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Archives for September 9, 2010

Aurora’s Arapahoe County Courthouse Closes; Judicial Matters Move to Arapahoe County Justice Center in Littleton

September 9, 2010 By Leave a Comment

The Arapahoe County Courthouse, located at 15400 E. 14th Ave. in Aurora, permanently closed its doors for all court business on Friday, August 20. Judicial matters once served by this courthouse have since been consolidated to the Arapahoe County Justice Center, 7325 S. Potomac St. in Centennial.

Recent renovations to the justice center facilitated the move of Arapahoe County court business to a single location. Of the transfer, Eighteenth Judicial District Chief Judge William B. Sylvester remarked:

The consolidation of court services to the Arapahoe County Justice Center in Centennial will eliminate the confusion caused over the years as to which courthouse people are to appear in. This move will enable the court to better serve the public by providing judicial services in one central location.

The county’s Department of Probation Services still operates out of the former courthouse. All civil and small claims matters served by the county’s Littleton courthouse located at 1790 W. Littleton Blvd. will continue being heard at that location.

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Colorado Legal Services Offers Additional Help to Veterans on Wednesdays in September

September 9, 2010 By Leave a Comment

As originally posted on our blog, The Learned Lawyer, veterans, service members, and their families can get live online assistance from Colorado Legal Services (CLS) on Wednesdays throughout the month of September by visiting the CLS website and clicking on the “Live Help” button in the right column. “Live Help” will be available every Wednesday (September 15, 22, 29) from 9-11am and 2-4pm.

The service will help individuals access legal information online and, if appropriate, determine whether a case would benefit from additional assistance.

If it is determined an individual may be eligible for legal assistance, his or her contact information will be sent to a Colorado Legal Services office. Factors determining eligibility include, but are not limited to: income, type of legal issue, and resource availability.
CLS has also created a resource page for veterans that is available 24/7.
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Colorado Court of Appeals: Enhanced Sentencing Appropriate when Crime of Conviction Committed Again while Incarcerated

September 9, 2010 By Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Wylie on September 2, 2010.

Jury Instruction—Assault—Mental Illness—Sentence Enhancer.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of four counts of second-degree assault. He also appealed the sentence imposed by the trial court. The judgment and sentenced were affirmed.

While incarcerated at the Colorado State Penitentiary, defendant assaulted correctional officers using feces and urine. He was sentenced to four consecutive ten-year prison terms to be served consecutively to the sentence he was serving at the time of the assaults.

On appeal, defendant argued that the trial court erred in refusing to give his tendered jury instruction, which stated that the jury could consider evidence of defendant’s mental illness to determine whether he had the requisite culpable mental state for assault at the time of the attacks. The Court disagreed. Defendant’s proposed instruction was cumulative to those that were given, and the jury instructions accurately informed the jury of the governing law.

Defendant also argued that the trial court erred in applying CRS § 18-1.3-401(8)(a)(IV) to enhance his sentence. According to the statute, if a defendant is incarcerated in any correctional institution as a convicted felon when he or she commits the crime of conviction, a sentencing court is required to sentence the defendant to a term of incarceration equaling at least the midpoint and not greater than twice the maximum term authorized in the presumptive sentencing range for the crime. Defendant was charged under § 18-3-203(1)(f.5), which does not contain specific sentencing requirements that would supersede the provisions of the sentencing statute. Because defendant was incarcerated as a convicted felon when he committed the assault, the trial court did not erroneously apply the general sentence enhancer to defendant’s assault conviction.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on September 2, 2010, can be found here.

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Colorado Court of Appeals: Motion to Suppress Denied when Defendant Offered Evidence Voluntarily Before Arrest

September 9, 2010 By Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Smith on September 2, 2010.

Motion to Suppress—Investigatory Stop—Statements—Voluntary—Presentence Confinement Credit—County Jail—Discretion.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of first-degree criminal trespass. He also appealed the trial court’s order regarding presentence confinement credit. The judgment of conviction was affirmed, the trial court’s denial of a portion of defendant’s presentence confinement credit (PSCC) was reversed, and the case was remanded with directions.

