April 23, 2014

Colorado Court of Appeals: Nonparent Lacked Standing under CRS 14-10-123 to Petition for Parental Responsibilities

The Colorado Court of Appeals issued its decision in In re the Parental Responsibilities of D.T., and Concerning Lavattiata on August 30, 2012.

Allocation of Parental Responsibilities—Nonparent—CRS § 14-10-123(1)(c).

Crystal Lavattiata appealed from the judgment dismissing her petition for parental responsibilities for D.T., who is the child of Christina Trujillo (mother). The judgment was affirmed and the case was remanded.

Mother and Lavattiata became acquainted when mother was a teenager and she attended school with Lavattiata’s children. After mother gave birth to D.T. in 2003, she moved into Lavattiata’s home, and Lavattiata assisted her in caring for the child. Although mother moved out of Lavattiata’s home when D.T. was 6 months old, Lavattiata continued to assist mother with D.T.’s care until 2010, when mother ended Lavattiata’s time with him. Lavattiata subsequently petitioned for an allocation of parental responsibilities. The trial court concluded that Lavattiata did not have standing under CRS § 14-10-123(1)(c) and dismissed Lavattiata’s petition.

On appeal, Lavattiata contended the trial court erred by dismissing her petition for parental responsibilities. A nonparent can attain standing under CRS § 14-10-123(1)(c) if the nonparent has had the physical care of the child for six months or more and commences an action seeking parental responsibilities within six months of the termination of such care. Here, mother at all times acted as D.T.’s parent and directed his care. Lavattiata functioned in a grandmother-like role to D.T. and provided care for D.T. at mother’s direction and under her supervision. Mother remained in control of D.T.’s care by continuously monitoring and directing Lavattiata’s actions with D.T., and then terminating Lavattiata’s care of the child when Lavattiata refused to follow her directions. Thus, the trial court did not err in concluding that Lavattiata lacked standing under CRS § 14-10-123(1)(c). The judgment was affirmed, and the case was remanded to the trial court for determination of mother’s appellate attorney fee request under CSR § 14-10-119.

Summary and full case available here.

Colorado Revised Statutes Now an eBook for Mobile Devices

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Colorado Revised Statutes Now an eBook

Colorado Court of Appeals: No Abuse of Discretion in Finding that DNA Evidence and Procedures Used by Expert Were Reliable

The Colorado Court of Appeals issued its opinion in People v. Tunis on August 2, 2012.

Sexual Assault—DNA Evidence—Jury—Sexually Violent Predator.

Defendant appealed from the judgment of conviction and sentence in this sexual assault case. The judgment and sentence were affirmed.

The victim was sexually assaulted in her home. Defendant ultimately was convicted of sexual assault and second-degree burglary, both class 3 felonies, and sentenced to the Department of Corrections for an indeterminate term of twelve years to life. His sentence included a determination that he qualified as a sexually violent predator.

Defendant contended that the Y Chromosome-Short Tandem Repeat (Y-STR) DNA evidence, which was admitted through expert testimony, was unreliable and, therefore, the trial court erred by admitting it. The analyst who conducted the testing and testified about it was properly qualified and admitted as an expert in forensic DNA analysis. The analyst testified that she used a generally accepted scientific metric for conducting the Y-STR analysis. The Court of Appeals concluded that the trial court did not abuse its discretion in finding that the exclusion statistics and the sample size of DNA that the expert used were reliable. Therefore, the trial court did not abuse its discretion in admitting this evidence.

Defendant also contended that the trial court erred by releasing a juror who repeatedly fell asleep and replacing him with an alternate juror. Defendant failed to show that the remaining jurors were unfair or biased, or that he was prejudiced by the dismissal and replacement of the juror. Therefore, the court’s decision to replace the sleeping juror was not an abuse of discretion.

Finally, defendant contended that the trial court erred by determining he was a sexually violent predator within the meaning of CRS § 18-3-414.5(1)(a)(III). The court concluded that defendant was a sexually violent predator because he promoted a relationship with the victim primarily for the purpose of sexual victimization. Further, defendant threatened the victim in an effort to keep her quiet during the assault, pulled her hair, and repeatedly forced her head into a position from which she could not see him during the assault. Thus, the evidence at trial supports the court’s conclusion. The judgment and sentence were affirmed.

