May 22, 2018

Archives for April 19, 2011

HB 1297: Concerning the Statewide Internet Portal Authority

On April 13, 2011, Representative Murray and Senator Cadman introduced HB 1297 – Concerning the statewide internet portal authority. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill adds state agencies and local governments to the interests to be served by the statewide internet portal authority, in addition to members of the general public. The bill also:

  • Directs the authority to enable access to products and services as well as information;
  • Allows the authority to fund its activities using revenue derived from the sale of services, products, or information; and
  • Strikes current language subjecting the authority to performance audits.

Assigned to the Transportation Committee; the bill is scheduled for committee review on Wednesday, April 20 at 1:30 p.m.

Summaries of other featured bills can be found here.

HB 1296: Concerning the Temporary Continuation of the State Sales and Use Tax on Cigarettes

On April 11, Representative Kagan and Senator Steadman introduced HB 1296 – Concerning the temporary continuation of the state sales and use tax on cigarettes. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Prior to July 1, 2009, cigarettes were exempt from the state sales and use tax. This exemption was suspended for the 2009-10 and 2010-11 state fiscal years. The bill continues the state sales and use tax on cigarettes for 2 more years. Local sales and use taxes would not be impacted. The bill was introduced on Monday, April 11 and cleared the House, unamended, on Thursday, April 14.

Summaries of other featured bills can be found here.


Environmental Attorney Joshua Epel Nominated to Chair Public Utilities Commission

Governor John Hickenlooper has nominated Joshua Epel to Chair the Colorado Public Utilities Commission.

Epel, who is now Assistant General Counsel at DCP Midstream, also serves as chair of the Colorado Oil & Gas Commission but will vacate the position if confirmed for the PUC.

“Joshua Epel brings a broad range of experience in energy and environmental policy,” Hickenlooper said. “His strong business, engineering and legal background give him a strong foundation for leading the Colorado Public Utilities Commission. Joshua is also someone with a deep social conscience and a proven record of civic engagement. He’ll be independent-minded, objective and collaborative; all qualities important for the PUC.”

Read the full press release here.

New Mortgage Loan Originator Rules Effective 4/14/11 and 5/15/11; Rulemaking Hearings Scheduled

Colorado Court of Appeals: Hearing-Impaired DUI Arrestee Understood Obligation to Take Blood or Breath Test; Interpreter Not Required Under Circumstances

The Colorado Court of Appeals issued its opinion in Shiplet v. Colorado Department of Revenue, Division of Motor Vehicles on April 14, 2011.

Express Consent Law—CRS § 13-90-204.

Christopher Shiplet appealed the district court’s judgment affirming an order of a hearing officer of the Colorado Department of Revenue, Motor Vehicle Division (Department). The order revoked Shiplet’s driving privileges for refusing to submit to blood or breath testing for alcohol impairment. The order was affirmed.

Shiplet was arrested for driving under the influence of alcohol (DUI). Arresting officer John Akins determined that Shiplet was hearing impaired and used a pad of paper and pen to communicate with him. Shiplet refused Akin’s attempts to administer breath or blood tests, and his driver’s license was revoked. Shiplet challenged the revocation in an administrative hearing and it was sustained for nine months. The district court affirmed the order of revocation and Shiplet appealed.

In the administrative hearing, Akins and Shiplet both testified. Akins testified that he asked Shiplet, by writing it on paper, whether he chose to have his blood or breath tested for alcoholic content. Shiplet wrote “blood,” but then refused to sign the consent form for a blood draw or the refusal form, despite acknowledging that he understood the forms. Akins then offered a breath test. Shiplet agreed by signing a consent form, but then refused to take the test.

Shiplet testified, through a sign language interpreter, that he didn’t understand what Akins was writing or the forms. He testified that he tried to sign to Akins that he wanted an interpreter to come. The hearing officer found Shiplet’s testimony “unbelievable” and also determined that communicating in writing during a DUI arrest was sufficient on the part of the officer.

