to otherwise impeach E.W.’s credibility through further questioning of Q.W.
Defendant further argued that the court erred by allowing the prosecutor to cross-examine him on the issue of his post-arrest silence, to comment on whether the prosecutor believed defendant, and by allowing the prosecutor to refer to the same in closing arguments. By testifying that he told the detective “everything,” defendant opened the door to what he told the detective and when. Thus, cross-examination regarding defendant’s silence, when considered in light of the direct examination, pointed out that his pre-Miranda phone interview with the detective was inconsistent with his statement that he told her “everything.” Accordingly, the trial court did not abuse its discretion by concluding that the prosecutor’s comments did not offend defendant’s Fifth Amendment rights. Furthermore, the prosecutor’s argument regarding this testimony did not improperly interject personal opinion knowledge, or inflame the passions of the jury. The judgment was affirmed.
The Colorado Court of Appeals issued its opinion in People v. Suttmiller on May 27, 2010.
Restitution—Illegal—Loss of Use—Crim.P. 35(a).
Defendant Suttmiller appealed the district court’s order denying him a refund of overpaid restitution. The Court of Appeals affirmed the order.
In May 2001, defendant was sentenced to probation in connection with the theft of an asphalt roller from a rival in the asphalt paving industry. He retained and used the roller for several months before it was discovered in his possession. As a condition of probation, defendant was ordered to pay $12,166.79 in restitution to the victim. Defendant thereafter began making restitution payments as required by his conditions of probation. In June 2007, the Court found that a portion of the restitution order was illegal, vacated the original restitution order, and entered a new order reducing defendant’s restitution obligation to $385.79. Defendant then requested that the district court order the probation department to refund to him $3,491.55 in overpaid restitution.
Defendant argued that the district court erroneously denied his motion for a refund based on its determination that it lacked jurisdiction to order the victim to return previously received restitution amounts. Specifically, defendant argued that the law did not authorize a victim to recover in restitution the rental value of a stolen item when no replacement item was rented by the victim. As an initial matter, under Crim.P. 35(a), a challenge to what was formerly known as an “illegal” sentence, now termed a sentence “not authorized by law,” may be raised “at any time.” Restitution is not limited to out-of-pocket expenses, and can include losses or injuries as long as they (1) are proximately caused by the defendant and (2) can be reasonably calculated and recompensed in money. Here, for several months, the victim suffered an actual loss or injury—that is, the loss of use of his roller, which was proximately caused by defendant’s conduct. Because the victim could be compensated for the replacement rental value of the item for his loss of use, the original award was not illegal. Thus, defendant was required to make the payments he did and was not entitled to any refund.
The Colorado Court of Appeals issued its opinion in State of Colorado, ex rel. John W. Suthers, Attorney General, and Laura E. Udis, Administrator, Uniform Consumer Credit Code v. CB Services Corporation and Concerning Paul Chessin, Senior Assistant Attorney General and Michael W. Hicks on May 27, 2010.
Subpoena—Quash—Sanctions—Warrant—Final Appealable Order—Jurisdiction.
This appeal arose from an action taken by the Colorado Attorney General (State) to enforce the Uniform Commercial Credit Code and the Colorado Consumer Protection Act against CB Services Corporation (CBSC). The appeal was dismissed.
The State issued an administrative subpoena to CBSC, requiring it to produce, among other items, documents describing its corporate structure and detailing its lending activities in Colorado. Thereafter, at the State’s request, the trial court issued an order enforcing the administrative subpoena and later a warrant for the arrest of Michael Hicks, who, the State had learned, was CBSC’s sole officer and director. Hicks was arrested, and he promptly filed a motion to quash the warrant. The trial court quashed the arrest warrant because Hicks had not been personally served with the contempt citation. The court also entered, under C.R.C.P. 11, joint and several monetary sanctions against the State and the Senior Assistant Attorney General who had handled the contempt proceedings, because the State had violated procedural due process standards and the procedures required by C.R.C.P. 107(c), and because the State had not been candid with the court.
