August 22, 2017

Colorado Court of Appeals: Class Did Not Cease to Exist When Settlement Entered

The Colorado Court of Appeals issued its opinion in EnCana Oil & Gas (USA), Inc. v. Miller on Thursday, August 10, 2017.

Class Action Settlement—Arbitration Provision—C.R.C.P. 23—Survival of the Class.

A certified class of Colorado oil and gas royalty owners (the Class) and EnCana Oil & Gas (USA), Inc. (EnCana) litigated, beginning in 2005, EnCana’s alleged underpayment of royalties on natural gas it produced. In 2008, EnCana and the Class entered into a settlement agreement that detailed payment of funds to settle past claims, established the methodology EnCana would use for future royalty payments, and included an arbitration clause. The district court’s final judgment approved and incorporated the settlement agreement, dismissed the 2005 case with prejudice, and reserved jurisdiction to enforce the agreement. In 2016, oil and gas royalty owners (Owners), purporting to act on behalf of the Class, filed a demand for arbitration alleging EnCana had underpaid royalties owed to Class members in violation of the settlement agreement. EnCana filed a new case in district court asserting that (1) the class ceased to exist when the 2005 case was dismissed with prejudice in 2008, and (2) the 2008 settlement agreement did not authorize arbitration on a class-wide basis. The district court found that the class had not ceased to exist and the claims should be resolved in class-wide arbitration, and entered summary judgment against EnCana.

On appeal, EnCana contended that the district court erred in finding that the Class continued after the case was dismissed. The court of appeals determined that the Class survived the 2008 dismissal because (1) compliance with the settlement agreement became part of the dismissal order, so the district court retains jurisdiction to give effect to the agreement; and (2) the agreement continues for the lives of the leases or royalty agreements covered by the settlement agreement and expressly burdens and benefits successors and assigns of the parties.

EnCana also claimed that the district court failed to satisfy C.R.C.P. 23. The district court did not err in declining to engage in further Rule 23 analysis after the 2008 dismissal and judgment approving the settlement agreement.

The court next rejected EnCana’s contention that Class counsel failed to provide sufficient notice of the arbitration demand.

EnCana then argued it was error to determine that the settlement agreement contained a contractual basis to conclude that EnCana and the Class agreed to class arbitration. EnCana asserted that because the arbitration clause is silent on class arbitration, the district court should have presumed that the parties agreed to bilateral arbitration only. The settlement agreement explicitly names all members of a certified class as a party to the agreement, frames the disputes in class- or subclass-wide terms, and provides relief on a class- or subclass-wide basis. The arbitration clause’s context thus demonstrates an agreement to class rather than bilateral arbitration. Further, to conclude that the settlement agreement evidenced that the parties contemplated engaging in approximately 5,850 individual arbitrations to resolve future disputes rather than a single class arbitration would be absurd.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: “Legal Disability” Means Inability to Bring Lawsuit Due to Some Policy of Law

The Colorado Court of Appeals issued its opinion in T.D. v. Wiseman on Thursday, August 10, 2017.

“Legal Disability” for Tolling Statute of Limitations—C.R.S. § 13-80-103.7(3.5)(a).

T.D.’s complaint alleged she had endured 10 years of sexual and physical abuse from defendant, her former stepfather. She alleged that she was 7 years old when the abuse began and that it continued until about 1990, when she was in high school. She alleged that the abuse caused her to become dependent on drugs and alcohol, and she suffered from post-traumatic stress disorder, psychological disorders, self-mutilation, eating disorders, depression, and a cycle of abusive relationships.

