December 11, 2016

Colorado Court of Appeals: Exhaustion of Administrative Remedies Required but Dismissal With Prejudice was in Error

The Colorado Court of Appeals issued its opinion in Grant Brothers Ranch, LLC v. Antero Resources Piceance Corp. on Thursday, December 1, 2016.

Subject Matter Jurisdiction—Summary Judgment—Exhaustion of Administrative Remedies—Dismissal Without Prejudice.

Antero Resources Piceance Corporation (Antero), an oil and gas exploration and production company, received approval from the Colorado Oil and Gas Conservation Commission (the Commission) to establish a drilling and spacing unit to produce oil and gas. Antero wanted to produce oil and gas underlying Grant Brothers Ranch, LLC’s (Grant Brothers) property, which was within the unit, but Grant Brothers refused Antero’s offer to lease the minerals or participate in their production. Antero then requested that the Commission pool all nonconsenting interests in the unit and allow Antero to produce and sell the oil and gas of the nonconsenting owners. Following a hearing, the Commission granted the request. A year and a half later, to produce from a deeper formation, Antero sought to establish a new unit within the same lands. Again, Antero asked Grant Brothers to participate in their production, and Grant Brothers refused. Following objection by Grant Brothers and a hearing, the Commission granted this request and issued an order pooling all nonconsenting interests in the second unit. Pursuant to these pooling orders, Grant Brothers was entitled to receive its interest in the proceeds from the production and sale of oil and gas from wells in the units after the wells reached “payout.” Antero was required to furnish Grant Brothers monthly statements concerning its costs and proceeds.

Three years after the second order, Grant Brothers asked Antero for permission to audit its books and records regarding the wells. Antero refused, stating it had been sending Grant Brothers the required monthly statements.

Two years later, Grant Brothers sued Antero and Ursa Operating Company, LLC (which assumed operation of the wells in 2012) (Operators), requesting an equitable accounting and alleging the wells had reached payout, but Operators had not paid Grant Brothers. Operators filed a motion for summary judgment arguing that Grant Brothers had not exhausted its administrative remedies under the Oil and Gas Conservation Act (the Act) and therefore the district court lacked subject matter jurisdiction. The court agreed and dismissed the action with prejudice.

On appeal, Grant Brothers argued that the district court improperly granted summary judgment because Grant Brothers was not required under the Act to exhaust its administrative remedies. The Colorado Court of Appeals noted that because the district court had not resolved a number of factual disputes and resolved Antero’s motion solely on the basis that the court lacked subject matter jurisdiction, the summary judgment motion was more properly characterized as a motion to dismiss for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1) and it therefore treated it as such.

The Act gives the Commission a broad grant of jurisdiction over operations for the production of oil and gas, including payment disputes, unless such dispute is one over interpretation of a payment contract, which would be resolved by a district court. In determining whether a court has subject matter jurisdiction where a party did not exhaust administrative remedies, courts examine whether (1) the claim was filed pursuant to the relevant statute, (2) the statute provides a remedy for the claim asserted, and (3) the legislature intended the statute to provide a “comprehensive scheme” addressing the issues underlying the claim.

First, Grant Brothers’ claim was one for payment of proceeds under C.R.S. §§ 34-60-116 and -118.5. Grant Brothers is entitled to receive payment only if and when payout occurs. Primary jurisdiction to make this determination rests with the Commission. Second, because there was no contract between the parties, Grant Brothers needed to first submit a written request for payment. If there is a payment dispute, Grant Brothers may request a hearing before the Commission, whose order would then be appealable to the courts. Third, the Act’s language and structure indicate that a proceeding before the Commission is the primary remedy for nonconsenting owners’ claims for the payment of proceeds when there is no contract between the parties. Grant Brothers was required to exhaust its administrative remedies and because it did not do so prior to filing suit in the district court, the court properly dismissed the action.

