May 29, 2016

Colorado Court of Appeals: Evidence Insufficient to Support Involuntary Administration of Medication

The Colorado Court of Appeals issued its opinion in People in Interest of R.K.L. on Thursday, May 19, 2016.

Involuntary Administration of Medication—Due Process—Clear and Convincing Evidence.

On request of the People, R.K.L., a/k/a A.J.J., was found to be mentally ill and a danger to others and gravely disabled, and was certified to Colorado Mental Health Institute at Fort Logan for short-term treatment for a period not to exceed three months. The probate court also authorized involuntary administration for 11 requested antipsychotic medications. Before the expiration of that order, the People filed a notice extending the certification for treatment for an additional three months and a motion to extend the involuntary medication order. The probate court, following a hearing, extended the certification for short-term treatment and granted the motion for continued involuntary administration authority for the requested medications.

A.J.J. appealed both orders. He conceded that the People had established by clear and convincing evidence that he has a mental illness and that he has not voluntarily accepted treatment. He argued that the court erred in finding that the People proved by clear and convincing evidence that he is a danger to others or gravely disabled. The Court of Appeals held that the probate court’s finding that A.J.J. is a danger to others was supported by evidence in the record. Alternatively, the Court found sufficient evidence in the record to support the probate court’s findings by clear and convincing evidence that A.J.J was gravely disabled as a result of his mental illness. Sufficient evidence supports the probate court’s orders upholding the certification and extended certification of A.J.J. for short-term treatment.

To involuntarily administer antipsychotic medication without violating a patient’s due process rights, all four elements set forth in People v. Medina, 705 P.2d 961, 973 (Colo. 1985), must be proven by clear and convincing evidence. The Court found that the evidence did not support the probate court’s findings as to two of these elements regarding involuntary administration of 10 of the medications, but the evidence was sufficient to support the administration of one medication. The Court agreed with A.J.J. that the evidence did not support the court’s findings that (1) the People had established by clear and convincing evidence that there was no less intrusive alternative than administering the 10 antipsychotics and (2) A.J.J.’s need for treatment with the 10 antipsychotic medications overrode his bona fide and legitimate interest in refusing this treatment.

The orders were reversed to the extent that they authorized involuntary administration of 10 antipsychotics and affirmed in all other respects.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Co-Owners of Ranch Validly Contracted to Allow Restrictions on Property Rights

The Colorado Court of Appeals issued its opinion in Reishus v. Bullmasters, LLC on Thursday, May 19, 2016.

Tenancy in Common—Declaratory Judgment—Covenant—Runs with the Land.

Adams Ranch is a property owned by tenants in common. Plaintiffs are some of the owners who are the appointed managers of the ranch; they brought a declaratory judgment action after defendants (other owners) objected to an amendment to an ownership agreement restricting hunting rights at the ranch.

The parties stipulated to the following relevant facts. In 1983, the owner of Adams Ranch conveyed it to 11 individuals as tenants in common. Only two of the original grantees still have ownership interests and are among the plaintiffs. The original ownership agreement stated it could be “amended or deleted by a simple majority of the individual owners at any time.” In 2007, more than a majority of the then co-owners signed an “Amended and Restated Adams Ranch Ownership Agreement” (2007 Amended Agreement). The 2007 Amended Agreement superseded the original ownership agreement and expressly states that it runs with the land and is binding on all owners, their legal representatives, heirs, successors, and assigns. It can be amended “at any time by written and recorded instrument signed by the then record Owners of at least 7/12ths of the Ownership Interests.”

In 2011, an amendment limiting hunting days per fraction of ownership was adopted by 7/12ths of the ownership interests. Defendants disputed the validity of the hunting limitation, asserting that it improperly restricted their possessory and use rights as tenants in common, which cannot be restricted without their consent. The district court held that the hunting restriction was validly adopted and binding on all owners.

On appeal, defendants first argued that one group of co-owners in a tenancy in common cannot limit the possessory rights of other co-owners without their unanimous consent. The Court of Appeals agreed with defendants that each tenant in a tenancy in common is entitled to equal use and possession of the property. However, it also found that tenants in common can contract otherwise and that there is no necessity of unanimous consent where co-owners contract such entitlement in the ownership agreements. The Court concluded that the co-owners of the ranch validly contracted to allow restrictions on their possessory rights and to allow those restrictions if approved by 7/12ths of the ownership interests.