In August 2005, T.D. disclosed defendant’s alleged abuse to the doctors who had been treating her. She attempted suicide in 2012. Thereafter she was able to maintain sobriety. T.D. filed a lawsuit in 2015 asserting assault, battery, sexual assault and battery, extreme and outrageous conduct, and false imprisonment. Defendant filed a motion for summary judgment, asserting that T.D.’s claims had accrued in 2005 when she disclosed the alleged abuse to her doctors. Consequently, her claims were time-barred by the six-year statute of limitations in C.R.S. § 13-80-103.7(1). T.D. argued that the record contained genuine issues of material fact concerning whether she had been a “person under disability” until 2012 because of her addictions and psychiatric disorder, so the statute would have been tolled until her disability was lifted. The trial court granted the motion for summary judgment, finding no genuine issues of material fact in the record about when her claims accrued or whether the statute of limitations barred those claims.

The court of appeals determined that the issue of when the claim accrued was not properly before it, and assumed it accrued at the latest in 2005. The court then considered whether there was a factual dispute about whether the applicable statute of limitations was tolled because T.D. was a “person under disability.” Under C.R.S. 13-80-103.75(3.5)(a), a “person under disability” is a person who is (1) a minor under 18 (2) “declared mentally incompetent”; (3) “under other legal disability and who does not have a legal guardian”; or (4) “in a special relationship with the perpetrator of the assault” and “psychologically or emotionally unable to acknowledge the assault or offense and the resulting harm.” T.D. was 43 when the trial court granted the summary judgment motion, so she was not a minor from 2005 to 2011, when the statute of limitations was running. The record did not contain disputed facts about whether she was mentally incompetent during the years during which the statute of limitations ran. The court concluded that “legal disability” denotes an inability to bring a lawsuit based on a “policy of the law.” No facts in the record indicated that T.D. lacked the power to timely bring her suit. Lastly, while a familial relationship can constitute a “special relationship,” T.D. did not demonstrate that she was “psychologically or emotionally unable to acknowledge the assault or offense and the resulting harm.”

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Petition for Mandamus Relief Should Have Been Transferred to Executive Director

The Colorado Court of Appeals issued its opinion in Gandy v. Raemisch on Thursday, August 10, 2017.

C.R.C.P. 106—Dismissal—Transfer of Canadian Prisoner to Canada to Serve Life Sentence—Mandamus Relief.

Gandy is a Canadian citizen serving a habitual criminal life sentence in the custody of the Colorado Department of Corrections (DOC). Gandy applied numerous times to DOC to be transferred to serve the remainder of his sentence in the Canadian penal system. In 2016, the DOC prisons director (director) denied Gandy’s 2015 application in writing. The director stated that under DOC Administrative Regulation 550-05, Gandy would be eligible to reapply in two years. The director did not forward Gandy’s application to DOC’s executive director.

Gandy filed a complaint in district court seeking mandamus relief under C.R.C.P. 106, requesting the court to direct DOC to “process and submit” his application for transfer to the U.S. Department of Justice and asking for nominal punitive damages for alleged violations of his constitutional rights. The court granted defendants’ motion to dismiss for failure to state a claim on which relief can be granted.

On appeal, Gandy contended he was entitled to mandamus relief, arguing that he was entitled to final review of and decision on his transfer application by the executive director.  DOC’s transfer application process imposed a duty on the director to process Gandy’s application and then send it to the executive director for his final review and decision. Because this duty is clear, mandamus relief was appropriate.

Gandy also argued that the two-year reapplication waiting period was improperly imposed. The Colorado Court of Appeals agreed, finding that DOC regulations do not require or provide for the imposition of a two-year waiting period before permitting an offender to reapply.

Gandy further argued that the district court erred when it dismissed his constitutional claims for failure to state a claim because the regulation conflicts with federal treaties and thus violates the Supremacy Clause. However, the court found no conflict between DOC regulations and international treaties.

Gandy next argued that defendants discriminated against him by refusing to process his transfer request due to his national origin. The court agreed with the district court that Gandy did not plead any facts supporting this allegation.

The judgment dismissing Gandy’s constitutional claims was affirmed. The judgment dismissing the complaint seeking mandamus relief was reversed, and the case was remanded with directions to enter an order directing the director to forward the transfer application and recommendations to the executive director for final review and decision.