Defendant unlocked the victim’s front door by reaching through an open window, and then confronted the victim about money the victim owed defendant. A physical confrontation ensued outside the victim’s home. The police arrived, secured the scene, and arrested defendant.

On appeal, defendant contended that the trial court erred in denying his motion to suppress because his initial encounter with police was an arrest and he was not read his Miranda rights. The officer first conducted an investigatory stop by securing the scene, which included taking possession of a shotgun and shells in defendant’s possession. The police officer’s use of force did not exceed the force necessary as a reasonable precaution during the investigatory stop. Further, after the scene was secured, the officer informed defendant that he was not under arrest. Defendant then agreed to sit in the officer’s patrol car to get out of the cold, at which point he relayed to the police his version of events. Because defendant’s statements were voluntary, the trial court did not err in denying his motion to suppress statements made in the patrol car.

Defendant also contended that the trial court erred by failing to give him PSCC for the full eighty-nine days he spent in jail before the court sentenced him to ninety days in jail as a condition of his sentence to probation. The PSCC statute requires a trial court to award PSCC if a defendant’s sentence is to be served in a state correctional facility. Here, defendant was to be sentenced to a county jail, so the trial court was permitted but not required to award PSCC. However, because the trial court chose to exercise its discretion to give defendant credit for his presentence confinement, the court was required to ensure that defendant received full credit for his presentence confinement. Therefore, the trial court abused its discretion in awarding defendant only sixty days of PSCC. The court’s ruling on PSCC was reversed and the case was remanded for correction of the mittimus to reflect PSCC of eighty-nine days.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on September 2, 2010, can be found here.

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Colorado Court of Appeals: Restitution Order Authorized by Law

September 9, 2010 By Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Bowerman on September 2, 2010.

Restitution—Illegal Sentence—Crim.P. 35(a)—Time Barred.

Defendant appealed the district court’s order denying her post-conviction motion for correction of an illegal sentence. She also challenged the amount of restitution the court ordered. The order was affirmed.

Defendant originally was charged with class 4 felony theft, arising out of allegations that she stole items from the victim. At the sentencing hearing, defendant denied the amount and value of the property stolen. The trial court entered a restitution order for the full amount claimed by the victim.

On appeal, defendant contended that the court’s restitution order constituted an illegal sentence. The Court of Appeals disagreed, finding that the district court’s restitution order was authorized by law. The trial court imposed a restitution order at the time of sentencing and did not subsequently increase that order after it had become final and defendant had begun serving her sentence. The court did not ignore the victim’s actual losses and arbitrarily cap the restitution figure, nor did it transfer a restitution order from a juvenile case to an adult case. Moreover, the restitution order was not imposed in excess of the trial court’s subject matter jurisdiction. The trial court had a statutorily mandated obligation to enter a restitution order under CRS § 18-1-603(1). In doing so, it acted within its jurisdiction. In addition, defendant’s Crim.P. 35(a) claim alleging that her sentence had been imposed in an illegal manner was not filed within 120 days of her conviction; therefore, it was time barred. The trial court’s order was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on September 2, 2010, can be found here.

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Colorado Court of Appeals: Ambiguity in Interest Due on Borrower’s Default Required New Trial

September 9, 2010 By Leave a Comment

The Colorado Court of Appeals issued its opinion in Fisher v. Community Banks of Colorado, Inc. on September 2, 2010.

Credit Agreement Act—Loan—Ambiguous—Statute of Frauds—Extrinsic Evidence—Standing.

Plaintiff (borrower) appealed a judgment entered following a jury trial in a lender liability case brought against defendant Community Banks of Colorado, Inc. (bank). The jury, following legal and evidentiary rulings adverse to borrower, rejected borrower’s claims and found in favor of the bank on a counterclaim. The judgment was reversed and the case was remanded for a new trial.

