June 15, 2019

Archives for August 22, 2011

Colorado Court of Appeals: Mother Found In Contempt of Joint Decisions Order for Failing to Confer with Father on Non-Emergency CAT Scan of Child

The Colorado Court of Appeals issued its opinion in In re the Marriage of Webb and Christiansen on August 18, 2011.

Dissolution of Marriage—Shared Decision-Making—Evidence—Contempt—Remedial—Punitive—Attorney Fees.

In this post-dissolution of marriage proceeding, Dana Christiansen (mother) appealed the finding of contempt and award of attorney fees in favor of Craig Webb (father).

The court’s 2007 order provided for shared decision-making on all major health decisions, including “joint decisions with regard to non-routine health issues.” It also required the parties to notify and consult each other, if possible, for medical emergencies. The court found mother in remedial contempt for failing to confer with father on a non-emergency CAT scan of the child and required her to pay father’s attorney fees incurred in the contempt proceeding. However, the court “was unable to find punitive contempt.”

Mother argued that there was insufficient evidence to find her in contempt. However, the record supports the court’s findings that the CAT scan was not an emergency, and that mother failed to adequately contact father prior to the medical care. Accordingly, the court did not err in holding mother in contempt for violating the 2007 order.

Mother also argued that because she was unable to purge the contempt, she should not have been ordered to pay father’s attorney fees. Attorney fees can be awarded only as a component of remedial sanctions. Such a sanction is “imposed to force compliance with a lawful order or to compel performance of an act within the person’s power or present ability to perform.” Thus, when the court imposes a remedial contempt sanction, it must do so in writing or on the record, and must describe the means by which the person may purge the contempt. Therefore, where the contemnor commits a one-time violation, incapable of being purged, attorney fees may not be assessed as a remedial sanction. Here, no remedial sanction was or could have been imposed. The CAT scan contempt constituted a one-time violation of the 2007 order committed more than a year before father raised the issue with the court. By that time, mother could not undo what she had done. Hence, the attorney fees award was reversed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 18, 2011, can be found here.

Colorado Court of Appeals: Reversal of Conviction Provided Appropriate Basis for Court’s Review and Grant of Forfeiture Judgment

The Colorado Court of Appeals issued its opinion in People v. $11,200.00 US Currency on August 18, 2011.

Forfeiture Judgment—Unconstitutional Seizure—Jurisdiction—C.R.C.P. 60(b)(4)—Conviction—Reversal.

In this civil proceeding concerning forfeiture of $11,200 from defendant Bradley Strand, the People appealed the trial court’s order granting relief from the forfeiture judgment to Strand under C.R.C.P. 60(b) and CRS § 16-13-307(1.6). The order was affirmed.

Strand’s conviction of drug charges in a related case was reversed on appeal because a division of the Court of Appeals concluded that the evidence against him, including the currency in issue here, was seized as a result of an unconstitutional search. Strand filed a motion in this action for relief from the forfeiture judgment under C.R.C.P. 60(b), in which he sought return of the forfeited property, which was granted by the trial court.

The People contended that the trial court lacked jurisdiction or authority to consider Strand’s motion for relief from the forfeiture judgment. The Court disagreed. The trial court did not abuse its discretion in finding that Strand had filed his motion, which was filed within three months after dismissal of the criminal case against him, within a reasonable time. Additionally, the reversal of Strand’s conviction was relevant because the trial court relied on that conviction in its forfeiture judgment. Moreover, the exclusionary rule applies to civil forfeiture proceedings. Therefore, it was clearly relevant that the physical evidence on which the trial court had based its forfeiture judgment had been determined to be unconstitutionally seized. Because the forfeiture judgment was based, at least in part, on Strand’s conviction, the reversal of that conviction provided a basis under C.R.C.P. 60(b)(4) for the court to consider and grant Strand’s motion for relief from the forfeiture judgment.

The Court also rejected the People’s argument that the trial court lacked authority to order return of the forfeited currency to Strand. The trial court had authority to order return of the currency under CRS § 16-13-307(1.6), which provides no basis for treating seized property differently once it has been distributed. Further, Strand was entitled to a remedy, especially where the property at issue is fungible.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 18, 2011, can be found here.

