July 1, 2015

Colorado Court of Appeals: Announcement Sheet, 6/25/2015

On Thursday, June 25, 2015, the Colorado Court of Appeals issued no published opinion and 24 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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

Judge Richard Gabriel Appointed to Colorado Supreme Court

GabrielOn Tuesday, June 23, 2015, Governor Hickenlooper announced his appointment of current Colorado Court of Appeals Judge Richard L. Gabriel to the Colorado Supreme Court. Judge Gabriel’s appointment is effective September 1, 2015, following the August 31 retirement of Justice Gregory Hobbs.

Judge Gabriel was appointed to the Colorado Court of Appeals in 2008. Prior to his appointment, Judge Gabriel was a long-time partner with Holme Roberts & Owen LLP (now, Bryan Cave LLP) in Denver, where his practice focused on commercial, intellectual property, probate, and products liability litigation, including appeals, and where he headed the firm’s intellectual property practice group. While in practice, Judge Gabriel also served as the City Prosecutor for the City of Lafayette, Colorado, where he tried some 200 cases, and he devoted substantial time to pro bono and community efforts, including work for the Rocky Mountain Children’s Law Center and the ACLU, representation of an Oklahoma death row inmate, and service on many nonprofit boards. He has received numerous awards for his service to the community, including the Denver Bar Association’s Award of Merit, a Rocky Mountain Children’s Law Center Champions for Children award, and the Richard Marden Davis Award, which is presented annually by the Denver Bar Foundation and the law firm of Davis Graham & Stubbs LLP to a lawyer under the age of forty who combines excellence in the practice of law and creative community leadership.

Judge Gabriel is a member of the state bars of New York and Colorado, the bars of numerous federal courts, including the United States Supreme Court, and the American, Colorado, New York, and Denver Bar Associations, where he serves on various committees, including the Colorado Bar Association’s Board of Governors and Judicial Liaison Committee, the Colorado and Denver Bar Associations’ Joint Professionalism Coordinating Council, and the Denver Bar Association’s Board of Trustees. Judge Gabriel is also a member of the Chief Justice’s Commission on Professional Development and chair of that organization’s Professionalism Working Group; he remains active on the board of the Colorado Judicial Institute, which he previously chaired; he currently serves on the executive council of the Minoru Yasui Inn of Court; he is a member of the executive committee of and a frequent speaker for the Our Courts program; and he writes and speaks frequently on matters relating to the judiciary, trial and appellate practice, and professionalism.

Judge Gabriel received his B.A. in American Studies from Yale University in 1984 and his J.D. from the University of Pennsylvania School of Law in 1987. In his spare time, Judge Gabriel plays the trumpet professionally with, among other groups, the Colorado Wind Ensemble and the Flagstaff Brass Quintet.

 

Colorado Court of Appeals: CORA Exception for Prosecuting Attorney Does Not Apply to Land Use Violation

The Colorado Court of Appeals issued its opinion in Shook v. Pitkin County Board of County Commissioners on Thursday, June 18, 2015.

Colorado Open Records Act—Investigatory Records Exception.

In August 2012, the Pitkin County Attorney’s Office received a citizen complaint regarding a potential code violation of plaintiff Shook’s property. The complaint was investigated and a violation notice for failure to obtain a necessary construction permit was issued. Shook cured the violation by obtaining a permit.

Several months later, Shook submitted a Colorado Open Records Act (CORA) request to the county attorney (custodian), seeking access to records related to the violation. The custodian provided certain documents but denied access to the original citizen complaint and the investigating officer’s handwritten notes.

Shook then filed this action, seeking a declaratory judgment that the custodian violated CORA by withholding the records, an order directing the custodian to disclose the records, and attorney fees and costs. The district court held that the custodian properly denied access to the records under CORA’s investigatory records exception, CRS § 24-72-204(2)(a)(I).

The investigatory records exception allows a custodian to withhold records if (1) the records relate to investigations conducted by a sheriff, prosecuting attorney, or police department, or are contained in investigatory files compiled for criminal law enforcement purposes; and (2) disclosure would be contrary to the public interest. Here, the record did not support the finding that the records related to an investigation by a prosecuting attorney. Such an attorney refers to one prosecuting a criminal matter, and this was not a criminal prosecution. The order was reversed for failure to meet the first prong.

