December 11, 2017

Archives for May 3, 2016

Colorado Supreme Court: Announcement Sheet, 5/2/2016

On Monday, May 2, 2016, the Colorado Supreme Court issued five published opinions.

City of Littleton v. Industrial Claim Appeals Office

Industrial Claim Appeals Office v. Town of Castle Rock

City of Englewood v. Industrial Claim Appeals Office

City of Fort Collins v. Colorado Oil and Gas Association

City of Longmont v. Colorado Oil and Gas Association

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Court of Appeals: High Net Worth First-Party Insured Must Bear Loss Resulting from Insolvent Insurer

The Colorado Court of Appeals issued its opinion in Colorado Insurance Guaranty Association v. Sunstate Equipment Co., LLC on Thursday, April 21, 2016.

Recoupment—Insolvent Insurer—High Net Worth—First Party Insured—Equal Protection—Procedural Due Process—Special Legislation—Summary Judgment—Attorney Fees.

This was a recoupment action under C.R.S. § 10-4-511(4)(a)(I) (net worth provision) in which the trial court entered summary judgment in favor of plaintiff Colorado Insurance Guaranty Association (CIGA) and against defendant Sunstate Equipment Company, LLC for workers’ compensation benefits that CIGA paid to a Sunstate employee. Sunstate had paid the benefits after its workers’ compensation insurer became insolvent and was liquidated. The court allowed Sunstate an offset based on liquidation proceeds paid to CIGA and refused to award CIGA its attorney fees incurred in connection with the employee’s claim.

Sunstate appealed on four grounds: (1) the net worth provision is unconstitutional; (2) the immunity created by C.R.S. § 10-4-517 (immunity provision) is unconstitutional special legislation, and the trial court erred in holding that it bars Sunstate from raising affirmative defenses based on CIGA’s alleged mishandling of the employee’s claim; (3) it was error to decline to require CIGA to show that it had reviewed the applicable insurance policy to determine the “covered benefits” to which the employee was entitled; and (4) the trial court miscalculated the offset. On cross-appeal, CIGA asserted that the trial court erred in allowing Sunstate any offset for the liquidation proceeds and refusing to award CIGA its attorney fees.

On the constitutional issues, the Colorado Court of Appeals looked at opinions from other states that have net worth statutes similar to Colorado’s and held that there was no violation of equal protection or procedural due process.

On the immunity provision, the court determined that providing CIGA with immunity is rationally and reasonably related to a legitimate government purpose and concluded Sunstate did not show beyond a reasonable doubt how the immunity provision violates the constitutional ban on special legislation. The court also concluded that under the immunity provision, the court properly barred Sunstate from raising its affirmative defenses.

The argument that CIGA failed to prove covered benefits by reference to the insurance policy was without merit.  But while CIGA was entitled to recover for covered claims, the trial court erred in concluding that CIGA was immune from challenges to whether payments were for covered claims, and it was error to simply accept the spreadsheet provided as a basis for entering summary judgment on the amount. This issue was therefore remanded for further proceedings.

The court held as a matter of law that Sunstate was not entitled to an offset. Under the net worth provision, CIGA had the right to recover from Sunstate “the amount of any covered claim.” Sunstate argued that allowing CIGA to recover the full amount of the claimant’s claims without accounting for the early access distributions (EADs) in the bankrupt insurer’s bankruptcy would result in a double recovery for CIGA. But California law, which controlled the liquidation of the bankrupt insurer, does not allow for such a double recovery; to the extent that CIGA recovered its payments on the claim from Sunstate, it would have to return any EADs paid to the bankruptcy estate.

Finally, the court rejected CIGA’s assertion that the attorney fees it incurred in defending and handling the claim were part of a “covered claim” and therefore were recoverable from Sunstate. The court concluded that the plain language of the Colorado Insurance Guaranty Association Act precludes including such attorney fees in a covered claim.

The judgment was affirmed in part and reversed in part, and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Prosecutorial Misconduct Not Intended to Provoke Mistrial

The Colorado Court of Appeals issued its opinion in People v. August on Thursday, April 21, 2016.

