February 28, 2015

Colorado Court of Appeals: District Court Authorized to Waive Some of Drug Offender Surcharge

The Colorado Court of Appeals issued its opinion in People v. Archuleta-Ferales on Wednesday, December 31, 2014.

Drug Offender Surcharge.

Defendant pleaded guilty to conspiracy to distribute a schedule II controlled substance, a class 3 felony, in exchange for an eight-year prison sentence and the dismissal of other charges. At the providency hearing, the district court advised defendant that there would also be a mandatory $3,000 drug offender surcharge, which could not be waived. Defense counsel asked for clarification regarding the surcharge, arguing that CRS § 18-19-103(6)(a) permitted “at least some portion of [the surcharge], if not all of it,” to be waived if the court found that defendant was financially unable to pay it. The court responded that it couldn’t waive any of the surcharge if it found that defendant could pay any of it.

At sentencing, defense counsel asked the court to waive all but $480 of the surcharge based on defendant’s testimony that she would earn only $4.99 per month while in prison. The court rejected the request.

On appeal, the Court of Appeals held that the district court misconstrued its authority under CRS § 18-19-103(6). The plain language of the statute affords district courts the authority to waive any portion of the otherwise mandatory surcharge that it finds the offender is financially unable to pay. The portion of defendant’s sentence requiring her to pay the entire drug offender surcharge was reversed, and the case was remanded to the district court for reconsideration of defendant’s request to waive at least a portion of the surcharge.

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

Colorado Court of Appeals: Copyright Claims Carrying “Extra Element” Beyond Copyright Act Properly Tried in State Court

The Colorado Court of Appeals issued its opinion in Long v. Cordain on Wednesday, December 31, 2014.

Breach of Contract—Copyright Law—Breach of Fiduciary Duty—Civil Theft—Request for Accounting—Federal Law—Subject Matter Jurisdiction.

Cordain was a leading proponent of the Paleo Diet and had already published two books and several articles on the Paleo Diet before he met Long. Long and Cordain thereafter formed a company, Paleo Diet Enterprises, LLC (PDE), to commercially market the Paleo Diet. A few years later, Long and Cordain had a falling out. Cordain dissolved PDE and formed a new company, The Paleo Diet, LLC (TPD), without Long. Cordain filed a motion to dismiss, claiming that the federal courts had jurisdiction to determine the copyright claims. While this matter was pending, Long filed similar actions in federal court.

Long argued that the district court erred in dismissing his claims against Cordain for lack of subject matter jurisdiction. Generally, federal courts have exclusive jurisdiction over any claim for relief arising under any act of Congress relating to copyrights. However, if the state claim requires an “extra element” beyond those required for relief under the Copyright Act, then it is not “equivalent to” a copyright action, and the state court may hear the claim. Here, Long’s complaint advanced four state-law causes of action: breach of contract, breach of fiduciary duties, civil theft, and a request for an accounting. Long’s breach of contract claim, which alleged that Cordain violated the LLC Agreement, required proof of acts different from those required to establish a copyright infringement action. Long’s breach of fiduciary duty claim, in which he would have to prove, among other things, that Cordain breached a fiduciary duty he owed to PDE, also satisfied the extra elements test. Additionally, the civil theft claim as a whole satisfied the extra element test because it required proof of “theft, robbery, or burglary” of tangible and intellectual property. Therefore, these claims contained an extra element that distinguished them from a claim arising under copyright law. Because these claims did not seek a remedy expressly granted by the Copyright Act, and did not require construction of the Act, they did not arise under federal copyright law, and the district court erred by dismissing them. Finally, Long’s request for accounting did not involve federal law at all, and the court erred by dismissing this claim, as well. The orders were vacated in part and dismissed in part, and the case was remanded with directions.

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

Colorado Court of Appeals: Testimony of Treating Physician About Preexisting Condition Properly Admitted in Personal Injury Case

The Colorado Court of Appeals issued its opinion in Gonzales v. Windlan on Wednesday, December 31, 2014.

Personal Injuries—Expert Testimony—Non-retained Expert—Noneconomic Damages—Costs—Prevailing Party.

This case arose from a car accident in which Windlan drove through an intersection without the right-of-way and struck a car driven by Gonzales. The jury found Windlan 60% at fault and Gonzales 40% at fault for the accident. The trial court found Windlan to be the prevailing party and awarded costs to her in the amount of $15,637.77.

