April 29, 2016

Colorado Court of Appeals: Denver District Court Never Acquired Jurisdiction Over Juvenile Defendant

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

Juvenile—Direct Filing—Subject Matter Jurisdiction—Crime of Violence.

Defendant was 16 years old when, at a party, he brought the victim a drink mixed with a crushed pill, which she drank. Afterward, the victim appeared to be dizzy, stumbled, and had difficulty talking. Then defendant, along with two other male teenagers, sexually assaulted the victim. The prosecution directly filed two charges against defendant: (1) sexual assault by causing submission of the victim through the application of physical force and (2) sexual assault of the victim while he knew she was incapable of appraising the nature of her conduct. The prosecution later dismissed the first charge, and a jury found defendant guilty of the second charge. The district court sentenced defendant to eight years of sex offender specific intensive probation and 90 days in jail.

On appeal, defendant contended that the district court lacked subject matter jurisdiction to sentence him because neither offense charged in the complaint was a crime of violence under C.R.S. § 18-1.3-406 and thus did not qualify for direct filing in the district court. Because neither count was a crime of violence under C.R.S. § 18-1.3-406, the charges were not eligible for direct filing in the district court. The court of appeals held that (1) the juvenile court had exclusive jurisdiction over the charge on which defendant was tried, convicted, and sentenced in the district court; (2) the district court lacked subject matter jurisdiction; and (3) therefore, the judgment was a nullity and required dismissal.

The judgment and sentence were vacated and the case was remanded to the district court for dismissal.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Restitution Applicable When Defendant’s Conduct Caused Damage Regardless of Conviction

The Colorado Court of Appeals issued its opinion in People v. Ortiz on Thursday, April 27, 2016.

Vehicular Eluding—Victim—Restitution—Evidence—Hearsay.

After a deputy sheriff stopped defendant’s vehicle to investigate a report of shots fired by a person driving a vehicle like defendant’s, defendant sped away. The officer gave chase, bumping into defendant’s car several times before defendant stopped. The People charged defendant with a number of crimes. Defendant and the People reached a plea agreement under which defendant agreed to plead guilty to one count of aggravated driving after revocation prohibited (reckless driving) and one count of violation of a protection order and the People agreed to drop the other charges. The district court accepted the agreement and sentenced defendant. On request of the People, the court ordered restitution for the damages to the patrol car.

On appeal, defendant contended that because he did not plead guilty to an offense that specifically identified the state patrol as a victim, the state patrol was not a victim within the meaning of the restitution statutes. However, the state patrol was a victim of vehicular eluding, which was included among the charges against defendant. Therefore, it was a victim for purposes of the restitution statutes, even though defendant pleaded guilty to other charges. Accordingly, the district court did not err in allowing the state patrol to seek restitution.

Defendant also contended that the evidence was insufficient to support the restitution award because it was entirely hearsay and basing the award on hearsay violated his right to due process. The prosecution is not limited by the rules of evidence in proving an amount of restitution, and an award of restitution may be based solely on a victim’s impact statement, which is hearsay. Considered as a whole, the evidence sufficiently showed the cost of the damage and that defendant caused it. In addition, defendant’s counsel conducted thorough cross-examination about the damage to the patrol car and defendant chose not to rebut the evidence; therefore, there is no due process violation.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Videos Properly Admitted as Animations, Not Simulations

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

Collision—Injuries—Animation—Simulation—Evidence—Restitution.

While driving his car, defendant looked down for a moment and struck a bicyclist with his vehicle, causing her injuries. Defendant drove away, claiming he had not seen the bicyclist. A jury convicted defendant of leaving the scene of an accident, failure to report an accident, and careless driving.

Defendant appealed the judgment and restitution order, contending that the trial court should not have allowed the prosecution to show the jury three short video depictions of an automobile-bicycle collision. He asserted that the videos were simulations — which are scientific evidence offered as substantive proof and must meet more rigorous foundational requirements for admission than animations, which are demonstrative evidence — and that the prosecution did not lay an adequate foundation to support the court’s decision to admit them. Defendant asserted alternatively that if the videos were animations, they were inadmissible because they were an unfair and inaccurate depiction. The Colorado Court of Appeals decided the videos were animations. The videos were prepared by a state trooper, who was an accident reconstruction specialist, to represent the trooper’s opinion about how the collision had occurred. The videos were substantially similar to the collision they depicted. The trial court did not abuse its discretion when it decided the videos were animations and admitted them into evidence as demonstrative exhibits.

