May 24, 2015

Colorado Court of Appeals: Exculpatory Clause Applicable Even Though Only Owners’ Association Named

The Colorado Court of Appeals issued its opinion in McShane v. Stirling Ranch Property Owners Association, Inc. on Thursday, April 27, 2015.

Real Property—Declaration of Covenants—Property Owners Association—Exculpatory Clause—Breach of Fiduciary Duty.

Plaintiffs purchased a lot in Stirling Ranch on which to construct a residential home. The lot was subject to the Second Amended and Restated Declaration of Covenants, Conditions, Restrictions and Easements for Stirling Ranch, P.U.D. (Declaration). Under the Declaration, each lot owner in the Stirling Ranch community is a member of the Stirling Ranch Property Owners Association, Inc. (POA). The POA is governed by an Executive Board, and the Board appoints and removes members of the POA’s Design Review Board (DRB). Although the DRB approved plaintiffs’ initial designs, it did so mistakenly based on representations by plaintiffs’ architect. After plaintiffs began construction on the initial designs, they were ordered to stop work and submit redesigned plans to conform to the Design Guidelines. Plaintiff later filed this action against the POA, claiming damages for the redesign of their home. The trial court found in favor of the POA.

On appeal, plaintiffs asserted that the court erred in concluding that the exculpatory clauses barred their claims against the POA for declaratory judgment/equitable estoppel and negligence. The Court of Appeals disagreed. The Declaration and the Design Guidelines include provisions limiting the DRB’s liability, one of which states that the DRB and the Board are components of the POA and have no separate identity. Therefore, the exculpatory clauses are applicable even though plaintiffs only named the POA as a defendant. Additionally, the exculpatory clauses are valid because they do not implicate a public duty, do not involve an essential service, were fairly entered into, and plainly express the intent to release the DRB from liability.

The Court also rejected plaintiffs’ argument that the trial court erred in concluding that the POA did not breach its fiduciary duty. The record contains sufficient evidence as to why the POA and the DRB rejected plaintiffs’ redesign plans. The record also supports the court’s conclusion that these reasons for rejecting the redesign plans were consistent with the Design Guidelines’ goals. The judgment was affirmed.

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

Colorado Court of Appeals: Noncooperation Defense Waived When Not Pleaded with Requisite Specificity

The Colorado Court of Appeals issued its opinion in Soicher v. State Farm Mutual Automobile Insurance Co. on Thursday, April 23, 2015.

Insurance—Non-Cooperation Defense—Jury Instructions—Unreasonable Denial—Unreasonable Delay.

In 2009, Manueke, who was uninsured, rear-ended another car, which in turn collided with Soicher’s vehicle. Soicher suffered a concussion in the accident, exacerbating a prior mild traumatic brain injury. At the time, Soicher had a motor vehicle insurance policy with State Farm that provided her $250,000 in uninsured motorist (UM) coverage. Seven months after Soicher filed a claim with State Farm, the insurer closed Soicher’s claim file due to Soicher’s noncooperation. Soicher later filed this action. At trial, State Farm failed to specifically plead the defense of noncooperation, but the court allowed State Farm to proceed on that defense. A jury found in State Farm’s favor.

On appeal, Soicher contended that the trial court erred in entering judgment based on State Farm’s noncooperation defense. State Farm did not plead the issue of noncooperation with the requisite specificity, and the parties did not try the issue by express or implied consent. Thus, State Farm waived the issue, and the trial court erred in entering judgment for State Farm based on that defense.

Soicher also contended that the trial court erred in refusing to instruct the jury that State Farm could be held liable, pursuant to CRS §§ 10-3-1115 to -1116, for its unreasonable denial, as opposed to its alleged unreasonable delay, in processing Soicher’s claim. State Farm did not reject Soicher’s application for benefits. To the contrary, it conceded coverage but disputed the amount that was to be paid. Accordingly, this case did not involve the unreasonable denial of Soicher’s claim.

The case was remanded for entry of judgment for Soicher and against State Farm on her breach of insurance contract claim in the amount of $125,000 plus pre-judgment interest, and entry of judgment for State Farm and against Soicher on its breach of the duty of good faith and fair dealing and violations of CRS §§ 10-3-1115 and -1116 claims.

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

Colorado Court of Appeals: Ineffective Assistance Claims Improperly Asserted in Crim. P. 33 Motion

The Colorado Court of Appeals issued its opinion in People v. Lopez on Thursday, April 23, 2015.

Assault—Menacing—Obstructing a Peace Officer—Jury Instruction—Attempt—Ineffective Assistance of Counsel—Crim.P. 33.