CRS § 24-72-204(5) requires the court to award costs and reasonable attorney fees to any person who applies for and receives an order requiring a custodian to permit inspection of public records. The case was remanded with directions to order the custodian to allow Shook to inspect the records and, upon Shook’s application, assess and award reasonable court costs and attorney fees in her favor.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Proof of “Case Within a Case” Not Required in All Legal Malpractice Actions

The Colorado Court of Appeals issued its opinion in Boulders at Escalante LLC v. Otten Johnson Robinson Neff & Ragonetti PC on Thursday, June 18, 2015.

Legal Malpractice—Negligence—Statute of Limitations —Legal or Proximate Causation—Case Within a Case.

Plaintiff is a real estate development company formed to develop townhomes in a subdivision in Durango. Defendant is a law firm that was hired to represent plaintiff in a lawsuit against it by its general contractor to foreclose the contractor’s mechanic’s lien. Defendant filed several compulsory counterclaims on behalf of plaintiff for breach of contract and negligence. Plaintiff was concerned the contractor would not be able to pay a judgment if plaintiff succeeded on the counterclaims and asked defendant to review the insurance policies it had obtained for the project to determine whether the policies would pay a judgment against the contractor.

In 2006, defendant told plaintiff there was $2 to $4 million of coverage to pay a judgment against the contractor. In 2009, after plaintiff had obtained new representation, plaintiff learned that the policies contained an exclusion precluding payment to plaintiff if it succeeded on its claims against the contractor. Plaintiff and the contractor eventually settled, dismissing the claims against each other with prejudice. No payments were made by either party.

In 2011, plaintiff filed this action, asserting defendant was negligent in incorrectly advising regarding the insurance coverage, leading to extensive losses, including legal fees and expenses in continuing the litigation. The jury found defendant was negligent and its negligence caused 82.5% of the damages suffered by plaintiff. Judgment entered for approximately $2.7 million, plus pre- and post-judgment interest.

On appeal, defendant argued the claim was barred by the two-year statute of limitations set forth in CRS § 13-80-102. Defendant argued that plaintiff’s claim accrued no later than February 2009, when plaintiff learned defendant’s advice regarding insurance coverage might be wrong, and the action wasn’t filed until April 1, 2011. The Court of Appeals disagreed. A cause of action for negligence accrues on the date both the injury and its cause are known or should have been known to the plaintiff by the exercise of reasonable diligence. Under the circumstances here, the question of when plaintiff knew or should have known that the advice was incorrect and that it was injured by that advice was properly a question resolved by the jury.

Defendant argued that in a legal malpractice action based on negligence, the plaintiff must prove a case within a case; namely, that the claim underlying the malpractice action would have been successful but for the attorney’s negligence. The Court disagreed. Here, the claimed injury does not relate to the outcome of the underlying matter, and therefore plaintiff did not need to prove a case within a case.

Defendant challenged whether its negligence caused plaintiff’s damages. The Court determined that the evidence was sufficient to establish that plaintiff proved its malpractice claim for damages based on the legal expenses it incurred because of defendant’s incorrect advice. But for this advice, plaintiff would not have continued incurring legal expenses in an attempt to prove its counterclaims. However, plaintiff should not have recovered damages based on the business losses it sustained. As a matter of law, defendant’s advice regarding the insurance coverage was not the legal, or proximate, cause of plaintiff’s claimed business losses. Although defendant could have reasonably foreseen that plaintiff would make business decisions based on defendant’s advice, the actual harm plaintiff suffered because of those business decisions was not within the scope of the risk created by defendant’s negligence. The case was remanded for a new trial, limited to determining the amount of damages plaintiff incurred in continuing to pursue its counterclaims against the contractor after receiving incorrect advice from plaintiff.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Settlement Agreement Not “Payment” and Therefore Does Not Toll Statute of Limitations

The Colorado Court of Appeals issued its opinion in Stoesz v. State Farm Mutual Automobile Insurance Co. on Thursday, June 18, 2015.