On appeal, Shiplet argued that the hearing officer erred in determining that he could understand and therefore could appropriately decline the express consent form he was given. The Court of Appeals disagreed. The Court found that the record supported the hearing officer’s determination that Shiplet “understood his obligation to take a blood or breath test but refused to do so.”

The Court also rejected Shiplet’s argument that CRS § 13-90-204 required Akins to procure a qualified sign language interpreter. Subsection 1(d) requires an interpreter “[w]hen a person who is deaf or hard of hearing is arrested and taken into custody for an alleged violation of a criminal law.” This requirement comes into play only “prior to any attempt to notify the arrestee of his or her constitutional rights and prior to any attempt to interrogate or to take a statement from such person.” The Court held that the blood or breath testing does not constitute an attempt to interrogate or take a statement.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on April 14, 2011, can be found here.


Colorado Court of Appeals: Indian Child Not Abandoned When Entrusted to Family or Friends

The Colorado Court of Appeals issued its opinion in In re the Parental Responsibilities of S.M.J.C., and Concerning Crawford on April 14, 2011.

Allocation of Parental Rights—25 U.S.C. § 1911(a) and (b)—Domicile.

In this allocation of parental rights proceeding, the Oglala Sioux Tribe (Tribe), acting through the Oglala Nation Tiospaye Resource Advocacy Center (ONTRAC), appealed from the order denying its motion to dismiss the proceeding or transfer the proceeding to the Tribe’s tribal court. The order was vacated and the case was remanded for further proceedings.

S.M.J.C. was born on November 24, 1998. His mother is an enrolled member of the Tribe, and his father’s membership was “pending” as of March 10, 2010. Mother and father were divorced in 2006 by the tribal court. Mother was given custody of the couple’s four children, and father was permitted visitation.

In October 2007, father, mother, and several of their children were living in a van in Denver. Father asked Constance Crawford, a Denver resident, whether they could stay with her due to the cold weather. She agreed. When the family moved out, Crawford offered to keep S.M.J.C. and his older brother, M.R.C., and enroll them in school. Father agreed and signed a document purporting to give guardianship of the two children to Crawford. On November 26, 2007, mother signed a similar document.

M.R.C. did not remain with Crawford. S.M.J.C. was still living with her in October 2009 when she petitioned a Colorado court for an allocation of parental responsibilities for the child. Crawford alleged mother had not seen the child for three years and father had not seen him since April 2008, and that it would be in the child’s best interests to allocate parental responsibilities entirely to her. The court ordered the child to remain in Colorado pending resolution of the action.

Crawford gave notice of her action to the Tribe. In November 2009, the tribal court gave temporary custody of the child to ONTRAC, and in December, ONTRAC moved to intervene and requested dismissal of the case. ONTRAC argued that the Tribe had exclusive jurisdiction over the matter under 25 U.S.C. § 1911(a) because the child’s domicile—the Pine Ridge Indian Reservation—followed the parents. Alternatively, ONTRAC argued that even if the tribe did not have exclusive jurisdiction, there was no good cause to deny transfer to the tribal court under § 1911(b).

The court held that S.M.J.C. had been abandoned by his parents to Crawford, and that this changed his domicile to Colorado. It also found good cause to deny transfer of the case, holding that Colorado was a more convenient forum because S.M.J.C. had expressed a desire to remain in Colorado and was receiving sophisticated medical and dental treatment in Colorado.

On appeal, ONTRAC argued that because parental rights had not been terminated, it was error to find that the child’s domicile was not that of his parents. The Indian Child Welfare Act (ICWA) was enacted in part to address the failure of non-Indians to understand the concept of “extended family” in Indian society. A parent’s entrustment of an Indian child to a relative or friend is not necessarily abandonment of the child. Here, the Court concluded that the record did not support a finding that the child had been abandoned. Because he was not abandoned, his domicile is the same as his custodial parent, his mother.

On remand, the trial court is to make findings regarding the domicile of mother at the inception of the proceedings. If she was domiciled on the reservation, then the motion to dismiss shall be granted and the proceedings transferred to the Olglala Sioux Tribal Court. If the court determines mother was not domiciled on the reservation, then it may reinstate its order denying the motion to dismiss.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on April 14, 2011, can be found here.


