August 28, 2016

Colorado Court of Appeals: Announcement Sheet, 8/25/2016

On Thursday, August 25, 2016, the Colorado Court of Appeals issued seven published opinions and 50 unpublished opinions.

People v. Gow

Farmer v. Colorado Parks & Wildlife Commission

Edwards v. Bank of America, N.A.

Semler v. Hellerstein

Arrabelle at Vail Square Residential Condominium Association, Inc. v. Arrabelle at Vail Square, LLC

People v. Garcia

People in Interest of J.W. and N.W.

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Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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: Announcement Sheet, 8/18/2016

On Thursday, August 18, 2016, the Colorado Court of Appeals issued no published opinion and 25 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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 Based on Firm and Definite Conviction that Mistake Had Been Made

The Colorado Court of Appeals issued its opinion in Indian Mountain Corp. v. Indian Mountain Metropolitan District on Thursday, August 11, 2016.

In 1970, Indian Mountain Corporation’s (IMC’s) predecessor in interest purchased land and water rights in Park County with the intent of creating an upscale subdivision within a community of amenities. After residential construction had begun in the Indian Mountain subdivision, SB 72-35 passed, requiring the subdivision to obtain a water-court-approved augmentation plan. The plan required homeowners to drill a well at their own expense, but for many years, IMC maintained and operated the plan at its own expense.

In 1972, the developer spearheaded the creation of the Indian Mountain Parks & Recreation District, which was converted into the Indian Mountain Metropolitan District (IMMD) in 2012 in order to be able to legally purchase and provide water services. IMMD negotiated to purchase the plan from IMC, but was not successful. In 2013, owners of a neighboring ranch approached IMC’s director about purchasing the reservoir, and eventually purchased all of the assets of IMC, including the water plan. IMC’s new owner charged IMMD for its water usage, but IMMD did not pay the invoices.

IMC filed an action in district court, seeking a declaratory injunction that it is the legal owner of the water rights and the plan and IMMD has no right, title, or interest in them. IMMD filed an answer and counterclaim, seeking a declaratory injunction that the Indian Mountain lot owners owned the plan and water rights as beneficiaries of a constructive trust. The district court issued an order in favor of IMMD. IMC filed a post-judgment motion requesting a hearing on the amount of reasonable fees it could charge IMMD for ongoing operation of the plan, which the district court denied.

On appeal, the court of appeals ruled the district court erred in finding that the water rights and augmentation plan were held in a constructive trust. The court based its reversal on a “firm and definite conviction that a mistake ha[d] been made.” Because three experts testified that the lot prices included the cost of the plan, but all advanced different theories that were directly refuted by the documentary evidence in the record, the court found reversal necessary. The court of appeals found that the district court clearly erred in finding that the lot prices included the cost of the plan, and the unjust enrichment analysis failed at the first prong.

The judgment of the district court was reversed.

Colorado Court of Appeals: Extended Proportionality Review Needed to Determine Whether Defendant’s Sentence Appropriate

The Colorado Court of Appeals issued its opinion in People v. McRae on Thursday, August 11, 2016.

Clifton McRae was convicted of distribution of methamphetamine. Due to his habitual offender status, his sentence was calculated at 64 years. He requested a proportionality review. After conducting an abbreviated proportionality review, the trial court determined that the sentence was grossly disproportionate to the crime and reduced it to 16 years. The People appealed.

The Colorado Court of Appeals noted first that if an abbreviated proportionality review gives rise to an inference of gross disproportionality, the court should engage in an extended proportionality review, comparing the sentence to that of similarly situated defendants.

Prior to the commission of McRae’s offenses, the Colorado General Assembly passed SB 13-250, which drastically decreased the sentences for certain crimes, including McRae’s, but the effective date was after the date from which his convictions arose. The People argued that the trial court entered an illegal sentence by retroactively applying SB 13-250. The trial court had noted that a defendant who committed the same crime a few months after McRae would be subject to only a 16 year sentence, although it did not rely on the not yet effective legislation in its determination of disproportionality. The Colorado Court of Appeals found no error.

The People also argued that because McRae’s triggering offenses and five of his prior convictions are per se grave or serious, the 64-year sentence failed to raise an inference of disproportionality. The court of appeals disagreed but remanded for an extended proportionality review. Although the court had made findings about the serious nature of the offenses, the court also noted that they were for personal consumption and not for substantial monetary gain. The court of appeals found the trial court did not err in considering these factors. The court noted that although it was tempted to approve of the trial court’s sentence, it should have conducted the further extended review to justify its sentence.

The court of appeals remanded for further proceedings.

Colorado Court of Appeals: Announcement Sheet, 8/11/2016

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

People v. Waller

Ybarra v. Greenberg & Sada, P.C.