Grant Brothers also contended that the district court erred in dismissing its claim with prejudice solely on the basis that the court lacked subject matter jurisdiction. A dismissal under C.R.C.P. 12(b)(1) does not adjudicate the merits, but results from the court lacking the power to hear the claims asserted. Thus the dismissal is necessarily without prejudice.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Dram Shop Amendments Require Knowledge of Drinker’s Underage Status and Alcohol Consumption

The Colorado Court of Appeals issued its opinion in Przekurat v. Torres on Thursday, December 1, 2016.

Dram Shop Act—Intoxication—Knowledge—Evidence.

Sieck drove Przekurat home from a party in Przekurat’s car. Sieck, who was highly intoxicated at the time of the accident and was under 21 years old, drove at speeds in excess of 100 miles per hour before losing control of the car and colliding with an embankment. Przekurat sustained catastrophic injuries, including brain damage. Przekurat’s father sued the four hosts of the party, claiming they “knowingly provided [Sieck] a place to consume an alcoholic beverage” and thus were liable for his damages under the 2005 amendments to the Dram Shop Act. The trial court granted the hosts’ summary judgment motion.

On appeal, Przekurat argued that the district court erred when it held that C.R.S. § 12-47-801(4)(a)(I) of the Dram Shop Act requires actual knowledge of two separate elements: (1) that the defendant provided a place for the consumption of alcohol by a person under the age of 21, and (2) that the defendant knew that the person who consumed alcohol at that place was under age 21. The statutory requirement of “knowingly” applies to all of the elements of liability under the 2005 amendments. Therefore, the trial court correctly construed the 2005 amendments and also correctly determined that Przekurat failed to demonstrate a disputed issue of material fact regarding the hosts’ knowledge that Sieck was underage and was drinking at the party.

Przekurat next argued that the district court’s summary judgment must be reversed because he offered abundant evidence that the hosts knew that they were hosting an “open” party and providing a venue to underage guests, including Sieck, to drink indiscriminately. Although circumstantial evidence is admissible to prove knowledge under the statute, Przekurat did not offer any evidence, circumstantial or direct, that would permit a reasonable inference that any of the hosts knew Sieck, much less that they knew his age, or that Sieck appeared to be obviously underage.

Przekurat next argued that the district court erred in concluding that it did not have jurisdiction to rule on his motion for reconsideration of summary judgment in favor of the hosts. The Colorado Court of Appeals agreed that the district court erroneously denied the C.R.C.P. 59 motion for lack of jurisdiction, but the error does not require reversal or a remand.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 12/8/2016

On Thursday, December 8, 2016, the Colorado Court of Appeals issued no published opinion and 20 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: Design of Manufacturing Part Was Not a Secret, Therefore No Misappropriation Occurred

The Colorado Court of Appeals issued its opinion in Hawg Tools, LLC v. Newsco International Energy Services, Inc. on Thursday, December 1, 2016.

Design—Trade Secret—Conversion—Defense—Waiver—Standing—Breach of Contract.

Hawg Tools, LLC (Hawg) rents mud motors to oil and gas drilling companies. Newsco International Energy Services, Inc. (Newsco) uses mud motors to provide drilling services. Gallagher owned Hawg. Before he formed this company, he operated a similar business called New Venture. In 2008 Gallagher asked a machinist to manufacture sealed bearing packs for use in New Venture’s mud motors. The machinist arranged for a designer, defendant Ficken, to design the sealed bearing packs for the machinist as a favor. The designer assigned his rights in the design to the machinist, who assigned them to Gallagher for compensation. Gallagher later assigned the rights to Hawg. The designer later designed a sealing bearing pack for Newsco. After determining that the Newsco design was similar to the Hawg design, Gallagher filed this lawsuit alleging (1) misappropriation of a trade secret concerning the design of a sealed bearing pack, (2) conversion of a trade secret, and (3) breach of contract. The trial court entered judgment in favor of plaintiff. The trial court denied defendants motions for directed verdict and judgment notwithstanding the verdict.