The State contended that the trial court erred in quashing the arrest warrant. However, orders quashing or striking do not qualify as final judgments, because they are “simply interlocutory and do not finally resolve the issues in the case.” Because the State appealed the trial court’s decision to quash the Bench warrant, not to enforce a subpoena, that order is not a final, appealable order.
Hicks claimed that the trial court erred when it failed to vacate the contempt citation and related orders concerning him, including the order requiring him to comply with the administrative subpoena. The trial court has not entered a judgment of contempt or ordered sanctions against Hicks; therefore, there presently is no order or judgment involving Hicks that qualifies as a final, appealable order.
The State and the Senior Assistant Attorney General also contended that the trial court erred when it imposed joint and several sanctions against them under C.R.C.P. 11. The sanctions in this case did not resolve any substantive claims for relief, and the offending attorneys remained on the case. The sanctions order therefore was not a final, appealable order.
Because the trial court has not entered a final, appealable order concerning this matter, the Court of Appeals lacked jurisdiction over the issues raised in this appeal. The appeal was dismissed without prejudice.
The Colorado Court of Appeals issued its opinion in People v. Brosh on May 27, 2010.
Sexually Violent Predator (SVP)—Sexual Offender Risk Scale (SORS)—Evidence.
Defendant Brosh appealed the district court’s order designating him an SVP. The order was affirmed.
Defendant was charged with multiple counts related to incidents during which he provided the 12-year-old victim with alcohol and sexually assaulted him. Defendant pled guilty to sexual assault on a child by one in a position of trust in exchange for dismissal of all other charges. The district court issued a written order with detailed findings of fact, designating defendant an SVP.
Defendant contended that the SORS does not meet the statutory requirement for a “risk assessment screening instrument” under CRS § 18-3-414.5(1)(a)(IV). The Sex Offender Management Board satisfied the objectives and criteria set forth in CRS § 16-11.7-103(4)(c.5) for developing the assessment screening instrument; therefore, defendant’s argument failed.
Defendant also contended that the evidence does not support his designation as an SVP. Specifically, he contested the determinations based on the SORS that he met the third criterion—that he promoted the relationship for sexual victimization—and the fourth criterion—that he is likely to reoffend under similar circumstances—as necessary for an SVP designation. The evaluation presented to the district court included the evaluator’s references to defendant’s denial of the crime committed and suggestion that the victim was a willing participant; determinations that defendant demonstrates an “overly positive self-presentation,” a “high likelihood of invalid responses,” and “resistance to admitting personal shortcomings”; and mid-range scores of defendant for the “inability to respond truthfully,” dishonesty, lack of motivation for treatment, and classification as a “manipulator.”
The court found that defendant promoted an existing relationship primarily for the purpose of sexual victimization, which is supported by the record. The court further found that defendant had a history with alcohol, and the sexual offense here took place when defendant was drinking; that the public is at risk when defendant drinks; and that defendant is incapable of abstaining from alcohol. The trial court’s findings based on the risk assessment of defendant and following the court’s independent review of the file in this case (including the entire presentence report and affidavit in support of defendant’s arrest) were adequate.
The Colorado Court of Appeals issued its opinion in Barnett v. Elite Properties of America, Inc. on May 27, 2010.
Arbitration Award—Issue Preclusion and Certiorari—Summary Judgment.
Plaintiff Barnett appeals the district court’s order confirming the arbitration award against him, and appeals the summary judgment for defendant Elite Properties of America, Inc., doing business as Classic Homes (Classic Homes), which was based on the doctrine of preclusion. The Court of Appeals affirms the lower court’s ruling regarding the arbitration award and reverses the summary judgment against plaintiff on construction fraud and civil conspiracy claims. The Court remands those claims.
In 2002, plaintiff Barnett purchased a home from Classic Homes. The purchase agreement contained a mandatory arbitration of disputes provision. It also had a limited warranty that described the procedures to be followed in any such arbitration.
In 2005, the septic system on Barnett’s property began to fail. Although Barnett and Classic Homes discussed the problem and Classic Homes tried to resolve it, the septic system was not properly repaired.