Summary available courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Properly Denied Attorney Fees to Non-prevailing Party

The Colorado Court of Appeals issued its opinion in Klein v. Tiburon Development, LLC on Thursday, August 10, 2017.

Attorney Fees—Fee-Shifting Provision—Contract—Violation of Public Policy—Substantial Justification.

Following remand, the district court denied the Kleins’ request for attorney fees and costs pursuant to a line of credit agreement (LOC) between them and Tiburon Development LLC (Tiburon). The district court granted Tiburon’s and Sell’s (a member of Tiburon) motions for attorney fees and costs.

On appeal, the Kleins contended that the district court erroneously denied their request for attorney fees pursuant to the fee-shifting provision of the LOC. However, enforcing  and awarding the Kleins their attorney fees and costs pursuant to the LOC would violate public policy because the Kleins lost the predominant and only contested part of the LOC claim, and they had only nominal success on the secondary and uncontested issue of entitlement to interest on the LOC. It would have been an abuse of discretion to conclude that the Kleins were the prevailing party on the LOC claim. Further, the Kleins were sanctioned for their conduct during the litigation and ordered to pay all of Tiburon’s attorney fees.

The Kleins next contended that the district court erred in awarding Sell the attorney fees he incurred in seeking an award of fees because Sell failed to carry his burden to prove that the Kleins’ defense to his fees motion lacked substantial justification, and the district court never found that the Kleins’ defense was frivolous. An award of fees incurred in seeking fees under C.R.S. § 13-17-102 must be supported by a determination in the record that the sanctioned party’s defense to the fees motion lacked substantial justification. Because the record in this case does not support that finding, the district court erred in including in its fee award the fees Sell incurred in pursuing his motion for fees.

The Kleins further contended that the district court’s award of fees to Sell unreasonably included fees Sell incurred to respond to the Kleins’ C.R.C.P. 59 motion, which they asserted was not relevant to their claims against Sell. It was not an abuse of discretion for the district court to award Sell the attorney fees he incurred to respond to the Kleins’ C.R.C.P. 59 motion, and the decision was supported by findings in the record.

The judgments denying an award of attorney fees and costs to the Kleins and awarding Sell the attorney fees he incurred to respond to the Kleins’ C.R.C.P. 59 motion were affirmed. The judgment was reversed insofar as the court awarded Sell the attorney fees he incurred in seeking fees against the Kleins, and the case was remanded for the district court to subtract the amount of such fees from the award.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Multiple Counts of Identity Theft Proper for Multiple Instances with Same Victim

The Colorado Court of Appeals issued its opinion in People v. Allman on Thursday, August 10, 2017.

Identity Theft—Forgery—Theft from an At-Risk Adult—Merger—Sentence—Concurrent—Probation.

Using an alias, Allman presented himself to the victim as a businessman who had recently moved from Washington to Colorado. Allman moved into the victim’s basement, gained her trust, and when the victim left on vacation, Allman accessed the victim’s bank accounts and stole money from them. Allman also opened several credit cards in the victim’s name, moved out of her home, took her car, and obtained over $40,000 of credit in her name. Allman was convicted of eight counts of identity theft, two counts of forgery, one count of aggravated motor vehicle theft, and one count of theft from an at-risk adult. He was sentenced consecutively for some counts and concurrently for others.

On appeal, Allman argued that the convictions for identity theft are unconstitutionally multiplicitous and must merge into one conviction and sentence for that offense because identity theft is a continuing crime where, as here, the identity of only one victim has been stolen. The Colorado Court of Appeals concluded that the crime of identity theft under C.R.S. § 18-5-902(1)(a) is not a continuing course of conduct and, therefore, each discrete act of identity theft under that subsection is a separately chargeable offense.