On appeal, Gonzales contended that the trial court abused its discretion in admitting Dr. Sayed’s expert testimony about a radiologist’s MRI report from October 2009. Dr. Sayed was Gonzales’s primary care physician, treated Gonzales after the accident, reviewed the MRI report from another specialist at the time, and opined that the MRI report showed a degenerative condition that was probably present before Gonzales’s accident and did not indicate an acute injury as claimed by Gonzales. Although he was not a radiologist, Dr. Sayed had the knowledge and experience to testify about MRI reports because he regularly reviewed and relied on them in the course of his medical practice. Therefore, Dr. Sayed was qualified to give expert testimony about the 2009 MRI report, and such testimony was properly admitted as non-retained expert testimony.

Gonzales also contended that the jury award of zero noneconomic damages was contrary to the evidence and inconsistent with the jury award of $640 for economic damages. There was ample evidence, however, to support the jury’s finding that Gonzales’s injuries were minor and did not result in compensable noneconomic damages.

Gonzales also contended that the trial court abused its discretion in finding that Windlan was the prevailing party and granting Windlan’s motion for costs under CRCP 54(d). The jury’s verdict generally aligned with Windlan’s position on each contested issue. It found Gonzales 40% at fault for the accident (Gonzales claimed that Windlan was fully at fault); awarded damages in an amount equal to an amount billed by the doctor who diagnosed Gonzales with a temporary muscle strain (Gonzales sought $212,000 in economic damages); and awarded no damages for noneconomic losses or physical impairment (Gonzales’s counsel requested noneconomic damages between $25,000 and $2 million). Therefore, the trial court did not abuse its discretion in finding Windlan to be the prevailing party and awarding costs to Windlan. The judgment was affirmed.

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

Colorado Court of Appeals Warns of Spam Emails

On Thursday, January 8, 2015, the Colorado Court of Appeals posted a warning on its website regarding spam emails. An email that appears to be from a law firm is circulating, saying the Colorado Court of Appeals requires your appearance at a pretrial hearing on illegal software use. The email is a scam, and you may delete it if you receive it. The court of appeals does not have pretrial hearings, and it does not serve notice by emails from law firms.

Colorado Court of Appeals: Defendant Had Right to Be Present at Competency Hearing but Was Not Prejudiced by Absence

The Colorado Court of Appeals issued its opinion in People v. Wingfield on Wednesday, December 31, 2014.

Attempted Escape—Competency Hearing—Due Process—Waiver—Choice-of-Evils Defense.

Wingfield shared a cell with two other inmates at the Arapahoe County Jail. The three men were caught by the guards digging a trench around the perimeter of the window in an attempt to escape. The guards found a crutch that had a flattened end, metal bars, a portion of a metal drain or grate, and a shank. Wingfield was convicted of possession of contraband. The court adjudicated him a habitual offender and sentenced him to eighteen years in the custody of the Department of Corrections.

The Court of Appeals agreed with Wingfield that the trial court improperly allowed his defense counsel to waive his right to presence at the competency hearing. However, Wingfield failed to show how his presence would have been useful to his defense. Therefore, the trial court did not violate his constitutional rights by holding the competency hearing in his absence.

Further, the trial court did not abuse its discretion or violate Wingfield’s due process rights by denying his request for a second competency examination. First, Wingfield never made an offer of proof about what evidence could be presented to establish his incompetence. Second, the trial court had ample opportunity to observe Wingfield’s actions and general demeanor throughout trial to determine his compentency.

Wingfield also contended that the trial court erred when it denied his choice-of-evils defense. He argued that because his cellmates threatened to kill him if he did not assist in their escape attempt, he was justified in assisting them. The trial court found that, although Wingfield faced an imminent threat, he had viable alternatives to going along with the escape. Therefore, the trial court did not err in denying the defense. The judgment was affirmed.

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

Colorado Court of Appeals: Other Act Evidence Improperly Admitted; Error Not Harmless

The Colorado Court of Appeals issued its opinion in People v. Delsordo on Wednesday, December 31, 2014.

Arson—Other Act Evidence.

Delsordo called police to report a fire at her house. A fire investigation concluded that the fire had originated at the dryer exhaust vent from an outside application of heat. Delsordo stated that she had been smoking outside that night, and that she had used the cigarette to ignite a piece of wood beneath the dryer vent. A jury convicted her of first-degree arson and reckless endangerment, and the court sentenced her to twelve years in prison and five years of mandatory parole.

On appeal, Delsordo contended that the district court abused its discretion in admitting other act evidence—specifically, Delsordo’s previous false reports of sexual assault. Delsordo’s prior acts of false reporting had no connection with the charged offenses. The lack of similarity supports the conclusion that the prior act evidence has no relevance independent of the inference that Delsordo is the type of person who lies to get attention. Thus, the evidence should not have been admitted. Because the evidence against Delsordo was not overwhelming and the prosecution relied heavily on the other act evidence in argument, a reasonable probability existed that the trial court’s error contributed to Delsordo’s conviction. Thus, the error was not harmless. The judgment was reversed and the case was remanded for a new trial.

