April 29, 2017

Colorado Court of Appeals: Announcement Sheet, 3/30/2017

On Thursday, March 30, 2017, the Colorado Court of Appeals issued no published opinion and 22 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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: Court Procedure Met Joinder Statute’s Purpose of Preventing Successive Prosecutions

The Colorado Court of Appeals issued its opinion in People v. Leverton on Thursday, March 23, 2017.

Theft by Receiving—Possession—Drug Paraphernalia—Mandatory Joinder—Double Jeopardy—Prior Statements—Impeachment—Evidence.

The victim started her car and left it running while she went inside her home to retrieve some belongings. When she returned to where the car had been parked, the car was gone. She immediately reported the theft to the police. A few days later, a police officer pulled over the stolen car. Leverton and two women were passengers. Leverton told the officer that the car belonged to the victim, whom he claimed was his girlfriend. Leverton was arrested and transported to the police station. After removing Leverton from the police vehicle, the officer discovered a pipe typically used to smoke methamphetamine. Leverton was initially charged with possession of drug paraphernalia. Shortly thereafter in a separate case he was charged with theft by receiving. The cases were later joined on the prosecution’s motion, over defendant’s objection. The women passengers testified at Leverton’s trial and were questioned by the prosecutor about oral statements they allegedly had made to police following their arrests. Leverton was convicted as charged.

On appeal, Leverton argued that the trial court erred when it rejected his guilty plea on the paraphernalia charge and then permitted the prosecution to add that charge to the theft complaint because the result was that he was effectively charged with the same offense in two separate cases. He claimed that this violated Colorado’s mandatory joinder statute and the Double Jeopardy Clauses of both the U.S. and Colorado Constitutions. The Court of Appeals noted that Leverton did not allege that he was reprosecuted for either offense after he was convicted or that he was sentenced or otherwise punished multiple times for those offenses. Here, the prosecution moved to join the two offenses prior to Leverton’s attempt to plead guilty to the paraphernalia charge. The court’s procedure met the purpose of the mandatory joinder statute, to prevent successive prosecutions, and Leverton raised no claim of unfair prejudice resulting from the procedure. Further, the court acted within its discretion when it rejected Leverton’s guilty plea to the petty offense. And because the court had not accepted Leverton’s guilty plea on the paraphernalia charge, double jeopardy had not attached and there was no due process violation.

Leverton next argued that the trial court erred in permitting the prosecution to examine the two women witnesses about their prior statements to the police, alleging this evidence was inadmissible and violated his confrontation rights. Both women testified that they did not remember what happened the night the stolen car was pulled over, nor did they remember any statements they made to the police. To impeach the witnesses, the prosecutor was entitled to confront them with the exact language of their prior inconsistent statements. Therefore, the court properly admitted the statements.

Leverton also argued that the prosecution did not present sufficient evidence to prove beyond a reasonable doubt that he committed theft or possessed drug paraphernalia. A few days after the car had been reported stolen, the police found Leverton sitting in the car’s front passenger seat. Though Leverton told the police that the car had been given to him by the victim, his statement was directly refuted by the victim’s testimony that she had never met him. This and other evidence was sufficient to support the theft by receiving conviction. There was also sufficient evidence concerning the pipe found in the police vehicle for the jury to convict Leverton of possession of drug paraphernalia.

Leverton also argued that his convictions were based on his associations with other persons. Having found that the prosecution presented sufficient evidence proving that Leverton and not some other person committed the crimes, the Court rejected this argument.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Attorney in Malpractice Case Must Raise Collectibility as Affirmative Defense

The Colorado Court of Appeals issued its opinion in Gallegos v. LeHouillier on Thursday, March 23, 2017.

Legal MalpracticeBurden of ProofCollectabilityAffirmative Defense.