On appeal, defendants contended that the trial court erred when it denied their motions for directed verdict and judgment notwithstanding the verdict on Hawg’s claim for misappropriation of a trade secret. C.R.S. § 7-74-102(4) defines a trade secret as “the whole or any portion . . . of any . . . design . . . which is secret and of value.” To determine whether a trade secret exists, the fact finder considers (among other thing) the extent to which the information is known outside the business. Here, Hawg did not establish that its design, in whole or in part, was substantially different from designs that were publicly available at the time of its creation. The court of appeals concluded that (1) the record does not support a conclusion that the Hawg design was secret and (2) the record does not contain sufficient evidence to support the trial court’s decision to deny defendants’ motions for a directed verdict and for judgment notwithstanding the verdict.

Defendants also contended that the trial court erred when it denied their motion for judgment notwithstanding the verdict on Hawg’s conversion claim, asserting that the Uniform Trade Secrets Act preempts claims for conversion of trade secrets. This was a preemption defense based on choice of law, which defendants waived because they raised it for the first time in their motion for judgment notwithstanding the verdict.

Ficken appealed the judgment against him on Hawg’s breach of contract claim, contending that the trial court erred when it rejected his assertion that Hawg lacks standing to bring suit against him for breach of contract based on his violation of a confidentiality agreement. Here, the designer and the machinist entered into an assignment agreement with Gallagher. Later, Gallagher fully assigned his rights under this agreement to Hawg. Therefore, Hawg had standing to bring suit for breach of that agreement.

The judgment on Hawg’s claim for misappropriation of a trade secret was reversed and the case was remanded for the trial court to enter judgment in favor of defendants on that claim and to vacate the award of damages on that claim. The judgment on Hawg’s claims for conversion and breach of contract were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Lengthy Delay in Postconviction Proceedings Did Not Violate Due Process

The Colorado Court of Appeals issued its opinion in People v. Hardin on Thursday, December 1, 2016.

William Hardin was accused of robbing three men and killing two of them. When his 1988 trial concluded, Hardin was convicted of two counts of aggravated robbery, two counts of felony murder, and two counts of murder after deliberation. He was sentenced to two consecutive 16-year sentences for the aggravated robbery convictions and two life sentences for the felony murder convictions. He was not sentenced for the murder after deliberation convictions. Hardin appealed and was also granted a limited remand to pursue a Crim. P. 35(c) ineffective assistance claim. Over the next six years, Hardin was appointed a series of private attorneys for his postconviction claim; Hardin repeatedly filed pro se motions expressing frustration with his legal representation and his appointed attorneys’ lack of action on the postconviction claim.

In 1997, a division of the Colorado Court of Appeals vacated Hardin’s limited remand and decided his direct appeal. It affirmed Hardin’s convictions but remanded for sentencing on the murder after deliberation convictions and vacate one of the felony murder convictions. That division also concluded that Hardin’s ineffective assistance claims should be decided in a postconviction proceeding. Hardin filed a pro se postconviction proceeding in 1999, which the court denied without a hearing. Another division of the court of appeals reversed and remanded with instructions to hold further proceedings on the postconviction claims. After several more years, Hardin’s current attorney was appointed. Eight years after her appointment, the trial court held an evidentiary hearing on Hardin’s postconviction claims. The postconviction court denied Hardin’s motion after the hearing, and he appealed.

The court of appeals analyzed whether the excessively lengthy delay in the postconviction proceedings violated Hardin’s due process rights. Hardin argued that he should have been granted a new trial because the delay impaired his ability to present his claims for postconviction relief, as shown by the witnesses’ faded memories and the unavailability of certain records. The court of appeals disagreed with Hardin, but affirmed the postconviction court’s denial of his motion for relief. The court of appeals found that the length of the delay weighed in Hardin’s favor, the reason for the delay was mixed and therefore neutral, the defendant properly asserted his rights, and the delay did not prejudice Hardin. The court found that although some of the witnesses’ memories were dimmed, it was not so significant as to prejudice Hardin. The court emphasized that although it did not find prejudice, the lengthy delay is unacceptable in a legal system designed to provide speedy resolutions to criminal defendants.