Underinsured Motorist Benefits—Statute of Limitations—Meaning of “Payment”—Summary Judgment.

Plaintiff Stoesz, an insured of defendant (State Farm), was injured when an underinsured motorist rear-ended her car. Three days before the statutorily required three-year limitations period expired, Stoesz sent an e-mail to the underinsured motorist’s liability insurer, Progressive Insurance Company (Progressive), confirming a policy limits settlement. Shortly after the limitations period had ended, State Farm approved the settlement at Stoesz’s request. Within two years of receiving the settlement payment from Progressive, Stoesz commenced this action to recover underinsured motorist benefits from State Farm. The trial court entered summary judgment against Stoesz on the basis that this settlement agreement did not constitute payment that would have extended the limitations period for an additional two years. The Court of Appeals affirmed.

On appeal, State Farm argued that, pursuant to CRS § 13-80-107.5(1)(b), payment must be made during the three-year limitations period, which was not met here, and a tolling agreement between Progressive and Stoesz did not affect its rights. The Court agreed. Under the clear wording of the statute, an insured is allowed an additional two years only if the underlying bodily injury liability claim against the underinsured motorist has been preserved by commencing an action against the underinsured motorist or by payment of either the liability claim settlement or judgment. No action was commenced and no payment occurred within the limitations period. The summary judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: ADA Not Defense to Termination of Parental Rights

The Colorado Court of Appeals issued its opinion in People in Interest of C.Z. on Thursday, June 18, 2015.

Dependency and Neglect—Termination of Parent–Child Legal Relationship—Americans with Disabilities Act.

The Weld County Department of Human Services (Department) filed a dependency and neglect petition after mother was unwilling to follow through with treatment to address her multiple mental health diagnoses. The Department also asserted father had been diagnosed with severe depression. The court granted the Department custody of the child.

The court then adjudicated the child dependent and neglected and approved a treatment plan for the parents. After receiving the psychological and parent–child interactional evaluations, the Department moved to terminate the parents’ parental rights, asserting that no appropriate treatment plan could be devised to address their unfitness. Following a contested hearing, the court terminated the parent–child legal relationship.

On appeal, mother and father argued that CRS § 19-3-604(1)(b)(I) conflicts with the Americans with Disabilities Act (ADA) because it allows the court to terminate parental rights of disabled parents without requiring the Department to provide them the rehabilitative services that other parents receive. The Court first addressed the Department’s assertion that the parents’ contention should be summarily rejected because the ADA is not a defense to termination of parental rights. Title II of the ADA does not limit the court’s authority to terminate a disabled parent’s rights when the parent is unable to meet his or her child’s needs. However, it does apply to the provision of assessments, treatment, and other services that a department provides to parents through a dependency and neglect proceeding before a termination hearing. Accordingly, the issue in this case is whether CRS § 19-3-604(1)(b)(I) is preempted by the ADA.

The type of preemption at issue here was conflict preemption, which voids a state statute that conflicts with a valid federal law. A conflict is found when compliance with both federal and state regulations is a physical impossibility or when the state law stands as an obstacle to the accomplishment and full execution of the purposes and objectives of federal law.

CRS § 19-3-604(1)(b)(I) permits termination of parental rights of mentally impaired parents without requiring the Department to provide them treatment plans. However, the Court held this does not conflict with the ADA’s requirement that a public entity make reasonable accommodations for qualified individuals with disabilities. If rehabilitative services can be offered to address a parent’s mental impairment so that he or she can meet the child’s needs within a reasonable time, then termination is not authorized under CRS § 19-3-604(1)(b)(I). A finding that no treatment plan can be devised to address a parent’s unfitness caused by mental impairment is the equivalent of a determination that no reasonable accommodations can be made to account for the parent’s disability under the ADA.

In determining whether reasonable accommodations can be made to address the parent’s disability under the ADA, the court’s paramount concern is the child’s health and safety. The ADA does not protect an individual who poses a safety risk to others. The Court concluded that the trial court’s findings here satisfy the ADA requirement that no reasonable accommodations could be made to enable mother and father to participate in an appropriate treatment plan and rehabilitative services.

