June 23, 2018

Colorado Court of Appeals: Grand Jury Foreman’s Failure to Sign Indictment Did Not Deprive Court of Jurisdiction

The Colorado Court of Appeals issued its opinion in People v. Tee on Thursday, June 14, 2018.

Criminal Procedure—Grand Jury—Attempt to Influence a Public Servant—Jury—Predeliberation—Waiver—Evidence.

Tee was convicted of multiple charges, including two counts of attempting to influence a public servant.

On appeal, Tee contended that because the indictment received by the district court did not contain the signature of the grand jury foreperson, it did not confer jurisdiction and all charges must be dismissed. However, the signature of the foreperson need not be provided to the district court, and the court had jurisdiction.

Tee also contended that because two jurors engaged in predeliberation, he is entitled to a new trial. Here, defense counsel waived any error as to predeliberation.

Tee further argued that the two convictions for attempting to influence a public servant must be vacated because there was insufficient evidence supporting the convictions. Here, Tee was convicted of two counts of attempting to influence a public servant based on evidence that he made false reports of car accidents. The evidence was sufficient to support one count of attempting to influence a public servant where Tee provided information in person to a police officer who created a report based on what Tee had told him. However, the evidence was insufficient as to the other count where Tee filled in an accident report form on a computer terminal at a kiosk in the police department, because it did not show that Tee was attempting to influence a public servant.

Lastly, the attorney general conceded that the trial court violated Tee’s double jeopardy rights because it orally announced a 12-year sentence but the mittimus showed an 18-year sentence. The mittimus also incorrectly showed a conviction on a count that was dismissed.

The judgment was vacated as to one count and otherwise affirmed. The case was remanded to correct the mittimus.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Respondents’ Complaint Asserted Timely Claim Seeking Declaration that Ordinance Violated City Charter

The Colorado Supreme Court issued its opinion in City of Boulder v. Public Service Co. of Colorado on Monday, June 18, 2018.

Declaratory Judgment Actions—C.R.C.P. 57—C.R.C.P. 106—Municipal Ordinances—Finality.

This case arises out of respondents’ challenge to petitioner city’s attempt to create a light and power utility. Respondents assert that the ordinance establishing the utility violates the city’s charter. Respondents thus seek a declaratory judgment deeming that ordinance null and void. The city asserted that respondents’ complaint was, in reality, an untimely C.R.C.P. 106 challenge to a prior ordinance by which the city had concluded that it could meet certain prerequisites for the formation of the utility as prescribed by the city charter. The district court agreed with the city and dismissed respondents’ complaint for lack of jurisdiction. A division of the court of appeals, however, vacated the district court’s judgment, concluding that neither of the pertinent ordinances was final and therefore respondents’ complaint was premature.

The supreme court reversed the division’s decision and remanded the case for further proceedings on respondents’ declaratory judgment claim. Although the court agreed with the city that the division erred, contrary to petitioners’ position and the premises on which the courts below proceeded, the court agreed with respondents that the complaint asserted a viable and timely claim seeking a declaration that the ordinance establishing the utility violated the city charter. Accordingly, the court concluded that the district court had jurisdiction to hear respondents’ declaratory judgment claim, and the court remanded the case to allow that claim to proceed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Jury’s Refusal to Convict on Pattern of Abuse Charge Does Not Necessitate Retrial on Only Single Act

The Colorado Supreme Court issued its opinion in In re People v. Stackhouse on Monday, June 18, 2018.

Double Jeopardy.

Pursuant to C.A.R. 21, the People challenged a district court order granting Stackhouse’s motion to compel the People to elect a particular allegation of sexual assault on a child as their sole basis for proceeding in Stackhouse’s retrial. The supreme court held that the district court erred when it concluded that the jury in Stackhouse’s first trial had necessarily concluded that he did not commit multiple acts of assault, and therefore that he could not be retried for more than a single assault. The court made the rule to show cause absolute, reversed the district court’s order, and remanded the case to the district court for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Colorado Court Lacks Jurisdiction to Award Attorney Fees for Foreign Action

The Colorado Supreme Court issued its opinion in Roberts v. Bruce on Monday, June 18, 2018.

Attorney Fees—Statutory Interpretation.

In this case, the supreme court considered whether a trial court may award attorney fees under C.R.S. § 13-17-102 for conduct occurring outside Colorado courts. Reviewing the plain language of 13-17-102, the court concluded that an award of attorney fees pursuant to that section is limited to conduct occurring in Colorado courts and therefore affirmed the judgment of the court of appeals.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Foundational Documents Insufficient to Create Homeowners Association for Common Land

The Colorado Supreme Court issued its opinion in McMullin v. Hauer on Monday, June 18, 2018.

Colorado Common Interest Ownership Act—Common Interest Communities—Homeowners’ Associations.