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

Colorado Court of Appeals: Suppression Motion Under Immigration Reform and Control Act Would Not Have Altered Verdict

The Colorado Court of Appeals issued its opinion in People v. Vicente-Sontay on Wednesday, December 31, 2014.

Immigration—Ineffective Assistance of Counsel—Plea—Voluntary—Interpreter.

Defendant, an undocumented noncitizen of the United States, completed a federal I–9 employment-eligibility verification form and began work for a company in Greeley (employer). On his verification form, he used a Social Security card and Missouri identification card, claiming to be a U.S. citizen named Marco Antonio Perez. During a routine audit, an agent from the Department of Homeland Security confirmed an outstanding Florida warrant for tax fraud against Perez and notified the Greeley police of this warrant. Believing that they were arresting Perez, the police arrested defendant. Defendant then admitted his real name to the police and the fact that he had purchased a fraudulent Social Security card and Missouri identification card for $150. He pleaded guilty to criminal impersonation.

On appeal, defendant contended that the post-conviction court erred in rejecting his three ineffective assistance of counsel claims. The Court of Appeals disagreed. First, a suppression motion under the Immigration Reform and Control Act of 1986 (IRCA), even if successful, would not have altered the verdict had defendant proceeded to trial. Further, defendant failed to show that he would not have pleaded guilty had counsel properly investigated and pursued a suppression motion under the IRCA. Second, the immigration consequences of defendant’s conviction were not succinct, clear, or explicit. As a result, plea counsel was only required to advise defendant that his pending criminal charges may have carried a risk of adverse immigration consequences, which counsel did. Third, because defendant’s eligibility for such relief was unclear, plea counsel properly advised him that his conviction might carry a risk of adverse immigration consequences. Finally, the post-conviction court did not err in rejecting defendant’s claim of ineffective assistance based on counsel’s not obtaining a K’iche interpreter for him. Defendant spoke sufficient Spanish to engage in meaningful communications with his plea counsel (with the aid of Spanish interpreters) and to navigate the judicial system. The order was affirmed.

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

Colorado Court of Appeals: Announcement Sheet, 1/8/2015

On Thursday, January 8, 2015, the Colorado Court of Appeals issued no published opinion and two unpublished opinions.

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

Frederick Skillern: Real Estate Case Law — Contracts, Purchase and Sale, Transactions (2)

Editor’s note: This is Part 5 of a series of posts in which Denver-area real estate attorney Frederick Skillern provides summaries of case law pertinent to real estate practitioners (click here for previous posts). These updates originally appeared as materials for the 32nd Annual Real Estate Symposium in July 2014.

frederick-b-skillern

By Frederick Skillern

Van Rees, Sr. v. Unleaded Software, Inc.
Colorado Court of Appeals, December 5, 2013
2013 COA 164

Economic loss rule; contract for design of website; no tort claim because no independent duty.

Although this is not a real estate case, I note it simply as an example of how the economic loss rule is spreading to preclude a wide array of fraud claims arising out of contractual relations. In this case, the court deals with the scope and applicability of Colorado’s economic loss rule in the context of an agreement for the design and maintenance of a website. Under the economic loss rule, no independent duty exists for tort claims of fraud, fraudulent concealment, constructive fraud, or negligent misrepresentation when the alleged misrepresentations and false statements are about the ability to perform contractual duties. The court affirms the trial court’s dismissal of the fraud, negligent misrepresentation, negligence, Colorado Consumer Protection Act, and civil theft claims. The breach of contract claim has it all.

 

Hickerson v. Vessels
Colorado Supreme Court, January 13, 2014
2014 CO 2.

Collections; statute of limitations; C.R.S. § 13-80-103.5 (1) (a) (six-year statute); partial payment doctrine; laches.

This case takes up the collection efforts of the holder of a $386,000 promissory note given in 1989 to the Vessels Oil Company. The note was due in ten years. Shortly after 1999, the maker started making payments on the note, and that continued for a couple of years. After payments stopped, Vessels sued to collect the entire balance. Under existing common law, which the court refers to as the partial payment doctrine, the running of the six-year statute of limitations begins anew whenever payments are made voluntarily, as the debt is recognized and acknowledged. The trial court held that the debtor should be protected under the circumstances of this case by the equitable defense of laches. The court of appeals reversed, but the Supreme Court reinstates the trial court’s ruling.

Four statutes refer to the partial payment scenario. See C.R.S. §§ 13-80-113 to 116. The court refers to these as examples of the common-law rule, and not a replacement of the rule.

