Premises Liability—Entry of Default—Comparative Negligence and Pro Rata Liability.
This is a consolidated appeal in a premises liability case brought by Charlene Dickinson against Lincoln Building Corporation (LBC); Wells Fargo Bank National Association (Wells Fargo); and G4S Secure Solutions (USA), Inc. (G4S). Dickinson sought damages for shoulder injuries sustained when she attempted to open a door leading to her workplace that allegedly was locked or malfunctioning.
LBC and Wells Fargo admitted they were served but failed to enter an appearance or file an answer. The district court entered default against them, and they filed a joint motion to set it aside, which the court denied. On appeal, LBC and Wells Fargo argued the default should have been set aside because it was entered in violation of their right to due process of the law and it was not well pleaded. The Court of Appeals disagreed. LBC and Wells Fargo were properly served with the complaint and summons, and they failed to enter an appearance or file an answer until almost a year later, well after the court had entered default. As to the argument that the trial court had to first find that the complaint was “well-pleaded,” the Court could find absolutely no support for any such requirement.
LBC and Wells Fargo also argued that they should have been permitted to present evidence of Dickenson’s comparative negligence and G4S’s pro rata liability at the damages hearing after entry of default. The Court disagreed, finding that the default constituted an admission of liability that precluded them from thereafter presenting evidence of others’ comparative fault. The damages hearing was only to determine the amount of damages owed and any discussion of liability underlying that award is prohibited.
Dickenson argued that the trial court erred in rejecting a tendered negligence per se instruction as to G4S. The Court affirmed, finding that the tendered instruction did not apply to G4S, a security company, but to the manufacturer of the door’s locking mechanism. Moreover, even if it did apply, no evidence was presented that the code section regarding the door’s locking mechanism was intended to protect against injuries stemming from attempting to open a locked exit door. The judgments and orders were affirmed.
Colorado Court of Appeals: Trial Court Lacks Discretion to Vary Downward from Mandatory Minimum Sentence
The Colorado Court of Appeals issued its opinion in People v. Rice on Thursday, November 19, 2015.
Distribution of Controlled Substance—Possession With Intent to Distribute—Conspiracy to Distribute—Presumptive Sentencing Range—Mitigating Circumstances.
Rice was charged with distribution of a controlled substance, possession with intent to distribute, and conspiracy to distribute based on Rice’s selling cocaine and discovery of nearly 5 ounces of cocaine hidden in Rice’s car pursuant to arrest and search warrants. Rice pleaded guilty to distribution of a schedule II controlled substance pursuant to CRS § 18-18-405(1), (2)(a)(I), and (3)(a)(I).
On appeal, Rice contended that the sentencing court incorrectly interpreted CRS § 18-18-405(3)(a)(I) to preclude a sentence of less than four years based on extraordinary mitigating circumstances pursuant to CRS § 18-1.3-401(6). CRS 18-1.3-401(1)(a)(V)(A) mandates that the presumptive sentencing range for a class 3 felony is four to twelve years in the Department of Corrections (DOC) with a mandatory five-year period of parole. CRS 18-18-405(3)(a) is a sentencing enhancement statute that requires a mandatory minimum sentence, which in this case was 4 to 16 years in the custody of the DOC. Accordingly, the trial court did not have discretion to impose a sentence below the minimum sentence under CRS § 18-1.3-401(6). Rice’s sentence was affirmed.
Implied Warranty of Suitability—Developer—Homeowner—Vacant Lot—Nuisance—Sanctions—Discovery Violation.
Defendants (collectively, Forest City) served as the master developer for the redevelopment of the old Stapleton International Airport. Forest City sold the vacant residential lot at issue here to a homebuilder, with which plaintiff Rogers contracted to build a home. Rogers paid the builder an extra fee to include a basement that could later be finished. After learning that his lot was not suitable for a home with a basement that could be finished, Rogers brought claims for breach of implied warranty, nuisance, and negligent misrepresentation.