The court of appeals next addressed Hardin’s contention that the postconviction court abused its discretion by not making findings of fact or conclusions of law as to whether his trial counsel was inefficient for failing to object to the trifurcation of the aggravated robbery charges. The court found that although the trial court did not directly address this issue, it made factual findings about Hardin’s lack of prejudice on all issues, therefore the trifurcation issue was presumably covered.

The court of appeals affirmed the postconviction court’s denial of Hardin’s motion for relief.

Colorado Court of Appeals: Inconsistent Jury Verdicts Necessitate New Trial

The Colorado Court of Appeals issued its opinion in People v. Delgado on Thursday, December 1, 2016.

The victim was drinking at a bar and left, drunk, around closing time. He went back to the bar, but the doors were locked. The victim began pounding on the door and the bar personnel called the police. The victim eventually gave up and started walking away. He saw two men walking toward him and turned around. He was attacked from behind; someone hit and kicked him until he collapsed, unconscious.

An officer responding to the bar’s call saw Delgado bending over the unconscious victim, going through his pockets. The officer shouted at Delgado to stop, but he took off running. Backup officers arrived in time to chase and arrest Delgado.

At trial, the prosecution argued that Delgado could be convicted of both robbery and theft from the person of another. The trial court gave instructions on each, and the jury convicted Delgado of both offenses. The robbery instruction informed that Delgado could be found guilty if he 3. knowingly, 4. took anything of value, 5. from the person or presence of another, 6. by the use of force, threats, or intimidation. The theft from the person of another instruction informed that Delgado could be found guilty if he 3. knowingly, a. obtained or exercised control over, b. anything of value, c. which was the property of another person, d. without authorization or by threat or deception, and 4. with intent to permanently deprive the other person of the use or benefit of the thing of value, and 5. the thing of value was taken, a. from the person of another, b. by means other than the use of force, threats or intimidation.

On appeal, Delgado argued that the verdicts were legally and logically inconsistent. Both parties agreed the inconsistent verdict issue was not preserved, so the court of appeals reviewed for plain error. The court of appeals concluded that the force elements of the two crimes were legally and logically inconsistent, since the robbery count required use of force, threats, or intimidation, whereas the theft count required that the theft be committed by means other than the use of force, threats, or intimidation. The court found the error was plain because it casts serious doubt on the reliability of the conviction.

The prosecution argued that the court of appeals should enforce the more serious conviction for robbery and vacate the theft conviction. The court of appeals disagreed, finding that when jury verdicts are legally and logically inconsistent, there is no way to know what the jury actually found. It is not possible to discern the jury’s intent. The court thus remanded for a new trial.

The court of appeals reversed the judgment and sentence and remanded for a new trial with the prosecution choosing to retry Delgado on either the robbery count or the theft count, and, if the prosecution chooses to submit both counts, the jury must be instructed that it can choose one count or the other but not both.

Colorado Court of Appeals: Cafeteria Plan Deductions Should Not Be Included in Unemployment Compensation Calculations

The Colorado Court of Appeals issued its opinion in Meyer v. Industrial Claim Appeals Office on Thursday, November 17, 2016.

Lizabeth A. Meyer (Claimant) received unemployment compensation benefits in the amount of $500 per week, effective March 11, 2012, and continuing until May 19, 2012, when she obtained full-time employment. During the majority of that period, she worked part-time at Coach, and for the last two weeks she worked full-time at Sutrak. A deputy for the Division of Unemployment Insurance conducted an audit of Claimant’s file and determined that she had been overpaid unemployment compensation benefits in the amount of $1,712 for the period from March 18, 2012, through May 19, 2012. The deputy found that claimant had underreported her hours and earnings for certain weeks during that period, and assessed a monetary penalty of $1,112.80 against her.

Claimant appealed the deputy’s determination and an evidentiary hearing was held, at which Claimant conceded that the hours reported on her paystubs, rather than those she reported online, accurately reflected the hours she worked. However, she asserted that she was only required to report her taxable earnings, not her gross earnings. The Division’s hearing officer accepted Claimant’s concessions about the hours worked but held that she was required to report her gross earnings. The hearing officer found that because Claimant knowingly misrepresented her gross earnings, she was overpaid $1,890.64 in unemployment compensation, and assessed a monetary penalty of $1,228.91. Claimant appealed to the Industrial Claim Appeals Office, and the Panel affirmed. Claimant then appealed to the Colorado Court of Appeals.