Colorado Court of Appeals: Employee Terminated after Marijuana Test May Be Denied Unemployment Benefits Even If Possessed Lawfully and Used Medically

The Colorado Court of Appeals issued its opinion in Beinor v. Industrial Claim Appeals Office on August 18, 2011.

Unemployment Compensation Benefits—Medical Marijuana—Zero-Tolerance Policy—Colo. Const., art. XVIII, § 14.

Petitioner Beinor appealed the final order of the Industrial Claim Appeals Office (Panel) disqualifying him from unemployment compensation benefits. The order was affirmed.

Petitioner contended that he was entitled to benefits because he legally obtained and used marijuana for a medically documented purpose and consequently had a right to consume the drug. This case raises a question of first impression: whether an employee terminated for testing positive for marijuana in violation of an employer’s zero-tolerance drug policy may be denied unemployment compensation benefits even if the worker’s use of marijuana is “medical use” as defined in Colo. Const., art. XVIII, § 14.

The medical use of marijuana by an employee holding a registry card under Colo. Const., art. XVIII, § 14 is not pursuant to a prescription, and therefore does not constitute the use of “medically prescribed controlled substances” within the meaning of CRS § 8-73-108(5)(e)(IX.5). Accordingly, although the medical certification permitting the possession and use of marijuana may insulate claimant from state criminal prosecution, it does not preclude him from being denied unemployment benefits based on a separation from employment for testing positive for marijuana in violation of an employer’s express zero-tolerance drug policy.

Petitioner also contended that the evidence did not establish that he violated employer’s policy, which required claimant to notify employer of his use of marijuana if he was operating any machinery or driving any vehicles for employer, which he was not. Employer’s separate zero-tolerance policy, however, prohibited the presence of any “illegal drugs” in claimant’s system during working hours, regardless of whether he was operating any machinery or driving any vehicles for employer. Although Colorado’s medical marijuana provision may protect claimant from prosecution under Colorado’s criminal laws, the amendment has no bearing on federal laws, under which marijuana remains an illegal substance. Because there was substantial evidence that petitioner had a controlled substance in his system that was not medically prescribed, the Panel did not err in finding that he was not entitled to unemployment benefits.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 18, 2011, can be found here.

Colorado Court of Appeals: Second Complaint Alleging Employment Discrimination Properly Dismissed Because it Was Not Timely Filed and Does Not Constitute an Amended Pleading Relating Back to First Complaint

The Colorado Court of Appeals issued its opinion in Kelso v. Rickenbaugh Cadillac Co. on August 18, 2011.

Employment—Title VII—Right to Sue Notice—Complaint—Appeal—C.R.C.P. 15(c)—Independent Equitable Action.

Plaintiff Michael Kelso appealed the trial court’s order granting Rickenbaugh Cadillac Co.’s (Rickenbaugh) motion to dismiss with prejudice. The order was affirmed.

On July 9, 2008, the Equal Employment Opportunity Commission issued Kelso a right-to-sue notice based on alleged Title VII violations by Rickenbaugh, his former employer. Kelso then sued Rickenbaugh over his termination on September 15, 2008 (first case). Kelso failed to set the matter for trial as directed by the court, and the district court dismissed the case without prejudice on February 17, 2009. Kelso did not appeal. On October 20, 2009, Kelso moved to reinstate the case, which was denied by the court. Kelso filed a new complaint against Rickenbaugh on March 15, 2010 (second case), advancing the same allegations as in the first case. The district court granted Rickenbaugh’s motion to dismiss the second case with prejudice.

Kelso largely relied on errors he alleged the trial court made in dismissing the first case. Even if the trial court erred, because Kelso did not timely appeal the first case, the Court of Appeals lacked jurisdiction to consider those contentions.

Kelso also contended that the second case, which contained the same allegations as the first case, was timely filed because the complaint related back to the September 18, 2008 complaint filed in the first case. However, C.R.C.P. 15(c) applies only to the amendment of a pleading in an ongoing action and not to the filing of a new complaint in a new case. Therefore, the second complaint did not constitute an amended pleading that related back to the first complaint. The second complaint was itself an original complaint, and Kelso cannot avail himself of the relation-back doctrine. Thus, the second complaint was not timely filed, and the trial court properly dismissed it.

Kelso further contended that the second complaint should be construed as an independent equitable action seeking relief from the order dismissing his first complaint. A party may not use an independent equitable action to accomplish what he or she could have accomplished by appeal. Because Kelso did not avail himself of the appellate process in the first case, the district court properly dismissed the second case.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 18, 2011, can be found here.