In 2006, El Paso County held an administrative hearing concerning Barnett’s property. The hearing officer found the property was in violation of the Colorado Individual Sewage Disposal Systems Act (Sewage Act), as well as a provision of the county board of health regulations. She issued an order prohibiting Barnett from living, working, or congregating on the property until the problem was remedied. Barnett consequently was not able to rent the home and subsequently lost it in foreclosure.
Barnett sued Classic Homes, alleging breach of warranty; willful misrepresentation; breach of the implied covenant of good faith and fair dealing; constructive fraud; negligence; negligence per se; continuing nuisance; violation of the Construction Defect Action Reform Act (CDARA); personal injury; defamation; civil conspiracy; and violation of the Colorado Consumer Protection Act (CCPA). Classic Homes moved to compel arbitration. The district court granted the motion as to all claims except constructive fraud, civil conspiracy, and violations of the CCPA, which were stayed pending completion of the arbitration.
The arbitrator granted summary judgment for Classic Homes on Barnett’s claim for defamation and on certain damages claims and, after a hearing, issued a detailed opinion on the remaining claims. The arbitrator concluded Barnett was not entitled to any damages except on his CDARA claim, for which he awarded $17,000 for loss of use and enjoyment of his property, and $3,700 for the extra utility costs he incurred. The arbitrator awarded Classic Homes its costs as the prevailing party.
Barnett filed a motion in district court to vacate the award. Classic Homes filed a motion for summary judgment on the stayed claims, arguing that the arbitrator had resolved all the underlying factual issues adversely to Barnett and therefore each claim was barred by issue preclusion. The court confirmed the arbitration award in full and granted Classic Homes summary judgment on Barnett’s claims for constructive fraud and civil conspiracy.
On appeal, Barnett argued that the district court erred in confirming the arbitration award without making express findings regarding the arbitrator’s authority. He argued that the arbitrator exceeded his powers by (1) applying the Colorado Uniform Arbitration Act (CUAA) rather than the Federal Arbitration Act (FAA); (2) awarding costs under CDARA; and (3) by refusing to reopen the evidence after the arbitration award was issued. He further argued that the district court erred by applying the CUAA rather than the FAA when it reviewed the award. The Court rejected each of these arguments.
Barnett also argued that the district court erred in applying the doctrine of issue preclusion to grant Classic Homes’s motion for summary judgment on his constructive fraud and civil conspiracy claims. The Court agreed, finding the application was premature. In Rantz v. Kaufman, 109 P.3d 132, 141 (Colo. 2005), the Colorado Supreme Court held “for purposes of issue preclusion, a judgment that is still pending on appeal is not final.” In this case, the direct appeal of the arbitration award was final, but certiorari was still unresolved. In a matter of first impression in Colorado, the Court held that a judgment is not final for purposes of issue preclusion until certiorari has been resolved both in the Colorado Supreme Court and the U.S. Supreme Court either by (1) the parties failing to file a timely petition for certiorari; (2) the Court denying the petition for certiorari; or (3) the Court issuing an opinion after granting certiorari. The summary judgment was reversed and the case was remanded with instructions for the district court to stay the claims until certiorari is resolved in both the Colorado and U.S. Supreme Courts.
The Colorado Court of Appeals issued its opinion in P.F.P. Family Holdings, L.P. v. Stan Lee Media, Inc. on May 27, 2010.
Special Master Findings.
In a predecessor case to this one, the district court appointed a special master to preside over an annual meeting of Stan Lee Media, Inc. (company). By order of the court, the special master established rules and procedures to govern the 2007 meeting. Subsequently, the court determined the results of the 2007 meeting were invalid.
In 2008, the court granted the motion of P.F.P. Family Holdings, L.P. (PFP) for a second court-ordered annual meeting, and appointed the same special master, giving instructions to apply the same procedures and rules that governed the 2007 meeting.
Prior to the 2008 meeting, the special master set a voluntary early proxy submission deadline to enable her to review the validity of proxy appointments before the meeting. The final proxy submission deadline was one-and-a-half hours before the beginning of the December 15, 2008 meeting. The special master received numerous proxy appointments before and after the deadline.