Double Jeopardy—Prosecution Intentionally Seeking a Mistrial.

Defendant was tried twice on charges of kidnapping and sexual assault of his former wife. The first trial was declared a mistrial and the charges were dismissed on federal double jeopardy grounds based on a finding that the prosecution had willfully violated a court order. On appeal, a division of the court of appeals concluded that the reprosecution would only be barred if the prosecutor had acted with the intent to provoke a mistrial, and the case was remanded with directions to make findings on this issue. On remand, the trial court found that the prosecutor had not intended to provoke defendant into moving for a mistrial, denied defendant’s motion to dismiss the charges, and held a second trial.

At the second trial the defense objected to the prosecution’s closing statement referencing a prior assault and remark that “history repeats itself” as an impermissible reference to propensity. The court agreed with the defense, declared a mistrial, and heard argument as to whether the charges should be dismissed under the double jeopardy provisions of the U.S. and Colorado constitutions. The trial court dismissed the charges on double jeopardy grounds, finding that the prosecutor had willfully goaded the defense into asking for a mistrial in order to try the case a third time and benefit from the experience of the second trial’s weaknesses.

On appeal, the People argued that the trial court erred. The court agreed, finding that the state and federal standard on this issue is the same: a retrial is barred only if prosecutorial misconduct giving rise to the mistrial was intended to provoke the defense into moving for a mistrial. Double jeopardy bars retrial in the mistrial context only where the prosecutor’s intent is to avoid a jury verdict. In evaluating the prosecutor’s conduct, the trial court used an improper legal standard and may not have considered the totality of the circumstances surrounding the prosecutor’s conduct.

The order of dismissal was vacated and the case was remanded to the trial court for reconsideration of its ruling and further findings of fact consistent with the court’s opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Prison Inmate Should Serve Consecutive County Court Sentence First

The Colorado Court of Appeals issued its opinion in People v. Valadez on April 21, 2016.

Consecutive Sentencing—Department of Corrections—Misdemeanor—County Jail.

While serving a prison sentence in the custody of the Department of Corrections (DOC), defendant committed a misdemeanor assault. The district court imposed a consecutive county jail sentence on the misdemeanor and ordered defendant to serve the remainder of his prison sentence before his jail sentence. Defendant subsequently filed a motion to amend the mittimus to reflect time served on the jail sentence so the detainer would be removed from his prison sentence. The court denied the motion.

On appeal, defendant argued that the district court erred by not ordering him to serve his jail sentence first. This pending county jail sentence created a detainer on defendant’s prison sentence that affected his parole eligibility date and his eligibility for transitional placements in the community. When a district court determines that a concurrent sentence is not warranted for a misdemeanor committed by a prisoner in a state prison facility, as here, the court must toll the prison sentence, order that the county jail sentence for the misdemeanor be served before the remainder of the prison sentence, and send a mittimus to the DOC reflecting its sentence. After fully serving the jail sentence, the prisoner must then be transferred back to the custody of the DOC to serve the remainder of his prison sentence.

The order was reversed and the case was remanded for resentencing.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: TABOR Election Illegal Where Landowners Denied Participation in Election

The Colorado Court of Appeals issued its opinion in Landmark Towers Association, Inc. v. UMB Bank, N.A. on Thursday, April 21, 2016.

Real Estate—Special District—Property Taxes—Time Bar—Waiver—Bill of Costs—Prevailing Party—Taxpayer’s Bill of Rights—Notice.

A real estate developer created a special district, the Marin Metropolitan District, as a vehicle for financing the infrastructure of a to-be-developed residential community, the European Village. The District issued bonds to finance the development, which were to be paid for by property taxes imposed on landowners within the District. A group of condominium owners who did not live in European Village learned that their properties had been included in the District under suspicious circumstances. The condominium owners received no benefit from the European Village development, and they had not been notified of and did not vote in the elections to create the District and approve the bonds and taxes. Acting through their homeowners association, plaintiff Landmark Towers Association, Inc., they brought two actions, one to invalidate the creation of the District and the other—this case—to invalidate the approval of the bonds and taxes and to recover taxes they had paid to the District. Following a bench trial, the district court granted Landmark part of the relief it requested, ordering partial refund of taxes paid and enjoining the District from continuing to collect taxes from the Landmark condominium owners.

