May 3, 2016

Colorado Court of Appeals: Announcement Sheet, 3/31/2016

On Thursday, March 31, 2016, the Colorado Court of Appeals issued no published opinions and 19 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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: Trial Court Not Required to Order Accounting at Request of Interested Person

The Colorado Court of Appeals issued its opinion in Sidman v. Sidman on Thursday, March 24, 2016.

Legal Guardian—Motion for Accounting—Discretion.

In 2002 Michael and Renee Sidman were appointed as legal guardians for their nephew, who was born in 1999. The parents paid child support and filed a motion for an accounting. The trial court denied the motion, and the parents appealed.

The guardians filed a motion to dismiss the appeal, arguing that (1) the order denying the motion for an accounting was not a final, appealable order because a motion to modify child support was pending and the order did not resolve all pending matters, and (2) the court should have followed the law of the case and not reached the merits of the motion, based on its two previous orders denying similar requests for accountings. Even if the order was not final at the time the appeal was filed, the jurisdictional defect was cured when the motion to modify child support was resolved in November 2014. Furthermore, the trial court was not compelled by the law of the case to refrain from considering the parents’ motion; the decision was a matter in the court’s discretion.

The parents contended on appeal that the trial court abused its discretion in denying their motion for accounting. The Court of Appeals determined that CRS § 15-14-207(2)(e) did not require the court to order the guardians to provide an accounting. Instead, the parents’ motion triggered the court’s duty to exercise its discretion as to whether to order an accounting and the extent of any such accounting. The court properly exercised its discretion.

The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Constitutional Claim Requires Inquiry into Reasonableness of Statutory Ammunition Limits

The Colorado Court of Appeals issued its opinion in Rocky Mountain Gun Owners v. Hickenlooper on Thursday, March 24, 2016.

HB 12-1224—HB 13-1229—Firearms—Colorado Constitution—Right to Bear Arms—Police Power—Legislative Powers—Executive Powers—Due Process Clause.

In 2013, the Colorado General Assembly passed House Bills 13-1224 and 13-1229, which banned the sale, possession, and transfer of “large capacity ammunition magazines,” and expanded mandatory background checks to recipients of firearms in some private transfers. Plaintiffs Rocky Mountain Gun Owners, National Association for Gun Rights, Inc., John A. Sternberg, and DV-S, LLC (collectively, plaintiffs) filed a complaint challenging the constitutionality of both bills. The district court analyzed the bills under a “reasonable exercise of police powers” test rather than an intermediate or strict scrutiny test and dismissed the complaint for failure to state a claim under CRCP 12(b)(5).

On appeal, plaintiffs contended that the district court erred in dismissing their claim that HB 13-1224 violated the Colorado Constitution’s right to bear arms clause. Because this case presented a challenge based on the Colorado Constitution, the district court did not err in using the “reasonable exercise of police power” test to assess the validity of HB 13-1224. However, the district court erred in its application of that test to this case. At a minimum, the claim asserts that the magazine limits violate the constitutional right to bear arms, which requires a factual inquiry into the reasonableness of the limits. When viewed in the light most favorable to plaintiffs, the allegations state a claim for relief, and plaintiffs are entitled to present evidence of the basis for their claim.

Plaintiffs contended that HB 13-1229 is unconstitutional because it (1) infringes on individuals’ rights to keep and bear arms; (2) delegates legislative and executive licensure powers to nongovernmental agents; and (3) violates the Due Process Clause, because licensed gun dealers will refuse to facilitate background checks, and they have discretion to impose criminal liability and punishments.

As to the first argument, HB 13-1229 imposes the same mandatory background check requirements on some firearm transfers between private parties as those required for retail sales and sales at gun shows. Thus it does not prevent the sale of firearms but merely creates an additional step for those sales not taking place through a licensed gun dealer. Furthermore, HB 13-1229 does not implicate a fundamental right and does not infringe on individuals’ rights to keep and bear arms for a lawful purpose; both Colorado and federal law bar certain individuals from possessing firearms.