On appeal, Forest City argued that the trial court erred by instructing the jury that it could find that an implied warranty runs from a developer to a homeowner under the circumstances of this case. An implied warranty of suitability exists between a developer of a vacant lot and the owner of a home on that lot who is not the first purchaser if (1) the developer improves the lot for a particular purpose, and (2) all subsequent purchasers rely on the developer’s skill or expertise in improving the lot for that particular purpose. Here, the trial court did not adequately instruct the jury on this law. Consequently, the judgment was reversed and the case was remanded for a new trial on the implied warranty claim.
Forest City also argued that the trial court erred in denying its motion for judgment notwithstanding the verdict on Rogers’s nuisance claim, arguing that there was insufficient evidence to support the nuisance verdict as a matter of law. Because the jury was instructed that Forest City placing RABC in the roads was a necessary element of the nuisance claim, and the record reveals no evidence that Forest City placed RABC, or anything else, in the roads in Stapleton, the evidence was insufficient to support the jury’s nuisance verdict. The trial court therefore erred by denying Forest City judgment notwithstanding the verdict on that claim pursuant to CRCP 59(e)(1).
Rogers argued that the trial court erred in the amount of sanctions awarded to Rogers and against Forest City’s counsel for the late disclosure of discovery documents. Because the trial court found that (1) the late disclosed documents were of “slight use” to Rogers, (2) Forest City’s counsel acted with “candor and professionalism,” and (3) the violation was an unintentional “oversight,” the trial court acted within its broad discretion by awarding only $10,000 of the $90,000 that Rogers requested.
Colorado Court of Appeals: Judge’s Ex Parte Communications Violated Defendant’s Constitutional Rights
The Colorado Court of Appeals issued its opinion in People v. Guzman-Rincon on Thursday, November 19, 2015.
Sixth Amendment—Fourteenth Amendment—Jury—Ex Parte Communications.
The victim and her friends were standing across the street from Aurora Central High School when a vehicle drove by, made a U-turn, and drove back toward the group. A passenger from the vehicle then fired a single shot from the car. The bullet struck the victim in the spine, paralyzing her. A jury found him guilty of six counts of attempted extreme indifference murder (crime of violence).
During trial, the prosecutors requested ex parte communications with the judge to inform him that the investigating officer on the case had been contacted by a confidential informant, who warned the prosecutors that defendant or defense counsel had leaked information about witness interviews to defendant’s family and that gang members viewed the interviews. The court determined there were credible threats against the witnesses, investigating officer, prosecutor, and jurors. The court sequestered the jury based on this information; however, the court did not inform defendant’s counsel or the jury that the sequestration was based on a credible threat. During deliberations, the jury questioned the court about their safety, and the court informed the jury of the threat outside the presence of defendant.
On appeal, defendant contended that the court’s ex parte communications with the prosecutors and the jurors violated his Sixth Amendment right to counsel and Fourteenth Amendment right to be present at all critical stages of his trial. Because a defendant is entitled to counsel and to be present at every critical stage of the proceedings, and the court’s discussions with the prosecutors and the jurors constituted critical stages, defendant’s Sixth Amendment right to counsel and his Fourteenth Amendment right to be present were violated. Because the court could not conclude that these errors were harmless beyond a reasonable doubt, reversal was required.
Colorado Court of Appeals: Evidence From One Trial Would Have Been Admissible at Other so Joinder Proper
The Colorado Court of Appeals issued its opinion in People v. Bondsteel on Thursday, November 19, 2015.
Joinder—Crim.P. 13—CRE 404(b)—Pretrial Lineups—Unduly Suggestive—Challenge for Cause—Jury—Kidnapping—Evidence—Prosecutorial Misconduct.
The trial court joined two separate cases against Bondsteel for trial: (1) the Signal Mountain Trail case in which Bondsteel had attacked two women while they were hiking; and (2) the motorcycle case in which Bondsteel approached four women in three separate cars while on his motorcycle, taking their cell phones and other belongings and demanding that the women move or remove portions of their clothing. A jury convicted him of multiple offenses, including second-degree kidnapping, aggravated robbery, unlawful sexual contact, and attempted sexual assault.
On appeal, Bondsteel first contended that the trial court erred in allowing the prosecution to join the two cases for trial. However, Bondsteel failed to satisfy either prong of the misjoinder test. Therefore, the trial court did not abuse its discretion in joining the cases.