At the meeting, the shareholders engaged in provisional voting for a board of directors and reinstatement of the company. The special master then adjourned the meeting to review the validity of proxy appointments to determine whether a quorum was present. The special master also set a limited curing period for any proxy appointments she deemed deficient, and allowed the parties to brief their arguments regarding the validity of these appointments. The final briefing deadline was 5:00 p.m. on January 7, 2009.
In February 2009, the special master issued a report to the district court, determining that several of the proxy appointments were invalid and there was no quorum at the 2008 meeting. PFP filed objections. Without a hearing, the court overruled PFP’s objections and adopted the special master’s report in its entirety. PFP appealed.
PFP argued that the special master incorrectly found that three categories of proxy appointment forms were invalid and that the district court erred in adopting such findings. If they were valid, a quorum was present and the shareholders’ votes should be counted. The Court of Appeals agreed as to two categories, resulting in a quorum, and therefore reversed the order of the district court.
The first category was proxy appointments purportedly signed by owner Stephen Gordon, one in his personal capacity as an owner and one as a custodian. These were timely received. The special master had a “reasonable basis to doubt the validity of Mr. Gordon’s signature,” and therefore required that he submit additional documentation. Gordon did so. Part of his information listed his current address as the Taft Correctional Institution (TCI) where he was incarcerated. A brief was filed disputing that location, which contained a current prisoner location printout indicating he was incarcerated at a Long Beach CCM facility. This was submitted on the last day of the briefing deadline. Within hours, but after the 5:00 p.m. deadline, PFP’s counsel e-mailed the special master another prisoner location page that indicated Gordon was incarcerated at TCI.
The special master rejected Gordon’s proxy appointment forms because there “were too many irregularities associated with the form[s].” PFP submitted a notarized affidavit from Gordon to the district court countering all the purported irregularities. In adopting the special master’s finding, the Court found the district court erred, because none of the supposed irregularities was reason to reject the proxy in light of the additional submissions and affidavit.
The Court also agreed with PFP’s argument that the district court erred in adopting the special master’s rejection of all undated proxy appointment forms. The Court found no requirement in the company’s bylaws that proxy forms be dated. The district court’s order was reversed and the case was remanded.
The Colorado Court of Appeals issued its opinion in Condo v. Conners on May 27, 2010.
Summary Judgment—Tortious Interference—Civil Conspriacy—LLC Operating Agreement.
Elizabeth Condo (assignee) is the former wife of Thomas Banner (assignor), who was formerly a member of Hut at Avon, LLC (LLC). Defendants (partners) were the other members of the LLC, and the LLC was represented by Wendell Porterfield (attorney).
As part of a divorce settlement, the assignor agreed to assign to the assignee his right to monetary distributions from the LLC. The partners refused to consent to the draft assignment tendered to the LLC. Nevertheless, the assignor finalized and executed the assignment.
The partners subsequently purchased the assignor’s one-third membership interest from him. Assignee sued the partners and the attorney for tortious interference with contract and civil conspiracy. The trial court granted the partners’ and the attorney’s motions for summary judgment on both claims because it concluded the assignment was void. The Court of Appeals affirmed, based on a different rationale.
For a claim for tortious interference with a contract to be viable, a valid contract must exist. Because there was an anti-assignment clause in the operating agreement requiring the written approval of all assignments by all other members, the Court concluded the assignment was void and the claim was not viable.
Because the Court concluded the partners and the attorney did not tortiously interfere with the assignment, the assignee cannot show an unlawful overt act to support her civil conspiracy claim. The assignment therefore is void and unenforceable as a matter of law. The Court affirmed the trial court’s grant of summary judgment concerning the tortuous interference claim.
Colorado Court of Appeals: Accord Human Resources, Inc. v. Industrial Claim Appeals Office of the State of Colorado
The Colorado Court of Appeals issued its opinion in Accord Human Resources, Inc. v. Industrial Claim Appeals Office of the State of Colorado on May 27, 2010.