Colorado Court of Appeals: Civil Conspiracy Claim Dismissed Because Complaint Did Not Allege Facts Supporting Underlying CUFTA and Fraudulent Concealment Claims

The Colorado Court of Appeals issued its opinion in Vickery v. Evelyn V. Trumble Living Trust on August 18, 2011.

Trust Instrument—C.R.C.P. 12(b)(1)—Colorado Uniform Fraudulent Transfer Act—Fraudulent Concealment—Civil Conspiracy.

Plaintiff Monica David Vickery appealed the district court’s dismissal of her claims against defendants, the Evelyn V. Trumble Living Trust, Kerry Vickery (individually and as trustee of the trust), and Merry Gayle Vickery, as well as its denial of plaintiff’s motion for post-judgment relief. Both orders were affirmed.

This is the third case involving the Vickerys. Evelyn was the mother of Donald, who was married to Monica, and Merry Gayle, who is Kerry’s mother. Evelyn created her revocable trust, designating herself as settlor, trustee, and beneficiary, and Merry Gayle as the successor trustee and sole beneficiary on Evelyn’s death.

In the second case, Monica sued Evelyn and Merry Gayle for malicious prosecution and defamation. After the jury returned its verdict but before judgment was entered in the second case, Evelyn amended the trust instrument, designating her granddaughter, Kerry, as the successor trustee and sole beneficiary on Evelyn’s death. The court entered judgment for Monica, and Evelyn appealed. Evelyn and Monica entered into an agreement to resolve the second case, but Monica was not made aware of the amended trust. Evelyn died the following month.

Defendants argued that because their motions to dismiss were brought under both C.R.C.P. 12(b)(1) and 12(b)(5), the district court’s use of that language indicated that it intended to dismiss for lack of standing and subject matter jurisdiction. Monica was a judgment creditor of both Merry Gayle and Evelyn at the time of the alleged fraudulent transfer. As a judgment creditor of those defendants, and because she alleged an injury in fact as a result of the actions of defendants, the allegations in the complaint were sufficient to meet the test for standing.

Monica contended that the district court erred by concluding that she failed to state a claim in her complaint. The question is whether the amendment of a revocable trust to change the contingent beneficiary from a judgment debtor to the debtor’s daughter constitutes a violation of the Colorado Uniform Fraudulent Transfer Act (CUFTA). Monica’s argument that she had asserted a valid fraudulent transfer claim against Merry Gayle failed because Evelyn, not Merry Gayle, amended the trust instrument. Additionally, the complaint did not allege that Evelyn’s amending the trust instrument hindered or delayed Monica’s ability to collect what Evelyn owed her. Therefore, the complaint failed to state a CUFTA claim against Evelyn or Merry Gayle. Further, the complaint did not allege that the trust itself made any transfer violating CUFTA. Because Monica’s claim against Evelyn failed, Monica likewise failed to state a CUFTA claim against the trust or Kerry. Thus, the trial court properly dismissed the CUFTA claim.

Additionally, Merry Gayle was not a party to the settlement agreement, which pertained only to Monica’s judgment against Evelyn. The complaint does not allege a fiduciary relationship between Kerry and Monica, and neither Kerry nor the trust is alleged to have made any affirmative representations about the assets of the trust during the settlement negotiations or at any other time. Therefore, Merry Gayle and Kerry did not have any duty to disclose that the trust instrument had been amended before Monica accepted the settlement offer. Accordingly, the district court properly dismissed Monica’s fraudulent concealment claim.

It follows that because the complaint did not allege facts supporting the underlying CUFTA and fraudulent concealment claims, or any other unlawful acts, the district court properly dismissed Monica’s claim for civil conspiracy. The order was affirmed and the case was remanded to determine the amount of fees to be awarded to defendants based on the order of dismissal and defendants’ reasonable attorney fees on appeal.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 18, 2011, can be found here.

Colorado Court of Appeals: CORA Investigatory Files Exemption Does Not Protect Board of Real Estate Appraisers’ Disciplinary and Investigatory Files and Records

The Colorado Court of Appeals issued its opinion in Land Owners United, LLC v. Waters on August 18, 2011.