Defendants also argued that the 2007 Amended Agreement was not a real covenant binding on the parties and their successors in interest. The Court disagreed, noting the explicit language in the 2007 Amended Agreement stating that it bound successors and ran with the land.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Error in ALJ’s Finding of Claimant’s Attempt to Circumvent Burden of Proof

The Colorado Court of Appeals issued its opinion in Feliciano v. Industrial Claim Appeals Office on Thursday, May 19, 2016.

Workers’ Compensation—Reopening Claim—DIME—Maximum Medical Improvement.

Claimant sustained an injury, underwent treatment, and was placed at maximum medical improvement (MMI) by her authorized treating provider (ATP). Claimant requested a division-sponsored independent medical examination (DIME) to challenge the ATP’s MMI finding. The DIME physician agreed with the ATP’s MMI date and recommendation for treatment, and he rated claimant’s impairment. Claimant’s employer and its insurer filed a final admission of liability (FAL) based on the DIME.

Claimant did not object to the FAL but instead petitioned to reopen her claim less than two weeks after the FAL was filed and while her claim was still open. The administrative law judge (ALJ) denied and dismissed her petition, noting that the proper procedure would have been to challenge the DIME. The Industrial Claim Appeals Office affirmed and claimant appealed.

On appeal, claimant argued that the ALJ improperly disregarded her counsel’s arguments that she was not challenging the MMI finding and that the ALJ’s findings were not supported by substantial evidence. To reopen a claim, a claimant must show error, mistake, or change in condition. The reopening of a claim is within the sound discretion of the ALJ and may only be reversed for fraud or clear abuse of discretion. The ALJ found that claimant was filing to reopen a claim that wasn’t closed to avoid the higher burden of proof required to overcome a DIME. Claimant’s counsel admitted at oral argument that the petition to reopen was a “strategic” move taken because counsel did not believe claimant could overcome the DIME. The record supports the ALJ’s determination that claimant improperly used the reopening process to challenge the DIME.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Statute Permitting Will Reformation Based on Extrinsic Evidence of Intent Is Not Rule of Construction

The Colorado Court of Appeals issued its opinion in In re Estate of Ramstetter on Thursday, May 19, 2016.

Probate—Extrinsic Evidence—Mutual Mistake.

Louise Ramstetter devised her ranch to her daughters, Jeanne, Marie, and Karol, “in equal shares to be held as joint tenants.” Louise died in 2009 and Marie and Karol, as personal representatives, began administering the estate. Three years later, Jeanne petitioned to remove Marie and Karol as personal representatives and for a declaratory judgment that she had severed the joint tenancy among the sisters, creating a tenancy in common as to her one-third of the ranch by deeding her interest to a trust she had created. Marie and Karol cross-petitioned to enforce a 2012 Agreement and Release in which they had agreed to convey 35 acres of the ranch to Jeanne and she had agreed to convey the remainder of the ranch to them, with all other claims being released. They also sought reformation of the will based on the failure of the attorney who drafted the will to have implemented Louise’s intent to keep ownership of the ranch within the family.

The trial court granted Jeanne’s motion for judgment on the pleadings, finding the will unambiguous. It accepted the parties’ position that application of CRS § 15-11-806, which allows a court to reform an unambiguous instrument “to conform the terms to the transferor’s intention” based on clear and convincing evidence that the “transferor’s intent and the terms of the governing instrument were affected by a mistake of fact or law,” was determined by CRS § 15-17-101(2), but concluded that CRS § 15-17-101(2) did not make CRS § 15-11-806 applicable because Louise had died before the latter section became effective. Moreover, it found that the reformation claim depended wholly on extrinsic evidence of Louise’s intent, and therefore dismissed it. The court found that the Agreement and Release was “invalid as a result of mutual mistake among the parties to it” and that Jeanne had severed the joint tenancy by the conveyance to her trust.

On appeal, Karol and Marie first argued that the trial court improperly dismissed their claim for reformation of Louise’s will. CRS § 15-11-806 amended the probate code to allow reformation of an unambiguous instrument. The Court of Appeals agreed with the trial court that CRS § 15-11-806 cannot be applied retroactively in this case, but on different grounds: The Court found that CRS § 15-17-101(2)(b), which would allow retroactive application of CRS § 15-11-806, does not apply here because CRS § 15-17-101(2)(a) applies only to governing instruments and therefore controls over the more general subsection (2)(b) and does not provide a basis for retroactively applying CRS § 15-11-806. Also, CRS § 15-17-101(2)(e) does not allow retroactive application of CRS § 15-11-806 because CRS § 15-11-806 is not a rule of construction and therefore 2(e) doesn’t apply. Because CRS § 15-17-101(2)(a) and (b) do not permit retroactive application, the trial court properly precluded Karol and Marie from attempting to reform Louise’s will using extrinsic evidence of her intent under CRS §15-11-806. Karol and Marie also argued that the court improperly invoked stare decisis when dismissing their reformation claim. Because the terms of the will were unambiguous, the court properly did not admit extrinsic evidence to establish a contrary intent to that expressed in her will.

