September 29, 2016

Colorado Supreme Court: Test Enunciated to Determine Personal Jurisdiction for Non-resident Company Based on In-state Contacts

The Colorado Supreme Court issued its opinion in Griffith v. SSC Pueblo Belmont Operating Co. on Monday, September 26, 2016.

Constitutional Law—Personal Jurisdiction—Corporations and Business Organizations—Related or Affiliated Entities.

The Colorado Supreme Court held that, to exercise personal jurisdiction over a nonresident parent company based on the in-state contacts of its resident subsidiary, a trial court shall perform the following analysis: First, the trial court shall determine whether it may pierce the corporate veil and impute the resident subsidiary’s contacts to the nonresident parent company. If so, the court shall analyze all of the nonresident company’s contacts with Colorado, including the resident subsidiary’s contacts, to determine whether exercising either general or specific personal jurisdiction over the company comports with due process. Conversely, if the trial court concludes that it may not pierce the corporate veil, it shall treat each entity separately and analyze only the contacts that each parent company has with the state when performing the personal jurisdiction analysis. Here, because the trial court did not perform this two-step analysis when it determined that petitioners were subject to personal jurisdiction in Colorado, the court made its rule to show cause absolute.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Newly Announced Griffith Test Applied to Determine Personal Jurisdiction

The Colorado Supreme Court issued its opinion in Meeks v. SSC Colorado Springs Colonial Columns Operating Co. on Monday, September 26, 2017.

Constitutional Law—Personal Jurisdiction—Corporations and Business Organizations—Related or Affiliated Entities.

The Supreme Court holds that the trial court must apply the test announced in Griffith v. SSC Pueblo Belmont Operating Co., 2016 CO 60, __ P.3d __, to determine whether nonresident parent companies may be haled into court in Colorado based on the actions of their resident subsidiaries. It also held that, although an evidentiary hearing is not always required for a ruling on a CRCP 12(b)(2) motion, this case requires a hearing to fully address this case’s complex record and to apply the fact-intensive Griffith test.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Condemnation Decision Must Consider Each Landowner’s Taken Land and Damages

The Colorado Supreme Court issued its opinion in Department of Transportation v. Amerco Real Estate Co. on Monday, September 26, 2016.

Administrative Law and Procedure—Delegation of Authority—Condemnation Proceedings.

Amerco Real Estate Co. (Amerco) and U-Haul petitioned for relief pursuant to CAR 21 from an order of the district court denying their request to dismiss the Colorado transportation department’s Petition in Condemnation and instead granting the department’s motion for immediate possession of the subject property, which is owned by Amerco and occupied by U-Haul. The district court rejected U-Haul’s assertion that the transportation commission’s authorization for the department to condemn property for highway purposes, in the absence of any resolution by the commission approving the acquisition of the particular property to be taken, at a public meeting, amounted to an unlawful delegation of quasi-legislative power. The Supreme Court issued its rule to show cause and here made the rule absolute, remanding to the district court with orders to dismiss the department’s Petition in Condemnation. The Court held that because the commission’s enabling legislation contemplates that it alone must decide whether the public interest or convenience will be served by a proposed alteration of a state highway, and that decision must be made in consideration of, among other things, the portions of land of each landowner to be taken for that purpose and an estimate of the damages and benefits accruing to each landowner whose land may be affected thereby, the commission’s general authorization, to the extent it purports to delegate to the department the choice of particular properties to be taken for such a highway project and the manner of their taking, constituted an unlawful delegation of its statutorily imposed obligation.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 9/27/2016

On Tuesday, September 27, 2016, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Savage v. Fallin

Allen v. Colvin

Horng v. Lynch

Randall v. Allbaugh

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

Colorado Court of Appeals: City Waived Immunity by Failing to Maintain Road

The Colorado Court of Appeals issued its opinion in Dennis v. City & County of Denver on Thursday, September 22, 2016.

Colorado Governmental Immunity Act—Deteriorated Roadway—Unreasonable Risk to Health or Safety of Public.