Bondsteel next contended that because the pretrial lineups in which N.D. and K.D. both identified him as their attacker were unduly suggestive, their identifications should have been suppressed. All six lineup participants were dressed in camouflage with head coverings, leaving only their eyes visible, just as the victims had described their attacker to sheriff’s office deputies. Four of the participants had blue eyes; Bondsteel and one other participant had brown eyes. The disparity in the participants’ eye colors did not render the lineups impermissibly suggestive. Therefore, the trial court did not err in denying his motion to suppress.
Bondsteel contended that the trial court wrongfully denied his for-cause challenge to juror J.H., whom he eventually excused with a peremptory challenge. Even if the trial court abused its discretion in denying the challenge for cause, Bondsteel was not entitled to relief because he failed to show that a biased or incompetent juror sat on the jury instead of J.H.
Bondsteel further contended that the trial court committed reversible plain error by failing to instruct the jury sua sponteon the limited purposes for which it could consider evidence of the motorcycle case in relation to the Signal Mountain Trail case. However, Bondsteel failed to raise this issue, and a trial court’s failure to give a limiting instruction sua spontein the CRE 404(b) context was not reversible plain error.
Bondsteel argued that the evidence was insufficient to convict him for second-degree kidnapping of N.D. and K.D.; alternatively, he contended that the jury instructions on these counts were deficient. Although Bondsteel only moved N.D. a short distance, it substantially increased the risk of harm to N.D. by moving her off the public path. In contrast, there was no evidence in the record that Bondsteel moved K.D. at all. Because the evidence on the second-degree kidnapping conviction of K.D. was insufficient, this conviction was reversed and the accompanying sentence was vacated.
Finally, Bondsteel argued that the judgments must be reversed because the prosecutors misrepresented the nature of DNA evidence during closing argument. Bondsteel’s counsel did not object to the arguments at trial, and there was either support in the record for the prosecutor’s arguments or there was a lack of evidence in the record that defense counsel’s failure to object was tactical instead of inadvertent. Therefore, reversal was not required.
On Thursday, November 19, 2015, the Colorado Court of Appeals issued seven published opinions and 31 unpublished opinions.
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: Reservation of Rights in 1950 Deed Conveyance Preserved Mineral Interests
The Colorado Court of Appeals issued its opinion in Owens v. Tergeson on Thursday, November 5, 2015.
Mineral Rights—Summary Judgment.
Plaintiffs and defendants both asserted they were the rightful owners of certain mineral interests located in four adjacent tracts of land (Tracts A–D) in Weld County. The claims revolved around an interpretation of two warranty deeds dated November 25, 1950 (1950 Deeds). One deed conveyed Tract A; the other conveyed Tracts B–D. The disagreement was whether the language in the 1950 Deeds reserved all oil, gas, and other mineral interests in the land to the original grantors or fully conveyed those interests to the deeds’ grantees. Plaintiffs argued that as successors-in-interest to the deeds’ grantors, they were the rightful owners of the mineral rights reserved in the deeds. Defendants, as successors-in-interest to the grantees, argued they owned the mineral rights.
Defendants also asserted that a 1973 quiet title action (1973 Action) and a subsequent conveyance also gave them ownership in at least some of the disputed mineral rights. Plaintiffs argued that the 1973 Action was void because they were not named as parties and their predecessors-in-interest were not properly served. On cross-motions for summary judgment, the district court ruled in favor of plaintiffs, and the Court of Appeals affirmed.
The Court noted that the clear modern rule that a reservation of mineral interests referenced only in a deed’s habendum clause is effective despite the absence of a similar restriction in the deed’s granting clause. In other words, the deed is read as a whole. The 1950 Deeds both contained clear reservation of mineral interests contained only in the habendum clauses. The Court found it clear that the parties intended the mineral rights to be reserved to the grantors.
The parties agreed that, based on the Court’s interpretation of the 1950 Deeds, the 1973 Action only affected Tract A. The district court held the 1973 Action void because of inadequate service of process on plaintiffs’ predecessors-in-interests. They were served only by publication based on assertions that their address was unknown notwithstanding the 1950 Deeds listing the address as “Tulsa, Oklahoma” and a 1960 oil and gas lease (1960 Lease) also of public record listing a specific street address in Tulsa. The district court voided the 1973 Action judgment for failure to use due diligence in searching for an address and withholding pertinent information when moving for service by publication. The Court agreed with the district court’s analysis. It rejected an argument by defendants that they only had to demonstrate there was no address in Colorado for the defendants in the 1973 Action. The judgment was affirmed.