Claimant contended the Panel erred in determining she was required to report her gross earnings rather than her taxable earnings, arguing she was not required to report any contributions to her 26 U.S.C. § 125 cafeteria plan. The court of appeals agreed. The court found that the Division required Claimant to report her gross earnings, but that was in contravention of the definition of “wages” in C.R.S. § 8-70-142. The court held the Division erred in requiring Claimant to report her gross wages without deducting contributions to her § 125 cafeteria plan.

Claimant next contended that the Panel erred in upholding the hearing officer’s determination that she knowingly failed to report her earnings accurately, and that both the Panel and hearing officer erred in determining she had received an overpayment and imposing a monetary penalty. The court of appeals agreed in part. The court found that, for the period from May 6 through May 21, 2012, Claimant was not eligible for unemployment compensation benefits and therefore was overpaid $1,000 for this period. The court found the Division did not err in imposing the 65% penalty for this period, in the amount of $650. However, for the period for which Claimant worked for Coach, she was eligible for benefits. Because the Division calculated Claimant’s overpayment based on her gross earnings rather than her taxable wages, the Division erred in its calculations. The court of appeals analyzed Claimant’s taxable wages and found an overpayment of $76 for the period in which she worked for Coach. The 65% penalty for this amount is $49.40, for a total of $125.40 owed for the period in which Claimant worked for Coach.

The court of appeals affirmed in part, reversed in part, and remanded with directions for the Panel to issue a new order regarding the $76 overpayment.

Colorado Court of Appeals: Announcement Sheet, 12/1/2016

On Thursday, December 1, 2016, the Colorado Court of Appeals issued five published opinions and 24 unpublished opinions.

People v. Delgado

People v. Hardin

Hawg Tools, LLC v. Newsco International Energy Services, Inc.

Przekurat v. Torres

Grant Brothers Ranch, LLC v. Antero Resources Piceance Corp.

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: Jury Finding of No Dependency and Neglect Not Final Appealable Order

The Colorado Court of Appeals issued its opinion in People in Interest of S.M.-L. on Thursday, November 17, 2016.

Dependency and NeglectFinal and Appealable Order.

The Department of Human Services (Department) filed a dependency and neglect petition regarding S.M-L., B.M-M, and R.S. (the children). The petition named D.S. as R.S.’s biological father and named G.S. as the mother of all of the children. The Department asserted that father had sexually abused his stepdaughter S.M-L. He was arrested and criminally charged with sexual abuse. Father denied the allegations and mother believed S.M-L was lying about them. Mother requested a bench trial and father requested a jury trial.

As to mother, the court found the allegations in the petition had been proven by a preponderance of the evidence and entered an order adjudicating the children dependent and neglected. However, the jury returned a verdict as to father finding that R.S. was not dependent or neglected. The Department moved for an adjudication of father notwithstanding the verdict. The trial court denied the motion and dismissed father from the petition. Both the Department and mother appealed.

The Colorado Court of Appeals issued an order to show cause why the appeal should not be dismissed for lack of a final, appealable order, noting that it was unaware of any authority for the proposition that dismissing a parent from a petition based on a jury verdict was a final appealable order. C.R.S. § 19-1-109(2)(c) provides that an order decreeing a child to be neglected or dependent shall be a final and appealable order upon the entry of the disposition. This section does not address the dismissal of a party from the petition based on a jury’s verdict finding a child was not dependent or neglected as to that party. The court also noted that after the jury determined that R.S. was not dependent or neglected as to father, the trial court did not have jurisdiction to enter any orders other than dismissal of the petition. Because a jury’s “no adjudication” verdict is not a proper basis for a motion for adjudication notwithstanding the verdict and thus is not a final appealable order under C.A.R. 3.4(a) or C.R.S. § 19-1-109(2)(c), the Department’s appeal was dismissed.

