June 17, 2019

Archives for January 10, 2011

Colorado Supreme Court: Trial Delay Attributable to Defendant when Defense Counsel’s Scheduling Conflict Disallows a New Date Within Speedy Trial Period

The Colorado Supreme Court issued its opinion in Hills v. Westminster Municipal Court on January 10, 2011.

When a trial court continues a case due to docket congestion but makes a reasonable effort to reschedule within the speedy trial period, and defense counsel’s scheduling conflict does not permit a new date within the speedy trial deadline, the resulting delay will be attributable to the defendant, and the period of delay will be excludable from time calculations for the purposes of the applicable speedy trial provision.

The supreme court affirms the court of appeal’s decision to reverse the district court’s dismissal of the charges against the defendant on the basis of the statutory requirement for speedy trial. C.M.C.R. 248(b) requires that a trial in municipal court be set within ninety days of arraignment “unless the delay is occasioned by the action or request of the defendant.” When a trial court offers a date within the speedy trial period but defense counsel declines that date because of a scheduling conflict and as a consequence the date is set beyond the speedy trial deadline, the period of delay will be excludable from the statutory speedy trial time calculations. Accordingly, we affirm the court of appeals.

Summary and full case available here.

Colorado Court of Appeals: Agreement to Pay Half of Mediator’s Fees Precluded Court from Awarding Fees as Costs

The Colorado Court of Appeals issued its opinion in Valentine v. Mountain States Mutual Casualty Company on January 6, 2011.

Costs, Fees, and Expenses.

Plaintiffs (collectively, Valentines) appealed the district court’s order awarding costs to defendant Mountain States Mutual Casualty Company (Mountain States). The order was affirmed in part, vacated in part, and reversed in part, and the case was remanded for additional findings.

The Valentines contended that the district court abused its discretion by awarding all of Mountain States’ requested costs for transcripts of discovery depositions ($27,157.98). Mountain States hired an attorney to assess the reasonableness of these costs. The Valentines submitted no rebuttal evidence. Therefore, the district court had sufficient evidence to make a reasoned decision about the reasonable necessity of the depositions and did not abuse its discretion in awarding the transcript costs.

The Valentines also contended that the district court abused its discretion by awarding all of Mountain States’ requested expert witness costs. Mountain States offered sufficient evidence to show the reasonableness and necessity of the expert witnesses’ fees and travel costs. The Court of Appeals therefore determined that the trial court did not abuse its discretion in awarding these costs.

The Valentines argued that the district court abused its discretion in awarding all of Mountain States’ requested in-house photocopying expenses ($22,991.40). Mountain States offered no evidence supporting the reasonableness or necessity of making such a large number of photocopies in-house, and there was evidence that outside vendors charged Mountain States 5.5¢ per page, on average. The Court ruled here that the district court abused its discretion in awarding the full in-house photocopying expenses, and that portion of its award was reversed.

The Valentines contended that the district court abused its discretion in awarding all of the costs billed by the mediator and the special master. The Court ruled that the district court abused its discretion in awarding these costs because Mountain States’ agreement to pay half of the mediator’s and special master’s fees, as well as all of the special master’s out-of-state deposition fees, precluded the court from awarding these fees as costs.

The Valentines contended that the court abused its discretion in awarding counsel’s expenses for mileage, meals, airfare, computerized research expenses, and costs for Mountain States’ payment of an outside vendor for trial technical support. Mountain States did not supply a sufficient description or calculation for the mileage charged, nor did it provide any supporting invoices or documentation. Further, costs of counsel’s meals are not awardable because they are not attributable to the litigation; counsel would need to eat regardless of any litigation. Consequently, the district court abused its discretion in awarding the mileage and meals expenses. The district court did not abuse its discretion in awarding Mountain States’ counsel’s deposition-related airfare, computerized research expenses, or the cost for an outside vendor for trial technical support, because these costs were reasonable and necessarily incurred.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on January 6, 2011, can be found here.

Colorado Court of Appeals: Party May File Foreign Judgment in Any Court that Would Have Had Jurisdiction Had Action Been Filed in Colorado

The Colorado Court of Appeals issued its opinion in L & R Exploration Venture v. Grynberg on January 6, 2011.

Foreign Judgment—Uniform Enforcement of Foreign Judgments Act—Venue—Authenticated Copy.

Appellees L & R Exploration Venture and its trustees (collectively, L & R Venture) domesticated a foreign judgment against appellant Jack Grynberg in Colorado district court under the Uniform Enforcement of Foreign Judgments Act (Uniform Act). Grynberg appealed the district court’s order denying his C.R.C.P. 60(b) motion for relief from the domesticated judgment. The order was affirmed.

