October 1, 2016

Colorado Court of Appeals: Holder of Evidence of Debt May Initiate Foreclosure with Copy of Evidence of Debt

The Colorado Court of Appeals issued its opinion in Edwards v. Bank of America, N.A. on Thursday, August 25, 2016.

Mortgage—Foreclosure—Standing—Summary Judgment—Affidavit.

Plaintiff obtained a loan to finance the purchase of property. When she defaulted on the loan, defendant sold the house through foreclosure. During the foreclosure proceedings, plaintiff filed a complaint alleging that defendant lacked standing to file a C.R.C.P. 120 motion and to commence foreclosure proceedings. The district court granted defendant’s summary judgment motion and subsequently denied plaintiff’s motion to reconsider the judgment.

On appeal, plaintiff contended that the district court erred in granting defendant’s summary judgment motion. The holder of an evidence of debt may initiate foreclosure proceedings with a copy of the evidence of debt and deed of trust, rather than the original documents. Here, defendant produced sufficient evidence to establish that it was entitled to foreclose and that plaintiff failed to demonstrate there was a genuine issue of material fact as to defendant’s standing to foreclose. Accordingly, the district court did not err in granting defendant’s motion for summary judgment.

Plaintiff also contended that the district court erred in denying her motion to reconsider summary judgment because the court prematurely granted summary judgment without giving her sufficient opportunity to conduct discovery. C.R.C.P. 56(f) allows a party who cannot produce facts essential to its opposition to a motion for summary judgment to submit an affidavit explaining why it cannot do so. Plaintiff did not submit a C.R.C.P. 56(f) affidavit. Accordingly, the district court properly denied plaintiff’s motion to reconsider summary judgment.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: License Suspension Arbitrary and Capricious Due to Lack of Standards

The Colorado Court of Appeals issued its opinion in Farmer v. Colorado Parks & Wildlife Commission on Thursday, August 25, 2016.

Big Game Hunter—Suspension of Wildlife License—Colorado Parks and Wildlife Commission—Agency Standards—Arbitrary and Capricious.

Farmer is a big game hunter and guide. After allowing his Colorado outfitter’s license to lapse, Farmer was charged with six counts of illegal sale of big game wildlife for outfitting mountain lion hunts without the proper license. Farmer pleaded guilty to one count. Pursuant to CRS § 33-6-113(2)(a), his guilty plea triggered an administrative hearing by the Colorado Parks and Wildlife Commission (Commission) to determine whether to suspend Farmer’s wildlife license privileges. After a hearing, Farmer’s hunting license was suspended for 20 years. Farmer initiated this action for review of the Commission’s decision, and the district court affirmed.

On appeal, Farmer contended that he was deprived of due process because neither CRS §§ 33-6-106 and -113 nor any applicable regulations contain sufficient standards to constrain the Commission’s discretion in determining the length of his suspension. CRS § 33-6-113(2)(a) merely provides that, upon conviction for the illegal sale of big game, the Commission may suspend “any or all wildlife license privileges of the person for a minimum of one year to life.” Because neither the statute nor any applicable regulations provide sufficient standards to guide the Commission’s suspension decision, its action in suspending Farmer’s license was arbitrary and capricious.

The district court’s order was reversed and Farmer’s suspension was vacated. Because remanding to the hearing officer would not provide Farmer a complete remedy for the arbitrary and capricious suspension of his license under defective procedures, the Court of Appeals declined to remand for a new hearing.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Officer Justified in Conducting Pat-Down Search Before Allowing Person to Enter his Vehicle

The Colorado Court of Appeals issued its opinion in People v. Gow on Thursday, August 25, 2016.

Tommy Gow was walking in a residential neighborhood at about 2:15 a.m. when a police officer approached him. Gow told the officer he had just purchased an iPad from a friend, and, when the officer verified that Gow had no outstanding warrants, he told Gow he was free to leave. Gow started to leave, but then flagged down the officer and asked for a ride to another house a few blocks away. The officer told Gow he would have to pat him down to check for weapons before Gow could enter his car, and also wanted to look in the iPad box. When Gow opened the box, two small baggies fell to the ground, which Gow told the officer contained “speed.” Gow was arrested and ultimately convicted of possession of methamphetamine and possession of a schedule I controlled substance. He appealed, arguing the officer’s pat-down search violated his Fourth Amendment rights and therefore the evidence should have been suppressed.

On appeal, the Colorado Court of Appeals evaluated Gow’s claim that the pat-down search, including the search of the box, was unconstitutional because under People v. Berdahl, 2012 COA 179, “an officer may not, in the course of providing a courtesy ride, search the individual to be transported without a reasonable, articulable suspicion that the individual is armed and dangerous.” Because the officer in this case did not have a reasonable suspicion that Gow was armed and dangerous, the pat-down search was unconstitutional and the resulting evidence should have been suppressed. The trial court did not cite Berdahl, but its holding that the pat-down was reasonable was directly at odds with Berdahl‘s holding that Colorado does not recognize an “officer safety” exception to the rule that an officer must have a reasonable, articulable suspicion before searching a person.

The court of appeals disagreed with Berdahl, finding that the out of state cases relied on by the division in Berdahl did not stand for the position that an officer may never conduct a pat-down search without reasonable suspicion. The court concluded that the reason for the search was determinative, and in cases where the officer was conducting a pat-down search for his or her own safety prior to transporting individuals in his or her car, it was reasonable for the officer to conduct a pat-down for weapons. The court found it would be illogical to require an officer to compromise his or her safety by allowing individuals in his or her car without patting them down for weapons, and the unintended result would be that officers would be reluctant to offer courtesy rides. The court noted that the Berdahl division was rightly concerned about eroding Fourth Amendment protections, but noted that by only permitting pat-down searches prior to allowing individuals to receive rides, the Fourth Amendment would not be violated.

The court of appeals affirmed the trial court’s denial of Gow’s suppression motion.

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.