Second, HB 13-1229 does not unconstitutionally delegate legislative or executive powers. Licensed gun dealers do not have the power to make rules regarding mandatory background checks; they are required to follow the same procedures in place for retail firearm transactions. The fact that they are not legally obligated to facilitate sales between private parties is not a delegation of legislative authority. Similarly, HB 13-1229 does not unconstitutionally delegate executive powers. Again, the process for these transfers is no different than that for retail firearm transactions and gun show sales. Licensed gun dealers are not agents of state law enforcement charged with keeping firearms away from criminals; they are only required to initiate a background check.

Third, plaintiffs presented no facts that licensed firearm dealers will refuse to facilitate background checks, thus depriving parties of a right to firearms sales. Additionally, licensed firearms dealers merely collect information; they do not have the discretion to impose criminal liability and punishments. Thus HB 13-1229 does not violate the Due Process Clause.

Therefore, the district court correctly concluded that plaintiffs failed to state a claim for relief on HB 13-1229.

As to HB 13-1224, the case was reversed and remanded. Other aspects of the court’s decision were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Prosecutor “Channeling” Victim in Opening Statement was Error but Not Plain

The Colorado Court of Appeals issued its opinion in People v. Manyik on Thursday, March 24, 2016.

Prosecutorial Misconduct—Amended Information—Crim.P. 7(e)—Jury Instruction—Mistaken Belief—Hearsay.

Adams was romantically involved with Manyik and lived in his house. Adams remained in contact and continued to socialize with the victim, with whom she previously had been in a relationship. Adams invited the victim to Manyik’s house and told victim that Manyik was out of town on a hunting trip. When the victim arrived, Manyik shot and killed him.

Manyik was convicted of second-degree murder, aggravated robbery, and tampering with physical evidence.

Manyik raised five arguments on appeal. First, he argued that the prosecutor’s “channeling” (a technique by which a lawyer speaks to the jury in the first person as though he is the injured or deceased person) constituted prosecutorial misconduct and required reversal of his convictions. Although the prosecutor’s opening statement was impermissible, under the limited circumstances of this case it was not plain error and did not require reversal of Manyik’s convictions.

Second, Manyik argued that the trial court erred in allowing the prosecution to amend the aggravated robbery charge during trial. Because the amended information charged a different offense and subjected Manyik to mandatory sentencing for a crime of violence, while the original charge did not, Crim.P. 7(e) precluded the amendment. Manyik’s conviction for aggravated robbery was reversed and the case was remanded for a new trial on that charge.

Third, Manyik argued that the court erred in rejecting his tendered jury instruction about evaluating statements he made to police officers. The tendered instruction emphasized only selective evidence that was favorable to Manyik and thus was improper. The trial court did not err in rejecting Manyik’s proposed jury instruction on this issue.

Fourth, Manyik contended that the court’s jury instruction on the defense of mistaken belief of fact was incorrect. The language of the instruction given was almost identical to that in the relevant statute, CRS § 18-1- 504(1)(c). Additionally, defense counsel’s argument about Manyik’s mistaken belief made the jury aware of his mistake of fact defense. Therefore, the given instruction was proper.

Lastly, Manyik argued that the court erred in excluding evidence of recorded statements he made during telephone conversations with family members when he was at the police station. Because the statements contained impermissible hearsay, the court did not err in excluding them.

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

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: C.R.C.P. 60(b)(1) Motion Incorrectly Deemed Denied by Operation of C.R.C.P. 59(j)

The Colorado Court of Appeals issued its opinion in Harriman v. Cabela’s Inc. on Thursday, March 24, 2016.

Motion to Dismiss—C.R.C.P. 12(b)(5)—Motion to Set Aside—C.R.C.P. 60(b)(1)—C.R.C.P. 59(j).