Defendant assaulted his wife and broke her clavicle. A uniformed officer found defendant outside the hospital. When the officer attempted to speak to him about his wife’s injuries, defendant became aggressive and threatening toward the officer. A jury convicted defendant of second-degree assault causing serious bodily injury, menacing by the use of a deadly weapon, and obstructing a peace officer.

On appeal, defendant contended that the evidence was insufficient to establish that he committed the crime of menacing against the police officer. Evidence showed that defendant made a threat and that he placed or attempted to place the first officer in fear of imminent serious bodily injury by telling her he had a knife and approaching her in an aggressive manner. This was sufficient to support a conviction for misdemeanor and felony menacing.

Defendant contended that the record did not contain sufficient evidence to support the conviction for obstructing a peace officer because the officer had not arrested nor intended to arrest defendant at the time. The obstructing statute is not limited to officers making arrests, and there was sufficient evidence that defendant’s conduct violated the obstructing statute even though the first officer did not arrest him.

Defendant also argued that the trial court erred when it instructed the jury on criminal attempt, even though the prosecution had not charged defendant with attempt. Because defendant was charged with menacing, and menacing includes the element of attempt, the court did not err in instructing the jury on the definition of attempt.

Defendant argued that the trial court erred when it denied his motion for a new trial because his trial counsel had been ineffective. Because defendant raised this as a Crim.P. 33 motion instead of a Crim.P. 35(c) motion, the trial court’s decision to deny defendant’s Crim.P. 33 motion without a hearing was reviewed for an abuse of discretion. The Court of Appeals found that the trial court’s rulings were not manifestly arbitrary, unreasonable, or unfair because defendant failed to prove prejudice based on any alleged errors. The judgment was affirmed.

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

Colorado Court of Appeals: Evidence of Defendant’s Gang Membership Admissible to Show Motive

The Colorado Court of Appeals issued its opinion in People v. Clark on Thursday, April 23, 2015.

Murder—Evidence—Gang Membership—Collateral—Fifth Amendment Privilege—Prior Consistent Statement—Jury Instruction—Complicity—Juror Misconduct.

After getting into an altercation at a club on New Year’s Eve, defendant and Daniel Harris fired gunshots aimed at an oversized limousine, which left Darrent Williams, a member of the Denver Broncos football team, dead; two additional people wounded; and fourteen others uninjured but shaken. A jury found defendant guilty of one count of murder (extreme indifference), one count of murder (after deliberation), sixteen counts of attempted first-degree murder, two counts of second-degree assault, sixteen counts of violent crime, and one count of possession of a weapon by a previous offender.

On appeal, defendant argued that the court erred by admitting evidence and testimony regarding his gang membership, as well as expert testimony about gang origin, structure, psychology, hierarchy, and presence in Denver. Because defendant’s gang affiliation had motivated him to participate in the shooting, this evidence was admissible to show motive.

Defendant asserted that the trial court abused its discretion by precluding certain lines of inquiry during his cross-examination of three witnesses. It was not an abuse of discretion to prohibit cross-examination of the factual details underlying other incidents because this information was collateral and inadmissible. Further, defense counsel had already established that the witnesses had been dishonest in the past.

Defendant asserted that the trial court erred in its handling of two witnesses who refused to answer questions based on the Fifth Amendment’s privilege against self-incrimination. It was not an abuse of discretion for the trial court to grant Bragg’s (Harris’s brother) motion to quash the subpoena to testify before subjecting him to questioning in front of the jury. Additionally, it was not error for the court to sustain Harris’s invocation of the Fifth Amendment privilege because it was at least possible that his response could have incriminated him.

Defendant contended that the trial court abused its discretion by admitting the entire videotaped interview of Harris as a prior consistent statement. Because the court gave defense counsel extensive leeway to attack Harris’s credibility with respect to his testimony in this case and his prior interactions with police officers, admission of the entire video was necessary to give the jury the full picture of what he had said to the police.

Defendant additionally argued that the prosecution violated his due process rights because it knowingly used Harris’s false evidence to obtain his conviction, and the prosecution improperly argued inconsistent factual theories. However, there is no evidence of perjury in the record, and the trial court did not err by allowing the prosecution to present alternative legal theories in this single trial involving this single defendant.

Defendant asserted that certain jurors’ actions occurring during trial constituted juror misconduct. The affidavit tendered by defendant contained hearsay evidence that two jurors had conducted experiments on their own to weigh some of the evidence, and that an alternate juror who was removed from the case had communications with a deliberating juror about the case. Although the affidavit was based on hearsay, the trial court erred by not considering the allegations set forth in the affidavit when it denied defendant’s motion for a new trial without a hearing. Therefore, the case was remanded for an evidentiary hearing on the issue of juror misconduct.