Plaintiff Gallegos sued defendants LeHouillier, an attorney, and his law firm, LeHouillier & Associates, P.C. (collectively, LeHouillier), for legal malpractice. The jury found that LeHouillier had negligently breached his duty of professional care when handling an underlying medical malpractice case for Gallegos. The trial court placed the burden on Gallegos to prove that any judgment in the underlying case was collectable, and it ruled that Gallegos had provided sufficient evidence to prove that point, entering judgment in her favor.

On appeal, LeHouillier contended that the judgment must be reversed because collectibility is an element that a plaintiff must prove in a legal malpractice case, and Gallegos did not prove that any judgment that she would have received in the underlying malpractice case would have been collectible. Gallegos countered that the issue of collectibility is an affirmative defense and the court should have required LeHouillier to prove that the judgment was not collectible. The Court of Appeals determined that the record did not contain sufficient evidence that the judgment was collectible. In addition, the trial court erred when it placed the burden on Gallegos to prove that any judgment in the underlying medical malpractice case would have been collectible; it should have required LeHouillier (1) to raise the question of collectibility as an affirmative defense and (2) to prove that any judgment Gallegos would have received would not have been collectible.

The judgment was reversed and the case was remanded for a new trial.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 3/23/2017

On Thursday, March 23, 2017, the Colorado Court of Appeals issued five published opinions and 24 unpublished opinions.

People v. Leverton

Gallegos v. LeHouillier

Tancrede v. Freund

Martinez v. Colorado Oil and Gas Commission

People in Interest of L.L.

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: California Resident Required to Register as Sex Offender for Extended Visits in Colorado

The Colorado Court of Appeals issued its opinion in In re Stanley v. District Attorney for the 18th Judicial District on Thursday, March 9, 2017.

Sex Offender Registration—California Conviction.

In 2001, Stanley was convicted and sentenced in California of “unlawful sexual intercourse with [a] person under 18.” Stanley successfully completed his California probation and his conviction was eventually reduced to a misdemeanor.

In 2014, the California Department of Justice notified Stanley that his statutory requirement to register as a sex offender under the California Penal Code had been terminated. In 2015, Stanley filed a petition to discontinue his sex offender registration in the Arapahoe County District Court for a non-Colorado conviction under C.R.S. § 16-22-113. Stanley, who resided in California but had family in Colorado that he wanted to visit with in Colorado for potentially long periods of time, recognized that travel would result in him being considered a temporary resident of Colorado for purposes of sex offender registration.

The district court denied the petition, concluding as a matter of law that Stanley was ineligible for relief under C.R.S. § 16-22-113(3) because his crime, if committed in Colorado, would have been a violation of C.R.S. § 18-3-402 and consequently required lifetime sex offender registration.

On appeal, Stanley argued that the district court erred as a matter of law in interpreting C.R.S. § 16-22-113(3). He conceded that if committed in Colorado, his offense would have been a violation of C.R.S. § 18-3-402(1)(e), which is a class 1 misdemeanor and an extraordinary risk crime. The Colorado Court of Appeals concluded that the plain language of C.R.S. § 16-22-113(3) precludes Stanley, as a matter of law, from discontinuing his sex offender registration in Colorado.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Independent Expenditure Committee Not Required to Disclose Donation to Pay Legal Fees

The Colorado Court of Appeals issued its opinion in Campaign Integrity Watchdog, LLC v. Colorado Republican Party Independent Expenditure Committee on Thursday, March 9, 2017.

Campaign Finance Laws—Independent Expenditure Committee.

Campaign Integrity Watchdog LLC (CIW) alleged that the Colorado Republican Party Independent Expenditure Committee (CORE) violated various campaign finance laws. CIW’s claims stemmed from two earlier campaign finance proceedings against CORE. An administrative law judge (ALJ) imposed a penalty of $200 against CORE in the first case, and in the second case, an ALJ imposed a $600 aggregate penalty and awarded $255 in costs. The Colorado Republican Party paid these amounts on CORE’s behalf. CORE did not disclose these payments on its periodic campaign finance disclosure reports. Around the same time, a private party paid $50,000 to a law firm to settle CORE’s legal expenses. CORE disclosed this payment as a “contribution” in its periodic campaign finance disclosure report.