Heyboer sustained injuries as a passenger on a motorcycle that could not timely brake when a car unexpectedly turned left in front of it. Dennis, as conservator and guardian for Heyboer, brought this negligence and premises liability action against the City and County of Denver (City). The complaint alleged that (1) the City had a duty to maintain the roadway free from dangerous conditions that physically interfered with the movement of traffic, (2) it breached that duty by allowing the roadway to fall into disrepair, (3) it knew of the deteriorated state of the road from prior complaints, and (4) Heyboer’s injuries resulted from the City’s breach of its duty of care.

The City moved to dismiss under C.R.C.P. 12(b)(1), asserting immunity and denying the allegations. The district court conducted a hearing and granted the City’s motion.

On appeal, Heyboer argued that she satisfied her burden of proving an unreasonable risk to the health or safety of the public; she contended that the court erred in finding no evidence of an unreasonable risk and, by doing so, erred as a matter of law in refusing to find a waiver of immunity. Both the record and the court’s factual findings demonstrated that the City failed to maintain the road as required by C.R.S. § 24-10-103(2.5), thereby creating an unreasonable risk to the health or safety of the public. The court of appeals concluded that the district court clearly erred in its factual finding that the record contained no evidence of an unreasonable risk to the health and safety of the public. This also leads to the conclusion that it was error to find, as a matter of law, that there was no waiver of immunity under the Colorado Governmental Immunity Act.

The judgment was reversed and the case was remanded for reinstatement of the complaint.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Restitution Does Not Create a Debtor-Creditor Relationship with Victim

The Colorado Court of Appeals issued its opinion in People v. Foos on Thursday, September 22, 2016.

Bankruptcy—Discharge ofRestitution Order—Bad Faith.

In 2012, the U.S. Bankruptcy Court discharged Foos’s debts against the three victims in this case. Prior to his bankruptcy proceedings, Foos owed money to these victims. In 2013, Foos was charged with two counts of felony theft and one count of defrauding a secured creditor. Foos resolved these charges by pleading guilty to the charge of defrauding a secured creditor in exchange for dismissal of the other two counts. He stipulated to a deferred judgment and sentence with a requirement for full restitution.

On appeal, Foos argued that it was error to order him to pay restitution because he discharged his debts in bankruptcy before the charges were filed against him. C.R.S. § 18-1.3-603(4)(d) precludes the discharge of restitution orders in bankruptcy, and restitution serves a different purpose than bankruptcy. Accordingly, the district court did not err in ordering Foos to pay restitution.

Foos also argued that he was prosecuted in bad faith. The court of appeals noted that although the original prosecutor had a “cozy relationship” with Foos’s creditors, she was replaced with a special prosecutor who had no personal connection to the case and who made an independent decision to move forward with the prosecution. Moreover, Foos waived his right to challenge the validity of the charges by pleading guilty.

Finally, Foos argued that he was ordered to pay restitution to a listed victim in a theft count that was dismissed as part of the plea agreement. Colorado case law is clear that, for purposes of restitution, a victim does not have to be one of the named victims of a conviction.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Wife Can Initiate Police Interview After Invocation of Right to Counsel

The Colorado Court of Appeals issued its opinion in People v. Cardman on Thursday, September 22, 2016.

Sexual Assault—Custodial Interrogation—Miranda—Right to Counsel—Third Party.

The police executed a search warrant on defendant’s home after the victim reported that defendant had sexually assaulted her. During the search, they recovered a weapon, and defendant was arrested on the charge of possession of a weapon by a previous offender. Defendant promptly exercised his rights to remain silent and to counsel, and the police ceased questioning. Two days later, a police detective conducted another interview of defendant during which defendant admitted to three instances of sexual contact with the victim. An audio recording of defendant’s second police interview was admitted at trial. Defendant was convicted of multiple counts of sexual assault on a child.