Allman also appealed a number of sentencing issues. He first contended that his sentences for the identity theft counts should merge. The court rejected this argument based on its finding that identity theft is not a continuing crime. Second, Allman alternatively contended that the identity theft sentences should run concurrently because they are based on identical evidence. Because Allman’s eight convictions for identity theft were based on factually distinct evidence, the trial court was not required to impose concurrent sentences. Third, he argued that his sentence for two counts of forgery should run concurrently to each other and to one of his sentences for identity theft because he used the same credit card for all three offenses. The record is clear that neither forgery offense is factually identical to the other, nor is either of them factually identical to the identity theft count. Thus the trial court was not required to impose concurrent sentences for these offenses. Fourth, Allman argued that he was illegally sentenced to both the custody of the Department of Corrections and probation. Where, as here, a court sentences a defendant for multiple offenses in the same case, it may, within its discretion and subject to statutory limitations, impose imprisonment for certain offenses and probation for others, including probation consecutively to a period of incarceration. Fifth, Allman contended that his sentence for theft from an at-risk adult should run concurrently to his other sentences because the jury was not required to make a specific finding regarding exactly what Allman stole from the victim as the basis for that count. Under the circumstances of this case, the sentencing court was not required to order a concurrent sentence for the theft conviction.

The judgment and sentence were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Criminal Mischief is Not Lesser Included Offense of First Degree Arson

The Colorado Court of Appeals issued its opinion in People v. Welborne on Thursday, August 10, 2017.

First Degree Arson—Criminal Mischief—Lesser Included Offense—Res Gestae Evidence—Impeachment—CRE 608(b)—Witness Disclosure.

Welborne and his mother set fire to the house in which they lived and filed false insurance claims based on the fire. Welborne was convicted and sentenced to six years in prison for arson, six years for criminal mischief, six years for attempted theft, and eight years for theft—all to be served concurrently.

On appeal, Welborne contended that the trial court erred by admitting evidence of his earlier insurance claims to the same company. The prior false insurance claims involved the same company, related to a material fact, and were logically relevant to the charges. Evidence of Welborne’s false but fruitful insurance claims was highly probative of whether he acted to deceive the same insurance company with the intent to permanently deprive it of money. The trial court instructed the jury on the limited purposes of the evidence. The evidence was properly admitted under CRE 404(b) and as res gestae evidence.

Welborne further contended that the trial court committed reversible error by permitting the prosecutor to impeach him with his California theft conviction. The trial court acted within its discretion in admitting evidence of Welborne’s prior theft offense under Rule 608(b) as probative of truthfulness or dishonesty. Although the prosecutor presented evidence of the conviction rather than the underlying facts, any error was harmless.

Welborne also argued that the trial court erred by barring him from calling a witness to impeach the testimony of his former girlfriend. Disclosure of this witness was not timely, and Welborne’s offer of proof did not show that the testimony was admissible or that the witness would impeach the girlfriend’s testimony that Welborne had started the fire.

Finally, Welborne contended that criminal mischief is an included offense of first degree arson and, therefore, those convictions must merge. Because criminal mischief requires proof that the acts were committed in a single criminal episode, while first degree arson does not, criminal mischief is not an included offense of first degree arson.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Urinalysis Test Results Not “Public Record” for Forgery Statute Purposes

The Colorado Court of Appeals issued its opinion in People v. Carian on Thursday, August 10, 2017.

Forgery—Urinalysis Results—Attempt to Influence a Public Servant—Probation—Res Gestae Evidence—Prosecutorial Misconduct.

Carian was on probation for possession of a controlled substance, and mandatory drug tests were a condition of his probation. Carian completed some tests, but missed others and also returned tests with positive results. When Carian’s probation officer served him with a revocation complaint for various probation violations, Carian handed her fraudulent urine drug test results from Wiz Quiz, an unapproved urinalysis facility. Carian was convicted of forgery and attempting to influence a public servant.

On appeal, Carian contended that the evidence was insufficient to convict him of forgery under C.R.S. § 18-5-102(1)(d) because the urinalysis results at issue were not a “public record” or “an instrument filed or required by law to be filed or legally fileable in or with a public office or public servant.” While the urinalysis results from Wiz Quiz were “instrument[s]” within the reach of the statute, they were not filed, required by law to be filed, or legally fileable, thus the evidence did not support his forgery conviction.