Summary and full case available here.

Colorado Court of Appeals: Claimant Seeking Workers’ Compensation Benefits for Solely Psychological Claim Has Heightened Burden of Proof

The Colorado Court of Appeals issued its opinion in Kieckhafer v. Industrial Claim Appeals Office on July 19, 2012.

Workers’ Compensation—Burden of Compensability Under CRS § 8-41-301(2)(a).

Claimant appealed the final order of the Industrial Claim Appeals Office (Panel) affirming the administrative law judge’s (ALJ) dismissal of her claim for benefits. The order was affirmed.

Claimant worked as a nurse in the women’s forensics unit of employer, the Colorado Mental Health Institute–Pueblo. Claimant began experiencing work-related emotional distress and sought psychological help. Eventually, she filed a claim for workers’ compensation benefits for her “mental/emotional distress.”

The ALJ determined claimant had failed to introduce necessary evidence from a mental health professional establishing that she “suffered a recognized disability arising from a psychologically traumatic event.” Consequently, the ALJ held that claimant had not met her burden of demonstrating entitlement to benefits for her “mental–mental” claim. The ALJ denied and dismissed the claim. The Panel affirmed and claimant appealed.

Claimant argued that CRS § 8-41-301(2)(a) imposes an insurmountable obstacle to claimants seeking medical benefits for their emotional injuries. The Court of Appeals disagreed. To receive benefits, an injured worker has the threshold burden of establishing, by a preponderance of the evidence, that he or she has sustained a compensable injury proximately caused by her employment. Here, claimant was claiming “mental–mental” injuries, in which “mental impairment follows solely an emotional stimulus.” This requires a “heightened standard of proof” to “help prevent frivolous or improper claims.” The statute requires “the testimony of a licensed physician or psychologist” to establish the claim. Because claimant failed to introduce any such evidence, the order denying and dismissing her claim was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Homeowners’ Liability to Injured Contractor Limited by Statutory Damages Cap

The Colorado Court of Appeals issued its opinion in Cavaleri v. Anderson on July 19, 2012.

Premises Liability—CRS § 8-41-401(3).

In this premises liability case, Chris Cavaleri (contractor) and Magdalena Cavaleri (wife) appealed the trial court’s judgment dismissing their personal injury claims against Aaron and Heidi Anderson (homeowners) with prejudice. The judgment was affirmed.

Contractor was the sole proprietor of a business and did not carry workers’ compensation insurance on himself. He was hired by homeowners to do some tiling work on their home. As he walked down their front steps after completing the work, he leaned on a wooden railing and it gave way, causing him to fall and sustain injuries. Contractor and his wife brought this premises liability action, seeking economic and noneconomic damages.

Before trial, the court asked the parties about the impact of CRS § 8-41-401(3) on contractor’s claims. The court ruled that the $15,000 limitation on damages applied to contractor’s claims. Homeowners immediately tendered the statutory limit. The trial court dismissed the action with prejudice and contractor appealed.

Contractor argued that CRS § 8-41-401(3) did not apply because homeowners were not required to obtain workers’ compensation insurance covering contractor and, because no coverage was required, homeowners were not among the individuals protected by the statutory damages cap. The Court of Appeals disagreed. The Court noted that the purpose of the section is to encourage participation in the workers’ compensation system and limit exposure of contractors who obtain coverage from lawsuits or claims brought by uncovered independent contractors injured on the job.” [Snook v. Joyce Homes, Inc., 215 P.3d 1210, 1215 (Colo.App. 2009).]

Here, homeowners are not general contractors and are excluded from the Workers’ Compensation Act. However, contractor provided no support for his argument that this somehow kept him from obtaining workers’ compensation insurance for himself. Contractor’s argument failed to address the express inclusion of “sole proprietor[s] who [are] not covered under a policy of workers’ compensation insurance” among the individuals who may bring an action against a negligent third party, but whose damages will be limited to $15,000 if they elect to forego workers’ compensation insurance. The dismissal with prejudice was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Enforcing a Limitation of Liability Provision After Willful and Wanton Breach of Contract Would Shield Party from Consequences of Such Conduct and Is Contrary to Public Policy

The Colorado Court of Appeals issued its opinion in Core-Mark Midcontinent, Inc. v. Sonitrol Corporation on July 19, 2012.