The bank loaned borrower approximately $3.4 million to build a luxury home in Cherry Hills Village. As security, borrower executed deeds of trust to that land and to his Telluride vacation home. The loan was modified and extended three times, through documents titled “Change in Terms Agreement.” The bank ultimately initiated foreclosure proceedings and thereafter sold the loan to Western Real Estate Equities, LLC (Western). Borrower and Western reached a settlement whereby borrower paid approximately $4.5 million under the note and relinquished any claims against Western but not against bank.

Borrower contended that the trial court was incorrect in ruling that (1) the loan agreements unambiguously set a 36 percent default interest rate; and (2) the Credit Agreement Act precluded evidence that the parties never intended that rate. Although the Colorado Credit Agreement Act contains an expansive statute of frauds provision, the Act does not limit extrinsic evidence to resolve facially ambiguous credit agreements. The agreement here was ambiguous because the original loan agreement and the three change agreements contained inconsistent provisions regarding the interest due on borrower’s default. Therefore, borrower was entitled to a new trial in which the jury considers otherwise admissible extrinsic evidence relevant to resolving the agreements’ ambiguity. Because the trial court erroneously prohibited this evidence, the case was reversed and remanded for a new trial on borrower’s claims against bank. On remand, the jury must determine which interest rate the parties intended to control on default.

Borrower also contended that the bank lacked standing to maintain a fraudulent inducement counterclaim because it assigned the loan and all related claims to Western. The counterclaim judgment against borrower was reversed because bank unequivocally assigned that claim to a third party.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on September 2, 2010, can be found here.

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Colorado Court of Appeals: Non-Lawyer Conservator or Guardian Cannot Serve as Legal Counsel in Court Proceedings

September 9, 2010 By 1 Comment

The Colorado Court of Appeals issued its opinion in In re the Marriage of Kanefsky on September 2, 2010.

Conservator—Unauthorized Practice of Law.

Judith Fremerman and Kerry Fremerman (conservators), in their capacities as co-conservators of Leslie Fanelli Kanefsky (wife), appealed the permanent orders entered in connection with the dissolution of wife’s marriage to Barry Kanefsky (husband). The appeal was stayed.

The court appointed a guardian ad litem (GAL) in the divorce case and issued letters in a probate case naming conservators—wife’s mother and sister—as her co-conservators and co-guardians for the limited purpose of assisting wife in her dissolution proceedings. Wife was assisted by her GAL and her attorney at the permanent orders hearing. After the permanent orders hearing, the court terminated the GAL’s appointment and granted counsel’s motion to withdraw. The dissolution decree entered on March 24, 2009. On March 31, 2009, conservators filed an entry of appearance in the dissolution case. On that same date, they filed a notice of appeal on behalf of wife, seeking to reverse portions of the permanent orders.

A nonlawyer conservator or guardian in Colorado is a statutory legal representative only and cannot serve as legal counsel in court proceedings. Because the conservators in this case are not licensed to practice law, the appeal was stayed for sixty days to allow conservators to obtain an attorney.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on September 2, 2010, can be found here.

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Colorado Court of Appeals: Court Must Determine Compliance with Notice Provisions when Party Moves to Vacate Award for Inadequacy of Notice

September 9, 2010 By Leave a Comment

The Colorado Court of Appeals issued its opinion in Braata, Inc. v. Oneida Cold Storage Co. on September 2, 2010.

Arbitration Award—Notice.

Defendant Oneida Cold Storage Co., LLP (Oneida) appealed the district court order vacating an arbitration award for lack of proper notice and confirming the award in favor plaintiff Braata, Inc. The order was vacated.

Oneida had a contract with Braata for janitorial services. The contract stated that any controversies arising from it would be decided by arbitration. In 2008, a dispute arose concerning payment. On August 12, Oneida sent Braata a check for “payment in full,” reduced for unsatisfactory and unperformed work. On August 29, Braata sent Oneida a certified letter asserting that Oneida was past due in paying $2,538.39. Oneida did not respond to the letter.