Karol and Marie then argued that the trial court misapplied the mutual mistake doctrine and erred in declining to enforce the Agreement and Release because all the sisters were mutually mistaken that only a contract among them could sever the joint tenancy. The Court reviewed the trial court decision for clear error and found sufficient support in the record to uphold its conclusion that all three sisters held the same mistaken belief. The Court also rejected Karol and Marie’s arguments that other findings of the trial court were irreconcilably inconsistent with the finding of mutual mistake.

The orders dismissing the reformation claim and voiding the Agreement and Release for mutual mistake were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Choice of Law Provision Unambiguously Governs Contract

The Colorado Court of Appeals issued its opinion in Mountain States Adjustment v. Cooke on Thursday, May 19, 2016.

Summary Judgment—Debt Collection—Choice of Law Provision.

In August 2004, Cooke signed a note (Note) with Commercial Federal Bank (CFB) for a home equity loan. Cooke resided in Colorado and the home that was collateral for the Note (subject property) was in Colorado. CFB was headquartered in Nebraska and the Note stated that it was “governed by federal law, and to the extent applicable, the laws of Nebraska.”

CFB merged into Bank of the West, a California bank, in December 2005. Cooke’s  repayment terms under the Note didn’t change as a result nor was he asked to sign a new agreement. In April 2009, the company holding the first mortgage on the subject property commenced foreclosure proceedings. Bank of the West did not participate, but on June 19, 2009, Bank of the West sent a “30 Day Notice of Demand and Intent to Accelerate” letter to Cooke.

On February 14, 2014, Bank of the West assigned Cooke’s note to Mountain States Adjustment (MSA). On July 15, 2014, MSA filed this collection action against Cooke in Denver District Court. Cooke answered and alleged an affirmative defense that MSA’s claim was barred by the applicable statute of limitations.

In January 2015, MSA filed a motion for summary judgment alleging that Cooke admitted to being the signatory under the Note and that the facts were undisputed that he was in default. Cooke filed a cross-motion for summary judgment asserting that MSA’s claim was barred by the five-year statute of limitations set forth in Nebraska law. The district court decided that Colorado law and its six-year statute of limitations applied and entered summary judgment in MSA’s favor. The sole issue on appeal was whether it was error to hold that Colorado law applied.

The Court of Appeals found the choice of law terms in the Note were clear, express, and unambiguous. As a matter of law, Nebraska law governs the statute of limitations issue because the undisputed record shows both that Nebraska had a substantial relationship to the parties or the transaction and that there was a reasonable basis for the contracting parties’ choice of law. Because it was undisputed that MSA filed its complaint outside of the applicable Nebraska limitations period, MSA’s claim was barred and Cooke was entitled to entry of judgment in his favor.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Substantial Nexus Must Exist Between Confinement and Charge for PSCC

The Colorado Court of Appeals issued its opinion in People v. Fransua on Thursday, May 19, 2016.

Calculation of Presentence Confinement Credit.

On October 25, 2013, Fransua was arrested and charged with first degree criminal trespass of a dwelling, second degree burglary, third degree assault, and harassment (the 2013 charges). He was released on bond on December 5, 2013. On March 1, 2014, Fransua was arrested for violating his bond conditions and trespass (the 2014 charges).

Fransua ultimately pleaded guilty to attempted burglary in the 2013 case in exchange for dismissal of all the other 2013 and 2014 charges. On June 16, 2014, he was sentenced to five years in community corrections. He served this sentence until September 23, 2014, when he walked away from the community corrections facility. He was arrested on October 19, 2014. On November 10, 2014, he was resentenced to five years in the custody of the Department of Corrections.

At resentencing, the court stated Fransua was entitled to presentence confinement credit (PSCC) for time served only on the case that he was sentenced on. The court found this amounted to 162 days, declining to award credit for the 108 days served from March 1, 2014 to June 16, 2014.