Breach of Contract—Limitation of Liability—Willful and Wanton—Expert Witness—Non-Party at Fault.

Defendant Sonitrol Corporation appealed the judgment entered against it after a jury trial on the breach of contract claims of plaintiffs, Core-Mark International, Inc. and its wholly owned subsidiary, Core-Mark Midcontinent, Inc. (collectively, Core-Mark); and Core-Mark’s casualty insurers, U.S. Fire Insurance Company and Commonwealth Insurance Company (collectively, Insurers). It also appealed the district court’s award of costs based on that judgment. The judgment as to liability was affirmed, the judgment as to damages was reversed, the costs award was vacated, and the case was remanded for a new trial on damages.

Sonitrol and Core-Mark contracted to have Sonitrol install and monitor a burglar alarm system at one of Core-Mark’s warehouses. Sonitrol failed to detect or to respond to a burglary at the warehouse. One of the burglars, David Ottersberg, started a fire in the warehouse that effectively destroyed the building and its contents. Sonitrol contended that a division of the Court of Appeals erred in Sonitrol Iby ruling that a limitation of liability provision like that here is not enforceable where a party has committed a willful and wanton breach of contract [United States Fire Ins. Co. v. Sonitrol Mgmt. Corp., 192 P.3d 543 (Colo.App. 2008)]. A limitation of liability provision generally is enforceable because it represents the parties’ bargained-for agreement regarding allocation of risks and costs in the event of a breach or other failure of the contemplated transaction. Because of the egregiously wrongful nature of a willful and wanton breach of contract, however, enforcing a limitation of liability provision to shield a party from the consequences of such conduct is deemed to be contrary to public policy. Therefore, the division in Sonitrol I correctly ruled on this issue.

Sonitrol further contended that the district court erred on remand by refusing to allow Sonitrol’s expert witnesses to testify. Sonitrol could have foreseen that if it failed to detect a break-in at the warehouse, a burglar could start a fire. However, the jury should have been able to consider Sonitrol’s proffered expert testimony relating to whether Sonitrol could have foreseen that the fire set by Ottersberg would prove so calamitous due to the alleged code violations. Further, the proffered testimony supported Sonitrol’s theory that its conduct was not the cause of all the damages Core-Mark claimed. Becausethe experts’ testimony was relevant and admissible on the issue of damages and the error was not harmless, the district court abused its discretion by excluding Sonitrol’s experts’ testimony.

Sonitrol finally contended that the district court erred by ruling that it could not designate Ottersberg as a nonparty at fault. CRS § 13-21-111.5(3) permits apportionment of liability only to a nonparty at fault in a tort action. Therefore, the district court did not err in ruling that Sonitrol could not designate Ottersberg as a nonparty at fault under CRS § 13-21-111.5 in this breach of contract action.

Summary and full case available here.

Colorado Court of Appeals: Plain Language of Statute Grants Immunity from Suit to Provider of Services for Developmentally Disabled Adult

The Colorado Court of Appeals issued its opinion in McLaughlin v. Oxley on July 5, 2012.

Negligence—CRS § 13-21-117.5—Immunity.

Defendants Christopher Oxley, Ricardo Sison, and Ability Specialists, Inc. (Ability) appealed the trial court’s holding that they were not immune from the suit brought by plaintiffs Brandon McLaughlin, Michael McLaughlin, and Selena McLaughlin. The Court of Appeals reversed the trial court’s order and the case was remanded with directions.

Michael and Selena McLaughlin retained Ability to provide services to assist in the care of their developmentally disabled son, Brandon, who at the time was 21 years old. As part of the services, Oxley, an employee of Ability, was supervising Brandon at Oxley’s home, while Oxley’s own 7-year-old son, B.O., was present. Brandon and B.O. were left unattended together, during which time Brandon put B.O. in a “spanking position,” pulled down B.O.’s pants, and kissed him. Oxley informed his superiors, who called the police to investigate. The police charged Brandon with sexual assault on a child. The criminal case was dismissed after Brandon was found incompetent to proceed.