Braata then contacted the Judicial Arbiter Group (JAG), and a JAG arbiter conducted a hearing on April 10, 2009. Oneida did not appear. The arbiter found that Oneida had been given notice of the arbitration and the claim, and entered an award in Braata’s favor.

Braata filed a motion in district court to confirm the award. Oneida objected and moved to vacate, arguing that the August 29 letter did not constitute an initiation of arbitration and that Braata had sent no other certified letters. The trial court denied the motion to vacate and confirmed the award.

On appeal, Oneida argued that the district court erred by not making an independent finding as to compliance with the notice provisions of CRS § 13-22-223(1)(f), and that the August 29 letter did not constitute an initiation of arbitration as a matter of law. The Court agreed. When a party moves to vacate an award for inadequacy of notice, the district court is required to make a de novo determination as to whether there was improper notice of initiation of arbitration proceedings that resulted in substantial prejudice to the moving party. Here, the district court failed to make such a determination. The Court remanded the case to the district court to determine whether the failure to provide statutory notice resulted in substantial prejudice to Oneida.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on September 2, 2010, can be found here.

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Colorado Court of Appeals: Contractor Cannot Use Trust Funds for Other Expenses until Laborers Paid

September 9, 2010 By Leave a Comment

The Colorado Court of Appeals issued its opinion in AC Excavating, Inc. v. Yale on September 2, 2010.

Trust Fund Statute—Civil Theft.

Plaintiff AC Excavating, Inc. (AC) appealed the trial court’s judgment in favor of defendant Donald A. Yale on an alleged violation of the trust fund statute, CRS § 38-22-127, and the civil theft statute, CRS § 18-4-401. The judgment was reversed.

In the late 1990s, Antelope Development, LLC (Antelope) began developing the Antelope Hills Subdivision, a residential golf course community in Bennett. Keystone Development, LLC managed Antelope. Antelope formed and managed Antelope Hills Golf Course LLC (Antelope GC) to build the golf course.

Antelope received initial financing through construction loans from First National Bank of Colorado (First National). In 2003, when First National opted not to renew the loans, Horizon Bank (now Mile High Bank) replaced the loans. In 2004, the Horizon loan reached its limit.

In 2005, Antelope GC sold the golf course to Ironwood Golf Properties of Colorado, LLC. A term of the sale required Antelope to construct a retention pond on the property (Pond Project). In 2006, AC entered into an oral agreement with Keystone and Antelope to work on the Pond Project. AC ultimately received $150,000 of the $190,680.30 it charged.

In mid-2006, AC entered into a separate oral agreement with Keystone and Antelope to perform remedial grading work on the development’s residential lots (Coxsey Project). AC did not receive any of the $7,707.50 it charged.

Yale was a 44 percent shareholder in Antelope. On June 30, 2006, Yale replaced Keystone as the manager of Antelope and learned that Antelope had $100,000 in the bank and unpaid invoices on the Pond Project alone of more than $250,000. During the next six months, Yale personally loaned Antelope $157,500, the proceeds of which were applied to general business expenses and some of the outstanding subcontractor invoices.

Later in 2006, Yale foreclosed on a series of municipal bonds held as collateral for loans he had made to Antelope before assuming the role of sole manager. Yale withdrew $50,000 from the Antelope account to cover the interest on the municipal bonds.

AC sued Yale for violations of the trust fund and civil theft statutes. The trial court entered judgment in favor of Yale.

On appeal, AC argued the trial court erred in narrowly interpreting the trust fund statute. The Court agreed. Under the statute, a contractor cannot use any of the funds on a project to pay corporate overhead, compensation, or other expenses unless and until the suppliers and laborers are paid in full.