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

Colorado Court of Appeals: Announcement Sheet, 4/23/2015

On Thursday, April 23, 2015, the Colorado Court of Appeals issued nine published opinions and 33 unpublished opinions.

People v. Clark

People v. Lopez

Soicher v. State Farm Mutual Automobile Ins. Co.

People v. Campos

McShane v. Stirling Ranch Property Owners Association

L&R Exploration Venture v. CCG, LLC

Auxier v. McDonald

Nagl v. Industrial Claim Appeals Office

Teller County v. Industrial Claim Appeals Office

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, 4/16/2015

On Thursday, April 16, 2015, the Colorado Court of Appeals issued no published opinion and 18 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: Open Meetings Law Prohibits Use of Secret Ballots

The Colorado Court of Appeals issued its opinion in Weisfield v. City of Arvada on Thursday, April 9, 2015.

Lack of Standing—Secret Ballots and Open Meetings Law.

This case concerned the use of secret ballots by Arvada’s mayor and city council members to fill a vacancy on the council for Arvada District 1. Plaintiff is a resident of that district. Defendants Mayor Williams and council members Dyer, Fifer, Allard, Marriot, and McGoff participated in the vote, and defendant Marks was selected to fill the vacancy.

After proper notice, a special meeting was held by city council on January 10, 2014 to select among five candidates for the vacancy. The meeting was recorded and televised. The council conducted four rounds of secret ballot voting in which candidates were eliminated if they didn’t receive a sufficient number of votes. Total votes were reported after each round, but it was not reported who voted for which candidates. At the end of the process, Marks was the only remaining candidate. The council then held an open vote in which they unanimously elected Marks.

Plaintiff sued, alleging that the use of secret ballots violated Colorado’s Open Meetings Law. Defendants moved to dismiss. The trial court granted the motion, holding that plaintiff lacked standing because he failed to allege an injury in fact to a legally protected interest.

The Court of Appeals reversed. The Open Meetings Law explicitly prohibits the use of secret ballots and provides that “any citizen of this state” may enforce the Open Meetings Law in Colorado courts. Plaintiff had a legally protected interest in having the city council fill its vacancy in an open manner in compliance with the Open Meetings Law. He also sufficiently alleged an injury in fact to this legally protected interest. He is a citizen of Colorado and a resident of Arvada District 1. As a direct result of the alleged violation, plaintiff did not know how each council member voted during the process of selecting the new council member who now represents him. The case was remanded for further proceedings, including the district court’s consideration of the alleged grounds for dismissal asserted in defendants’ motion to dismiss under CRCP 12(b)(5).

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

Colorado Court of Appeals: Trial Court Appropriately Declined Jurisdiction Under UCCJEA

The Colorado Court of Appeals issued its opinion in In re Parental Responsibilities Concerning B.C.B., a Child on Thursday, April 9, 2015.

Jurisdiction Under the Uniform Child-Custody Jurisdiction and Enforcement Act.

Mother and father, who were not married, are the parents of B.C.B., born in Idaho in December 2012. The couple moved to Colorado with B.C.B. in July 2013. In August 2013, mother and B.C.B. traveled to Massachusetts, where mother’s extended family lived. Mother testified at the hearing to determine Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) jurisdiction that she had intended to return to Colorado; however, while in Massachusetts, she decided her relationship with father would not work and therefore did not return.

In September 2013, father petitioned the Colorado district court for an allocation of parental responsibilities. Mother contested jurisdiction and filed a custody action in Massachusetts. The Massachusetts court entered temporary orders granting custody to mother in October 2013.

Following conferral between the Colorado and Massachusetts courts, the Colorado court asserted temporary emergency jurisdiction over B.C.B., ordered mother to return to Colorado with B.C.B., and set a hearing to determine jurisdiction. The Massachusetts court vacated its temporary order and stayed its proceedings pending the Colorado decision on jurisdiction.

The Colorado court determined that (1) Idaho was B.C.B.’s home state under the UCCJEA; (2) neither party wanted Idaho to take jurisdiction; and (3) either Colorado or Massachusetts could exercise jurisdiction, but neither was required to do so. The court then declined its jurisdiction on the basis that Colorado was not the most appropriate forum. Father appealed.

