November 18, 2017

Colorado Court of Appeals: Surety Erroneously Required to Return Part of Bond

The Colorado Court of Appeals issued its opinion in People v. Fallis on Thursday, October 19, 2017.

Bond—Refund—C.R.S. §16-4-110(1)(d).

Defendant was charged with and arrested for allegedly murdering his wife. The district court set a $500,000 bond. Defendant posted bond through Perna by paying a $25,000 premium. Thereafter, defendant cooperated with all court orders and appeared at all hearings. Fourteen months later, just before defendant’s trial was to begin, Perna moved to surrender defendant back into the custody of the court. The court granted the motion. Defendant spent several days in jail while his family secured a second bond and paid another $25,000 premium to a different surety to secure defendant’s release. Defendant was ultimately acquitted. Defendant moved for return of the premium he had paid to Perna, which the court partially granted, ordering Perna to return $11,031.25 to defendant.

On appeal, Perna contended that the district court erred by ordering that he refund a portion of the bond premium to defendant. Under C.R.S. § 16-4-110(1)(d), a court may order return of all or part of the premium defendant paid to prevent unjust enrichment only if the surrender occurred before the defendant’s initial appearance. Here, Perna surrendered defendant to the court 14 months after the court process began, well after defendant’s initial appearance. Accordingly, the court was without the authority to order Perna to refund all or part of defendant’s premium.

The order was vacated.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: No Statutory Requirement for Law Enforcement to Inquire Into Immigration Status of Detainee

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

Exoneration From Bond Liability.

Vargas, a bonding agent, posted a $10,000 appearance bond on behalf of defendant. When defendant failed to appear at a hearing, Vargas received notice of bail forfeiture. Vargas did not request a show-cause hearing, and the court ordered the bond forfeited.

Vargas filed a “Motion Seeking Exoneration of Bond Liability” and a “Motion Seeking Reconsideration of Bond Exoneration Liability Denial, or a Hearing into the Argument.” The court summarily denied both. The motion was re-filed through counsel, and the court denied it in a written order.

The Court of Appeals reviewed the district court’s denial of bond exoneration for abuse of discretion. CRS § 16-4-117(5)(b)(III) provides that, upon failure to request a show cause hearing and thirty-five days after the entry of forfeiture, the court must enter judgment against the surety. The judgment may be vacated “if it appears that justice so requires.”

Here, the Court found no abuse of discretion. Vargas made no attempt to explain his failure to request a show-cause hearing. Surety’s arguments on appeal regarding the failure of jail personnel to determine defendant’s illegal immigration status were not supported by the record. Further, his argument that there is a requirement for jail personnel to make such an inquiry was misplaced. The order was affirmed.

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

Colorado Court of Appeals: County Court’s Judgment was Final Determination of Fraud and Plaintiffs Could Recover on Surety Bond

The Colorado Court of Appeals issued its opinion in Mendoza v. Pioneer General Insurance Co. on Thursday, March 13, 2014.

Surety Bond Recovery—Declaratory Judgment—Colorado Consumer Protection Act Fraud Claim.

In March 2009, plaintiffs Mendoza and Gonzales bought an action against Fitzgerald Automotive Group, alleging a claim that Fitzgerald violated CRS § 6-1-708, a provision of the Colorado Consumer Protection Act (CCPA) that expressly prohibits motor vehicle dealers from engaging in certain specified deceptive trade practices. After a trial to a jury, the jury found in favor of plaintiffs on their CCPA claim and also found in a special interrogatory that Fitzgerald had engaged in bad-faith conduct under CRS § 6-1-113(2)(a)(III), which allows for an award of treble damages. Judgment was entered in the amount of $3,500, which was trebled. The court also awarded attorney fees of $15,475 and costs of $436.61.

Fitzgerald then ceased operations and plaintiffs were not able to recover on their judgment. They brought this action against Pioneer General Insurance Company (Pioneer), requesting a declaratory judgment that the motor vehicle dealer’s licensing bond required by CRS § 12-6-111 “is available to consumers who have been damaged by car dealers that commit deceptive trade practices . . . and that the bond is applicable to costs and attorney fees incurred by the consumer. . . .” The district court denied the motion.

On appeal, plaintiffs argued the district court erred because the county court’s judgment was a final determination of fraud or fraudulent representation that was sufficient to satisfy CRS § 12-6-111(2)(b). The Court of Appeals agreed.

Plaintiffs argued that CRS §§ 6-1-708 and 12-6-111 should be read together to accomplish their legislative purpose of providing remedies for consumer fraud. The Court held that § 6-1-708(1)(a)(I) has “at the very least, the element of an intent to deceive.” In essence, the Court found that a prohibited deceptive trade practice requires, as a matter of law, an intent to deceive, which, if found guilty of so doing, is a determination of fraud or fraudulent misrepresentation sufficient to satisfy CRS § 12-6-111(2)(b).

The Court also found that because the CCPA specifically authorizes the recovery of costs and reasonable attorney fees, plaintiffs can recover those fees and costs from Pioneer, as the surety on the bond, in addition to their actual damages of $3,500. Accordingly, the judgment denying plaintiffs’ motion for declaratory judgment was reversed and the case was remanded.

Summary and full case available here.