Mother challenged her adjudication on several grounds, but the court found no reversible error because the evidence supported the trial court’s factual findings.

The Department’s appeal was dismissed and the order adjudicating mother was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Deferred Juvenile Adjudication Not Predicate Felony Offense for POWPO Purposes

The Colorado Court of Appeals issued its opinion in People in Interest of A.B. on Thursday, November 17, 2016.

A.B., a juvenile, was the rear driver’s side passenger in a parked car when police blocked the car due to a noise violation from the car’s loud stereo. All three of the vehicle’s occupants exited when the police arrived, and an officer saw A.B. pull a gun from his waistband and throw it into the car. He was charged with possession of a weapon by a previous offender (POWPO) based on a prior incident in which A.B. accepted a deferred adjudication on a charge of aggravated motor vehicle theft in the first degree, a felony.

Before trial, A.B. moved to suppress the weapon, arguing the search was unconstitutional because when police officers ordered him to get back in the car, they seized him but lacked reasonable suspicion to do so. The trial court denied the motion to suppress based on the officer’s testimony that he saw A.B. throw the gun into the car. The officer presented the same testimony at trial. When the prosecution rested, A.B. moved for judgment of acquittal, arguing the deferred adjudication did not constitute a prior adjudication for POWPO purposes. The court denied his motion, and A.B. was convicted and sentenced to two years in youth corrections.

On appeal, A.B. argued the trial court erred in denying his motion to suppress. The court of appeals disagreed. The court declined to reach the constitutional issue of whether the encounter was a seizure for Fourth Amendment purposes, and instead found that the officers had reasonable suspicion that every person in the vehicle was violating the Denver Municipal Code’s noise ordinance. Therefore, the court found that the officers had reasonable suspicion to seize A.B. based on a violation of the noise ordinance.

A.B. next argued that his deferred adjudication was not a predicate felony for POWPO purposes. The court of appeals agreed. The court analyzed the POWPO statute applicable to juveniles, C.R.S. § 18-12-108(3), and found no reference to deferred adjudications. A.B. relied on the plain statutory language in arguing that because he accepted a deferred adjudication, he was not actually adjudicated at the time of the POWPO offense. The Attorney General analogized the juvenile statute to its adult counterpart, relying on cases interpreting “conviction” to include deferred judgments. The court of appeals analyzed the juvenile delinquency statutes and found that they distinguished deferred adjudications from adjudications of juvenile delinquency both as to definition and effect. The court found that the General Assembly expressly equated deferred adjudications to delinquency adjudications in several instances, evidencing an intent to separate the two definitions. The court found that A.B.’s deferred adjudication was not a predicate offense for POWPO purposes.

The court of appeals affirmed the denial of the suppression order, reversed the adjudication, vacated the sentence, and remanded for entry of judgment of acquittal.

Colorado Court of Appeals: Identity of Interest Does Not Apply to Parents of Adult Child

The Colorado Court of Appeals issued its opinion in Maldonado v. Pratt on Thursday, November 17, 2016.

The Pratts and Dennis Pratt II (Pratt Jr.) own adjacent properties near Pueblo, Colorado. Pratt Jr. stored used car parts on his property. He began to suspect that someone was stealing the parts, and on October 16, 2012, he drove to his storage area, and, when he saw three flashlight beams approaching, shot and killed Jacob Maldonado. Pratt Jr. was convicted of negligent homicide and sentenced to six years’ imprisonment.

Maldonado’s estate filed a wrongful death action against Pratt Jr. on September 16, 2014, alleging a single act of negligence in his killing of Maldonado. On April 1, 2015, the Estate moved to amend its complaint to add Premises Liability Act claims against the Pratts, since it had discovered that Maldonado was actually on the Pratts’ property when he was shot. The Pratts filed a motion for judgment on the pleadings and/or summary judgment, arguing the two-year statute of limitations barred the complaint. The Estate countered that the amended complaint related back to the original complaint. The district court disagreed and found that the Pratts did not have actual notice of the lawsuit and would not have expected to be named as defendants in the wrongful death action. The district court granted judgment in the Pratts’ favor.