Single Employing Unit—CRS § 8-70-114(1).
Accord Human Resources, Inc. (Accord) is a professional employer organization based in Oklahoma and operating in many states, including Colorado. Accord formed numerous other organizations over time, including Accord Human Resources of Colorado, Inc. All of the other organizations were licensed to do business in Colorado.
The Division of Employment and Training (Division) assigned each Accord entity a separate unemployment insurance tax account number. In 2004, after a transfer of a large number of employees from Accord to Accord Human Resources of Colorado, Inc., the Division conducted an investigation of tax accounts for those entities. It culminated in a 2007 tax liability determination in which the Division combined the five Accord entity unemployment tax accounts into a single account with a blended experience rating, and retroactively imposed delinquent taxes and interest totaling $543,988.29 for the years 2002 through 2007.
Accord appealed. The Division relied on CRS § 8-70-114(1) and argued that the statute authorized it to treat the separate Accord division as a single employing unit based on issues of common ownership and control. The hearing officer disagreed and therefore reversed, holding that the Division was required to maintain a separate tax account for each entity.
The Division appealed to the Industrial Claim Appeals Office (Panel). The Panel reversed the hearing officer’s decision and reinstated the tax liability determination.
On appeal, Accord argued that the Panel erred in finding that CRS § 8-70-114(1) authorized the Division to treat the separate entities as a single employing unit. The Court of Appeals agreed. The Court reversed and remanded with instructions to reinstate the hearing officer’s decision.
The parties agreed that each Accord entity met the definitions of both an “employing unit” and an “employer.” The Division maintained that § 114(1) authorized treatment of all the entities as a single employing unit.
The Court found the statutory language unambiguous. On its face, it merely provides that if the single employing unit maintains two or more establishments within Colorado, individuals performing services within the state for those establishments are deemed to be employed by the single employing unit for all purposes. It says nothing about treating separate statutory employing units as a single employing unit based on elements of common ownership and control. Contrary to the Division’s argument, because each of the Accord entities met the definition of an “employer,” the Division was required to maintain a separate tax account for each entity. Judgment therefore was affirmed.
The Colorado Court of Appeals issued its opinion in In re the Marriage of Parr on May 27, 2010.
Modification of Parenting Time.
In a post-dissolution of marriage proceeding, the trial court restricted parenting time of David Lyman (father) with his minor child. Father appealed the court’s ruling. The Court of Appeals affirmed in part and vacated in part.
The marriage between father and mother was dissolved in 2007. At that time, the parties signed a complete parenting plan that detailed a gradual increase in father’s parenting time over a period of seven months, from short supervised visits to unsupervised alternating weekend overnights with the child. The father’s visits were to be governed by ongoing urinalysis tests and drug screenings to demonstrate that he had not returned to marijuana use.
Approximately a week after signing the parenting plan and the same day it was incorporated by the court into the decree, father learned he had been approved for listing on the state of Colorado Medical Marijuana Registry (Registry) due to his debilitating back and knee pain from a motorcycle accident. He filed a pro se motion with the magistrate requesting that the urinalysis portion of the parenting plan be waived.
The magistrate concluded father’s voluntary signing of the parenting plan left him “stuck with it.” Father filed a timely petition for review but the trial court took no action. Five months later, mother filed a pro se motion to restrict father’s parenting time, arguing that he had not provided urinalysis drug screens and had asked the child to keep secrets about his drug use. No hearing was held on this motion.
More than a year after father filed his petition for review, and nearly nine months after mother filed her motion, the trial court denied father’s petition. The court modified the urinalysis provision somewhat, and required supervised parenting time until he demonstrated to the court by clear and convincing evidence that his use of medical marijuana is not detrimental to the child. Father appealed.
On appeal, father argued that the trial court erred in modifying the provision restricting him to supervised parenting time without a finding that, absent such a restriction, the child would have been physically endangered or her emotional development would have been significantly impaired. Additionally, father argued the record contained no evidence that would support such a finding. The Court agreed with both arguments and therefore vacated the modified provision.