The Court of Appeals applied an abuse of discretion standard in reviewing the trial court’s decision to decline to exercise jurisdiction. The Court held that the child had no home state because neither the parents nor the child lived in Idaho when father filed his petition and the child had not lived in either Colorado or Massachusetts long enough to establish home state jurisdiction. Despite this error by the trial court, it properly proceeded under CRS § 14-13-201(1)(b) to consider whether B.C.B. and his parents had a significant connection with Colorado and whether substantial evidence concerning B.C.B. was located in Colorado. Because the court’s factual findings as to the lack of significant connection with Colorado or of substantial evidence in Colorado were supported by the record, the Court will not disturb them. The judgment was affirmed.

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

Colorado Court of Appeals: Trial Court Need Not Make Specific Findings to Revoke Probation

The Colorado Court of Appeals issued its opinion in People v. Roletto on Thursday, April 9, 2015.

Probation Revocation—Failure to Pay Restitution.

Defendant pleaded guilty to defrauding a secured creditor and to second-degree perjury. He was sentenced to a five-year probation period, with a condition that he pay restitution on a monthly basis.

About midway through his sentence, the probation department filed a probation revocation complaint, asserting defendant had failed to pay restitution. At the hearing, defendant argued that he was financially unable to pay restitution. He testified that he could not work because he suffered from chronic pancreatitis and his criminal record would deter him from obtaining work. The trial court found no evidence to support defendant’s assertions. It revoked his probation and resentenced him to another probationary term.

On appeal, defendant argued that the court applied an incorrect legal standard in determining whether he was able to pay restitution. Specifically, he argued that the court was required to find: (1) a job was available for him; (2) the job would produce an income adequate to meet his obligations; and (3) he justifiably refused to take the job.

The Court of Appeals concluded that these express findings were not necessary to revoke probation. A defendant has the burden of proving by a preponderance of the evidence that he or she is unable to pay restitution. The defendant’s burden is a question of fact to be determined by the trial court, and the court may consider numerous factors in making that determination. Here, the court’s finding that defendant was able to pay was based on copious evidence in the record.

Defendant also argued that the court improperly relied on information it read in the newspaper to find he was unable to pay. While making its finding and ruling, the court stated: “In the newspaper, this morning, I read that there were jobs available.” Defendant argued that this statement demonstrated the court improperly relied on “hearsay evidence” to find that he had violated the restitution condition. However, the record does not suggest the court used the information as evidence against defendant; rather, the statement was a casual observation. Moreover, the parties’ dispute did not center on whether jobs were generally available. Instead, defendant argued that his medical condition rendered him unable to work. As such, the availability of jobs was not dispositive. The judgment was affirmed.

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

Colorado Court of Appeals: Separate Challenge to Attorney Fee Award Not Prerequisite to Filing C.R.C.P. 60 Motion

The Colorado Court of Appeals issued its opinion in Oster v. Baack on Thursday, April 9, 2015.

Employment Agreement—Attorney Fees—First Impression—Challenge Under CRCP 60.

Doctors Oster and Baack owned and practiced medicine at Horizon Women’s Care. Oster and Horizon severed Baack’s employment following the loss of her medical license and brought a declaratory judgment action seeking a declaration that Baack’s employment had been terminated “for cause,” which meant that Baack would only be entitled to 25% of the value of her ownership interest in Horizon. The court entered judgment in favor of Oster and Horizon and ordered Baack to pay their attorney fees. This decision was reversed on appeal, and Baack thereafter filed a CRCP 60 motion to vacate the attorney fees award. The trial court denied the motion to vacate.

This case raised an issue of first impression—whether a party who has not directly appealed from an order awarding attorney fees and costs may still challenge that award under CRCP 60. The trial court had jurisdiction to consider Baack’s CRCP 60 motion, and Baack did not need to separately appeal the attorney fees award before filing her CRCP 60 motion. Because the appellate court reversed the underlying judgment, the trial court had awarded fees and costs under the prevailing party provision of the Employment Agreement, and the remaining agreements between the parties did not entitle Oster and Horizon to an attorney fees award. Accordingly, the attorney fees award in favor of Oster and Horizon was vacated and the case was remanded to the trial court to award Baack a reasonable amount of attorney fees and costs incurred on appeal.

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

Colorado Court of Appeals: Specific Statutory Medical Marijuana Registry Offenses Not Exclusive Means of Prosecution for Violations

The Colorado Court of Appeals issued its opinion in People v. Montante on Thursday, April 9, 2015.

Physician—Medical Marijuana—Attempt to Influence a Public Servant—Lesser Non-Included Offense—Jury Instructions—Unconstitutionally Vague—First Amendment—Motion to Suppress—Expert Witness.