On appeal, the Estate conceded that the statute of limitations for a PLA claim had run when it filed its amended complaint. However, the Estate contended the new claims related back to the original complaint. The court of appeals disagreed. The court of appeals analyzed the relation-back doctrine, noting that a new claim relates back to the date of the original pleading so long as the new claim or defense arises out of the same conduct, transaction, or occurrence. However, when adding a new party, two additional duties arise: the new party must have received actual notice of the complaint within the time period provided by C.R.C.P. 4(m), and the new party must have known or reasonably should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him or her.

The court found that the Estate could not prove the Pratts had actual notice of the complaint against Pratt Jr. The Estate argued that notice could be imputed to the Pratts through the “identity of interest” doctrine. The court found the doctrine inapplicable. The court noted that, generally, the identity of interest doctrine is used for corporate entities. The Estate argued that the Pratts had an identity of interest to Pratt Jr., but the court of appeals disagreed. The identity of interest doctrine generally only applies to families if the children are minor and they share an attorney or insurance policy. Here, Pratt Jr. was an adult who lived separately from his parents. Although they spoke daily before the shooting, Pratt Jr. was taken into custody the day of the shooting and was in the DOC when served with the original complaint. The court of appeals declined to extend actual notice from an assumption that Pratt Jr. would have told his parents about the lawsuit.

The court of appeals affirmed the district court.

Colorado Court of Appeals: Facts, If True, Would Establish Justifiable or Excusable Neglect

The Colorado Court of Appeals issued its opinion in People v. Torres on Thursday, November 17, 2016.

Guilty Plea—Immigration Status—Post-Conviction Motion—Statutory Time Bar—Justifiable Excuse—Excusable Neglect.

Chavez-Torres is a citizen of Mexico who came to the United States with his family when he was a child. While in high school, Chavez-Torres pleaded guilty to first degree criminal trespass. The trial court sentenced him to probation, which he successfully completed.

Seventeen years after his criminal trespass conviction, the U.S. Department of Homeland Security initiated removal proceedings, alleging that Chavez-Torres was not legally present in the United States and had been convicted of a crime involving moral turpitude. Chavez-Torres moved for post-conviction relief from his criminal trespass conviction under Crim. P. 35(c) based on ineffective assistance of counsel. He alleged that he had informed his plea counsel that he was not a U.S. citizen but counsel advised him to accept the plea agreement without telling him that the guilty plea carried a risk of adverse immigration consequences. He claimed that had he been properly advised he would have insisted on going to trial. He asserted that as a result, his plea and conviction were constitutionally infirm. While acknowledging that his post-conviction motion was untimely, he alleged that these circumstances amount to justifiable excuse or excusable neglect. The trial court denied the motion as untimely, finding that the prejudice to the state would be too great, given the passage of time, and that he failed to assert facts amounting to justifiable excuse or excusable neglect.

On appeal, Chavez-Torres contended that the district court erred in summarily denying his post-conviction motion based on the statutory time bar because he asserted facts that, if true, would establish justifiable excuse or excusable neglect. Here, even though Chavez-Torres had informed plea counsel that he was not a citizen of the United States, counsel had advised him to accept the plea agreement without telling him that the guilty plea carried a risk of adverse immigration consequences. Chavez-Torres subsequently completed his probation and did not learn that his conviction had adverse immigration consequences until the removal proceedings were initiated. Under these circumstances, it cannot be concluded, as a matter of law, that justifiable excuse or excusable neglect did not exist.

Defendant also argued that the finding that the State would suffer “great” prejudice has no record support. The Colorado Court of Appeals determined that the existing record does not support the district court’s finding that the state will suffer great prejudice.

The order denying the post-conviction motion was reversed and the case was remanded to the district court to determine whether Chavez-Torres has established justifiable excuse or excusable neglect for his untimely post-conviction motion. If he can, the court must then consider the merits of his post-conviction motion.

Summary provided courtesy of The Colorado Lawyer.