Defendant also contended that the trial court abused its discretion when it ordered him to pay restitution to the insurer. The restitution amount only included the bicyclist’s lost wages, the replacement cost of her bicycle and some equipment that was damaged by the collision, and her medical expenses. The amount did not include reimbursement for pain and suffering. Therefore, the court did not abuse its discretion.

The judgment and order were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 4/21/2016

On Thursday, April 21, 2016, the Colorado Court of Appeals issued 11 published opinions and 35 unpublished opinions.

People v. Sandoval

People v. Ortiz

People v. Douglas

Calvert v. Mayberry

Landmark Towers Association, Inc. v. UMB Bank, N.A.

People v. Valadez

People v. August

Colorado Insurance Guarantee Ass’n v. Sunstate Equipment Co. LLC

Amerigas Propane & Indemnity Insurance Co. of North America v. Industrial Claim Appeals Office

Archuleta v. Industrial Claim Appeals Office

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

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

Colorado Court of Appeals: Costs of Defending Lawsuit Not Campaign Expenditures

The Colorado Court of Appeals issued its opinion in Campaign Integrity Watchdog v. Coloradans for a Better Future on Thursday, April 7, 2016.

Reporting Contributions and Spending—Fair Campaign Practices Act.

In 2012, Arnold lost the Republican primary election for University of Colorado Regent to Davidson. During the run-up to the election, Coloradans for a Better Future (CBF) purchased a radio advertisement supporting Davidson and other radio advertisements unfavorable to Arnold. After the election, Arnold, and later Campaign Integrity Watchdog (CIW) with Arnold as its principal officer, filed a series of complaints with the Colorado Secretary of State (Secretary) alleging violations of Colorado’s Fair Campaign Practices Act (FCPA). This is the third such complaint.

Specifically, CIW challenged CBF’s failure to report funds donated to CBF to pay Arnold’s court costs from an earlier case, arguing those funds were a contribution and spending and were incorrectly reported in CBF’s initial January 2014 contributions and expenditures report. The administrative law judge (ALJ) dismissed the complaint. The ALJ found that on January 22, 2014, CBF filed a contribution and expenditures report with the Secretary. Its report wasn’t due until May 5, but it intended to terminate its activities as a political organization and thus filed early. On the same day, CBF’s legal counsel sent an email to the Secretary seeking to amend the report to show that Colorado Justice Alliance (CJA) contributed $200.20 to pay Arnold’s court costs. The Secretary’s electronic reporting system didn’t allow the change to be made by CBF, and the Secretary’s staff couldn’t change the report either. CIW filed its complaint on March 3, 2014 and CBF’s report was publicly amended on March 6, 2014. The ALJ concluded that CBF had already reported the CJA contribution to the Secretary when CIW filed its complaint and that the complaint was premature because the report was not due until May 2014. The ALJ further concluded that the payment of Arnold’s court costs did not meet the FCPA definition of spending and did not have to be reported as such.

On appeal, CIW contended that the $200.20 CJA donated to help CBF satisfy its obligation to pay Arnold’s court costs was a contribution that was incorrectly reported on the initial report. Specifically, CIW argued that the ALJ (1) invented findings of fact, (2) misrepresented facts regarding CBF’s request to amend its report, and (3) erred in concluding the complaint was premature. As to the first argument, CIW failed to cite specific findings or record support; as to the second argument, the allegation concerned a question of law rather than fact; and as to the third argument, the court concluded the report was corrected on January 22, when CBF notified the Secretary of its mistake. CIW also argued that CBF violated the FCPA because it listed the payee of the $200.20 as the Denver District Court rather than Arnold; the court found this too insignificant to amount to a violation of the reporting law. Thus, the Court concluded that the ALJ did not err when he concluded CBF correctly reported the $200.20.

CIW also argued that the $200.20 CBF paid to Arnold constituted spending and should have been reported. The court found the funds were not “expended influencing or attempting to influence the selection, nomination, election, or appointment of any individual to any state or local public office in the state,” and thus concluded they were not reportable spending.