Colorado Court of Appeals: Evidence Sufficient to Demonstrate Decedent Struck Two People from Holographic Will

The Colorado Court of Appeals issued its opinion in In re the Estate of Schumacher: Caldwell v. Caldwell on April 14, 2011.

Testamentary Effect to Words Crossed Out on a Holographic Will.

Petitioner Maria Caldwell appealed the probate court’s order giving testamentary effect to words crossed out on decedent David Schumacher’sholographic will. The order was affirmed.

On December 1, 2004, decedent executed a holographic will that contained a clause devising shares of Meyers Land & Cattle stock to decedent’s cousins, petitioner Maria Caldwell, Cheryl Smart, and respondent Deborah Caldwell.

On January 12, 2006, decedent met with his attorney, Michael Gilbert, to create a typed will. Gilbert testified that decedent told him he had prepared a holographic will but subsequently decided he did not want his stock to be given to two of his three cousins. Decedent gave Gilbert copy of the holographic will that included lines crossing out the names of petitioner and Cheryl as remainder devisees of all the shares of the stock. Decedent requested Gilbert prepare a will that was the same as his December 2004 will, but that reflected those changes. Decedent gave Gilbert several reasons for deleting Maria’s and Cheryl’s names, but did not specify who had made the cross-outs.

Gilbert drafted a typed will and transmitted it to decedent. Decedent died on July 3, 2007, without ever executing it. Gilbert tendered his copy of the holographic will to the probate court. Later, the original holographic will with the cross-outs was located in boxes that had been stored with decedent’s secretary, and it was tendered to the probate court.

The probate court held a hearing in June 2009 and found that decedent had performed a “revocatory act” on the will by crossing out the names. The court ordered the strikethroughs to be given effect in probate. Cheryl and Maria appealed. Cheryl’s appeal was dismissed.

Petitioner did not challenge the validity of the will, but argued that (1) the evidence contradicted and did not support a finding that decedent made the cross-outs; and (2) there was no evidence to support the finding that decedent made the cross-outs with the intent and purpose to revoke the devise. The Court disagreed on both points.

Glibert’s testimony, together with the evidence that the original will with the crossed-out portions was found in decedent’s possession, was sufficient to demonstrate that decedent made the cross-outs. In addition, Gilbert’s testimony served as clear and convincing evidence of decedent’s intent and purpose to revoke the devise of stock through the cross-outs.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on April 14, 2011, can be found here.


Colorado Court of Appeals: Board of Assessment Improperly Reclassified Real Property as Agricultural

The Colorado Court of Appeals issued its opinion in C.P. Bedrock, LLC v. Denver County Board of Equalization on April 14, 2011.

Property Taxes—Agricultural Classification.

In this property tax case, the Denver County Board of Equalization (Denver) appealed a Board of Assessment (BAA) order that reclassified a parcel of real property as agricultural for tax years 2007 and 2008. The judgment was reversed.

The subject property consists of a parcel of approximately 37 acres of vacant land that is zoned commercial mixed use and sits along Tower Road. It was acquired by C.P. Bedrock, LLC (taxpayer) in 1998 as part of a 400-acre purchase, and was leased for ranching. It was classified as agricultural through 2006. In the fall of 2005, the City and County of Denver removed a fence on the property to widen Tower Road, which made ranching no longer possible. Taxpayer leased 600 contiguous acres to Wayne Miller for farming.

In 2006, various governmental entities began work on the property as part of a cooperative effort to widen Tower Road. In January 2006, the Town Center Metropolitan District started an 80-foot-wide ditch construction project that bisected the property from east to west. It was completed in August. The workers used the entire property during construction. Miller did not graze livestock or grow crops on the property in 2006. In 2007 and 2008, Miller grew millet and winter wheat on the property.

In January 2006, Miller applied for inclusion of the property in his conservation plan with the Direct and Counter-Cyclical Program (DCP), which entitled him to a wheat subsidy payment from the Adams County branch of the federal Farm Service Agency. The property was included in March 2007.

