September 27, 2016

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.

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.

Colorado Court of Appeals: Plea of Guilty Constitutes Conviction for Purposes of Revocation Proceedings

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

Aaron Blackwell pleaded guilty to theft from an at-risk victim and received a deferred judgment with the condition that he could violate no federal, state, or local criminal law during the deferral period. He later pleaded guilty in an unrelated case to driving after revocation prohibited (DARP), a class 1 misdemeanor. The district court also deferred the judgment in the DARP case. The prosecution then filed a motion to revoke the deferred judgment in the theft case based on Blackwell’s guilty plea in the DARP case. The district court revoked the deferred judgment.

Blackwell appealed, contending his guilty plea in the DARP case was not sufficient to prove that he violated a state criminal law. The Colorado Court of Appeals evaluated whether a guilty plea constitutes a “conviction” for purposes of the revocation hearing statute. The court evaluated C.R.S. § 16-7-206(3), which provides that a court’s acceptance of a guilty plea acts as a conviction for the offense. The court of appeals concluded the district court did not abuse its discretion by revoking Blackwell’s deferred judgment. Blackwell argued that the Colorado Supreme Court’s decision in Kazadi v. People, 2012 CO 73, ruled that a guilty plea resulting in a deferred judgment is not a judgment of conviction, but the court of appeals disagreed, finding that the supreme court has distinguished between a “conviction” and a “judgment of conviction.”

The court of appeals affirmed the district court.

Colorado Court of Appeals: Announcement Sheet, 9/22/2016

On Thursday, September 22, 2016, the Colorado Court of Appeals issued seven published opinions and 12 unpublished opinions.

People v. Wood

People v. Cardman

People v. Blackwell

Edwards v. Colorado Department of Revenue, Motor Vehicle Division

Public Service Co. of Colorado v. City of Boulder

People v. Foos

Dennis v. City & County of Denver

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: Probate Court Lacked Authority to Order “Chemical Castration”

The Colorado Court of Appeals issued its opinion in People in Interest of C.J.R. on Thursday, September 8, 2016.

Probate Court Authority—Chemical Castration—Medina Factors.

C.J.R. is a long-term patient at a state hospital, where he is treated for a form of psychosis. He has also engaged in “sexually inappropriate behavior” for some time. C.J.R. was treated for years with antipsychotic drugs. After a change in his drug therapy, his sexually inappropriate behavior worsened. As a result, a psychiatrist prescribed Depo-Provera by injection every 90 days. The use of Depo-Provera for this purpose is commonly called chemical castration. C.J.R. refused to take the drug voluntarily, and the People sought authorization from the Denver Probate Court to administer it involuntarily. The probate court authorized the involuntary administration of Depo-Provera and use of a nasogastric tube to administer other drugs. C.J.R. appealed.

In People v. Medina, the Colorado Supreme Court formulated a four-factor test that the People must satisfy before a court may order a patient to be forcibly medicated. Medina dealt with antipsychotic drugs. The court of appeals held that it does not apply to a request to involuntarily administer the synthetic equivalent of progesterone as part of the treatment for a mentally ill male patient at a state hospital for the express purpose of controlling his sexually inappropriate behavior.

In addition, the court found that even if the Medina test were applicable here, the People did not prove by clear and convincing evidence that the requirements of Medina were established because (1) there was not record support that there were no less intrusive alternative treatments available, and (2) C.J.R.’s need for treatment with medication was not sufficiently compelling to override “any bona fide and legitimate interest of the patient in refusing treatment.”

The part of the probate court’s order authorizing involuntary administration of Depo-Provera was reversed. That part of the order authorizing the use of a nasogastric tube to administer other medications was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Statute of Repose Acts as Absolute Bar to Bringing Suit After its Expiration

The Colorado Court of Appeals issued its opinion in Sierra Pacific Industries, Inc. v. Bradbury on Thursday, September 8, 2016.

Construction Defect Action Reform Act—Summary Judgment—Statute of Repose.

Sierra Pacific Industries, Inc. hired Bradbury to install windows and doors on a condominium construction project. Bradbury began and completed this work in 2002.Sierra Pacific attended to leaks and water damage between 2004 and 2011, including two substantial retrofit repairs in 2005 and 2011. Bradbury did some repair work in 2004. Construction defect litigation resulted over the cost of the repairs.

In 2014 Sierra Pacific filed this indemnification action against Bradbury to recover losses incurred in the settlement of the defective construction case and damages for related contractual breaches. Bradbury filed for summary judgment under C.R.C.P. 56(b), asserting that the claims, brought nearly 10 years after Bradbury ceased repair efforts, were time barred by the six-year statute of limitation in Colorado’s Construction Defect Action Reform Act. The trial court granted Bradbury’s motion for summary judgment.