The supreme court reviewed the court of appeals’ opinion affirming the trial court’s order finding that the recorded instruments in this case were sufficient to create both a common interest community by implication and an unincorporated homeowners’ association. The court held that the recorded instruments were insufficient under the Colorado Community Interest Ownership Act to create a common interest community by implication. Accordingly, the court reversed the court of appeals’ judgment and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: District Court Erred in Requiring Party to Settle for Anticipated Loss Because That Would Require Giving Up Contractual Rights

The Colorado Supreme Court issued its opinion in United States Welding, Inc. v. Advanced Circuits, Inc. on Monday, June 18, 2018.

Breach of Contract—Mitigation—Settlement Offer—Accord and Satisfaction.

U.S. Welding, Inc. (Welding) sought review of the court of appeals’ judgment affirming the district court’s order awarding it no damages whatsoever for breach of contract with Advanced Circuits, Inc. (Advanced). Notwithstanding its determination following a bench trial that Advanced breached its contract to purchase from Welding all its nitrogen requirements during a one-year term, the district court reasoned that by declining Advanced’s request for an estimate of lost profits expected to result from Advanced’s breach before the contract term expired, Welding failed to mitigate.

The supreme court reversed the court of appeals’ judgment concerning the failure to mitigate and remanded the case for further proceedings. The court held that the district court erred by requiring Welding to settle for a projection of anticipated lost profits, rather than its actual loss, as measured by the amount of nitrogen Advanced actually purchased from another vendor over the contract term, because an aggrieved party is not obligated to mitigate damages from a breach by giving up its rights under the contract.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Defendant’s Statements Admissible Under Two-Part Seibert Test

The Colorado Supreme Court issued its opinion in Verigan v. People on Monday, June 11, 2018.

Suppression of Statements—Two-Step Interrogation—Plurality Supreme Court Opinions—Miranda Warnings.

This case required the supreme court to decide (1) whether the U.S. Supreme Court’s fractured opinion in Missouri v. Seibert, 542 U.S. 600 (2004), created a precedential rule that could be applied to future cases, and (2) whether statements made by petitioner after she was given Miranda warnings should be suppressed because the statements were made after petitioner provided unwarned, incriminating statements to the police.

The court concluded that Justice Kennedy’s concurring opinion in Seibert, which created an exception to the framework established in Oregon v. Elstad, 470 U.S. 298 (1985), for cases involving a deliberate two-step interrogation aimed at undermining the efficiency of the Miranda warning, is the controlling precedent to be applied. Applying Justice Kennedy’s test here, the court concluded that the officers in this case did not engage in a two-step interrogation in a deliberate attempt to undermine the effectiveness of Miranda warnings provided to petitioner. Therefore, the court concluded that the Elstad framework applies, and because petitioner’s pre- and post-warning statements were indisputably voluntary, the court concluded that the division correctly determined that petitioner’s post-warning statements were admissible.

Accordingly, the court affirmed the court of appeals division’s judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Arbitration Agreement Need Only Substantially Comply with Statutory Notice Requirements

The Colorado Supreme Court issued its opinion in Colorow Health Care, LLC v. Fischer on Monday, June 11, 2018.

Health Care Availability Act—Statutory Construction—Alternative Dispute Resolution.

C.R.S. § 13-64-403 of the Health Care Availability Act governs arbitration agreements between patients and healthcare providers. Under C.R.S. § 13-64-403(4), such agreements must contain a certain notice to patients to help ensure that they enter the agreements voluntarily, and the notice must be emphasized by at least 10-point font and bold-faced type. The agreement here contained the notice in 12-point font, but it was not bold-faced. The court of appeals determined the statute requires strict compliance and that the agreement therefore failed for lack of bold-faced type.

The supreme court held that C.R.S. § 13-64-403 requires only substantial compliance. The court further concluded the agreement here substantially complied with the formatting requirements of C.R.S. § 13-64-403, notwithstanding its lack of bold-faced type. Accordingly, the court reversed the court of appeals’ judgment and remanded the case for further proceedings consistent with the opinion.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Public Defender Lacks Statutory Authority to Represent Defendant in Civil Forfeiture Action

The Colorado Supreme Court issued its opinion in In re People v. Shank on Monday, June 11, 2018.

Public Defender Representation—Statutory Interpretation.

In this case, the supreme court determined whether the Office of the State Public Defender has statutory authority to represent an indigent defendant in a civil forfeiture matter. Reviewing the plain language of the relevant statutes, the court concluded that the Office of the State Public Defender was not statutorily authorized to enter its appearance in the underlying civil forfeiture matter.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: No Fraud Where Assignment Clause Made Clear that Buyers Could Assign Interests

The Colorado Supreme Court issued its opinion in Rocky Mountain Exploration, Inc. v. Davis, Graham & Stubbs, LLP on Monday, June 11, 2018.

Undisclosed Principals—Fraud—Breach of Fiduciary Duty—Restatement (Third) of Agency.

This case arose out of a sale of oil and gas assets by petitioners to a buyer who was acting as an agent for a third company. The third company was represented by respondents, but due to a prior, contentious business relationship between petitioners and the third company, neither the buyer, the third company, nor respondents disclosed to petitioners that the buyer was acting on behalf of the third company in the sale.