Plaintiff sued Cabela’s Inc. after he was injured while testing a hunting bow at an archery range in one of its stores. The trial court granted Cabela’s C.R.C.P. 12(b)(5) motion. Plaintiff filed a C.R.C.P. 60(b)(1) motion asking the trial court to set aside its judgment. The court denied the motion because it concluded that the motion to set aside had been deemed denied by operation of C.R.C.P. 59(j).

On appeal, plaintiff contended the trial court erred in concluding that his C.R.C.P. 60(b)(1) motion to set aside had been deemed denied by operation of C.R.C.P. 59(j). The Court of Appeals agreed. C.R.C.P. 59(j) states that the court must decide a C.R.C.P. 59 motion within 63 days of when it was filed or the motion is deemed denied. The C.R.C.P. 59(j) time limit, however, does not affect motions that are properly filed under C.R.C.P. 60. Plaintiff’s timely filed motion to set aside alleged that the store had agreed to his filing a response to the store’s C.R.C.P. 12(b)(5) motion beyond the regular time limit. The motion added that “due to an oversight” plaintiff had not informed the trial court of this agreement. This allegation generally falls within the scope of C.R.C.P. 60(b)(1) (mistake, inadvertence, surprise, or excusable neglect), and does not generally fall within the scope of C.R.C.P. 59(d) or (e). The trial court’s decision to deny the motion to set aside was based on a misunderstanding of the applicable law.

Cabela’s asserted that this appeal should be dismissed because of the Court of Appeals’ decision to dismiss a prior appeal in this matter. The Court disagreed, determining that the motion to set aside at issue in this appeal did not contravene the mandate issued by the Court in the prior appeal.

The order was reversed and the case was remanded to the trial court to hold an evidentiary hearing to consider plaintiff’s motion to set aside.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 3/24/2016

On Thursday, March 24, 2016, the Colorado Court of Appeals issued five published opinions and 36 unpublished opinions.

People v. Manyik

Harriman v. Cabela’s Inc.

Sidman v. Sidman

Rocky Mountain Gun Owners v. Hickenlooper

People v. Wunder

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: Post-Marketability Transportation Costs of Oil and Gas Are Deductible if Reasonable

The Colorado Court of Appeals issued its opinion in Lindauer v. Williams Production RMT Co. on Thursday, March 10, 2016.

Oil and Gas Leases—Royalties—Transportation Costs.

In a case of first impression, the Court of Appeals held that costs incurred to transport natural gas to markets beyond the first commercial market do not have to enhance the value of that gas such that actual royalty revenues increase in order to be deductible from royalty payments.

Plaintiffs (lessors) own royalty interests under oil and gas leases for wells operated by Williams Production RMT Company n/k/a WPX Energy Rocky Mountain, LLC (WPX) (lessee). They brought this class action in 2006 challenging WPX’s calculation and payment of royalties. The parties reached a partial settlement agreement in 2008. The reserved claim before the Court was plaintiffs’ assertion that WPX improperly deducted transportation costs incurred beyond the first commercial market when calculating royalties on natural gas.

WPX incurred costs to transport natural gas on lands subject to plaintiffs’ leases from the wellhead to the “tailgate” of the processing plant, where the gas entered a large mainline pipeline. The costs of processing and transporting the gas to the point it reached the tailgate were not deducted from royalties paid to plaintiffs. Although there is a commercial market for gas at or near the tailgate, WPX sold some of the gas in “downstream” markets where higher prices were sometimes available. WPX entered into long-term contracts with pipeline companies to reserve capacity on the mainline pipelines to transport gas from the tailgate to those downstream markets.

The downstream transportation charges involved two charges: (1) a “demand charge” to reserve space on the pipelines, which was paid regardless of whether the pipelines were used to ship gas and was only deducted from royalties in months when gas was shipped; and (2) a “commodity charge,” which was paid by WPX per unit volume actually shipped on the pipelines and was deducted from revenues before paying royalties. The leases were silent as to allocation of these costs.