On appeal, Sierra Pacific argued it was error to find that its claims were barred by the six-year statute of repose because under C.R.S. § 13-80-104(1)(b), it was allowed to file claims against Bradbury within 90 days of settling the underlying case in 2014, notwithstanding the statute of repose. This exact argument was previously rejected by a division of the court of appeals and the court here rejected it for the same reasons. The court concluded that the settlement in the underlying case did not impact the application of the statue of repose.

Sierra Pacific also contended that summary judgment was inappropriate because there remains a dispute of material fact as to when the statute of repose expired. Sierra Pacific argued that even if the statute of repose was not tolled by the settlement, the period of repose did not commence until the improvements to the property were completed in 2011. C.R.S. §§ 13-80-104(1)(a) and (2) provide a statute of repose that expires six years after substantial completion of improvements to real property, unless it is extended two years because the underlying cause of action arose during the fifth or sixth year after such substantial completion. Sierra Pacific argued that “substantial completion” did not occur until the repairs were finished in 2011. The court reasoned that a subcontractor has substantially completed its role in the improvement at issue when it finishes working on the improvement, and the statute of repose commences upon substantial completion. Here, the project was substantially completed in 2002, or in no event later than 2004, when the last repairs by Bradbury were completed. Moreover, there is no tolling of the statute of repose based on another’s efforts to repair work.

Under the applicable statute of repose, Sierra Pacific’s claims against Bradbury were time barred, and the district court properly granted Bradbury’s motion for summary judgment. The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Binding Precedent Dictates that Tree Straddling Property Line Belongs to Property Where Planted

The Colorado Court of Appeals issued its opinion in Love v. Klosky on Thursday, September 8, 2016.

Tree Straddling Property Line.

Plaintiffs and defendants are adjoining landowners whose common boundary is straddled by a 70-year-old tree. Plaintiffs claimed the tree was a nuisance and wanted to cut it down. Defendants wanted the tree to remain. The tree trunk has been on or over the property line for at least 40 years, and the trunk straddled the property line when both plaintiffs and defendants purchased their properties. The trial court, bound by the one Colorado Supreme Court case on point, Rhodig v. Keck, concluded that the tree was not jointly planted, jointly cared for, or treated as a partition, and entered judgment for plaintiffs. The trial court stayed the effect of its decision pending all appeals.

On appeal, defendants contended that the trial court erred in concluding that they did not jointly care for the tree as required by Rhodig. Because defendants did not provide a complete record on appeal on this issue, the Court of Appeals presumed that the trial court’s findings and conclusions were supported by the evidence.

Defendants also contended that the Colorado Supreme Court should reconsider Rhodig because it is the minority rule and it was based on a misreading of a Nebraska case on which it relied. Under the majority rule, a tree on a boundary line belongs to both owners as tenants in common and neither property owner can remove such a tree without the consent of the other. Under the minority rule enunciated in Rhodig, the landowner of the property where the tree was first planted can cut the tree down over the other landowner’s objections unless the other landowner can prove the tree was jointly planted, jointly cared for, or treated as a partition between the properties. The Court concluded that the Supreme Court might wish to reconsider Rhodig based on the many jurisdictions adopting the majority rule and two decisions in other jurisdictions criticizing Rhodig. If the Supreme Court reconsiders Rhodig and adopts the majority rule, it could remand this case to the trial court to issue an injunction to prevent the Kloskys from cutting down the tree. At oral argument, defendants agreed that the trial court’s stay should remain in effect pending any decision by the Supreme Court or the Loves’ failure to timely petition for certiorari. Accordingly, the trial court’s stay was continued.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Arbitration Agreement Must Strictly Comply with Statute

The Colorado Court of Appeals issued its opinion in Fischer v. Colorow Health Care, LLC on Thursday, September 8, 2016.

Arbitration Agreement—Motion to Compel—C.R.S. § 13-64-403—Strict Compliance.

Colorow Health Care, LLC, and its management company, QP Health Care Services, LLC, operate a long-term healthcare facility. When Fischer (the decedent) was admitted to the facility, her daughter, acting under a power of attorney, signed an arbitration agreement. The decedent passed away while a resident of the facility. Plaintiffs Amy and Roger Fischer pleaded tort claims arising from the decedent’s death. Defendants appealed the trial court’s order denying their motions to compel arbitration.

Defendants then filed this interlocutory appeal as of right under C.R.S. § 13-22-228(1)(a), contesting the trial court’s order denying their motions to compel arbitration. C.R.S. § 13-64-403 sets out specific language that an arbitration agreement must include to comply with the Health Care Availability Act. Defendants contended that the statute requires only substantial compliance with its provisions; plaintiffs argued that the arbitration agreement had to strictly comply, and because it admittedly did not, it was invalid. The court of appeals concluded that C.R.S. § 13-64-403 calls for strict compliance, and based on the complete lack of bold-faced type in the agreement, the court agreed that the agreement was invalid.  The court further concluded that this neither creates an absurd result nor violates Colorado’s public policy favoring arbitration.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.