People v. McRae

Indian Mountain Corp. v. Indian Mountain Metropolitan District

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: Announcement Sheet, 8/4/2016

On Thursday, August 4, 2016, the Colorado Court of Appeals issued no published opinion and 22 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: Defendant’s Request for Jury Instruction on Lesser Nonincluded Offense Does Not Concede Guilt

The Colorado Court of Appeals issued its opinion in People v. Geisick on Thursday, July 28, 2016.

Benjamin Geisick got into an argument with his girlfriend at a motel, and the motel manager called the police. The motel manager pointed Geisick out to an officer, who called to Geisick and tried to talk to him. Geisick attempted to flee, and the officer and Geisick engaged in a struggle. Geisick was ultimately arrested and charged with second degree assault on a peace officer and attempting to disarm a peace officer. He was also charged with possession of drug paraphernalia based on a methamphetamine pipe officers found in his pocket.

At trial, the officer and Geisick offered very different accounts of the altercation. At the close of evidence, Geisick asked the trial court to instruct the jury on two lesser non-included offenses, resisting arrest and obstructing a peace officer. The jury found Geisick not guilty of assault and attempting to disarm but guilty of resisting arrest, obstructing a peace officer, and possession of drug paraphernalia. He was convicted and sentenced, and he appealed.

On appeal, Geisick first argued that the trial court erred in denying his challenge for cause of one potential juror, forcing him to use a peremptory challenge. The Colorado Court of Appeals, following the Colorado Supreme Court’s opinion in People v. Novotny, determined that Geisick failed to show prejudice since the juror was dismissed and did not contribute to the guilty verdict.

Next, Geisick argued that the trial court erred in admitting hearsay evidence about the physical altercation with the officer. An officer who interviewed the officer involved in the altercation testified as to what he heard in the interview. The court of appeals concluded that any error in admitting the testimony was harmless. At trial, Geisick objected to the interviewing officer’s testimony, and the trial court agreed that the testimony was potentially impermissible hearsay because the officer was testifying as to the other officer’s truthfulness. However, the court allowed the testimony under the excited utterance and prior consistent statement exceptions to the hearsay rule. The court of appeals expressed doubt that the entirety of the altercating officer’s interview could be admitted as an excited utterance, and, because the altercating officer was not cross-examined about the interview, it could not be admitted as a prior inconsistent statement. Nevertheless, the court found that any error was harmless because the altercating officer described the incident in detail, the interviewing officer was not an eyewitness, the jury was aware that the interviewing officer was only testifying as to what happened in the interview, and it was unlikely that the interviewing officer’s testimony rendered the altercating officer’s account of the incident more credible since the jury acquitted Geisick on the assault and attempting to disarm charges.

Geisick next contended that the evidence was insufficient to support the convictions on the lesser non-included offenses. The court of appeals found that by proffering the lesser charges, he impliedly assented to the sufficiency of the evidence to support those charges. The court disagreed with a prior panel ruling on the same issue, which decided that the defendant had invited any error. The court of appeals found that by offering the instructions on the lesser non-included offenses, the defendant did not admit guilt on the charges, so invited error was inappropriate. However, because the defendant had to represent to the court that the non-included charges could be applicable, he affirmatively waived any argument about the sufficiency of the evidence.

The court of appeals found no error to support Geisick’s cumulative error arguments, and affirmed his convictions and sentence.

Colorado Court of Appeals: “For Sale” Sign Only Invites Viewer to Contact Listing Agent, Not Enter Property

The Colorado Court of Appeals issued its opinion in Rucker v. Federal National Mortgage Association on Thursday, July 28, 2016.

Ellyn and David Rucker decided to purchase a house that their daughter, Kristin, would rent from them. David placed an offer on a house for which Kristin had had a showing with a Heter & Co. listing agent, but Ellyn had not seen the property, so Kristin took Ellyn to the house. There was a “For Sale” sign in the yard and a small notice on the door warning that trespassers would be prosecuted. After walking around the house and looking through some windows, Ellyn started walking from the house down the paved walkway to return to the car. She fell and sustained injuries.

Ellyn sued Federal National Mortgage Association (FNMA) and Heter for damages, alleging she was an invitee under the Premises Liability Act (PLA) because the “For Sale” sign constituted an implied invitation to the public. She also argued that she was an invitee because she was present on the property for purposes of a business transaction. The trial court disagreed and concluded Ellyn was a trespasser, finding that because she never obtained the express or implied consent of the landowner, she did not have an invitation to enter the property. The court did not address Ellyn’s business transaction argument. Upon Ellyn’s request, the court certified its “For Sale” sign order for immediate appeal. The court of appeals dismissed her appeal without prejudice, finding the issues were not ripe. Ellyn again raised the “For Sale” sign and business transaction issues in the trial court, and again the court ruled that Ellyn was not an invitee and rejected her arguments. She again requested the court to certify its order for immediate appeal.