CIW’s request for costs and fees was denied. CBF’s request for attorney fees was denied, but its request for costs was granted.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Career Service Board’s Interpretation of Sheriff Department Rule Reasonable

The Colorado Court of Appeals issued its opinion in Khelik v. City & County of Denver on Thursday, April 7, 2016.

C.R.C.P. 106—Reasonable Interpretation of Rules—City and County of Denver Career Service Board.

Plaintiff Khelik appealed from the district court’s judgment affirming an order of the City and County of Denver’s Career Service Board (Board) relating to disciplinary proceedings against him by the Denver Sheriff Department (DSD). The sole issue on appeal was whether the Board abused its discretion by misinterpreting a DSD disciplinary rule and concluding that a charge of conduct unbecoming does not require the DSD to prove actual harm to the City or the DSD. Khelik was a sergeant in the DSD. He was given a disciplinary notice suspending him without pay for inappropriate interactions with a female officer under his command and retaliating against her for stating her intention to file a sexual harassment complaint. Khelik appealed his suspension to a hearing officer in the Career Service Authority. The hearing officer concluded that because the DSD had not made a showing of actual harm, Khelik had not violated DSD Rule 300.11.16 (the retaliation claim was also denied and that was not appealed). The DSD petitioned for review with the Board, and the Board vacated the hearing officer’s determination, concluding there was no requirement of a showing of actual harm to the City or the DSD to find a violation of the rule concerning conduct unbecoming. The district court affirmed. Khelik appealed under C.R.C.P. 106.

The Colorado Court of Appeals concluded that the Board did not abuse its discretion. In interpreting DSD Rule 300.11.16, the Board’s reasoning was consistent with principles of statutory interpretation and reflects the plain language of the rule, the drafters’ intent, and the policy considerations behind the rule.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 4/14/2016

On Thursday, April 14, 2016, 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.

Colorado Court of Appeals: County’s Master Plan Retained Advisory Status when Not Incorporated Into Land Development Code

The Colorado Court of Appeals issued its opinion in Friends of the Black Forest Preservation Plan, Inc. v. Board of County Commissioners on Thursday, April 7, 2016.

C.R.C.P. 106(a)(4)—Special Use Permit Appeal—Binding Nature of Master Plans.

Under C.R.C.P. 106(a)(4), plaintiffs, Friends of Black Forest Preservation Plan, Inc. and several residents of the Black Forest area, appealed the district court’s judgment affirming the decision of defendant Board of County Commissioners of El Paso County (Board) approving the special use permit application of defendant Black Forest Mission, LLC (BFM) to construct a greenhouse operation in the Black Forest Preservation area.

BFM proposed to construct a 1.19-acre greenhouse on a 4.87-acre lot it owned in an area governed by the Black Forest Preservation Plan (BFPP), which is contained within El Paso County’s overall master plan. Greenhouses are allowed if less than one acre in size, but a special use permit is required for larger greenhouses.

The Planning Commission recommended by a 6–2 vote that the Board deny BFM’s application for a special use permit because of its inconsistency with both El Paso County’s Policy Plan and the BFPP. At the first hearing before the Board, BFM was granted a continuance to amend its application to attempt to ameliorate various concerns of the Planning Commission and residents. At the next hearing, BFM presented a revised plan proposing three smaller greenhouses that collectively would be larger and would be built on two parcels instead of one. BFM also modified the location to address concerns about light pollution, view obstruction, and traffic congestion. The Board approved BFM’s amended special use application by a vote of 3–2.

Plaintiffs filed this action, arguing the Board misapplied governing law and abused its discretion because of its belief, as relayed by a county attorney, that the county’s master plan was merely advisory. The district court affirmed the Board’s decision, agreeing that the county’s master plan was advisory and there was competent evidence in the record supporting the Board’s decision to approve BFM’s special use permit application. Plaintiffs appealed.

The court of appeals noted that C.R.S. § 30-28-106 provides that master plans may be made binding by formal inclusion in county land use regulations. The court undertook an extensive analysis of El Paso County’s land use regulation scheme and rejected plaintiffs’ argument that the Board’s approval was based on an erroneous legal standard, concluding there was a reasonable basis for the Board’s interpretation of its own regulatory framework. It held that the master plan was advisory and the Board has discretion in deciding how to apply the master plan in its decisions on special use applications.