Plaintiffs later sued defendants, alleging negligence against Oxley and Ability. Defendants moved for summary judgment on all claims, arguing they were immune from liability under CRS §§ 13-21-117.5(4) and (6). The trial court denied the motion and defendants appealed.

CRS § 13-21-117.5 was enacted to “mitigate the risk of liability to providers to the developmentally disabled to the extent that such mitigation is reasonable and possible.” The Court agreed with defendants that the trial court erred in finding that § 13-21-117.5(6) did not apply. The trial court reasoned that the section applied only to immunize a provider against civil actions initiated by a victim of a developmentally disabled person’s assaultive behavior and not, as here, to a suit regarding harm to the developmentally disabled person. The Court found no support for such an interpretation of the statute. The order was reversed and the case was remanded for entry of summary judgment in favor of defendants.

Summary and full case available here.

Colorado Court of Appeals: Forgery Includes Falsely Completing Appraisals by Certifying Them as True, Accurate, and in Compliance with Professional Guidelines

The Colorado Court of Appeals issued its decision in People v. Kovacs on July 5, 2012.

Forgery—Written Instrument.

The People appealed the district court’s order dismissing for lack of probable cause their indictment of defendant Alexander Kovacs for forgery. The order was reversed and the case was remanded.

In 2010, a grand jury indicted Kovacs on five counts of forgery of a written instrument. The indictment alleged that Kovacs provided various parties appraisals that contained material misrepresentations or omissions. The district court dismissed the indictment, finding that the appraisals were not “forged instruments” as that term is defined in CRS § 18-5-101(5).

The People argued that the district court erred in dismissing the indictment. Under CRS § 18-5-101(3)(b), a person falsely “completes” a written instrument when he or she adds materially false information to any instrument, genuine or non-genuine, so as to render it legally operative. Here, Kovacs falsely completed the appraisals when he certified the appraisals as true and accurate, and as having been completed in compliance with the applicable professional guidelines. Therefore, the district court erred in dismissing the indictment based on its view that the forgery statute required the completion of a non-genuine instrument.

Summary and full case available here.

Spark the Discussion: No Love Supreme – Colorado Courts Continue to Rule Against Medical Marijuana Patients

“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

By Brian Vicente, Esq. and Rachelle Yeung

Leonard Charles Watkins has long suffered pancreatitis, which causes him debilitating chronic pain and for which he has been hospitalized three times. Watkins’ doctor recommended he use marijuana to reduce his suffering, so Watkins lawfully applied and qualified to be a medical marijuana patient. In February 2012, the Colorado Court of Appeals revoked Watkins’ ability to treat his illness with this state-approved medicine.

In 2008, Watkins pled guilty to a class three felony – unrelated to any controlled substances – for which he received six years’ probation. His probation conditions required that Watkins “not use or possess any narcotic, dangerous or abusable substance without a prescription,” and that he “not commit another offense” for the duration of his probation. However, after Watkins explained his medical condition to his judge, the trial court issued an order approving his use of medical marijuana.

The Arapahoe District Attorney filed a motion to reconsider, which the trial court denied in an extensive written order. The Prosecution then appealed the denial and the Court of Appeals reversed the trial court’s order, thus denying Watkins the use of this medicine.

Under Colorado law, trial courts are required to set as a condition of probation that probationers “not commit another offense.” C.R.S. 18-1.3-204(1). The Court of Appeals wrote in its opinion that “[t]he Colorado statute itself does not define the term [offense].” People v. Watkins, — P.3d —, 2012 WL 310776 (Colo. App. 2012). However, the Colorado Criminal Code – where the probation statutes can also be found – defines “offense” as “a violation of, or conduct defined by, any state statute for which a fine or imprisonment may be imposed.” C.R.S. 18-1-104(1). It is undisputed that Watkins’ use of medical marijuana was permissible within state law. Yet, despite this straightforward practice in statutory interpretation, the Court of Appeals expanded the meaning of “offense” beyond its unambiguous definition and determined that it included violations of federal law.

To be clear, this is not a broad determination that federal law preempts state medical marijuana laws – simply that the Court of Appeals interpreted one particular statute to take federal prohibition into account.