On appeal, defendant contended that the district court erred by not suppressing statements he made during his second custodial interrogation because he had previously invoked his right to counsel and did not himself reinitiate communication with the police. To establish that a suspect has reinitiated discussions with the police after previously invoking his right to counsel, the prosecution must show that (1) the police reasonably believed that the suspect directed a third party to inform them that he wanted to have “a generalized discussion about the investigation,” and (2) the police confirmed with the suspect that he had so indicated. Here, the detective’s testimony was clear that defendant’s wife informed him that defendant had questions about the investigation. Further, the detective knew the caseworker had also been in contact with defendant after the first interview, and she also informed him that both defendant and his wife had questions about the investigation. The detective then called defendant at the jail and confirmed that defendant desired to speak with him. Therefore, defendant “adequately evinced a willingness and a desire to” reinitiate communication with the police through a third party and there was no error in admitting his inculpatory statements.

Defendant also contended that the statements he made in the second interview were not voluntary and that the court erred in not holding a hearing on the issue of voluntariness. The court of appeals did not reach the merits of this issue because defendant moved to suppress the statements solely on reinitiation grounds and thus waived the voluntariness claims.

Defendant also argued that reversal is required because the recording of the interview admitted at trial included the detective’s assertions that he believed the victim and did not believe defendant’s denials of the victim’s allegations, and because the detective testified that he did not believe defendant. The court discerned no plain error in the admission of this evidence.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: District Court Lacked Authority to Rule on People’s Motion

The Colorado Court of Appeals issued its opinion in People v. Wood on Thursday, September 22, 2016.

Felony Murder—Second Degree Murder—Habeas Corpus Petition—State District Court—Federal Court—Jurisdiction.

In 1986, while attempting to rob a pizza delivery store, Wood shot and killed an assistant store manager. Wood was convicted of felony murder, second degree murder, aggravated robbery, and menacing. For the past 10 years, Wood has sought to remove his felony murder conviction. The Tenth Circuit conditionally granted Wood’s habeas corpus petition, noting that his felony murder conviction would be vacated unless a state court acted within a reasonable time to vacate either his felony murder conviction or his second degree murder conviction. Thereafter, the state district court granted the People’s request to vacate the second degree murder conviction, rather than the felony murder conviction.

On appeal, Wood contended that the People did not have authority to request that the state district court vacate his second degree murder conviction, nor did the court have the jurisdiction or authority to do so. The People had the authority to file their request to notify the state district court of the federal district court’s conditional grant of habeas corpus relief and request that the state court vacate the conviction. Though the district court had subject matter jurisdiction, it did not have the authority to vacate Wood’s second degree murder conviction. The conditional grants of habeas corpus relief by the Tenth Circuit and the federal district court did not require the state district court to act. If it did nothing, Wood’s mittimus would be corrected by the federal district court removing his felony murder conviction and the double jeopardy violations would be remedied. Accordingly, the state district court’s order was vacated, and the case was remanded with instructions for the state district court to vacate Wood’s felony murder conviction and correct the mittimus accordingly, leaving in place the second degree murder, aggravated robbery, and menacing convictions.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 9/26/2016

On Monday, September 26, 2016, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Walker v. Balco, Inc.

Drennan v. Pryor

Carbajal v. Swan

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

Colorado Supreme Court: Announcement Sheet, 9/26/2016

On Monday, September 26, 2016, the Colorado Supreme Court issued eight published opinions.

Griffith v. SSC Pueblo Belmont Operating Co.

Meeks v. SSC Colorado Springs Colonial Columns Operating Co.

Department of Transportation v. Amerco Real Estate Co.

People v. Hoskin

Pulte Home Corp. v. Countryside Community Association, Inc.

Ryan Ranch Community Association, Inc. v. Kelley

People v. Chavez-Barragan

In re Marriage of Johnson

Summaries of these cases are forthcoming.

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: Trial Court Lacked Jurisdiction to Order Declaratory Relief Because Ordinances Were Not Final Actions

The Colorado Court of Appeals issued its opinion in Public Service Co. of Colorado v. City of Boulder on Thursday, September 22, 2016.