At the BAA hearing, Miller testified that he did not perform any conservation practices on the property in 2006. The BAA found that “no farming or ranching activities occurred on the subject property during 2006.” However, it concluded that because the property was part of a larger farm unit that was actively farmed in 2006, it did not have to be reclassified, thereby returning the taxable value of the property to $3,000 from the reclassified value of $4,031,600.

On appeal, Denver argued that the BAA action was contrary to law because the property was not used as agricultural land in 2006. The Court of Appeals agreed. The Court first found that there was no farming on the property in 2006; it was used as a construction site. The Court then rejected the BAA’s alternative ground that the property was “in the process of being restored through conservation practices.” This language was clarified by legislative amendment in 1997. A parcel may qualify if it has been placed in a conservation reserve program, or if it is subject to a conservation plan approved by the appropriate conservation district for up to a period of ten crop years. The property in this case was not in a conservation reserve program in 2006. Accordingly, the BAA order to reclassify and revalue the property as agricultural land was reversed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on April 14, 2011, can be found here.

Colorado Court of Appeals: Defendant Was Not Tried by Anonymous or Numbers Jury; Not Entitled to Miranda During Initial Interview

The Colorado Court of Appeals issued its opinion in People v. Rizo on April 14, 2011.

Felony Sexual Assault—“Anonymous” Jury—Evidence Suppression.

Defendant appealed the judgment of conviction entered on a jury verdict finding her guilty of class 2 felony sexual assault. The judgment was affirmed.

The evidence presented during trial established that defendant had assisted her boyfriend in carrying out the crime. On appeal, defendant raised two arguments. First, she argued that the use of an “anonymous” jury violated her rights to a public trial, a fair and impartial jury, due process, and equal protection.

Before trial, the prospective jurors filled out questionnaires before being called into the courtroom. The questionnaires, which were given to the court, the prosecution, and the defense, contained the jurors’ first and last names, addresses, ages, telephone numbers, and occupations. The trial court informed the attorneys outside the jury’s presence that they were to refer to the jurors by their juror numbers rather than their names. Neither side objected.

Because defendant did not object at the trial court proceeding, the Court of Appeals reviewed her argument for plain error. The Court held there was no error, because defendant was not tried by an anonymous or even a numbers jury. The Court noted the following reasons: (1) the prosecution and the defense knew the jurors’ identifying information; (2) the jurors knew that the court and parties had this information about them; (3) the public knew the prospective jurors’ names because they were announced in open court; (4) the jurors had no reason to believe their names would not be used in court, because in the panel’s presence, the trial court listed fifteen names of prospective jurors who would speak with counsel and the court in chambers, and one of them did serve on the jury; and (5) the court’s explanation about referring to jurors by number did not implicate the presumption of innocence because it did not suggest that defendant was a dangerous person.

Defendant’s second argument was that statements made to the police on the morning after the assault should have been suppressed because she was not advised of her Miranda rights. The police interviewed defendant in her apartment. Initially, she admitted that the victim and her boyfriend had been in the apartment the night before but denied there had been any sexual activity. When she was told that her boyfriend had been arrested and the victim had been taken to the hospital, defendant stated that her boyfriend and the victim had engaged in consensual sex.

Prior to trial, defendant filed a motion to suppress, arguing that she was in custody when the officers questioned her and, therefore, they were obligated to advise her of her Miranda rights. Following a hearing, the trial court denied the suppression motion. Under the totality of the circumstances, the Court concluded that a reasonable person in defendant’s position would not have considered herself deprived of her freedom of action to the extent associated with a formal arrest.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on April 14, 2011, can be found here.


Colorado Court of Appeals: Recusal Not Necessary for Judge Who Reported Party to Attorney Regulation

The Colorado Court of Appeals issued its opinion in Watson v. Cal-Three, LLC on April 14, 2011.

C.R.C.P. 120 Foreclosure Action—Judge Recusal—Damages.