AC argued that it was error to find that Yale’s loans to Antelope did not fall under the trust fund statute because they were not construction loans but general purpose survival loans for the company. The Court agreed. The statute covers “all funds disbursed” on a construction project, not just construction loans.

AC also argued it was error for the trial court to rely on Yale’s stated purpose for the use of his loans in determining he was not liable under the Trust Fund Statute. The Court agreed. The intent of the disburser of funds is not relevant to the determination of whether they fall under the statute, because it covers all funds disbursed.

AC also contended that the trial court erred in determining that Yale was not liable for civil theft when he withdrew $50,000 from the Antelope account rather than pay the subcontractors. The Court agreed, finding that the trial court failed to determine whether Yale knowingly used the money in such a manner as to permanently deprive AC of its use or benefit. The judgment was reversed and the case was remanded for further proceedings.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on September 2, 2010, can be found here.

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Colorado Court of Appeals: Suppression of Improperly Obtained Blood-Alcohol Test Not Abuse of Discretion

September 9, 2010 By Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Maclaren on September 2, 2010.

Vehicular Assault—Driving Under the Influence of Alcohol—Express Consent Statute.

The prosecution appealed the dismissal of defendant’s convictions of vehicular assault and driving under the influence of alcohol. The judgment was affirmed in part and vacated in part.

Defendant was driving when he crossed a double yellow line into oncoming traffic and hit the victim’s car, causing her to suffer a broken wrist. Defendant told a responding emergency medical technician (EMT) that he had consumed beer earlier in the day. He also told the EMT that he had experienced a coughing fit that caused him to black out while he was driving. The investigating officer detected the odor of alcohol on defendant’s breath.

The officer followed the ambulance to the hospital. Without advising defendant or requesting that he submit to a test of his blood alcohol level, the officer had the hospital phlebotomist draw two vials of defendant’s blood for testing. On receiving the results, the officer informed defendant that his license was being revoked.

Defendant filed a motion to suppress the results of the blood test on the grounds that the investigating officer did not have probable cause and, alternatively, that she failed to comply with the requirements of the express consent statute. The trial court found there was probable cause but suppressed the results of the tests after finding the officer had failed to request that defendant submit to breath or blood testing as required by the express consent statute. The court then dismissed the vehicular assault and driving under the influence charges.

The Court of Appeals noted that consent is not a constitutional prerequisite to the collection of a blood sample. Both express consent statutes allow an unauthorized sample to be taken after a refusal by the driver to give a breath or blood sample.

The officer violated the express consent statutes by obtaining a blood sample from defendant when there was neither a request nor a refusal. However, suppression of evidence is generally reserved to remedy violations of constitutional rights, not statutory rights. Suppression for a violation of a statute is not a proper remedy unless the statute requires exclusion of such evidence. Where a statute does not expressly provide for suppression, however, trial courts have broad discretion to suppress evidence as a sanction for improper police conduct.

Here, the trial court found that the officer committed misconduct without justification by extraordinary circumstances or good cause. Therefore, it did not abuse its discretion by suppressing the results of the blood test. However, dismissal was not an appropriate sanction. Accordingly, the suppression of the blood alcohol test was affirmed and the judgment dismissing the cases was vacated. The case was remanded for reinstatement of the charges and further proceedings.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on September 2, 2010, can be found here.

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Colorado Court of Appeals: Parties Must Be Competent to Contract Before Arbitration Provision Can Be Enforced

September 9, 2010 By Leave a Comment

The Colorado Court of Appeals issued its opinion in Grimm v. Evans on September 2, 2010.

Contract—Arbitration—Mental Capacity.

The Estate of Albert F. Grimm (estate) appealed an order compelling arbitration and dismissing its action against defendant John Evans. The order was vacated and the case was remanded for a hearing.