Father also argued the termination of his parental rights solely on the basis of his mental disability violated his right to equal protection under the Fourteenth Amendment. The Court disagreed. Parents who are unable to meet their children’s needs within a reasonable time, whether because of mental impairment or another statutorily enumerated reason, are not similarly situated to parents who have the ability to become fit within a reasonable time. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Reversal Required when Jury Instructed on Uncharged Felony Offense Rather than Charged Misdemeanor

The Colorado Court of Appeals issued its opinion in People v. Riley on Thursday, June 18, 2015.

Attempt to Influence a Public Servant—Tampering With Physical Evidence—Second-Degree Forgery—Jury Instructions—Constructive Amendment of Information—Jury Deliberations—Audio Recording.

The People charged defendant with third-degree assault and harassment for allegedly attacking his ex-wife in July 2006. After the charges were filed, defendant gave his attorney a receipt from a hotel in Kansas that purportedly showed that defendant was not in Colorado on the dates of the charged offenses. Because the receipt contained fraudulent information based on defendant’s alterations of it, the People charged defendant with attempt to influence a public servant, tampering with physical evidence, and second-degree forgery. He was convicted by a jury on all counts.

On appeal, defendant argued that the trial court erred when it instructed the jury on the uncharged offense of felony forgery rather than the charged offense of second-degree forgery (a misdemeanor). The trial court’s instruction constituted a constructive amendment of the information because it changed an essential element of the charged offense and allowed the jury to convict defendant of an uncharged crime. Further, second-degree forgery is not a lesser included offense of felony forgery. Because it is constitutionally prohibited to convict a defendant of a charge not contained in the information, defendant’s conviction for second-degree forgery was reversed.

Defendant also argued that because the trial court did not provide the jury with instructions defining the terms “attempt” and “official proceeding,” his respective convictions for attempt to influence a public servant and tampering with physical evidence must be reversed. There is no reference to the criminal definition of “attempt,” and adding such a definition would result in an absurd result. Further, although “official proceeding” is defined in the statute, any error was harmless because defendant failed to show that this error contributed to his conviction for tampering with physical evidence.

Defendant argued that the trial court erred in allowing the jury during deliberations unfettered access to an audio recording between the prosecutor and defendant’s ex-wife about a conversation she had with defendant. When defendant’s ex-wife testified at trial, she denied everything she had initially told the police about the attack and all the statements she had made during the recorded interview with the prosecutor. Therefore, the audio recording of the interview was admitted as prior inconsistent statements, and the recording was played for the jury during her testimony. Although the trial court failed to exercise its discretion with respect to the jury’s access to the recording during deliberations, such failure did not substantially influence the verdict or affect the fairness of the trial such that reversal of defendant’s convictions was required.

The case was remanded for a new trial on the charge of second-degree forgery. The remaining convictions were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Colorado Governmental Immunity Act Does Not Apply Retroactively

The Colorado Court of Appeals issued its opinion in Smokebrush Foundation v. City of Colorado Springs on Thursday, June 18, 2015.

Colorado Governmental Immunity Act—Gas Facility Exception—Public Building Exception.

The Smokebrush Foundation (Smokebrush) alleged that various contaminants had migrated from the City of Colorado Spring’s (City) property onto its property, causing damages. The district court denied the City’s motion to dismiss, concluding that the City’s immunity was waived under two statutory provisions of the Colorado Governmental Immunity Act (CGIA): the gas facility exception and the public building exception. The district court also concluded that these waiver provisions applied retroactively to contamination that undisputedly occurred before the CGIA was enacted.

On appeal, the City argued that the trial court erred in finding that the CGIA applied retroactively. Nothing in the CGIA states that it is intended to operate retroactively. Therefore, the CGIA operates prospectively, effective July 1, 1972. Accordingly, to the extent that Smokebrush’s allegations were based on contamination stemming from the City’s coal gas operations in the 1920s and 1930s, the district court erred in concluding that the gas facility or public building exceptions to governmental immunity applied retroactively. The City is therefore immune from tort claims based on such contamination.