On appeal, Fransua argued the failure to award credit him for the 108 days was error. The Court of Appeals stated that a defendant is entitled to PSCC if the period of confinement was attributable to the sentence imposed.        Applying this test, the Court found that Fransua’s confinement from March 1, 2014 to June 16, 2014 was on charges that were independent and distinct from the 2013 burglary charge and there was no substantial nexus between these charges and the sentence imposed. Therefore, the district court was correct in not giving him PSCC for that time.

Fransua also argued that the district court miscalculated the time for which he did receive credit. The Court agreed, finding that he should have been credited 164 days, not 162, because the district court failed to count the first days of his 2013 and second 2014 jail confinements.

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

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 5/26/2016

On Thursday, May 26, 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: Reversal Required if Alternate Juror Present During Deliberations

The Colorado Court of Appeals issued its opinion in People v. Riley on Thursday, May 19, 2016.

D.M. saw a man masturbating in the alley behind her house. She saw him again in a different location when she went to pick up her daughter from preschool, and stopped at the Weld County Sheriff’s Office to report the incident. When she returned home, he was still masturbating outside her house, so she called 911. Defendant was arrested and put in the back of the patrol car with handcuffs fastened in front of him. While transporting him, the deputy heard the sound of clanking metal and pulled over. She lifted up defendant’s shirt and saw flesh in the open V in the crotch of his pants.

Defendant was charged with and convicted of indecent exposure (third or subsequent offense) and two counts of public indecency. He appealed, asserting numerous contentions of error. The court of appeals first found that by requesting the lesser non-included offense of public indecency, defense counsel invited error and could not complain that the evidence was insufficient to support the charge. The court of appeals found that defense counsel’s strategic request precluded a contrary argument on appeal.

Next, defendant argued that the trial court erred by failing to instruct the jury on the definition of “public place.” The court of appeals found that defense counsel waived any objection by agreeing to the jury instructions. The court also disagreed with defendant’s argument that the prosecutor committed misconduct by referring to the victim’s honesty. The court did not find the prosecutor’s remarks improper.

Defendant next contended that the alternate juror was present for deliberations and therefore he was entitled to a new trial. The court of appeals found the record inconclusive as to whether the alternate was present during deliberations, and remanded for an evidentiary hearing to determine whether the alternate was present. If the alternate was present, the court of appeals instructed the trial court to vacate the convictions and hold a new trial. If the alternate was not present, there was no error.

Colorado Court of Appeals: Hearing Board Erroneously Judged Conduct Subjectively, Not Objectively

The Colorado Court of Appeals issued its opinion in City & County of Denver v. Gutierrez on Thursday, May 19, 2016.

Silver Gutierrez is a captain with the Denver Sheriff’s Department (DSD) and is on the board of the Denver Sheriff’s Foundation. Cheryl Arabalo is also a DSD captain and board member for the Foundation. On August 26, 2010, Arabalo went to Gutierrez’s office. Gutierrez was on the phone but he gestured for Arabalo to lift up her shirt and expose her breasts and then to sit on his lap. Two months later, Arabalo filed a complaint with the Colorado Civil Rights Division, alleging sexual harassment.

A hearing officer with the DSD Internal Affairs Bureau found that this type of behavior was prevalent among board members, who had a “locker room” culture and frequently engaged in sexualized behavior with each other. The DSD suspended Gutierrez for 75 days for violations of several Departmental Orders (DOs), but a hearing board reduced the suspension to 30 days. The hearing board decided that while Gutierrez’s conduct violated some of the DOs, it did not satisfy the criteria for the most egregious conduct.

The City appealed the hearing board’s decision to the district court pursuant to C.R.C.P. 106(a)(4). The district court determined the board had abused its discretion by applying a subjective standard rather than an objective standard to Gutierrez’s conduct. The district court remanded to the hearing board to reconsider, and Gutierrez appealed.

On appeal, the court of appeals agreed with the district court that, although the hearing board stated it was using objective criteria, it actually evaluated Gutierrez’s conduct using subjective standards. The hearing board considered the Foundation board’s “locker room” atmosphere and sexualized behavior in finding that Gutierrez’s conduct was not that bad. The court of appeals found this was in error, and the hearing board should have viewed the conduct as it would appear to an outside observer.

The court of appeals affirmed the district court and remanded to the hearing board for determination of appropriate disciplinary action.