Ellyn filed a second interlocutory appeal, seeking review of both the “For Sale” and business transaction orders. The court of appeals limited its review to the “For Sale” sign issue because the trial court declined to certify the business transaction issue for interlocutory appeal. On appeal, Ellyn contended that the “For Sale” sign created an implied representation that the public was requested, expected, or intended to enter the premises. The court of appeals disagreed. After examining case law from other jurisdictions, the court of appeals found that the “For Sale” sign created only an invitation to contact the listing agent, not to enter the property. Because the listing agent or landowner did not have a practice of allowing others to enter the property without express permission, Ellyn could not show that her entrance on the property was as an invitee.

The court of appeals affirmed the trial court.

Colorado Court of Appeals: Announcement Sheet, 7/28/2016

On Thursday, July 28, 2016, the Colorado Court of Appeals issued two published opinions and 34 unpublished opinions.

People v. Geisick

Rucker v. Federal National Mortgage Association

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: Announcement Sheet, 7/21/2016

On Thursday, July 21, 2016, the Colorado Court of Appeals issued no published opinion and 38 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: Notice-Prejudice Rule Applies Where Claim Filed with Insurance Company After Contractual Period

The Colorado Court of Appeals issued its opinion in MarkWest Energy Partners, L.P. v. Zurich American Insurance Co. on Thursday, July 14, 2016.

Insurance—Notice-Prejudice Rule—Occurrence Liability Policy.

MarkWest Energy Partners, L.P. (MarkWest), a natural gas company, procured from Zurich American Insurance Company (Zurich) a commercial general liability policy (the policy) with a limited pollution liability endorsement (the endorsement), covering “incidents” occurring between November 1, 2012, and November 1, 2013. On November 4, 2012, MarkWest was constructing a pipeline when a chemical used in the drilling process escaped the drilling area, thereby contaminating the surrounding area. MarkWest immediately reported the incident to local environmental officials, who approved a chemical cleanup protocol and confirmed that cleanup had been successfully completed in February 2013. On March 28, 2013, MarkWest notified Zurich of the contamination and filed an associated claim. Zurich denied the claim because MarkWest had failed to provide notice within 60 days of the incident, as required by the endorsement. MarkWest filed an action for damages, and the district court granted Zurich’s motion for summary judgment.

On appeal, MarkWest contended that the notice-prejudice rule applied and the district court erred in granting Zurich’s motion for summary judgment. Colorado’s notice-prejudice rule applies even where, as here, the notice requirement is a condition precedent to coverage under an occurrence liability policy. Therefore, unless Zurich can show that its ability to investigate the occurrence or defend against a claim was prejudiced by MarkWest’s late notice, the court cannot deny a claim based solely on a failure to strictly comply with the notice provision. Because the district court concluded otherwise, its decision was reversed and the case was remanded for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Tender of Funds in Satisfaction of Lien Before Redemption Period Must Be Accepted by Creditor

The Colorado Court of Appeals issued its opinion in Mortgage Investment Enterprises, LLC v. Oakwood Holdings, LLC on Thursday, July 14, 2016.

Foreclosure—Lien—Redemption.

The debtors purchased the property at issue and subsequently defaulted on their obligation to pay monthly fees to the Kimblewyck Village Owners Association (Kimblewyck). Kimblewyck filed a lien against the property. The property was also encumbered by (1) a lien filed by the Fox Run Owners Association and (2) two judgments entered in favor of Community Management Association, Inc. (CMA). Kimblewyck obtained a judgment and decree of foreclosure. Mortgage Investments Enterprises LLC (Mortgage Investments) was the successful bidder at the foreclosure sale. On the day before the foreclosure sale, Oakwood Holdings, LLC (Oakwood) purchased the Fox Run lien and both CMA judgments. Oakwood subsequently filed notices of intent to redeem the Fox Run lien and one of the CMA judgments. Mortgage Investments tendered, on behalf of the debtor, pursuant to a valid power of attorney, lien satisfaction payments to Oakwood. Although Oakwood’s period to redeem had not yet begun, it refused to accept the payments. Mortgage Investments filed a complaint for a declaratory judgment that Oakwood was required to accept Mortgage Investments’ tenders on behalf of the debtor. Oakwood subsequently redeemed the property, and the district court granted Oakwood’s motion for summary judgment.

On appeal, Mortgage Investments argued that the district court erred in concluding that Oakwood had no duty to accept tender of payment in satisfaction of its liens. Prior to the start of Oakwood’s period to redeem and before it tendered redemption funds, Oakwood had a duty to accept Mortgage Investments’ tender of payment, on behalf of the debtor, in satisfaction of the lien Oakwood sought to redeem. The district court’s judgment was reversed and the case was remanded with directions to enter summary judgment in favor of Mortgage Investments.

Summary provided courtesy of The Colorado Lawyer.