Colorado Open Records Act—Investigatory Files Exemption—Deliberative Process Privilege—Confidential Information Exemption.

Defendants Marcia Waters, director of the Colorado Division of Real Estate, and the Colorado Board of Real Estate Appraisers (collectively, the Board) appealed from the district court order requiring disclosure of certain records under the Colorado Open Records Act (CORA). The order was affirmed.

Land Owners United, LLC (Land Owners) made a series of CORA requests seeking records pertaining to the proceedings involving two appraisers, Milenksi and Stroh, who were both disciplined by the Board. It also sought information relating to the Board’s investigation into allegations of abuse of Colorado’s conservation easement program.

On appeal, the Board contended that the district court erred by (1) holding that the investigatory files exemption, the deliberative process privilege, and the confidential information exemption did not justify withholding disclosure of the records; (2) ordering redaction of specified information; and (3) awarding attorney fees to Land Owners. CORA allows access to all public records not specifically exempted by law. The CORA exemption for investigatory files applies only to those investigatory files compiled for criminal law enforcement purposes. Accordingly, the investigatory files exemption of CORA does not protect the records sought in this case.

A key question in determining whether the deliberative process privilege applies is whether disclosure of the material would expose an agency’s decision-making process in such a way as to discourage discussion within the agency and thereby undermine its ability to perform its functions. Here, the district court did not abuse its discretion when it rejected the Board’s assertion of the deliberative process privilege in recognizing the potential effect the discipline of appraisers could have on Land Owners and finding that the public interest outweighed the deliberative process of the Board. Finally, the records at issue here do not fall within the definition of confidential records, which includes “trade secrets, privileged information, and confidential commercial, financial, geological, or geophysical data . . . furnished by or obtained from any person.” The court’s order to redact certain confidential information further protected the Board’s interests in this matter.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 18, 2011, can be found here.

Colorado Court of Appeals: Garnishment of Unearned Law Firm Retainer Allowed Because Unearned Portion Belongs to the Client, Not the Lawyer

The Colorado Court of Appeals issued its opinion in In re the Marriage of Rubio, and Concerning The Marrison Law Firm on August 18, 2011.

Retainer—Trust Account—Writ of Garnishment—Subject Matter Jurisdiction—Standing—Disqualification.

The Marrison Law Firm appealed an order issued in a post-dissolution of marriage case. The order was affirmed in part and reversed in part.

Louise Rubio (wife) gave a retainer to The Marrison Law Firm to secure its services in a case against Frank Rubio (husband). A few weeks later, husband served a writ of garnishment on the firm, seeking the unearned portion of the retainer to satisfy a judgment that he had obtained against wife. As part of its final order, the district court released the retainer to husband and disqualified the firm.

Husband first asserted that the Court of Appeals lacked subject matter jurisdiction over this appeal. Here, a timely petition for review was filed and decided. Therefore, the Court had subject matter jurisdiction to decide this appeal.

Husband also argued that the firm lacked standing to appeal either the garnishment or the disqualification. The firm was aggrieved by the order permitting garnishment of wife’s retainer, the order directly imposed an obligation on the firm, and this obligation was contrary to the firm’s interests both as a business entity and as a fiduciary for its client. Therefore, the firm had standing to appeal the order.

The firm contended that the court erred in allowing husband to garnish the unearned portion of wife’s retainer. A judgment creditor is not prevented by statute or rule from garnishing funds held in a lawyer’s trust account. Because unearned retainers belong to the client, not the lawyer, they fall within the broad category of property that is subject to garnishment. Therefore, the court did not err in allowing the garnishment.

The firm also argued that it was erroneously required to withdraw from the case. The firm and wife were aligned in resisting husband’s attempt to garnish the unearned retainer. Therefore, because there was no actual conflict and wife waived any potential conflict, the firm’s disqualification was reversed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 18, 2011, can be found here.

Colorado Court of Appeals: In Premises Liability Case, the Court Appropriately Rejected Insurance Evidence, Proposed Jury Instructions, Expert Witness, and Models

The Colorado Court of Appeals issued its opinion in Lombard v. Colorado Outdoor Education Center, Inc. on August 18, 2011.

Premises Liability—Jury Instructions—Evidence—Mistrial—Insurance Coverage—Expert Witness Fees—Copy Costs.