The Colorado Court of Appeals issued its opinion in Fritsche v. Fritsche Thoreson on Thursday, November 5, 2015.
Divorce—Modification of Decree—Statute of Limitations—Fraud, Theft and Conversion.
Husband and wife divorced in April 2007. In January 2013, wife allegedly disclosed, for the first time, income of $69,399 that she had earned in 2011 from an employment-related lawsuit. In July 3013, wife filed sworn financial statements that allegedly disclosed, for the first time, a pension from IBM in the amount of $111,575.94. In November 2013, husband filed a motion to modify the final decree. The court did not rule on the motion within the 63-day period, as required by CRCP 59(j), and therefore it was deemed denied in January 2014. In June 2014, husband filed a motion for relief from judgment under CRCP 60(a) and (b), which was denied as untimely. Husband then filed an equitable action in district court, asserting fraud, theft, and conversion claims against wife. Wife moved to dismiss, and the district court granted the motion.
The Court of Appeals first held that a party to the original domestic relations proceedings may file an independent equitable action in district court related to the domestic relations court proceedings aft the expiration of that five-year period. The Court then affirmed the district court’s conclusion that husband failed to state a claim upon which relief could be granted. Relief pursuant to an independent equitable action is available in cases of unusual and exceptional circumstances, including fraud. However, a party challenging a judgment previously entered in a domestic relations case by “seeking relief through an independent equitable action based on fraud must establish extrinsic fraud as opposed to mere intrinsic fraud.” Husband’s claims of perjury and failure to disclose are forms of intrinsic fraud, and therefore do not warrant relief through an independent action, and his claims of theft and conversion do not present unusual or exceptional circumstances. The Court denied wife’s request for attorney fees, holding that husband’s claims were not frivolous or lacking substantial justification.
The Colorado Court of Appeals issued its opinion in Colorado Union of Taxpayers Foundation v. City of Aspen on Thursday, November 5, 2015.
Summary Judgment—TABOR—Waste Reduction Fee—Tax Versus Fee.
In 2011, the City of Aspen adopted an ordinance prohibiting grocers from providing customers with disposable plastic bags and requiring grocers to charge customers a waste reduction fee of $.20 for each disposable paper bag provided. For the first year, grocers were permitted to retain 25% of each fee collected up to $1,000 per month. Thereafter, grocers were permitted to retain no more than $100 per month. The remaining fees were deposited into the City’s Waste Reduction and Recycling Account. In August 2012, the Colorado Union of Taxpayers Foundation (Foundation) sued the City, alleging that the enactment of the ordinance without first obtaining voter approval violated TABOR. After a hearing on cross-motions for summary judgment, the district court concluded that the ordinance was neither subject to nor unconstitutional under TABOR.
On appeal, the Foundation argued that the trial court erred in finding that the ordinance created a fee rather than a tax and therefore was not subject to TABOR. The Court of Appeals disagreed. The primary purpose of the ordinance was to reduce waste, and the majority of the funds raised from the fee went to providing reusable bags to residents and visitors. The rest of the funds were used to finance particular services related to the reduction of trash and waste, and to fund education about those matters. The fees do not revert to the general fund but stay in an account to fund the foregoing. To date, there had been no surplus revenues from the funds.
There is a presumption that the court should choose an interpretation of TABOR that would create the greatest restraint on the growth of government. That presumption applies where multiple interpretations of TABOR are equally supported by the text. Here, the Court found that the text of the ordinance did not equally support the Foundation’s interpretation of the fee as a tax. Therefore, the presumption did not apply. The judgment was affirmed.
On Thursday, November 12, 2015, the Colorado Court of Appeals issued no published opinion and 18 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: C.R.C.P. 12(b)(5) Motions Disfavored and Should Only Be Granted If No Facts Support Plaintiff
The Colorado Court of Appeals issued its opinion in Masters v. School District No. 1 in the City & County of Denver on Thursday, November 5, 2015.