Grynberg contended that the domesticated judgment is void because L & R Venture did not file the foreign judgment in the county in which he resided at the time of the filing and did not file a properly authenticated copy of the foreign judgment. The Uniform Act unambiguously allows a party to file a foreign judgment in any court that would have had jurisdiction over the underlying action had it been filed in Colorado, and does not require, as a condition of enforceability, that the county in which it is filed be a proper venue under C.R.C.P. 98. Further, Grynberg failed to establish any basis for setting aside the judgment under C.R.C.P. 60(b)(5) based on the manner in which L & R Venture sought to establish that it had filed an authenticated copy of the foreign judgment. Therefore, the district court did not abuse its discretion in denying Grynberg’s Rule 60(b)(5) motion. The district court’s order was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on January 6, 2011, can be found here.

Colorado Court of Appeals: District Possessed the Power to Condemn an Absolute Fee Interest in Land, Including Mineral, Oil, and Gas Interests

The Colorado Court of Appeals issued its opinion in Steamboat Lake Water and Sanitation District v. Halvorson on January 6, 2011.

Eminent Domain—Condemnation—Appeal—Bond—Defeasible Fee Interest—Remainder Interest—Attorney Fees.

Respondents Vance and Sharon Halvorson challenged the trial court’s order granting title to the Steamboat Lake Water and Sanitation District (District) pursuant to its eminent domain powers. The order was affirmed.

The Halvorsons owned certain real property, located within the District’s boundaries and known as Lot 78. The trial court granted title to the District pursuant to its eminent domain powers, and described the title as an absolute fee “free of all rights of reversion or reversionary interests, including but not limited to the possibility of reverter and rights of entry for conditions broken.”

The District argued that the Halvorsons’ appeal should be dismissed because they accepted the benefits of the judgment by withdrawing the $90,000 bond. A party is prohibited from both accepting the benefits of a judgment and prosecuting an appeal, but not when the adjudication of that appeal would not put in issue the party’s right to the entirety of the benefit he has accepted. Here, the withdrawal of the bond precluded the Halvorsons from challenging the title description’s failure to exclude gas, oil, and mineral interests. However, they were permitted to appeal whether the interest passed was a defeasible or absolute fee.

The Halvorsons argued that the court’s description of the title is erroneous because the District was empowered only to condemn a defeasible fee interest that excluded mineral, oil, and gas interests. The Halvorsons contended that they still own a remainder interest in their land, which consists of the mineral, oil, and gas interests, and either a reversionary interest or a right of entry for condition broken if the District ever abandons the property or attempts to sell it to a private party. The District possessed the power to condemn an absolute fee interest in land. Because the District explicitly sought, and paid for, an absolute fee interest in Lot 78, the trial court did not err in so describing the District’s title.

The Halvorsons also argued that the court erred in refusing to award attorney fees pursuant to CRS § 38-1-122. However, the District was authorized by law to acquire the property, and the Halvorsons did not prove that the award equaled or exceeded 130 percent of the condemnor’s last written offer to purchase the property or interest. The order was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on January 6, 2011, can be found here.

Colorado Court of Appeals: Codefendant Properly Invoked Fifth Amendment Privilege; Defendant’s Sixth Amendment Not Impinged Upon

The Colorado Court of Appeals issued its opinion in People v. Smith on January 6, 2011.

Conspiracy—Theft—Fifth Amendment—Sixth Amendment.

Defendant appealed a judgment of conviction based on a jury verdict finding him guilty of conspiracy to commit theft. The judgment was affirmed.

Purses were stolen from cars owned by four women while they were inside a day care center in Jefferson County. Checks and credit cards taken from these purses were used at stores to purchase merchandise without the owners’ knowledge or permission. Defendant and codefendant were arrested for these crimes.

Defendant contended that by accepting codefendant’s invocation of her Fifth Amendment right to be free from compelled self-incrimination and then excusing her from trial, the trial court violated his Sixth Amendment right to present a defense. The right to present a defense is not absolute, and it does not include the right to compel a witness to waive his or her Fifth Amendment privilege. Therefore, if codefendant properly invoked her Fifth Amendment privilege, there was no violation of defendant’s right to present a defense. Codefendant waited until an answer to a question could potentially incriminate her, and then she declined to answer. Further, codefendant could suffer adverse legal consequences as a result of her testimony. Although she had pleaded guilty to the charges against her, she had not yet been sentenced on those charges. Therefore, codefendant properly invoked her Fifth Amendment privilege and defendant’s Sixth Amendment right to present a defense was not impinged on by the trial court’s recognition of that right.

Defendant also contended that the trial court erred by not continuing the trial until codefendant was sentenced in the Jefferson County case and, thus, she could no longer assert her Fifth Amendment privilege. The trial court’s decision to reject defendant’s request for a continuance was not manifestly arbitrary, unreasonable, or unfair. Therefore, the judgment was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on January 6, 2011, can be found here.

Tenth Circuit: Opinions, 1/7/11