Defendant worked as a contract physician at a medical marijuana clinic. Defendant issued “Nick Moser,” an undercover police detective, a Physician Certification stating that Moser suffered from a debilitating medical condition and might benefit from the medical use of marijuana despite the fact that Moser did not suffer from any medical conditions. Defendant was charged and convicted of attempt to influence a public servant.

On appeal, defendant argued that the trial court erred in denying his pretrial motion to dismiss the charge because the legislature proscribed and directed punishment for his conduct in the specific medical marijuana registry fraud statute. Although the statute could apply to a physician’s recommending medical marijuana in a Physician Certification, it does not preclude prosecution for defendant’s conduct under the attempt to influence a public servant statute.

Defendant argued that the trial court erred in denying his request for a lesser non-included offense jury instruction on medical marijuana registry fraud under CRS § 18-18-406.3(2)(a). There was no evidentiary basis on which the jury rationally could have convicted defendant of medical marijuana registry fraud but acquitted him of attempt to influence a public servant. Consequently, the jury could not rationally have convicted defendant of the lesser offense and acquitted him of the greater. Accordingly, the trial court did not err in rejecting defendant’s tendered instruction.

Defendant argued that the attempt to influence a public servant statute is unconstitutional because it is vague as applied to him and violates his free speech rights under the First Amendment. The statute was sufficiently clear that it prohibited defendant’s alleged conduct. Furthermore, false representations such as those made by defendant are not protected by the First Amendment.

Defendant argued that the trial court erred in denying his motion to suppress because the trial court incorrectly concluded that he was not in custody at the time the statements were made. The interview took place at defendant’s clinic, he was not coerced, and the statements were made voluntarily. Therefore, defendant was not in custody when the interview took place and Miranda warnings were not required.

Defendant argued that the trial court erred in admitting the prosecution’s expert testimony on general medical assessments, examinations of patients, and establishing a bona fide physician-patient relationship. The physician was qualified as an expert, and his testimony could have assisted the jury in determining whether defendant’s representations were false. Therefore, the trial court did not abuse its discretion in determining that the testimony met the requirements of CRE 702 and was not excludable under CRE 403. The judgment was affirmed.

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

Colorado Court of Appeals: Cost of Installing Bars on Victim’s Window Improperly Assigned as Restitution

The Colorado Court of Appeals issued its opinion in People v. Martinez on Thursday, April 9, 2015.

Identification—Physician–Patient Privilege—Restitution.

The victim awoke one morning to a noise outside her second-floor bedroom. She walked to the bathroom and saw a man standing on her roof, trying to enter the bathroom window. Seeing the victim, the man ran away. Defendant was found by police hiding in a row of bushes near the victim’s house, and the victim positively identified defendant at the scene as the person who attempted to enter her residence. Defendant was convicted of attempted first-degree criminal trespass, third-degree criminal trespass, and criminal mischief

On appeal, defendant claimed that the district court erred when it admitted evidence that the victim previously identified him as the man she saw in her window and allowed her to identify him again at trial. “One-on-one show-ups” are disfavored because they tend to be suggestive, but they are not per se invalid. Here, the victim had a good opportunity to view defendant trying to enter her residence, she described defendant to the police when they arrived at the scene, she immediately identified defendant when the police presented him to the victim at the scene, and the police did not make any suggestive comments during the procedure. Therefore, the district court did not err in denying defendant’s motion to suppress the identification evidence.

Defendant argued that the district court erred when it allowed Dr. Stafford, the physician who treated defendant at the hospital that evening for a fractured right heel, to testify because defendant had not waived the physician-patient privilege. A physician who treats an injury that he has reason to believe involves a criminal act has a duty to report the injury to the police, which abrogates the privilege as to the medical examination and diagnosis, but not as to any statements made by the patient. Dr. Stafford had reason to believe defendant’s injury involved a criminal act. In addition, his testimony was limited to his examination and diagnosis and he did not disclose any statements defendant made in the course of his treatment. Therefore, Dr. Stafford’s testimony fell within the exception created by the reporting statute.

Defendant further argued that the district court erred when it ordered restitution of $489 for the cost of installing bars on the victim’s bathroom window because there was no showing that his conduct proximately caused the expense. Expenses resulting from a general feeling of insecurity are too attenuated to qualify as restitution. Here, the court failed to find that the expense of installing bars was the result of a specific, ongoing threat related to defendant’s conduct as opposed to a general feeling of insecurity. Therefore, this part of the restitution order was vacated.

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