Teacher Employment, Compensation, and Dismissal Act—Contract Clause—Due Process.
Plaintiffs were employed as full-time teachers by Denver Public Schools and had achieved non-probationary status under the Teacher Employment, Compensation, and Dismissal Act (TECDA). Plaintiffs brought the underlying action in district court, alleging that TECDA violated their rights under the Colorado Constitution’s contract clause and due process clause. The trial court granted defendant’s motion to dismiss both claims.
On appeal, plaintiffs contended that the district court erred by dismissing their contract clause claim. TECDA created a contractual relationship between school districts and teachers. Non-probationary status is achieved under TECDA after a teacher completes a probationary teaching period, and that status conferred on the teacher protections against dismissal. Therefore, the district court erred by dismissing plaintiffs’ contract clause claim under CRCP 12(b)(5) for failure to state a claim upon which relief can be granted.
Plaintiffs also contended that the district court erred by dismissing their due process challenge to the mutual consent provisions of TECDA. TECDA provides that non-probationary teachers may be dismissed only for statutorily specified reasons constituting “good and just cause” and only after certain procedures are followed. Before Senate Bill (SB) 191 was passed, TECDA required a school district to find a new position for a displaced non-probationary teacher, and the receiving school was required to accept the teacher. Such for-cause dismissal provisions create a constitutionally protected property interest in continued employment. Through SB 191, the legislature replaced this procedure with a “mutual consent” procedure whereby a displaced non-probationary teacher may be assigned to a position at another school only with the receiving principal’s consent and input from at least two teachers at the school, and the school district was authorized to place on unpaid leave any displaced non-probationary teacher who has not secured a mutual consent position in the district within 12 months or two hiring cycles, whichever is longer. Before being placed on unpaid leave, however, non-probationary teachers have a due process right to a hearing in which the teacher may attempt to show that the purported reason for which she was placed on unpaid leave was not the actual reason or that the placement was effected in an arbitrary or unreasonable fashion. Therefore, the district court erred in dismissing the plaintiffs’ due process claim for failure to state a claim upon which relief can be granted. The judgment was reversed and the case was remanded with directions.
The Colorado Court of Appeals issued its opinion in Prospect 34, LLC v. Gunnison County Board of County Commissioners on Thursday, November 5, 2015.
Mill Levy—Abatement—Illegal—Abuse of Discretion.
Reserve Metropolitan District No. 2 (RMD2) is a special district located entirely within the town of Mt. Crested Butte (Town) in Gunnison County. RMD2’s service plan—a document statutorily required to organize a special district—states that RMD2’s mill levy “shall not exceed 50 mills, subject to Gallagher Adjustments,” and that any levy beyond 50 mills requires Town approval. By 2013, the mill levy totaled 52.676 mills, including the Gallagher Adjustment of 2.676 mills. The RMD2 board approved certifying to the Gunnison County Board of County Commissioners (BOCC) 55.676 mills, 3mills in excess of the cap in the 2000 service plan, which the Town counsel protested. When RMD2 taxed Prospect Development Company, Inc., and Prospect 34, LLC (collectively, Prospect) at a higher rate, Prospect petitioned the BOCC to abate the excess taxes. After the BOCC denied the petition, Prospect appealed to the Board of Assessment Appeals (BAA). Instead of reaching the merits of this issue, the BAA resolved it against Prospect on the basis of the court’s order denying a summary judgment motion on this issue in a parallel district court action involving RMD2 and Prospect.
On appeal, Prospect first contended that the BOCC must abate the excess mill levy under CRS § 39-10-114(1)(a)(I)(A). The four grounds for abatement provide relief from taxes “levied erroneously or illegally.” Here, the mill levy caps are enforceable. Because the stated procedure was not followed to increase those caps, the excess mill levy was illegal.
Prospect also contended that the BAA acted arbitrarily and capriciously and abused its discretion by relying on an order denying summary judgment as a final determination. Because such an order is not a final determination of the issue raised in the motion, the BAA abused its discretion by not exercising its authority to decide whether the excess mill levy was illegal. The order was reversed and the case was remanded with directions.