The City argued that the district court erred in concluding that the City was subject to suit under the gas facility and public building exceptions to governmental immunity for the injuries claimed by Smokebrush from alleged asbestos migration during the demolition activities on the property beginning in late 2012. The legislature waived governmental immunity for injuries resulting from “[t]he operation and maintenance of any public water facility, gas facility, sanitation facility, electrical facility, power facility, or swimming facility by such public entity.” Because the City’s property was not used in the collection, production, or distribution of natural gas and only housed administrative functions after the 1930s, the gas facility exception did not apply. Governmental immunity is also waived for injuries resulting from a dangerous condition of a public building. Although the City acknowledged that the property was a public building, this exception only applies to “constructing” and “maintaining” a public building. When the asbestos allegedly migrated to Smokebrush’s property, the property was in the process of being completely demolished. The dangerous condition definition applicable to the public building exception does not expressly recognize negligence claims stemming from demolition of a public facility. Therefore, the public building exception did not apply. The order denying the City’s motion to dismiss was reversed and the case was remanded to the district court with instructions to grant the motion.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Error in Trial Court’s Calculation of Medicaid Lien

The Colorado Court of Appeals issued its opinion in State of Colorado Department of Health Care Policy & Financing v. S.P. on Thursday, June 18, 2015.

Accident—Medicaid—Settlement—Statutory Lien—Calculation.

S.P. was injured in a snowboarding accident at a ski area. As a result of her injuries, she is a paraplegic and will require ongoing medical care and assistance for the rest of her life. She applied for Medicaid assistance and was accepted. Over the course of several years, Medicaid paid $142,779 for her accident-related medical care. S.P. sued the ski area, alleging negligence, and eventually settled the case for $1 million. Medicaid was entitled to a statutory lien against the settlement for repayment of the medical assistance it had provided. The settlement agreement, however, did not specify the portion of the settlement amount attributable to medical expenses, as opposed to other categories of damages. The Medicaid administration agency sued S.P. to enforce its lien.

On appeal, both parties argued that the trial court incorrectly calculated the amount S.P. was required to repay to Medicaid. Colorado has not enacted statutory, administrative or other procedures for apportioning third-party settlements for Medicaid lien purposes. The trial court applied a proportional allocation formula to determine what amount out of S.P.’s settlement funds should be considered compensation for past medical expenses. The trial court also relied on an objective indication of S.P.’s total past medical expenses that was supported by the record.

The Court of Appeals held that the decision to rely on the amount paid rather than the amount billed by Medicaid was not clearly erroneous, and that the trial court’s method in this case was neither unreasonable nor arbitrary. The trial court also did not err in applying its formula to the gross settlement amount and properly took attorney fees into consideration in reducing the amount owed to Medicaid. The judgment was affirmed and the case was remanded to the trial court to release the funds held in its registry pursuant to the judgment.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Jury Determination that Defendant’s Negligence Did Not Cause Plaintiff’s Injuries Acceptable

The Colorado Court of Appeals issued its opinion in Vititoe v. Rocky Mountain Pavement Maintenance, Inc. on Thursday, June 18, 2015.

Personal Injury—Challenges to Jurors and Jury Verdict and Jury Instructions.

Plaintiff was riding his motorcycle late at night. Shortly after making a U-turn, he collided with a lowboy trailer that was connected to a tractor driven by an employee of defendant. The collision occurred as the tractor was either stopped or beginning to proceed through an intersection controlled by a traffic signal that had turned green.

Plaintiff alleged negligence on the part of the truck driver. Plaintiff’s expert opined that defendant’s employee had worked more than the allowable fourteen-hour day and was likely tired and inattentive at the intersection and stopped for an unreasonable amount of time. Another expert for plaintiff testified that the taillights were positioned too low. The jury returned a special verdict form finding defendant was negligent but its negligence was not a cause of plaintiff’s injuries. Judgment was entered for defendant.