CIW alleged that CORE did not comply with the disclosure requirements of Colo. Const. art. 28, the Fair Campaign Practices Act (FCPA), and the Colorado Secretary of State’s Rules Concerning Campaign and Political Finance. CIW maintained that the payments by the Republican Party should have been disclosed as “donations” or “contributions” and the payments should have been disclosed as “expenditures.” The ALJ granted CORE’s motion to dismiss the complaint for failure to state a claim under C.R.C.P. 12(b)(5).

On appeal, CIW again contended that CORE was required to report some payments as donations or contributions, and all payments as expenditures. CORE was not required to report some payments as donations because (1) the donations were not made for the purpose of an independent expenditure and so were not required to be reported; (2) the law requiring some entities to report contributions does not apply to an independent expenditure committee; and (3) the payments here were not expenditures under the relevant statutory and constitutional definitions.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Senior Living Facilities Constitute “Residential Property” for CDARA Purposes

The Colorado Court of Appeals issued its opinion in Broomfield Senior Living Owner, LLC v. R.G. Brinkmann Co. on Thursday, March 9, 2017.

Senior Facility—Residential—Commercial—Breach of Contract—Construction Defect Action Reform Act—Homeowner Protection Act of 2007—Accrual—Statute of Limitations—Public Policy—Manifestation of a Defect.

Broomfield Senior Living Owner, LLC (Broomfield) brought claims against R.G. Brinkmann Company (Brinkmann) for breach of contract, negligence, negligence per se, negligent misrepresentation, and breach of express warranties in connection with Brinkmann’s construction of Broomfield’s facility. Brinkmann moved for summary judgment, raising both contractual limitations and statutory limitations defenses to all of Broomfield’s claims. The trial court granted Brinkmann’s motion for summary judgment, reasoning that the two-year statute of limitations applicable to civil claims had expired before Broomfield filed its complaint and that Broomfield had waived its rights to assert claims for repairs under the contract by failing to give Brinkmann timely notice of defects or adequate time to make repairs.

On appeal, Broomfield contended that the trial court erred in granting summary judgment and applying the accrual provisions of the contract rather than the accrual provision of the Construction Defect Action Reform Act (CDARA), titled the “Homeowner Protection Act of 2007” (HPA). Under the parties’ contract, the contractual limitations period expired independent of when the acts or failures to act were discovered, while CDARA links the accrual of construction defect claims to their discovery. The HPA renders a contract’s limitation or waiver of CDARA’s rights and remedies void as against public policy in cases involving claims arising from residential property. The Colorado Court of Appeals determined that the term “residential” is “unambiguous and means an improvement on a parcel that is used as a dwelling or for living purposes.” Here, the building is used as a home for senior residents. Accordingly, the senior facility is “residential property,” Broomfield is a “residential property owner,” and the HPA applies. As such, the contract’s terms limiting the accrual of claims are void as a matter of public policy, and the relevant statutory claims accrual periods apply, making Broomfield’s action timely.

Broomfield also contended that the trial court erred in precluding its breach of warranty claim based on its failure to give Brinkmann an opportunity to correct the defects. The court determined that genuine issues of material fact remain regarding whether Brinkmann received prompt notice of the defects and whether it had an adequate opportunity to correct its work.

Broomfield further argued that the trial court erred in concluding that its negligence claims were barred and that it failed to establish that Brinkmann performed design services. The court concluded that these claims were not barred and the parties offered conflicting design services evidence. Further, a genuine issue of fact remains concerning whether the alleged defects are patent or latent.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 3/16/2017

On Thursday, March 16, 2017, the Colorado Court of Appeals issued no published opinion and 33 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: 42 U.S.C. § 1983 is Not State Employers’ Liability Law

The Colorado Court of Appeals issued its opinion in City of Lakewood v. Safety National Casualty Corp. on Thursday, March 9, 2017.