Plaintiffs also argued it was error for the district court to find competent evidence in the record to support the Board’s decision. The court disagreed.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Dog Owner Owes No Duty of Care to Person Injured by Truck Off Property

The Colorado Court of Appeals issued its opinion in Lopez v. Trujillo on Thursday, April 7, 2016.

Dog Owner Liability—Duty of Care—Premises Liability Act Definition of Landowner.

Plaintiffs, N.M. and his parent and legal guardian, Lopez, appealed from an order dismissing their complaint against defendant Trujillo.

Eight-year-old N.M. was walking on a sidewalk with another boy. As he passed defendant’s home, two large, loudly barking pit bulls rushed at the boys, unprovoked. The dogs jumped up and rattled a four-foot high chain-link fence. N.M. was allegedly so frightened that he darted from the sidewalk into the street and was struck by a service van, causing him serious injuries. Plaintiffs sued and settled with the driver and owner of the van.

On appeal, plaintiffs argued the district court erred in concluding as a matter of law that defendant owed no duty to N.M and was not subject to liability as a “landowner” under the Premises Liability Act (PLA).

Deciding an issue of first impression, the court of appeals considered whether a dog owner owes a duty to exercise reasonable care to an injured party when the injured party was not directly injured by the dogs or on the dog owner’s property and the dogs remained confined and never left the landowner’s property. The court held there was no such duty.

The court also agreed with the district court that public sidewalks adjacent to a landowner’s property are not property of the landowner under the PLA.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Political Organization Required to Report Donations of Legal Services

The Colorado Court of Appeals issued its opinion in Campaign Integrity Watchdog v. Coloradans for a Better Future on Thursday, April 7, 2016.

Campaign—Contributions—Expenditures—Reporting.

This is the fourth in a series of complaints brought by claimant, Campaign Integrity Watchdog (CIW), or its principal officer, Matthew Arnold, against Coloradans for a Better Future (CBF), a political organization under CRS § 1-45-103(14.5), to challenge CBF’s alleged failure to report contributions and spending. Specifically, CIW challenged CBF’s spending on legal fees in 2012 and 2013, as well as donated legal services in 2013 and 2014. The administrative law judge (ALJ) found in favor of CBF.

On appeal, CIW argued that the ALJ erred in concluding that CBF did not need to report certain legal services as spending. The Colorado Court of Appeals disagreed. The money that CBF spent on legal services in 2012 or 2013 either for defending previous campaign finance complaints or for its attorney fees fell outside the category of expenditures defined by the Fair Campaign Practices Act. Therefore, it did not constitute reportable spending.

CIW also argued that the ALJ erred in concluding that CBF only needed to report contributions that were for the purpose of promoting a candidate’s nomination or election. The court agreed. CBF received “in-kind” contributions of legal services. It is undisputed that the legal services at issue were either a gift of services for which less than equivalent value was received (if the services were billed but not paid) or they were pro bono services. Therefore, CBF received a contribution that it was required to report.

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

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

Colorado Court of Appeals: Claims in Lawsuit Immunized Under First Amendment from Conspiracy Allegations

The Colorado Court of Appeals issued its opinion in City of Aurora v. 1405 Hotel, LLC on Thursday, April 7, 2016.

Immunity from Suit Under the First Amendment—Denial of Discovery—Private versus Public Dispute—“Sham” Claims—Attorney Fees and Costs.

Eleven hotels (collectively, Hotels) petitioned the Colorado Economic Development Commission (CEDC), requesting that CEDC require the City of Aurora to submit a new application for an $81 million tax subsidy after the initial company that had been awarded the subsidy assigned its interest to RIDA Development Corporation (RIDA). The Attorney General (AG) denied the petition on behalf of the CEDC. The Hotels filed an action in the Denver District Court (Denver lawsuit). The district court and a division of the Colorado Court of Appeals affirmed the AG’s denial of the Hotels’ petition. However, alleging conspiracy to interfere with the financing and development of the project, plaintiffs, Aurora, the Aurora Urban Renewal Authority, and RIDA (collectively, Aurora parties), sued the Hotels. The district court found that the Hotels’ complaint in the Denver lawsuit was immunized under the First Amendment, based on Protect Our Mountain Environment, Inc. v. Dist. Ct., 677 P.2d 1361 (Colo. 1984) (POME), and dismissed the Aurora parties’ complaint. The Aurora parties appealed and the Hotels cross-appealed.