Plaintiffs argued that to deduct these charges from royalties, WPX had to show enhancement on a month-by-month basis by comparing downstream prices at the point of sale to the price of gas at the tailgate; because actual royalty revenues did not always increase in proportion to the transportation costs, they should not have been deducted in any month in which the additional transportation costs exceeded any increase in royalty revenue achieved from the downstream sales. The district court agreed and found no enhancement of royalties in 35 months during the eight-year period at issue, and based on the price differentials, entered judgment against WPX.

On appeal, WPX argued that the enhancement test does not apply to post-marketability transportation costs and it was error to look at the enhancement on a month-by-month basis instead of over the entire term of the leases. The Court agreed, holding that post-marketability transportation costs are deductible if they are reasonable and that lessees are not required to establish that such costs enhance the value of the gas or increase royalty revenues. Plaintiffs conceded that the costs were reasonable, thus the Court concluded they were deductible.

The judgment was reversed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Report of BAC Must Be Admitted in Affidavit Form to be Considered

The Colorado Court of Appeals issued its opinion in Rowland v. Department of Motor Vehicles on Thursday, March 10, 2016.

Driver’s License Revocation—Blood Alcohol Test—Admissibility of Evidence—Administrative Hearing—Evidentiary Affidavit Requirement.

A police officer pulled Rowland over for driving at inconsistent speeds and weaving. He unsatisfactorily performed several roadside maneuvers and was arrested for driving under the influence. In accordance with the implied consent law, Rowland chose to take a blood test to determine his blood alcohol content (BAC). An EMT drew a blood sample at the police station while an officer watched. Rowland’s BAC was almost twice the legal limit.

The Department of Revenue (department) revoked Rowland’s license for nine months. Rowland requested an administrative hearing during which the officer’s affidavit and testimony and the BAC test report were admitted into evidence. The hearing officer affirmed the revocation. Rowland appealed, and the district court rejected the hearing officer’s conclusion that the BAC test report was properly admitted at the hearing. Nevertheless, the court affirmed based on the record and a finding that the test results, though not the BAC report, were admissible.

On appeal, Rowland argued that the BAC report, which was prepared by a private organization, must comply with the affidavit requirements of CRS § 42-2-126(8)(c). The Court of Appeals agreed, but disagreed that the error in admitting the BAC report necessarily required reversal of the revocation order.

The Court agreed with Rowland that the BAC report was required to be submitted in affidavit form as a condition of its admission at the hearing, and because it was not, it should not have been admitted and relied on to revoke his license. However, the Court did not agree with Rowland that the inadmissibility of the BAC report prohibited the hearing officer from considering its contents as reported in the officer’s affidavit and hearing testimony. CRS § 24-4-105(7) permits a hearing officer to admit sufficiently reliable and trustworthy hearsay evidence in license revocation proceedings as long as the evidence possesses probative value. The BAC test results had probative value, thus the question was whether the test results, as testified to by the arresting officer and in the officer’s affidavit, were sufficiently reliable and trustworthy to permit their consideration by the hearing officer. The Court found they were.

The Court also disagreed with Rowland’s argument that consideration of the test results when the BAC test report itself was inadmissible circumvents the statute.

The Court could not determine from the record whether, or to what extent, the hearing officer relied on the inadmissible BAC test report itself in reaching his decision. Because the Court could not determine if the hearing officer would have reached the same revocation determination without the improper admission of the test report itself, it reversed and remanded the case for the hearing officer to make that determination.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Claim Preclusion Bars Suit Against Attorney for Disclosure of PRE Report

The Colorado Court of Appeals issued its opinion in Foster v. Plock on Thursday, March 10, 2016.

Claim Preclusion—Attorney Fees.

This case stemmed from Foster’s dissolution of marriage action but also involved related criminal and tort cases. Plock represented Foster’s wife (wife) in the dissolution action, but was not a named party in any of the other cases.