Albert Grimm and his son hired Evans to perform legal services. They signed a contract that had an arbitration clause. Grimm died several months later, and his estate sued Evans, alleging that Grimm had lacked sufficient mental capacity to comprehend the nature and effect of Evans’s advice and the nature and effect of the documents drafted by Evans. In support of its position, the estate attached an affidavit of Grimm’s physician, who stated that it was his professional opinion that Grimm did not understand what he was signing. The district court dismissed the action and ordered the parties to arbitrate.

On appeal, the estate contended that, before ordering arbitration, the court should have held a hearing to determine whether the arbitration agreement was unconscionable and whether Grimm was competent when he signed the contract. The Court of Appeals agreed. The court was first required to determine whether the arbitration provision was unconscionable. This includes making a determination as to whether a party had the required mental capacity to enter into a contract. Without a valid agreement, the arbitrator cannot act. Therefore, the court erred by not holding a hearing to determine this issue. The order was vacated and the case was remanded for an evidentiary hearing wherein the trial court must determine whether Grimm lacked the mental capacity to enter into a contract when he signed the agreement.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on September 2, 2010, can be found here.

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Colorado Court of Appeals: Breaches Not Materially Related to Contract Option to Purchase Real Estate

September 9, 2010 By Leave a Comment

The Colorado Court of Appeals issued its opinion in Whiting Oil and Gas Corp. v. Atlantic Richfield Co. on September 2, 2010.

Contract—Option—Real Property—Material Breach—Reformation—Common Law Rule Against Perpetuities—Retrospective—Unclean Hands.

In this action concerning the exercise of a contractual option to purchase real property, defendant Atlantic Richfield Company (ARCO) appealed the trial court’s judgment in favor of plaintiff Whiting Oil and Gas Corporation, formerly Equity Oil Company (Equity). The judgment was affirmed.

In 1968, ARCO and Equity entered into an agreement (1968 agreement) whereby ARCO purchased a portion of Equity’s interest in the Boies Block and the Figure Four Claims, as well as an option to purchase 80 percent of Equity’s interest in the Sunset claims. ARCO and Equity twice amended the 1968 agreement (1977 amendment and 1983 amendment). In April 2006, Equity sent a letter to ARCO exercising the option in the 1983 amendment. In October 2006, ARCO sent Equity a letter exercising its right to cancel the option. The trial court reformed the option and entered judgment in favor of Equity. This appeal followed.

ARCO contended that the trial court erroneously concluded that Equity’s breaches were not materially related to the option, and therefore did not excuse ARCO from its obligation to honor it. However, the record supports the trial court’s finding that Equity’s breaches, which concerned only oil shale research and its obligations under the R&D project, were not materially related to the option. Accordingly, Equity’s breaches did not excuse ARCO from its obligation to honor the option.

ARCO contended that the trial court erred when it reformed the option pursuant to the reformation provision, because that statute applies only to probate instruments. The reformation provision of the Colorado Statutory Rule Against Perpetuities Act, CRS § 15-11-1106(2), does not exclude from its application nondonative transfers or any other kind of transfer, such as the option in this case. Therefore, the trial court did not err when it reformed the option pursuant to the Act.

ARCO also contended that the trial court’s application of the reformation provision to the option was unconstitutionally retrospective because it took away ARCO’s vested rights in the Boies Block. However, the statute reveals a clear legislative intent to retroactively apply the reformation provision to interests and powers of appointment created before its effective date. Additionally, the reformation provision is remedial in nature, and its application did not take away or impair ARCO’s vested interests. Accordingly, the trial court’s application of the reformation provision was not unconstitutionally retrospective.

Finally, ARCO contended that it prevailed, as a matter of law, on its unclean hands defense, because the trial court found that Equity breached its duty of good faith and fair dealing, which was the basis for ARCO’s unclean hands defense. Whether the unclean hands doctrine applies is a separate inquiry from whether a party to a contract has breached the implied duty of good faith and fair dealing. Here, the trial court determined that the evidence did not establish that Equity came to court with unclean hands, and the trial court did not abuse its discretion in making this finding. The judgment was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on September 2, 2010, can be found here.

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