On appeal, plaintiff argued that some of the jurors made prejudicial statements during voir dire concerning motorcyclists’ helmet use, and that the trial court erred by refusing to canvass the jurors on that topic, give a limiting instruction, or declare a mistrial. The Court of Appeals disagreed. In Colorado, evidence of a plaintiff’s failure to wear a helmet is inadmissible to show negligence on the part of the plaintiff or to mitigate damages. If the jury learns a motorcyclist was not wearing a helmet, a limiting instruction may be required. When a prospective juror makes a potentially prejudicial statement during voir dire, the trial court may issue a curative instruction, canvass the jury, or declare a mistrial. Whether a statement is potentially prejudicial depends significantly on the facts and circumstances. Here, no juror expressed an opinion that plaintiff was negligent for not wearing a helmet and, in fact, there was no evidence allowed as to whether or not plaintiff wore a helmet.

Plaintiff argued that the evidence admitted at trial did not support the jury’s verdict. After reviewing the evidence presented, the Court found that there was competent evidence to support the verdict.

Plaintiff argued that the court erroneously instructed the jury by not omitting any reference to the doctrine of assumption of risk because the evidence did not support it. The Court found that testimony from a detective that plaintiff “accelerated toward something he saw” supported the instruction regarding assumption of risk.

Plaintiff argued that the court erred by instructing the jury that the law presumes a driver is negligent if the driver hits another vehicle in the rear. Plaintiff contended that the instruction should not have been given because this was not a rear-end collision, but a barrier crash. The Court found no authority to suggest that hitting the lowboy trailer, even if not moving forward, constituted a barrier crash as opposed to a type of rear-end collision. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Use of Stock Certificate as Exhibit Does Not Qualify as a Filing or Recording

The Colorado Court of Appeals issued its opinion in Battle North, LLC v. Sensible Housing Co. on Thursday, June 18, 2015.

Spurious Documents—CRS §§ 38-35-201(3) and -204.

This case involves a dispute over ownership of real property in Eagle County (Pine Martin parcel). In 1998, Mortgage Investment Corporation (MIC) filed for judicial foreclosure on a deed of trust encumbering the Pine Martin parcel and the Piney Lumber parcel. Defendants included Pine Martin Mining Company (PMMC) and Piney Lumber Company (PLC). PMMC claimed ownership of the Pine Martin parcel and PLC claimed ownership of the Piney Lumber parcel. This essentially converted the foreclosure case to a quiet title action.

In 2000, PMMC and PLC moved for partial summary judgment and MIC filed a cross-motion for partial summary judgment. In 2004, the motions still pending, MIC assigned its interest in the matter to Ginn Battle Lender, LLC (Ginn). PMMC and PLC purported to transfer their interests in the parcels to respondent Sensible Housing Company (Sensible) by quitclaim deeds that Sensible recorded in the Eagle County Clerk and Recorder’s Office. Two of the deeds, one recorded in 2006 and one in 2008, were from PMMC to Sensible and concerned the Pine Martin parcel. These deeds are at issue in this case.

Pursuant to an approved stipulation for how to proceed to resolve the quiet title case, Sensible filed as an exhibit a purported 1915 Stock Certificate certifying that 1,251,000 shares of the capital stock of PMMC had been issued to Bouvier. Sensible’s principal, Tucker, claimed he had obtained those shares from Bouvier’s heir in 1996. On that authority, Tucker created and recorded the 2006 and 2008 quitclaim deeds.

In 2009, the district court granted Ginn’s cross-motion for summary judgment and denied Sensible’s motion. It found the 1915 Stock Certificate and related documents were incredible as a matter of law and therefore Sensible had no interest in either parcel. Sensible appealed, and a division of the Court affirmed summary judgment as to the Piney Lumber parcel but reversed as to the Pine Martin parcel, finding the 1915 Stock Certificate not “so incredible that no reasonable jury could believe it.”

In April 2012, Battle North, LLC (Battle North) filed a petition for an order to show cause pursuant to CRS § 38-35-204 and CRCP 105.1, alleging the 1915 Stock Certificate was a spurious document and requesting an order directing Sensible to show cause why it should not be declared invalid. Battle North amended the petition to request that the two quitclaim deeds also be declared invalid as spurious documents. Following a hearing, the district court made extensive findings, including that the 1915 Stock Certificate was created by Tucker and was a sham, and that both it and the two quitclaim deeds were spurious documents; the court therefore “released” the three documents. The court also awarded Battle Mountain attorney fees and costs pursuant to CRS § 38-35-204(2).