In this premises liability action, plaintiffs Turene Lombard (invitee) and Pueblo School District #60 (school district) appealed from the judgment entered on a jury verdict and the order awarding costs in favor of defendants Colorado Outdoor Education Center, Inc. and Sanborn Western Camps, Inc. (owners).The judgment was affirmed, and the order awarding costs was affirmed in part and vacated in part.

In February 2000, at the request of the school district, invitee, who was a teacher employed by the district, attended an overnight training session at a conference facility and resort owned and operated by owners. Invitee was injured when she fell from a ladder inside her unit while coming down from the unit’s loft area.

Invitee argued initially that the trial court erred in failing to deliver additional instructions to the jury. Two of the proposed instructions by their terms were contrary to law, which provides that violation of a statute or ordinance may be considered merely as “evidence of a failure to exercise reasonable care.” The jury otherwise was adequately and correctly instructed as to the other proposed instruction. Therefore, the trial court did not err in rejecting the proposed instructions.

Invitee next contended that the trial court erred in denying admission of a set of plans for the construction of additional units showing the loft was to be converted to a storage area. The trial court did not abuse its discretion in denying admission of the plans, because this evidence was irrelevant and capable of misleading the jury and confusing the issues.

Invitee also contended that the trial court erred in prohibiting her third endorsed expert witness from testifying on the building code. However, invitee did not demonstrate that this expert’s testimony added anything substantive to the evidence. Because the testimony was cumulative, the trial court did not abuse its discretion in disallowing invitee’s third expert witness.

Invitee next argued that the trial court erred in permitting owners to show to the jury a video recording of a person climbing up and down the ladder to one of the lofts. Whether to allow the use of models or other materials for the purpose of demonstration is a matter within the discretion of the trial court. Therefore, the trial court did not abuse its discretion in admitting the video after the court reviewed it.

Invitee further argued that the trial court erred in denying her motion for a mistrial after owners’ counsel implied during his examination of witnesses and in closing argument that any money judgment would be paid by owners, when, in fact, owners were well insured. Evidence that a party did, or did not, carry liability insurance, is not admissible. Because invitee was not prejudiced by any of the comments, the trial court did not abuse its discretion in denying the motion for a mistrial.

Invitee argued that the award of costs for expert witness fees for witnesses who were not called at trial was error. The trial court did not abuse its discretion to award the costs of experts who were not called to testify when those experts contributed to the cross-examination of invitee’s experts.

Invitee argued that the trial court erred in awarding owners’ costs for copying owners’ client file after the discharge of owners’ first counsel. An attorney is obligated, on termination of the representation, to take reasonable steps to protect the client’s interests, including surrendering the client’s papers and property. Because owners agreed to pay that which they had no other obligation to pay, the order of the trial court awarding the cost of photocopying owners’ client file was vacated.

The school district contended that the trial court erred in awarding costs against it because it is a political subdivision of the state of Colorado and is exempt from an award of costs by C.R.C.P. 54(d). The Court agreed. The judgment was affirmed, and the orders awarding costs for copying owners’ client file on a change of counsel and awarding costs against the school district were vacated. The cost order otherwise was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 18, 2011, can be found here.

Colorado Court of Appeals: Employees of State Public Defender’s Office Are Public Employees under the Colorado Governmental Immunity Act

The Colorado Court of Appeals issued its opinion in Wallin v. McCabe on August 18, 2011.

Malpractice—Notice of Claim—Colorado Governmental Immunity Act—CRS § 24-10-109—Public Employees—Public Defender—Subject Matter Jurisdiction—Attorney Fees—C.R.C.P. 12(b)(1).

Plaintiff Oloyea Wallin appealed the trial court’s judgment dismissing his complaint and awarding attorney fees in favor of defendants, deputy state public defenders Janene McCabe and Sean McDermott. The judgment was affirmed.

Following his conviction in January 2004 of second-degree assault, Wallin filed a complaint in April 2008, alleging that his trial counsel, McCabe and McDermott, committed malpractice and negligence while representing him. The trial court dismissed Wallin’s complaint and entered judgment for attorney fees in favor of McCabe and McDermott.