After the sale was complete, petitioners learned of the third company’s involvement and sued respondents, among others, for breach of fiduciary duty, fraud, and civil conspiracy. The district court ultimately granted summary judgment for respondents, and a division of the court of appeals affirmed.

The supreme court here decided whether (1) petitioners could avoid their sale agreement for fraud when the buyer and respondents purportedly created the false impression that the buyer was not acting on behalf of the third company; (2) an assignment clause in the transaction documents sufficiently notified petitioners that the buyer was acting on behalf of others, such that the third company would not be considered an undisclosed principal under the Restatement provision on which petitioners’ contract avoidance argument is exclusively premised; (3) petitioners stated a viable claim for fraud against respondents; and (4) prior agreements between petitioners and the third company negated any joint venture relationship or fiduciary obligations between them.

The court first concluded that the assignment clause in the pertinent transaction documents made clear that the buyer had partners in the transaction to whom it could assign a portion of its interests. As a result, the third company was not an undisclosed principal under the Restatement provision on which petitioners’ rely, and petitioners’ contract avoidance argument and the civil conspiracy claim that flows from it fail as a matter of law. The court further concluded that, even if the Restatement provision did apply, the record did not support a finding that either the buyer or respondents created a false impression that the buyer was not acting on behalf of an undisclosed principal. For this reason as well, petitioners’ civil conspiracy claim failed as a matter of law.

The court next concluded that, as a matter of law, petitioners did not demonstrate the requisite false representation or reasonable reliance to support a viable claim for fraud against respondents.

Finally, the court concluded that the controlling agreements between petitioners and the third company expressly disavowed any pre-existing joint ventures and fiduciary obligations between the parties, and therefore the district court properly granted summary judgment for respondents on petitioners’ claim for aiding and abetting a breach of fiduciary duty.

Accordingly, the court affirmed the court of appeals division’s judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: No Error in Court’s Refusal to Release Sealed Records to Newspaper

The Colorado Supreme Court issued its opinion in In re People v. Owens on Monday, June 11, 2018.

Constitutional Law — Public Access to Court Records.

In this original proceeding, the supreme court considered and rejected a news organization’s contention that a trial court erred in refusing to grant public access to certain records maintained under seal in a capital murder case. The court emphasized that, while presumptive access to judicial proceedings is a right recognized under both the state and federal constitutions, neither the U.S. Supreme Court nor the Colorado Supreme Court has ever held that records filed with a court are treated the same way. The court thus declined the invitation to hold that unfettered access to criminal justice records is guaranteed by either the First Amendment or Article II, section 10 of the Colorado Constitution.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Settlement Including Reduction for MedPay Amounts Enforceable Post-Calderon

The Colorado Court of Appeals issued its opinion in Arline v. State Farm Mutual Insurance Co. on Thursday, May 31, 2018.

Uninsured/Underinsured Settlement and Release Agreement—C.R.C.P. 12(b)(1) Dismissal.

Arline submitted claims to American Family Mutual Insurance Company (American) under insurance policies that provided $5,000 in MedPay coverage and $50,000 in individual underinsured motorist (UIM) coverage. American paid $5,000 in MedPay benefits on Arline’s behalf and negotiated Arline’s damages under her UIM coverage to be $27,000, after subtracting the $5,000 in MedPay benefits already paid. In November 2015, Arline, represented by counsel, accepted the $27,000 payment and signed a release agreement (Agreement) releasing American under the UIM policy.

In November 2016, the Colorado Supreme Court held for the first time in Calderon v. American Family Mutual Insurance Co., 2016 CO 72, that C.R.S. § 10-4-609(1)(c) prohibits insurers from reducing the UIM benefits paid on a claim by the amount of MedPay benefits paid on that claim, which the court deemed a “setoff.” (Counsel in that case now represents Arline.)  Arline then sued American for breach of contract and seeking class certification, asserting that American had unlawfully reduced UIM payments using a MedPay setoff. American responded that the Agreement was a complete bar to the cause of action and moved to dismiss. The district court found the Agreement enforceable and granted American’s motion to dismiss for lack of standing.

On appeal, Arline argued that the district court erred in dismissing her complaint because American’s payment pursuant to the Agreement caused her to suffer an injury-in-fact to a legally protected interest. Though the supreme court held that C.R.S. § 10-4-609(1)(c) prohibits policy provisions allowing a setoff from other coverage, it did not hold that the statute extended to settlement agreements. An insured may agree to a settlement and release as long as the terms do not violate statutory prohibitions or public policy. If a release agreement is valid, dismissal of claims encompassed by the agreement is proper. Here, Arline entered into the Agreement voluntarily while represented by counsel who was fully informed that certiorari had been granted in Calderon. She negotiated her damages benefits and agreed that the UIM benefit amount paid compensated her sufficiently to warrant releasing American from any further claims. In addition, Colorado public policy favors the settlement of disputes when the settlement is fairly reached. Arline signed a valid release agreement that is not void as against public policy or prohibited by statute. The district court properly dismissed her claim.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.