Plaintiffs John Watson and his closely held entity (collectively, Watson) appealed the judgment awarding compensatory and punitive damages to defendant Cal-Three, LLC. The judgment was affirmed in part and vacated in part, and the case was remanded for a new trial on damages.

In 1999, Brandon Park, LLC borrowed money from First United Bank (FUB) to develop and construct townhomes in return for a first deed of trust. Watson agreed to guarantee repayment of the loan in exchange for a fee to be paid from the project’s proceeds. Calahan Construction Company (Calahan) was the general contractor for the first phase of the project. Brandon Park began having problems making payments, and Calahan sued.

In June 2002, the parties mediated the dispute and resolved all issues in a series of settlement agreements. In one of those agreements Brandon Park transferred all of its rights in the project to Cal-Three, an entity formed by the principal of Calahan for the purpose of becoming the owner and developer of the project.

Watson was not a party to the lawsuit but attended the mediation and agreed to a reduced guarantor fee. In August 2002, Watson notified Cal-Three that it was in default of the new agreements. Cal-Three did not respond.

On October 24, 2002, the sale of a townhome was scheduled to close. Watson sent a payoff letter to the title company with an amount for the entire project, and the closing did not occur. The next day, Watson commenced this action and had a receiver appointed. In December 2002, having paid the balance owed to FUB, Watson filed a C.R.C.P. 120 action to foreclose the deed of trust. Cal-Three did not appear.

At the foreclosure sale in February 2003, Watson successfully bid on the property. Eventually, Watson sold the remaining three completed townhomes for $414,326.55 and the remaining raw land for $738,000.

Cal-Three eventually filed an answer and counterclaim in the receivership action. Following a bench trial, the court ruled in favor of Cal-Three on its breach of contract and covenant of good faith claims. The trial court awarded Cal-Three the money received from the sale of the townhomes and raw land, as well as $50,000 in punitive damages.

An appeal was filed and at issue, but Watson filed bankruptcy. Three years later, the parties petitioned for relief from the automatic stay, which was granted.

Watson argued that the trial judge should have recused herself sua sponte because, before entering judgment, she sent a letter of complaint concerning Watson, an inactive attorney, to the Colorado Supreme Court Office of Attorney Regulation Counsel (OARC). The Court of Appeals disagreed. A judge is not recusable for bias or prejudice that is based on the facts and circumstances of the case. C.R.C.P. 251.4 places a duty on a judge to report unprofessional conduct by an attorney to the OARC.

Here, Watson violated the trial court’s sequestration order for all witnesses by sending a facsimile recounting trial testimony to a witness who was scheduled to, and did, testify. The Court held that reporting this and failing to recuse herself was not an abuse of discretion. Also, it did not matter that several months after the judgment was entered, the judge recused herself in response to a motion Watson filed. Recusal provides prospective relief and does not necessarily invalidate orders previously entered.

Watson also argued that the compensatory damages award must be vacated because it was premised on an erroneous measure of damages and was not supported by the evidence. The Court agreed. In breach of contract actions, plaintiffs generally are entitled to recover the amount of damages required to place them in the same position they would have occupied had the breach not occurred. This “expectancy” interest may include past lost profits and future lost profits. In some circumstances, where the defendant’s wrong is substantial and it would be unjust for him or her to keep any profit, the court may order disgorgement of all profits.

Here, the trial court found that Watson had entered into the settlement agreements in bad faith, and that Watson had acted willfully and wantonly in breaching the contracts. Thus, the Court concluded that the trial court was within its discretion to order disgorgement of Watson’s profits. However, the Court held that the trial court erroneously calculated Watson’s profits.

It was undisputed that Watson had paid the FUB loan in full in the amount of $66,366.80 and that Cal-Three was liable for that sum. This should have been subtracted from the damages awarded. In addition, the trial court did not determine what portion of the profits was attributable to Cal-Three and what portion was attributable to Watson’s efforts and investment. This issue was remanded to the trial court. Because the trial court judge had recused herself, the Court ordered a new trial on damages before a different judge.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on April 14, 2011, can be found here.