42 U.S.C. § 1983—Indemnification—Defense Costs—Insurance—Employer Liability Law.

A City of Lakewood (City) police officer was killed by friendly fire, and his widow filed a lawsuit under 42 U.S.C. § 1983, alleging that the City and various fellow officers had violated the deceased officer’s rights under the U.S. Constitution. The City sought indemnification for its own defense costs and those of the officers named in the lawsuit, which the City has an independent statutory duty to cover. The insurance company, Safety National Casualty Corporation, denied coverage. The district court concluded that a § 1983 claim did not arise under an employer liability law of any state and granted summary judgment for the insurance company.

On appeal, the City contended that the district court erred in granting summary judgment to the insurance company because the policy unambiguously covers all defense costs incurred by the City in connection with the § 1983 lawsuit. Specifically, the City argued that the § 1983 municipal liability claim must be covered by the employers’ liability portion of the policy because it is a claim based on work-related injuries that falls outside the ambit of the workers’ compensation laws. However, this overstates the scope of the coverage under the policy. By the policy’s plain terms, the common law claims must arise under the laws of Colorado or “other State(s).” Section 1983 is not a law of Colorado or any other state. Therefore, the City’s defense costs, which were sustained because of liability imposed as a result of the widow’s § 1983 claim, did not arise from a state workers’ compensation or employers’ liability law and were not covered by the policy.

Next, the City contended that it was entitled to reimbursement for amounts it paid to cover the fellow officers’ defense costs. The policy’s definition makes clear that the term “Employee” refers to the injured employee, not to an employee potentially responsible for the injury. “Loss” means payments by the City to the injured employee and the employee’s dependents. Therefore, the City’s indemnification payments to the officers named in the lawsuit do not qualify as losses under the policy and the City is not entitled to reimbursement from the insurance company.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Property Used as Vacation Home and Listed on VRBO Properly Classified as Residential

The Colorado Court of Appeals issued its opinion in O’Neil v. Conejos County Board of Commissioners on Thursday, March 9, 2017.

Real Property—Residential—Commercial—Ad Valorem Taxes—Burden of Proof.

James and Mary Ellen O’Neil purchased the subject property and built a log house on it for their use as a vacation home and as an inheritance for their sons. The house was initially classified for tax purposes as residential. After the O’Neils listed the property as available for short-term, overnight rental, the Conejos County Assessor (Assessor) reclassified the property, for ad valorem tax purposes, from residential to commercial. The O’Neils filed a petition for abatement with the Conejos County Board of Commissioners (County), which was denied, and then appealed to the Board of Assessment Appeals (Board), which overturned the Assessor’s action and returned the property’s classification to residential for the relevant years.

On appeal, the County contended that the Board improperly classified the O’Neils’ property as residential. The County asserted as a procedural error that that the Board failed to apply the presumption in favor of the Assessor’s property classification. The Board’s order demonstrated that it implicitly applied the presumption in favor of the County, and the O’Neils met their burden of proof to overcome that presumption. On the merits, the Board determined that the proper classification of the property was “residential” because its “predominant and actual use was as a second home.” The Board’s determination had a reasonable basis in law and was supported by substantial evidence in the record.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Contract Exception to the Collateral Source Statute is Applicable in Post-Verdict Proceedings to Reduce Damages

The Colorado Court of Appeals issued its opinion in Pressey ex rel. Pressey v. Children’s Hospital Colorado on Thursday, March 9, 2017.

Medical Malpractice—Health Care Availability Act—Damages Cap—Medicaid—Collateral Source Statute—Contract Exception—Pre-majority Economic Damages—Minor—Statute of Limitations.

Naomi Pressey (Naomi), by and through her conservator Jennifer Pressey, sued Children’s Hospital Colorado (Hospital) for negligence. The case was tried to a jury, which found the Hospital negligent and awarded Naomi $17,839,784.60. The damages award included past medical expenses, past noneconomic losses, future medical expenses, future lost earnings, and future noneconomic losses. After trial, the court reduced the damages to $1 million based on the legislative directive in C.R.S. § 13-64-302(1)(b) of the Health Care Availability Act (HCAA). The court approved Naomi’s motion to exceed the damages cap for good cause and entered judgment in her favor for $14,341,538.60.