On appeal, defendants, UMB Bank, Colorado Bondshares, and the District, contended that all of Landmark’s challenges to the validity of the taxes are barred by the 30-day time limit in C.R.S. § 11-57-212. However, defendants waived this issue by not raising it at trial.

Bondshares and UMB contended that the district court erred in denying their bill of costs because they prevailed on Landmark’s fraudulent transfer and unjust enrichment claims against them. While no specific claims were asserted against Bondshares and UMB at trial, they were aligned with the District’s position and had not prevailed in the overall context of the litigation. The district court did not abuse its discretion in denying this claim.

Landmark contended that the district court erred in ruling that the District’s Taxpayer’s Bill of Rights (TABOR) election was valid. The court of appeals determined that the organizers who voted in the election were not eligible electors because the organizers’ contracts for options to purchase parcels were sham agreements. Therefore, the organizers illegally participated in the District’s TABOR election and their votes are void. It follows that the TABOR election was invalid. The court also held that those under contract to purchase units in the Landmark Towers were eligible electors in the TABOR election who did not receive constitutionally required notice. Therefore, the district court erred; the TABOR election itself was illegal and the District’s taxes to pay the bonds were illegally levied. The District must refund all taxes paid illegally with simple interest and the Landmark buyers are entitled to an order enjoining the District from levying any further taxes without proper voter approval.

The judgment was affirmed in part and reversed in part, and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

SB 16-163: Directing Office of Legislative Legal Services to Study Potential Reorganization of C.R.S. Title 12

On March 16, 2016, Sen. Michael Johnston and Rep. Daniel Kagan introduced SB 16-163Concerning A Study of an Organization Recodification of Title 12 of the Colorado Revised Statutes Governing the Regulation of Professions and Occupations. The bill was assigned to the Senate State, Veterans, & Military Affairs Committee. It passed out of that committee unamended and was referred to Appropriations, where it was amended and referred to the Senate Committee of the Whole for Second Reading.

This bill directs the Office of Legislative Services to conduct a study of an organizational recodification of Title 12 of the Colorado Revised Statutes. In conducting this study, the office must solicit input, including regarding the potential fiscal impacts of a recodification, from the judicial department, state agencies, local governments, and other entities with regulation and enforcement responsibilities established by Title 12.

The bill requires the committee to determine whether to direct the office to present proposed legislation to the committee for organizational recodification by December 31, 2017. Any proposed recodification should be largely organizational and nonsubstantive. This includes only those substantive provisions necessary to promote the public purposes of an organizational recodification, such as changes to make similar but repetitive provisions uniform and capable of consolidation and changes that eliminate archaic or obsolete provisions.

Mark Proust is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

SB 16-153: Encouraging Nominating Commissions to Give Preferences to Attorneys in the County for County Court Vacancies

On March 11, 2016, Sen. Larry Crowder and Rep. Jim Wilson introduced SB 16-153Concerning Nominees for County Court Judges. The bill was assigned to the House Judiciary Committee. It passed through both the House and Senate without amendments and is awaiting the governor’s signature.

This bill encourages judicial district nominating commissions to give preference to attorneys who reside in the county in which the vacancy occurs.

Specifically, under C.R.S. § 13-6-206(2), the amended bill provides that if a vacancy opens for a county judge, the judicial district nominating commission should give preference to (1) persons who reside in the county in which the vacancy occurs, and (2) persons who have been admitted to practice law in the State of Colorado.

Mark Proust is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Tenth Circuit: Unpublished Opinions, 5/2/2016

On Monday, May 2, 2016, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

Brennan v. United States

United States v. Banyai

Gallegos v. Colvin

McDaniels v. Goff

United States v. Alvarez

United States v. Saenz

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.