Wallin contended that the trial court erred when it dismissed his complaint for failure to file a notice of claim pursuant to CRS § 24-10-109(1). Employees of the state public defender’s office are employees of a public entity and, therefore, are “public employees” under the Colorado Governmental Immunity Act. Because Wallin did not file a notice of claim pursuant to § 24-10-109(1), the trial court lacked subject matter jurisdiction to hear the case. Accordingly, the trial court did not err when it dismissed Wallin’s complaint for failure to file a notice of claim pursuant to § 24-10-109(1).

Wallin also contended that the trial court erred when it dismissed his claim for a declaratory judgment. Because Wallin’s complaint did not allege a claim arising under any contract, statute, or other written instrument, the trial court properly ruled that declaratory relief was unavailable.

Wallin further contended that the trial court abused its discretion when it awarded attorney fees to McCabe and McDermott, because they did not incur any attorney fees and because the state public defenders are not state employees and did not receive “automatic representation by the attorney general.” The trial court had dismissed Wallin’s tort claims brought against McCabe and McDermott pursuant to C.R.C.P. 12(b)(1) on the ground that the claims were barred by governmental immunity. Because the trial court properly dismissed Wallin’s complaint pursuant to C.R.C.P. 12(b), it did not abuse its discretion in awarding attorney fees to McCabe and McDermott.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 18, 2011, can be found here.

Colorado Court of Appeals: Award of Attorney Fees Appropriate for Tort Claim Dismissed under C.R.C.P. 12

The Colorado Court of Appeals issued its opinion in Crow, M.D. v. Penrose-St. Francis Healthcare System on August 18, 2011.

Attorney Fees—CRS § 13-17-201—C.R.C.P. 12(b)(1).

Plaintiff Jimmie Crow, MD appealed from the district court’s order awarding attorney fees to defendant Penrose-St. Francis Healthcare System (Penrose). The order was affirmed.

The controversy between the parties commenced in 2004 when Dr. Crow performed surgery on a patient who died shortly thereafter. Penrose initiated a peer review proceeding. Before it was completed, Dr. Crow commenced this action in which he asserted claims against Penrose. Dr. Crow’s complaint was dismissed for failure to exhaust administrative remedies and Penrose was awarded attorney fees under CRS § 13-17-201.

Dr. Crow asserted that CRS § 13-17-201 does not authorize an award of fees in this action and, even if authorized, the award was unreasonable under the circumstances. CRS § 13-17-201 provides that an award of attorney fees is mandatory when a trial court dismisses a tort action under C.R.C.P. 12(b). The statute is applicable not only to “baseless” tort claims that are dismissed under C.R.C.P. 12(b)(5), but also to any tort claim dismissed under the auspices of any provision of C.R.C.P. 12. Because Dr. Crow’s complaint, which contained contract and tort claims, was dismissed pursuant to C.R.C.P. 12(b)(1), Penrose was entitled to an award of its attorney fees. Further, Penrose met its prima facie burden of establishing reasonableness of its fees by providing detailed billing records, an affidavit from its counsel, and other supporting documentation, which evidence was not rebutted by Dr. Crow. Accordingly, the district court did not abuse its discretion in determining that the fees requested by Penrose were reasonable.

Dr. Crow further argued that, because the district court considered evidentiary materials submitted by Penrose that were not contained in the initial complaint, the court improperly treated the Rule 12(b)(1) motion as one for summary judgment. It is only in the case of a C.R.C.P. 12(b)(5) motion that, if “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.” Here, Penrose’s motion and the court’s ultimate judgment invoked only C.R.C.P. 12(b)(1). Therefore, the statutory exception for motions treated as motions for summary judgment was not applicable. The order was affirmed and the case was remanded for a determination of reasonable attorney fees to be awarded to Penrose for this appeal.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 18, 2011, can be found here.

Colorado Court of Appeals: Other Alleged Sexual Assaults Not Sufficiently Similar to Show Common Plan and Evidence Should Not Have Been Admitted

The Colorado Court of Appeals issued its opinion in People v. Jones on August 18, 2011.

Sexual Assault—C.R.E. 404(b)—Other Acts Evidence—Sixth Amendment—Right of Confrontation—Hearsay—Non-testimonial.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of sexual assault and unlawful sexual contact. The judgment was reversed and the case was remanded for a new trial.