On appeal, the Hospital argued that the court erred in excluding evidence of Medicaid benefits and private insurance available to Naomi in the post-verdict proceeding to exceed the damages cap. Sound public policy supports both the cap and the contract exception to the collateral source statute. The Colorado Court of Appeals concluded that the contract exception to the collateral source statute is applicable in post-verdict proceedings to reduce damages in medical malpractice actions under the HCAA. Medicaid benefits are paid on behalf of the injured party and are thus collateral sources subject to the contract exception. Accordingly, the trial court correctly did not consider Medicaid payments and private insurance in determining whether to exceed the HCAA damages cap.

The Hospital also argued that the trial court erred in denying its motion for judgment notwithstanding the verdict because Naomi failed to establish that she, rather than her parents, was entitled to her pre-majority economic damages. Parents own the legal right to seek reimbursement for a minor’s pre-majority economic damages. Here, Naomi’s parents did not relinquish this right and failed to institute a claim within the applicable statute of limitations.

The Hospital further argued that irrespective of the evidence of Medicaid and private insurance benefits, Naomi did not establish good cause to exceed the damages cap. The trial court considered a multitude of factors in concluding there was good cause. Its decision was not manifestly arbitrary, unreasonable, or unfair, and was not a misapplication of the law.

Lastly, the Hospital argued that Naomi received a duplicate award for future medical care and lost future earnings. The court concluded there is record support for the trial court’s findings that the damage award does not overlap with the future lost earnings award.

That portion of the judgment awarding pre-majority economic damages to Naomi was reversed. The judgment was affirmed in all other respects. The case was remanded for recalculation of the total amounts owed by the Hospital.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Instruction Should Be Given When Evidence Defendant Acted in Self-Defense

The Colorado Court of Appeals issued its opinion in People v. Newell on Thursday, March 9, 2017.

John Robert Newell lived with his girlfriend, Chantel McDowell, and his cousin, Eric Albert, who had been staying with them for a couple of weeks. One night, Albert and Newell had an altercation in which Newell cut Albert’s back with a straight-edged barber’s razor. Newell had a cut under his right eye. Newell was charged with second degree assault and a violent crime sentence enhancer.

The only witnesses to the assault were Newell, Albert, and McDowell, and only Albert and McDowell testified at trial. McDowell testified that she had taken sleeping pills and was asleep when the fight started, but she awoke to yelling. When she came out of the bedroom, she saw Newell with the razor and Albert with a pair of scissors. Albert testified inconsistently about the fight.

Newell repeatedly requested a self-defense jury instruction. The prosecution countered Newell was not entitled to a self-defense instruction because he had not presented a scintilla of evidence showing he was not the initial aggressor, and the trial court agreed, denying the instruction. Newell was convicted of a class 6 felony and sentenced to three years in the custody of the Department of Corrections.

On appeal, Newell argued the court erred in denying him a self-defense jury instruction. The court of appeals agreed. The court found that “If there is any evidence in the record to support the theory that a defendant acted in self-defense, the defendant is entitled to an instruction, and a court’s refusal to give one deprives the accused of his or her constitutional right to a trial by a jury.” The court found that defendant could use any evidence that tended to show he acted in self-defense, including evidence advanced by the prosecution. In this case, the court noted there was ample evidence that defendant acted in self-defense, and it was error for the trial court to deny his request for a jury instruction.

The court also addressed Newell’s second contention to the extent the issue would arise again on remand. Newell argued the court erred in prohibiting him from admitting evidence of Albert’s prior felony conviction. The court instructed that determining whether the remoteness of the prior conviction rendered it inapplicable was within the sound discretion of the trial court.

Newell’s sentence and conviction were vacated and the case was remanded.