In a fairly bold stroke in support of the exercise of equitable powers, the court holds that the separation of powers doctrine does not bar application of the equitable defense of laches to a debt collection action filed within the original or restarted six-year statute of limitations period. Laches does not conflict with the plain meaning of the relevant statute of limitations, nor does it conflict with the partial payment doctrine, which is a creature of Colorado common law. Since early statehood, Colorado case law has recognized the application of equitable remedies to legal claims. Accordingly, the Court reverses the judgment of the court of appeals and remands the case for consideration of issues it did not reach, to wit – does the record support a defense of laches. Maybe not.

“The essential element of laches is unconscionable delay in enforcing a right under the circumstances, usually involving a prejudice to the one against whom the claim is asserted.” The elements of laches are: (1) full knowledge of the facts; (2) unreasonable delay in the assertion of available remedy; and (3) intervening reliance by and prejudice to another. Laches requires “such unreasonable delay in the assertion of and attempted securing of equitable rights as to constitute in equity and good conscience a bar to recovery.”

The court remands the case to the court of appeals for review of whether the elements of laches are satisfied by evidence in the record. And father time marches on.

Frederick B. Skillern, Esq., is a director and shareholder with Montgomery Little & Soran, P.C., practicing in real estate and related litigation and appeals. He serves as an expert witness in cases dealing with real estate, professional responsibility and attorney fees, and acts as a mediator and arbitrator in real estate cases. Before joining Montgomery Little in 2003, Fred was in private practice in Denver for 6 years with Carpenter & Klatskin and for 10 years with Isaacson Rosenbaum. He served as a district judge for Colorado’s Eighteenth Judicial District from 2000 through 2002. Fred is a graduate of Dartmouth College, and received his law degree at the University of Colorado in 1976, in another day and time in which the legal job market was simply awful.

Appointments to Several Judicial Nominating Commissions and Supreme Court Nominating Commission Announced

On Wednesday, December 31, 2014, Governor Hickenlooper’s office announced appointments of several people to judicial nominating commissions throughout the state, and to the Supreme Court Nominating Commission.

The judicial nominating commissions are responsible for evaluating and recommending candidates for judicial vacancies in their respective judicial districts. They are comprised of seven members and one non-voting supreme court justice (the ex officio chair), of which no more than four members can be of the same political party and no more than three can be admitted to practice law in Colorado. The Supreme Court Nominating Commission evaluates and recommends candidates for vacancies on the Colorado Court of Appeals and the Colorado Supreme Court. The Supreme Court Nominating Commission is comprised of two people from each of Colorado’s seven congressional districts, one of whom may be admitted to practice law in Colorado and one of whom may not.

The following individuals were appointed to the judicial and Supreme Court nominating commissions:

Supreme Court Nominating Commission: 

  • Shannon Stevenson of Louisville, to serve as an unaffiliated attorney from the Second Congressional District.

Eleventh Judicial District Nominating Commission:

  • Larry McGee of Canon City, to serve as a non-attorney Democrat from Fremont County.
  • Herbert Phillips of Alma, to serve as a Republican attorney from Park County.
  • Margaret Walker of Nathrop, to serve as a Democratic attorney from Chaffee County.

Fourteenth Judicial District Nominating Commission:

  • James Stimson of Steamboat Springs, to serve as a non-attorney Democrat from Routt County.

Fifteenth Judicial District Nominating Commission:

  • Chris Rundell of Lamar, to serve as an unaffiliated non-attorney from Prowers County.

Twentieth Judicial District Nominating Commission:

  • Josh Marks of Louisville, to serve as an unaffiliated attorney from Boulder County.
  • Jodi Martin of Louisville, to serve as an unaffiliated attorney from Boulder County.

Twenty-Second Judicial District Nominating Commission:

  • Sharon Ann Lyons Hanson of Cortez, to serve as a Democratic attorney from Montezuma County.
  • Daniel Porter of Cortez, to serve as a Democratic non-attorney from Montezuma County.

All of the appointments are effective January 1, 2015, to serve six-year terms expiring December 31, 2020. For more information about the appointments, click here, and for more information about judicial nominating commissions, click here.

Colorado Court of Appeals: Announcement Sheet, 12/31/2014

On Wednesday, December 31, 2014, the Colorado Court of Appeals issued 10 published opinions and 6 unpublished opinions.

People v. Wingfield

People v. Delsordo

People v. Vicente-Sontay

Gonzales v. Windlan

Long v. Cordain

Long v. Cordain (consolidated appeals)

People v. Archuleta-Ferales

People v. Cruz-Velasquez

In re Estate of Runyon

People in Interest of J.G.

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: Announcement Sheet, 12/24/2014

On Wednesday, December 24, 2014, 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.