Carian also contended that the trial court erred when it admitted evidence under the doctrine of res gestae showing that he had been previously convicted of a drug offense. Regardless of whether the admission of such evidence was error, it did not substantially influence the verdict or affect the fairness of the proceedings regarding his conviction for attempting to influence a public servant. Thus, any error in its admission was harmless.

Carian further contended that the prosecutor committed misconduct, during both his opening statement and his rebuttal closing, by asking the jury to hold Carian accountable for wasting public resources and “squandering” the opportunity to rehabilitate himself on probation. Although the prosecutor’s statements were improper, the admission of such statements does not warrant reversal under either plain or harmless error review.

The judgment on the forgery conviction was vacated, and the judgment on attempt to influence a public servant conviction was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Ordinary Person Would Not Be Aware of Specifics of IP Address and ISP Locating

The Colorado Court of Appeals issued its opinion in People v. Garrison on Thursday, August 10, 2017.

Email—Internet Protocol Address—Internet Service Provider—Expert Testimony—Lay Testimony—Police Officers—Continuance—CRE 702.

Garrison had an affair with the victim’s wife. After the affair ended, Garrison and his wife set up through Google a Gmail account in the victim’s name. Using that account, they sent themselves derogatory and threatening emails. Based on these emails, Garrison and his wife made police reports against the victim and provided related documents to the police. They sought a protection order against the victim and testified about the emails at the hearing. The police filed charges against the victim. When it was later determined that Garrison and his wife had set up the Gmail account, charges against the victim were dismissed, and the Garrisons were charged. At trial police officers gave testimony about Internet Protocol (IP). Garrison was convicted of first degree perjury, attempt to influence a public servant (three counts), conspiracy to attempt to influence a public servant, possessing a defaced firearm, and felony menacing.

On appeal, Garrison first contended that the trial court erred in refusing to grant his request for a continuance of the trial. The trial court did not abuse its discretion in denying him a continuance, and Garrison was not prejudiced because, as discussed below, he is entitled to a new trial on his convictions related to the IP address testimony.

Garrison also argued that the trial court abused its discretion in allowing the prosecution to present expert testimony regarding tracing IP addresses through the lay testimony of police officers. Where an officer’s testimony is based not only on his perceptions and observations of the crime scene but also on specialized knowledge or experience, the officer must be properly qualified as an expert. The concept of an email transmission including an IP address, which can be linked to an Internet service provider (ISP), and in turn traced to the physical location of a particular ISP customer, is not within the knowledge or experience of ordinary people. Thus, because some of the police testimony on direct examination was based on particular experience and specialized knowledge within the scope of Rule 702, the trial court abused its discretion in admitting this portion of the testimony as lay testimony. The error was not harmless because this information was central to the prosecution’s case on the charges of first degree perjury, attempt to influence a public servant (three counts), and conspiracy to attempt to influence a public servant. The charges of possessing a defaced firearm and felony menacing were unrelated to IP addresses.

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

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Sexually Violent Predator Designation Can Be Challenged in Crim. P. 35 Motion

The Colorado Court of Appeals issued its opinion in People v. Baker on Thursday, July 27, 2017.

Sexually Violent Predator Designation—Illegal Sentence—Correction—Crim. P. 35—Timeliness.

Baker pleaded guilty to one count of sexual assault on a child by one in a position of trust and was designated a sexually violent predator (SVP). He was sentenced in 2012. Baker’s counsel did not file an objection to the SVP designation and Baker did not file a direct appeal challenging any aspect of the judgment, including the SVP designation. About a year later, Baker’s counsel filed a Crim. P. 35(b) motion to reconsider Baker’s sentence, which was denied. In 2015, Baker filed a pro se Crim. P. 35(a) motion to correct an illegal sentence, claiming that he was entitled to an additional 19 days of presentence confinement credit (PSCC). The prosecution conceded that Baker was entitled to an additional 18 days of PSCC and the court issued an amended mittimus that included the additional 18 days. In early 2016, defendant filed a motion to vacate his SVP status. The prosecution argued that the court could not reconsider the SVP designation under Crim. P. 35(b) because it is not part of a criminal sentence. The motion was denied.