The Aurora parties first argued it was an abuse of discretion not to allow discovery and a hearing before granting the Hotels’ motion to dismiss. The Colorado Court of Appeals agreed with the district court that because the Aurora parties were unable to articulate any need for discovery on the first, objective prong of the POME test—whether the Hotels’ claims had a reasonable basis in law or fact—they were not entitled to discovery before the court ruled on the Hotels’ motion.

The Aurora parties then contended that POME did not apply because this was a purely private dispute. The court disagreed. The Hotels did not sue any private party, and the dispute arose from a petition to a state agency for judicial review of state agency action regarding an award of millions of dollars in taxpayer subsidies to a city to develop a project of “major public importance.”

Finally, the Aurora parties argued that three of the Hotels’ claims in the Denver lawsuit lacked reasonable factual support or a cognizable basis in law and were “sham” claims. The court disagreed. It also agreed with the Hotels that the one claim the district court found to be a “sham” was in fact not a sham because it had reasonable factual support and a cognizable basis in law.

The Hotels contended that the court erred in concluding their third claim was a sham and that the C.R.C.P. 12(b)(5) dismissal of RIDA’s claims should be affirmed. The court concluded their third claim was not a sham, and because the court affirmed the dismissal of the Aurora parties’ complaint, it did not reach the second argument.

The judgment was affirmed, and the court awarded the Hotels attorney fees and costs.

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

Colorado Court of Appeals: Monies Held in Joint Accounts Not Part of Probate Estate

The Colorado Court of Appeals issued its opinion in In re Estate of Sandstead on Thursday, April 7, 2016.

Auriel and Willard Sandstead attempted to avoid probate by titling their real estate and bank accounts jointly in their names and two of their three daughters’ names. The couple executed wills in 1991 and again in 2000. After Willard’s death, Auriel presented only the 1991 will for probate and neglected to mention the 2000 will.

Auriel held proceeds from the sale of a family farm in a joint bank account with the two daughters, Vicki Sandstead (Sandstead) and Shauna Sandstead Corona (Corona). After an altercation with a Wells Fargo employee, Sandstead transferred $200,000 out of the joint account and into an account at Citizens Bank in Massachusetts that she held jointly with her mother but not with Corona. Sandstead used those funds for her mother’s benefit during her lifetime and also to conduct repairs on some of the properties held jointly.

After Auriel died, Sandstead and Corona executed small estate affidavits as to their parents’ personal property, since most of the assets had been removed from probate by joint titling with their daughters. Sandstead noticed some items missing from the estate, and opened a probate case where she was named as PR. Corona petitioned to remove Sandstead as PR, and a successor was agreed upon by the sisters. Corona moved for surcharge, attorney fees, and other relief against Sandstead as to her actions as PR, specifically alleging Sandstead breached her fiduciary duties to Corona because of the $200,000 transfer prior to their mother’s death. The district court surcharged Sandstead for the $200,000 transfer and two other transfers occurring before the probate estate was opened.

At some point, the sisters became aware of the 2000 will. Corona challenged the will as having been revoked by their mother. Sandstead and the two grandsons included as heirs in the 2000 will argued that the in terrorem clause in the 2000 will barred Corona from recovering under the will. The district court granted Sandstead’s motion for enforcement of the in terrorem clause in the 2000 will against Corona. The district court noted that if the parents were unaware of the 2000 will as Corona claimed, it was hard to imagine how they could have revoked it. Both sisters appealed.

On appeal, the Colorado Court of Appeals reversed the district court’s surcharge. The court held that Sandstead had a legal right to transfer the moneys due to being a signatory on the joint bank account. The assets in the Citizens Bank account were never part of the probate estate and therefore could not have been subject to surcharge. The court found that Sandstead had never intended for the monies to be included in the probate estate, and had vehemently denied their inclusion when the issue was raised in court. The court of appeals reversed the district court’s surcharge against Sandstead. The court upheld the district court’s enforcement of the in terrorem clause in the 2000 will against Corona, finding that she could not have reasonably believed that her mother had revoked the 2000 will since there was no evidence Willard and Auriel had executed subsequent wills or destroyed the 2000 will, the only two ways enumerated in the statute to revoke a will.

The district court’s order was reversed in part, affirmed in part, and remanded with instructions.