Colorado Court of Appeals: No Statutory Enforcement Mechanism Exists for Respondent Fee Awards

The Colorado Court of Appeals issued its opinion in McGihon v. Cave on Thursday, May 19, 2016.

Defendant Thomas Cave filed a complaint with the Secretary of State, alleging that plaintiff Anne McGihon, a lobbyist, violated the Fair Campaign Practices Act by allowing her name to be placed on an event invitation on behalf of a candidate for the Colorado House of Representatives. Following a hearing, an ALJ dismissed Cave’s claims and awarded McGihon attorney fees jointly against Cave and his attorney, Jessica Peck. The ALJ found that Cave’s claims were substantially groundless, frivolous, and vexatious.

McGihon filed an enforcement action in district court. Cave and Peck filed separate motions to dismiss, arguing the district court lacked jurisdiction over the enforcement action. The district court granted the motions and McGihon appealed.

On appeal, the Colorado Court of Appeals found that although fee awards are contemplated by both C.R.S. § 1-45-111.5(2) and Colo. Const. art. XVIII, § 9(2)(a), there is no enforcement mechanism available for prevailing respondents. Because McGihon did not raise equal protection and due process arguments in district court, the court of appeals declined to consider them.

The court affirmed the district court’s dismissal.

Colorado Court of Appeals: Confrontation Rights Violated when Defendant Not Allowed to Ask Victim About Impairment

The Colorado Court of Appeals issued its opinion in People v. Dunham on Thursday, May 19, 2016.

The victim and his friend were involved in a confrontation in an apartment complex parking lot in the early morning hours of July 8, 2012. At some point, Defendant pointed a gun at the victim and his friend. The confrontation ended when Defendant pointed his gun into the air and fired. After leaving the parking lot, the victim was shot several times at a nearby intersection. The only witnesses besides Victim and Defendant were a husband and wife who saw a man running from the scene of the shooting but could not identify the shooter.

Defendant was charged with attempted first degree murder after deliberation, attempted second degree murder, first degree assault, and a crime of violence sentence enhancer. At trial, defense counsel sought to admit evidence that Victim had consumed methamphetamine the night of the shooting as res gestae evidence under CRE 404(b). The issue arose several times during trial and each time the trial court denied the defense’s request. Defendant was acquitted of the first degree murder charge but convicted on the other charges and sentence enhancer. He appealed, contending the trial court committed constitutional error by denying his requests to question the victim about his methamphetamine use.

The Colorado Court of Appeals found that the trial court erred in finding the evidence was insufficient to allow the jury to consider the matter, and further found that CRE 104(a) governed the relevance of the evidence. The court of appeals found that the evidence was sufficient to allow a jury to consider the statements made by Victim to police and hospital staff regarding his methamphetamine use. The court further found that the error was constitutional because Defendant’s Confrontation Clause rights were violated.

The court reversed and remanded for a new trial on the charges on which Defendant was convicted.

Colorado Court of Appeals: Amendment of Restitution Award Not “Ministerial” Because it Affects Sentence

The Colorado Court of Appeals issued its opinion in People v. McLain on Thursday, May 19, 2016.

Defendant pleaded guilty to one count of theft and was sentenced to five years in community corrections. The prosecution requested restitution in the amount of $1,000 for the victim and $2,852.98 for the victim’s insurance company, to which the defendant did not object. The court granted the prosecution’s restitution request. Ten months later, the prosecution filed a Crim. P. 36 amended motion to impose restitution, maintaining she had made a clerical error and had neglected to request the $8,159.91 in losses sustained by the victim. The court granted the prosecution’s motion without waiting for a response from defendant. Five days later, Defendant filed an objection to the prosecutor’s request for additional restitution, arguing the request was untimely under the restitution statute and Crim. P. 36 did not apply. After a short hearing, the court determined it could correct the prosecution’s “ministerial error” and amended the restitution order.

On appeal, Defendant argued the court could not amend a final order of restitution to increase his obligation. The court of appeals agreed. The court noted that restitution is part of a sentence, and once a sentence is imposed and the defendant begins serving it, an increase in restitution violates the prohibition against double jeopardy. Although the prosecution argued that it had reserved the right to increase the restitution amount, the court of appeals disagreed, finding instead that the prosecution had proposed a concrete figure without any reservation and the figure was accepted by the district court. The court of appeals further found that Crim. P. 36 could not be applied in this case since the restitution increase amended the sentence itself.

The court vacated the judgment and remanded with directions to reinstate the original restitution award.