At the November 2011 election, Boulder residents approved an amendment to the Boulder Home Rule Charter to authorize the creation of a new light and power utility if the Council could demonstrate that the new utility could acquire the existing utility and charge rates that do not exceed those charged by Xcel Energy by more than 25%. In August 2013, the Council approved an ordinance to carry out the legislation (the first ordinance). In May 2014, the Council approved another ordinance to establish the utility (the second ordinance). Twenty-eight days later, Xcel filed a complaint with respect to the second ordinance, seeking declaratory judgment under C.R.C.P. 57 or, alternatively, judicial review under C.R.C.P. 106(a)(4). The City filed a motion to dismiss Xcel’s complaint under C.R.C.P. 12(b)(1), arguing Xcel’s complaint attempted to challenge the first ordinance by challenging the second ordinance. The trial court granted the City’s motion and dismissed the complaint for lack of subject matter jurisdiction due to time bar.

On appeal, Xcel argued the trial court wrongly dismissed its complaint for lack of jurisdiction with respect to the 28-day limit in C.R.C.P. 106(a)(4). Xcel argued the first ordinance was not final and was legislative, not quasi-judicial, which made C.R.C.P. 106 inapplicable. The Colorado Court of Appeals first addressed finality. As to the first ordinance, the court found it was not final because (1) it did not establish the utility, (2) it referenced additional revisions to be made in planning the utility, and (3) the City made those additional revisions after the ordinance was passed.

The court evaluated Rule 106 and found that it governed “final decisions of the body or officer.” The court determined that neither the first nor the second ordinance was final for purposes of Rule 106 appeal. Because neither ordinance was final, judicial review under Rule 106 was premature. The court of appeals disagreed with the district court’s conclusion that Xcel’s complaint was time-barred, finding instead that it was premature.

The court also found that the district court could not enter a declaratory judgment under C.R.C.P. 57(b). The court noted that the lack of finality for the Rule 106 review also applied to declaratory judgments under Rule 57, and therefore it was premature for a declaratory judgment to issue.

The court declined to address whether the claims were quasi-legislative or quasi-judicial, and vacated the judgment of the district court.

Colorado Court of Appeals: Breath Test Must Occur Within Two Hours of Driving for Revocation Proceedings

The Colorado Court of Appeals issued its opinion in Edwards v. Colorado Department of Revenue, Motor Vehicle Division on Thursday, September 22, 2016.

Robin Edwards was pulled over for speeding at 8:51 a.m. on September 7, 2014. The officer who pulled her over observed that Edwards had bloodshot eyes and slurred speech, and requested that she perform roadside sobriety maneuvers. Her stumbling and lack of balance indicated she was intoxicated, so the officer informed Edwards of Colorado’s express consent law and asked if she would complete a blood or breath test. She agreed to a breath test and was transported to the local police department.

Due to problems during the testing sequence, Edwards’ breath tests were not completed until 10:52 a.m. and 10:56 a.m. The intoxilyzer report from the two samples showed Edwards’ BAC to be .229 grams of alcohol per two hundred ten liters of breath, well above the .08 limit for revocation. The Department initiated proceedings to revoke Edwards’ driver’s license.

The arresting officer testified at the revocation hearing that Edwards’ .229 BAC result was based on breath samples taken more than two hours after the initial traffic stop. Edwards argued that her driver’s license should not be revoked because she provided valid breath samples after the two-hour time period required by the revocation statute. The hearing officer found that Edwards’ breath samples were obtained outside the two-hour window, but ruled that the test administrator performed in “substantial accordance” with the statute, and, because the testing began at 10:50 a.m., it commenced within two hours of when Edwards stopped driving. The hearing officer revoked Edwards’ driver’s license based on excessive BAC. The district court affirmed the hearing officer on different grounds, finding that based on Edwards’ excessive BAC, it was more probable than not that she had driven with an excessive BAC.

Edwards appealed, contending the hearing officer erroneously interpreted the revocation statute, and because her breath samples were obtained outside the statutory two-hour window, her results could not be used at the revocation hearing. The Colorado Court of Appeals analyzed C.R.S. § 42-2-126(2)(b), finding that the statute mandated that breath or blood results must be obtained within two hours after driving. The court found ample legislative and case law support that the two-hour window is mandatory, and that test results obtained outside the window must not be considered. Because Edwards’ test results were obtained after the two-hour window expired, they could not be considered at the revocation hearing.

The court of appeals reversed the district court with instructions to set aside the order of revocation. The court of appeals also remarked that its findings would not affect the criminal proceedings against Edwards.