Relying heavily on its recent decision in Beinor, the Court of Appeals affirmed that marijuana could not be legally “prescribed,” and that therefore Watkins’ lawful medical use of marijuana was a violation of the condition that he not use or possess “any narcotic, dangerous or abusable substance without a prescription.” Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011). Without further reasoning, the Court of Appeals again echoed the Beinor opinion and held that Amendment 20, Colorado’s original medical marijuana law, did not extend a constitutional right to patients, but merely protected patients from criminal prosecution under limited circumstances.

Recently, the medical marijuana advocacy group, Sensible Colorado, teamed up with the ACLU to file an appeal on Watkins behalf. The Colorado Supreme Court denied this appeal and brandished Watkins, and other sick medical marijuana patients like him, probation violators if they use their doctor-recommended medicine. Specifically, the Watkins decision set forth a sweeping precedent that “neither Petitioner [Watkins] nor any other probationer in Colorado – regardless of the underlying offense, the circumstances of the probationer’s illness, or the trial court’s view – may use medical marijuana.” Petition for Writ of Certiori at 4, Watkins, — P.3d — (Colo. App. 2012).

Despite this seemingly bleak decision, medical marijuana patients are not always condemned to suffer while on probation. It is still the law that a trial court judge’s decision to not revoke probation cannot be appealed, regardless of any probation violations. It may be little comfort, but patients can still hope that sympathetic trial court judges will simply refuse to revoke their probation for medical marijuana use. The passage of Amendment 64, the Act to Regulate Marijuana Like Alcohol, which is on the statewide ballot this November, may further prompt the judicial branch to align their decisions with the will of the People.

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Colorado Supreme Court: Oil and Gas Conservation Commission Has Broad Authority to Promulgate Rules Governing Permitting Process

The Colorado Supreme Court issued its opinion in Colorado Oil and Gas Conservation Commission v. Grand Valley Citizens’ Alliance on June 25, 2012.

Application for Permit to Drill—Hearings.

Grand Valley Citizens’ Alliance filed a complaint alleging it was entitled to a hearing on an application for permit to drill pursuant to CRS § 34-60-108(7) of the Oil and Gas Conservation Act. The district court dismissed the complaint. The court of appeals reversed the district court’s judgment, holding that under subsection 108(7), Grand Valley was entitled to a hearing because it had a filed a petition on a matter within the jurisdiction of the Colorado Oil and Gas Conservation Commission.

The Supreme Court reversed the court of appeals’ judgment, holding that § 34-60-108(7) requires a hearing only for rules, regulations, and orders. Permits are governed by CRS § 34-60-106(1)(f), which grants the Commission broad authority to promulgate rules governing the permitting process, including the authority to determine who may request a hearing.

Summary and full case available here.

Colorado Supreme Court: Defendant Not in Custody When Statements Made; No Miranda Warnings Required

The Colorado Supreme Court issued its opinion in People v. Figueroa-Ortega on June 25, 2012.

Miranda Warnings—Custodial Interrogation.

The People brought an interlocutory appeal pursuant to CRS § 16-12-102(2) and CAR 4.1 challenging the district court’s suppression of statements made by defendant to a police detective. The district court found that the statements in question were the product of custodial interrogation, without the benefit of Miranda warnings. The Supreme Court reversed the suppression order of the district court, holding that because defendant was not in custody at the time he made the statements in question, no Miranda warnings were required.

Summary and full case available here.

Colorado Supreme Court: Department of Human Services Is Not “Victim” of Child Abuse and Not Entitled to Restitution for Fulfilling its Mandated Duty

The Colorado Supreme Court issued its opinion in People v. Padilla-Lopez on June 25, 2012.

CRS § 18-1.3-602—Criminal Case Restitution—“Victim”—Aggrieved by the Wrongful Conduct of the Offender—Elements of Underlying Offense—Department of Human Services.

The Supreme Court affirmed the court of appeals’ holding that the El Paso County Department of Human Services (DHS) is not a “victim” entitled to restitution under CRS § 18-1.3-602(4)(a). Because DHS is not “aggrieved by” the crime of child abuse, the restitution statute does not allow DHS to recover costs it has expended in the course of fulfilling its statutorily mandated duty to provide necessary care and guidance to dependent and neglected children.

Summary and full case available here.