Wife filed to dissolve her marriage to Foster, and a temporary civil protection order was issued by the domestic relations court barring Foster from contacting wife.

The court ordered a Parental Responsibilities Evaluation (PRE), which reported that Foster had an extensive criminal history. The PRE recommended that the court grant wife sole decision-making authority for the minor child. Foster requested a second evaluator, who noted that it was questionable whether all the crimes in the first report had actually been committed by Foster, but made the same recommendation. Both PREs were confidential and not to be “made available for public inspection” without court order.

Two misdemeanor criminal cases arose against Foster from multiple violations of the domestic court’s temporary civil protection order. In May 2013, the district attorney in one of those cases contacted Plock and asked whether he had any information that would be helpful to the criminal court in sentencing if Foster was convicted. Plock emailed him both PREs without Foster’s knowledge or consent, and without a court order releasing the PREs. The PREs were used in sentencing and, on Foster’s motion, ordered to be sealed.

In November 2013, Plock filed a motion with the domestic relations court admitting that he had disclosed the PREs to the prosecuting attorney, and in July 2014 the court sanctioned Plock and ordered him to pay Foster’s attorney fees associated with responding to Plock’s motion in which he admitted disclosing the PREs to the prosecutor.

During this time period, Foster filed 11 separate lawsuits regarding the first PRE alleging libel, slander, and outrageous conduct. These cases were all consolidated and all defendants moved to dismiss. Foster then filed 11 amended complaints against wife and the first investigator alleging that each had caused the disclosure of the PREs to the prosecutor in the criminal case. Plock wasn’t named in any of these cases, but in the complaint against wife, it was alleged that she, through her attorney, caused the PREs to be disclosed. In May 2014 the district court dismissed all of Foster’s complaints. Foster appealed but then voluntarily dismissed the appeal.

Four months after the dismissal and 10 months after he learned that Plock had disclosed the PREs to the prosecutor, Foster filed this action against Plock alleging invasion of privacy, defamation, and outrageous conduct. The court granted Plock’s motion to dismiss based on both claim and issue preclusion.

On appeal, Foster argued that it was error to conclude that his claims were barred by claim preclusion because there was no identity of subject matter, claims, or parties. The Court of Appeals disagreed. Specifically, the Court found that all of the elements of claim preclusion had been met: (1) finality of the first judgment, (2) identity of subject matter, (3) identity of claims for relief, and (4) identity or privity between parties to the actions.

Foster and Plock both requested attorney fees. The Court denied Foster’s request, but agreed that Plock was entitled to a mandatory award of attorney fees and costs on appeal under CRS §§ 13-17-201 and 13-16-113(2).

The judgment was affirmed and the case was remanded for a determination of reasonable attorney fees to be awarded to Plock.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Ample Record Evidence Supported Finding that Job Function Not Essential

The Colorado Court of Appeals issued its opinion in Department of Human Services v. State Personnel Board on Thursday, March 10, 2016.

Essential Functions of a Job—Offset for Disability Benefits.

Brown served as an admissions psychiatric liaison at the Colorado Mental Health Institute at Pueblo (CMHIP). In June 2011, Brown began to experience health problems related to a work-related injury sustained at CMHIP. Her treating physician assigned work restrictions, which included not participating in physical intervention techniques (CTI and CPR). CTI and CPR were about 10% of her work duties, but were rarely used. In January 2012 she was assigned additional work restrictions.

Her modified duty ended on February 29, 2012 and she was denied her application for short-term disability benefits. She submitted to the Department of Human Services, Colorado Mental Health Institute (DHS) a request for reasonable accommodation under the Americans with Disabilities Act (ADA), which included an exemption from CMHIP’s requirement that she be prepared to use CTI and CPR. This request was also denied. In June 2012 she was discharged.