On appeal, Baker contended that his 2016 motion to vacate his SVP status was cognizable under Crim. P. 35.  It was not cognizable under 35(a) or (b) because an SVP designation is not part of a criminal sentence. However, it was cognizable under Crim. P. 35(c), because Crim. P. 35(c) allows a collateral attack on a conviction or sentence and also on any part of the judgment in a criminal case. A criminal “judgment” includes “findings” made by the district court and any statement that the defendant is required to register as a sex offender. An SVP designation is a finding and part of a criminal “judgment” under Crim. P. 35(c)(2)(VI). And Baker’s postconviction motion can be properly characterized as a collateral attack on the SVP designation. Although Baker did not file a direct appeal challenging his SVP designation, under Crim. P. 35(2)(c) he is not foreclosed from challenging the designation in a postconviction proceeding. Further, Baker’s motion was not time barred because the three-year deadline for collaterally attacking the original judgment of conviction pursuant to Crim. P. 35(c) is renewed when an illegal sentence is corrected pursuant to Crim. P. 35(a), which was done in Baker’s case in 2015. Therefore, the district court erred by denying Baker’s postconviction motion without considering whether the motion was cognizable under Crim. P. 35(c).

The order was reversed and the case was remanded for the district court to reconsider Baker’s SVP designation.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: District Court Did Not Err in Confirming Arbitration Award

The Colorado Court of Appeals issued its opinion in Pacitto v. Prignano on Thursday, July 27, 2017.

Uniform Arbitration Act—Award—Motion to Vacate—Deadline—Confirmation.

The Prignanos asserted multiple claims against Pacitto, a registered representative, in a Financial Industry Regulatory Authority securities industry arbitration. Pacitto raised several counterclaims. The arbitration panel denied the Prignanos’ claims and awarded Pacitto compensatory damages, punitive damages, and fees solely against Mr. Prignano. Many months later, when Mr. Prignano had not paid the award, Pacitto filed a combined complaint and motion to confirm the arbitration award in district court. Among other things, the Prignanos filed a motion to vacate the award and an amended answer that included a counterclaim for a declaratory judgment vacating the award. The district court order confirmed the arbitration award and found that the Prignanos filed the motion to vacate well past the 91-day deadline, thus waiving their right to object to confirmation of the award.

On appeal, the Prignanos asserted that the district court erred in applying the 91-day deadline in C.R.S. § 13-22- 223(2) and in failing to extend the deadline for filing a counterclaim for one year pursuant to C.R.S. § 13-80-109, when it confirmed the award. Under the Uniform Arbitration Act (UAA), a motion to vacate an arbitration award must be filed within 91 days after the movant receives notice of the award. The parties agreed that the Prignanos filed their motion to vacate and raised their declaratory judgment counterclaim well after the 91-day period for challenging arbitration awards. The more specific limitation period of C.R.S. § 13-22 223(2) that applies only to arbitration proceedings prevails over the more general limitation period contained C.R.S. § 13-80-109, which applies to any civil suit.

The Prignanos also argued that an equitable tolling exception should be read into the UAA. The court of appeals rejected this argument, stating that the notice of the arbitration decision made them aware of their responsibility to challenge the decision in a permitted format and by a statutory deadline. They were aware of all the grounds they could assert on appeal when the arbitration concluded.

The judgment was affirmed and the case was remanded for a calculation of Pacitto’s reasonable attorney fees and costs incurred on appeal.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Statement She Was Sorry Sufficient Evidence to Prove Guilt

The Colorado Court of Appeals issued its opinion in People v. Ramos on Thursday, July 27, 2017.

Theft—Evidence—C.R.S. § 18-4-401(4)(a) —Jury Interrogatories—Lesser Included Offense.