On appeal, Sensible argued that the priority rule required the district court to stay this case pending resolution of the quiet title action. The Court disagreed, holding that CRCP 105.1 allowed Battle North to bring this petition in a separate action and that staying the case would not further the policies behind the priority rule.

Sensible then argued that allowing Battle North to litigate this action contravened the mandate of the Court in an earlier appeal of the quiet title action where it remanded for further proceedings as to the Pine Martin parcel. The Court found nothing in that order precluding Battle North form proceeding as permitted by CRS § 38-35-204 and CRCP 105.1.

Sensible contended that its use of the 1915 Stock Certificate as an exhibit in the quiet title action did not entitle Battle North to relief under CRS § 38-35-204; filing a document as an exhibit in a civil case does not qualify as recording or filing a document within the meaning of the statute. The Court agreed. It held that “recorded or filed” as used in CRS § 38-35-204(1) is limited by its having to affect a person’s real or personal property. The filing of an exhibit in a civil case does not affect a person’s real property. Moreover, there would be no way to “release” such a document (the remedy in the statute). Thus, although the Court did not disturb the finding that the 1915 Stock Certificate was a sham, it was error to rule it was a spurious document under the statute, and that part of the order was reversed.

Sensible argued that the quitclaim deeds were not spurious because a quitclaim deed can convey only the title or interest that the grantor had, and the district court determined that the newly created PMMC had no title or interest to convey. Therefore, Battle North’s property could not have been affected by the recording of the quitclaim deeds. The Court found this argument to be without merit. Sensible argued that unless a document was a valid lien or encumbrance against real property, it cannot be a spurious document, because it cannot affect real property. However, in that case, the document would not be spurious.

Sensible argued that Battle North is not a “person whose real . . . property is affected by” the 1915 Stock Certificate and quitclaim deeds because it does not own the Pine Martin parcel. This argument was based on deficiencies in the treasurer’s deeds by which Battle North claimed title. The Court rejected those arguments on multiple grounds.

The Court also awarded Battle Mountain reasonable appellate attorney fees for defending the judgment as to the quitclaim deeds. The case was remanded to the district court for a determination of that amount.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Preservation Requirement for Sufficiency Claims Under Colorado Law

The Colorado Court of Appeals issued its opinion in People v. McCoy on Thursday, June 18, 2015.

CRS § 18-3-404—Medical Professionals—Actors.

The prosecution charged McCoy with unlawful sexual contact against two men, P.K. and G.M., arising out of separate incidents. According to each of the victims, McCoy told them that he worked in the television industry and invited them to work for them. During the victim’s interviews and training, held at McCoy’s house, McCoy touched them and asked them sexual questions. McCoy had previously told the victims that he was a physician. A jury convicted McCoy of four counts of unlawful sexual contact.

McCoy argued on appeal that the prosecution presented insufficient evidence to sustain his convictions under CRS § 18-3-404(1)(g), because the statute proscribes only conduct occurring in a physician–patient relationship and as part of a medical exam or medical treatment. Although McCoy raised this issue for the first time on appeal, Colorado law contains no preservation requirement for sufficiency claims. Therefore, the Court of Appeals reviewed the sufficiency of the evidence de novo, and found that the statute is clear and unambiguous and is not limited to medical professionals or those who claim to be medical professionals.

Here, the jury could have concluded that the victims submitted to examinations because McCoy led them to believe the examinations were part of a hiring process. The jury could also reasonably have concluded that McCoy examined the victims for his sexual gratification, and not for bona fide medical purposes, because both victims testified that McCoy touched their intimate parts while he examined them. Therefore, the evidence was sufficient to sustain McCoy’s convictions under CRS § 18-3-404(1)(g). The Court further held that the statute’s plain terms are not unconstitutionally overbroad and vague. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.