Brown sought review of her administrative separation and the administrative law judge (ALJ) affirmed the decision, finding that it was not arbitrary, capricious, or contrary to rule or law. Brown appealed, and the State Personnel Board (Board) adopted the findings of fact but reversed the legal conclusion that DHS’s action was not arbitrary, capricious, or contrary to rule or law. The Board found that CTI and CPR were not essential functions of her position, and ordered her reinstated and awarded back pay and benefits. On remand, the ALJ awarded back pay and benefits from the date of separation to the date of the Board’s reversal, but also concluded that her Public Employees’ Retirement Association (PERA) disability retirement and unemployment benefits must be offset from back pay and benefits.

On appeal, the Board affirmed the award of back pay and benefits but reversed the offset to the award for Brown’s PERA and disability retirement benefits, finding that disability benefits under PERA are collateral and cannot be offset.

On appeal, DHS argued that the Board erred in reversing the ALJ’s legal conclusion that DHS’s employment decision was not arbitrary, capricious, or contrary to rule or law. The Court of Appeals found no error. There was no dispute that Brown was disabled under the ADA, so the only question was whether she could perform the essential functions of her job with or without a reasonable accommodation. The Court found there was no error in the Board’s determination based on the evidentiary record that CTI and CPR were not essential functions of her position.

DHS then argued that it was error for the Board to reverse the ALJ’s conclusion regarding the PERA offsets. The Court found no error.

CRS § 13-21-111.6 allows full recovery for an employee when she has received compensation from a collateral source “as a result of a contract entered into and paid for by or on behalf of such person.” In an issue of first impression, the Court found that PERA disability benefits constitute such a collateral source not required to be offset from a damage award.

The Board’s orders were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Relinquishment-based Termination Not Allowed when Parent is Party to Dependency and Neglect Action

The Colorado Court of Appeals issued its opinion in People in Interest of E.M. on Thursday, March 10, 2016.

Children’s Code—Dependency and Neglect—Relinquishment and Adoption— Jurisdiction.

In a question of first impression, the Court of Appeals decided that a county department of social services may not move to involuntarily terminate parental rights in a relinquishment case under article 5 of the Children’s Code when the children are the subject of a pending dependency and neglect case under article 3.

The Alamosa County Department of Human Services (department) filed a petition alleging that three children were dependent or neglected because their mother was addicted to pain pills and their father was incarcerated. The court granted temporary custody of the children to the department and placed them with relatives.

Subsequently, both parents admitted the petition’s allegations and the court adjudicated the children dependent and neglected. The court adopted a treatment plan for mother and found that no appropriate treatment plan could be devised for father.

A year after the initiation of the case, the guardian at litem (GAL) moved to terminate the parental rights of both parents under article 3. Mother relinquished her parental rights at the hearing. The department then filed three separate relinquishment cases (one for each child) under article 5. The article 3 case remained open and pending. The court terminated father’s parental rights under the relinquishment statute. At the same time, the court also issued an order establishing a new permanency planning goal and setting a review hearing in the dependency and neglect case. Father appealed the three judgments terminating his parental rights.

Father argued that the Children’s Code does not permit the department to file its termination motion in an article 5 proceeding rather than proceeding in the article 3 case. The Court agreed, holding that the dependency and neglect court maintains continuing, exclusive jurisdiction over the status of a child who is alleged to be dependent and neglected until the child reaches majority or its jurisdiction is otherwise terminated.

The Court based its holding on three grounds. First, the separate and distinct purposes of article 3 and article 5 are not well served if they are intertwined. Second, the statutes make clear that the dependency and neglect court maintains continuing, exclusive jurisdiction over any child who has been adjudicated dependent and neglected. Third, under article 3, parental rights may be terminated only through the Parent-Child Legal Relationship Termination Act of 1987, not under article 5.

The judgments were dismissed in part and reversed in part, and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 3/17/2016

On Thursday, March 17, 2016, the Colorado Court of Appeals issued no published opinion and 28 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.