Defendant was treasurer of the Bennett Elementary School Parent, Teacher, and Student Association (PTSA). The PTSA held the Believe Fundraiser, and defendant failed to deposit all of the proceeds from the fundraiser into the PTSA’s bank account. The verdict form required the jury to find whether defendant was guilty of theft (two or more within six months) for cash taken from three different fundraisers and instructed the jury to answer three interrogatories. The jury found defendant guilty, but it answered yes to only the Believe Fundraiser interrogatory.

On appeal, defendant contended that the evidence was insufficient to convict her of theft from the Believe Fundraiser. Based on evidence that defendant told the PTSA secretary that she had deposited $19,760.65 into the PTSA account when only $16,473.21 was actually deposited, and defendant’s statement later to the secretary that she was sorry and wanted to make it right, a reasonable person could conclude that defendant knowingly retained funds from the Believe Fundraiser and intended to permanently deprive the PTSA of the value of the funds.

Defendant also contended that the trial court erred in rejecting her proposed instruction paragraph for the verdict form. C.R.S. § 18-4-401(4)(a) required the prosecution to prove all of the thefts aggregated into a single count. Because the jury only answered yes to one of the interrogatories, its verdict conflicts with the statute. Therefore, the jury improperly convicted defendant of aggregated theft without finding that she committed all three of the thefts aggregated in one count. But a single act of theft is a lesser included offense of aggregated theft under C.R.S. § 18-4-401(4)(a), and the prosecution proved the elements of the lesser included offense.

Defendant further contended that the trial court erred in admitting the PTSA secretary’s testimony. However, the PTSA secretary properly gave lay opinion testimony under CRE 701.

The judgment of conviction for theft under C.R.S. § 18-4-401(4)(a) was vacated and the case was remanded to the trial court with directions to enter a conviction for a single count of theft under C.R.S. § 18-4-401(1) and (2)(f).

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Petition to Vacate Appraisal Award Properly Denied

The Colorado Court of Appeals issued its opinion in Owners Insurance Co. v. Dakota Station II Condominium Association, Inc. on Thursday, July 27, 2017.

Appraisal Award in Insurance Dispute—Impartial Appraiser Standard.

Owners Insurance Company (Owners) issued a property damage policy to Dakota Station II Condominium Association, Inc. (Dakota). Wind and hail storms damaged buildings in the residential community owned by Dakota. The losses were combined into a single insurance claim, but there was a dispute about the total amount of damages. The parties invoked the insurance policy’s appraisal provision. Each party selected an appraiser. They submitted proposed awards of different amounts and then nominated a neutral umpire as provided in the insurance policy. The final award of about $3 million was a mix of four damage estimates from Owners’ appraiser, Burns, and two estimates form Dakota’s appraiser, Haber. Burns refused to sign the final determination of costs. Haber and the umpire agreed and signed the award, and Owners paid Dakota.

Dakota then sued Owners in federal court for breach of contract and unreasonable delay in paying insurance benefits. During discovery, Owners learned several facts about Haber that it alleged demonstrated she was not an impartial appraiser. Owners filed a petition to vacate the appraisal award under C.R.S. § 13-22-223. Following a hearing, the trial court denied the petition.

On appeal, Owners argued that the trial court erred by not analyzing the insurance policy’s appraisal dispute provision, as well as the conduct and hiring of Haber, under the Colorado Uniform Arbitration Act’s (CUAA) standards for a neutral arbitrator in C.R.S. § 13-22-211(2). The Colorado Court of Appeals found no error because the policy did not incorporate CUAA’s standards and the parties’ stipulation that CUAA applied did not specifically state whether the appraisers were to be held to the statutory standard.

Owners then argued that Haber was not an “impartial appraiser” under the insurance policy. This term was not defined in the policy and has not been construed by a Colorado appellate court. The trial court interpreted it as an appraiser who applies appraisal principles with fairness, good faith, and lack of bias. The court agreed that this was the correct reading of the policy provision and its intent. The trial court’s application of this standard was supported by the record.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.