Defendant contended that the district court erred by admitting evidence under C.R.E. 404(b) that he had allegedly sexually assaulted I.B. and K.U., because those incidents were insufficiently similar to his alleged assault of J.R., the alleged victim in this case. There were significant dissimilarities between the alleged assaults on I.B. and K.U. and the alleged assault on J.R. regarding the location of the attacks, the number of assailants involved, the amount of clothing taken off, the severity and manner of inflicting the physical injuries, and the type of intercourse involved. Most of the similarities—that both were white females with blonde hair and were assaulted in the early morning hours after drinking—are common to many sexual assaults and not “dissimilar from the methods generally used in such an offense.” Accordingly, the two other alleged assaults were not sufficiently similar to the alleged assault of J.R. for evidence thereof to be properly admissible to show common plan, scheme, or design, or to rebut the defense of consent. The district court abused its discretion in admitting this evidence, which comprised most of the prosecution’s case, and such error was not harmless. Therefore, the judgment of conviction was reversed and the case was remanded for a new trial.

Because J.R. died and did not testify at trial, defendant contended that the district court violated his Sixth Amendment right of confrontation by admitting (1) the responding officers’ testimony about J.R.’s demeanor when they arrived at her apartment; (2) the responding officers’ testimony that they brought J.R. to the hospital to be examined for signs of a sexual assault; (3) the testimony from the emergency room doctor and sexual assault nurse about their examinations of J.R.; (4) J.R.’s statement to the triage nurse that she had been raped; and (5) J.R.’s statement to the emergency room doctor that her assailant had held her mouth closed while he assaulted her. The first three pieces of testimony—the officers’ and medical personnel’s testimony about their personal observations and actions—were not hearsay. Thus, this testimony did not implicate defendant’s right of confrontation. Further, J.R.’s statements to medical personnel that she had been raped and that her assailant had held her mouth tightly closed while he assaulted her were made for the purposes of medical diagnosis and treatment and, therefore, were non-testimonial. Accordingly, the district court properly admitted these statements.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 18, 2011, can be found here.

Colorado Court of Appeals: Judge Abused Discretion in Finding that Public Defender’s Question Constituted Contempt; Deprived Her of Due Process Rights

The Colorado Court of Appeals issued its opinion in People v. Jones, and Concerning Spector on August 18, 2011.

Direct Contempt—Bias—Evidence—Due Process—Recusal.

Sommer Spector, a deputy state public defender, appealed the district court’s orders holding her in contempt for conduct during her representation of Michael Lee Jones. The order was vacated and the case was remanded for further proceedings.

The judge held Spector in contempt for asking (or rather trying to ask) a question, only part of which she was able to articulate before the judge stopped her. The judge found that Spector had violated earlier rulings against asking the witness about statements by persons who were not available to testify. The judge deferred sentencing until after trial.

Spector contended that the trial judge’s order at trial holding her in contempt was unsupported by the record because the question at issue did not violate a court order. The trial judge ordered Spector not to ask Detective Foote about any statements by the Miami victim to Dr. Hayden (or any other unavailable witness), because any such statements were inadmissible hearsay. Spector’s question, however, did not call for hearsay. The purpose of the question apparently was to establish that the detective had not received information from anyone at the point in his investigation about which he was being questioned that an African American man had been involved in the assault. Therefore, the judge abused his discretion in finding that Spector’s partial question constituted contempt.

Spector also contended that the judge violated her right to due process by failing to give her notice of and an opportunity to respond to the other allegedly contemptuous conduct the judge cited her for at the contempt sentencing hearing. One day before the sentencing hearing, the judge gave Spector some indication that it considered her misconduct throughout the trial inappropriate and told her that she could address only the issue of sentence at the hearing. At the contempt sentencing hearing, the judge, for the first time, gave examples of other conduct at the trial that he found to be contemptuous. Because Spector was not given notice and an opportunity to respond to any allegedly contemptuous conduct, the trial judge deprived her of her due process rights.

Spector further contended that the trial judge should have recused himself from the contempt proceedings. An accused is not necessarily entitled to have the matter heard by a different judge for a charge of direct contempt that is not summarily sanctioned by the trial judge. However, the matter should be heard by a different judge when the circumstances show actual bias or the appearance of bias by the trial judge. Here, the conflicts between the trial judge and Spector happened with sufficient frequency that it appears the judge became “embroiled in a running controversy” with Spector. Given the appearance of bias, any contempt charge against Spector arising out of her representation of Jones on remand must be heard by a judge other than the trial judge.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 18, 2011, can be found here.