July 16, 2019

Archives for November 14, 2012

Judge Marla Prudek Appointed to Fourth Judicial District Court; El Paso County Court Judgeship Now Vacant

The Honorable Marla Prudek was appointed to the Fourth Judicial District Court, effective November 9, 2012. Prior to her appointment, she had served as a County Court Judge in the Fourth Judicial District. Her appointment to the district court bench created a vacancy on the county court bench, and the Fourth Judicial District Nominating Commission will meet on Friday, November 30, 2012 to interview and select nominees for appointment to the county court bench.

To be eligible for appointment, nominees must be qualified electors in El Paso County and must be admitted to the practice of law in Colorado. Application forms are available from the ex officio chair of the nominating commission, Justice Monica Marquez, and from the Office of the District Administrator. Applications are also available on the State Judicial website.

Applications must be filed no later than 4 p.m. on November 23, 2012. Any person wishing to suggest a nominee may submit a letter to any member of the nominating commission with a copy to the ex officio chair no later than 4 p.m. on Monday, November 19, 2012.

Colorado Court of Appeals: Without Resolution of Issue of Attorney Fees, Court of Appeals Lacks Jurisdiction to Hear Appeal

The Colorado Court of Appeals issued its opinion in Hall v. American Standard Insurance Company of Wisconsin on Thursday, November 8, 2012.

Attorney Fees and Costs Are Component of Damages Before Final Judgment Enters—Final Judgment.

Defendant American Standard Insurance Company of Wisconsin (American Standard) appealed from a monetary judgment entered against it in favor of plaintiff Rose Hall. The appeal was dismissed.

The trial court entered a monetary judgment in favor of Hall and against American Standard on two claims. First, on her statutory claim under CRS §§ 10-3-1115 and -1116, the court entered judgment in the amount of $3,846.80, which was double the amount of covered benefits that the jury found American Standard had unreasonably delayed or denied payment. On her tort claim for bad-faith breach of an insurance contract, the court entered judgment for $55,478.92, after adding prejudgment interest to the jury’s finding of $40,000 in noneconomic damages. The trial court directed Hall to submit her request for attorney fees.

Hall moved for $103,998.36 in attorney fees and $26,930.95 in costs. The trial court denied post-judgment motions filed by American Standard. American Standard filed its notice of appeal in April 2012. A hearing on the attorney fees and costs was set for November 28, 2012. Because the attorney fees and costs issue had not been resolved, and it is a component of damages, the Court of Appeals issued an order to show cause why this appeal should not be dismissed for lack of a final judgment. American Standard stated that its appeal should be dismissed on this basis.

The Court first held that though three other claims were said to have been resolved by the parties (breach of contract, outrageous conduct, and American Standard’s cross-claim), because there was no signed, written order resolving these claims, final judgment had not entered and the Court lacked jurisdiction over the appeal on this basis alone. Even if the trial court were to sign a written order dismissing these claims, however, without resolution of the attorney fees and costs issue on the statutory claim, the non-finality of that claim still would cause the Court to lack jurisdiction. Accordingly, the appeal was dismissed without prejudice for lack of a final judgment.

Summary and full case available here.

Colorado Court of Appeals: Premises Liability Statute Specifically Provides Immunity to Mental Health Providers for Violent Behavior of Patients

The Colorado Court of Appeals issued its opinion in Marcellot v. Exempla, Inc. on Thursday, November 8, 2012.

Personal Injury—CRCP 12(b)(5) Dismissal—CRS § 13-21-117 Immunity.

In this personal injury action, plaintiff Melanna Marcellot appealed the judgment of dismissal in favor of defendant Exempla, Inc., doing business as Exempla West Pines (Exempla), a mental health hospital. The judgment was affirmed.

Marcellot, a psychiatric nursing educator, visited Exempla with three of her students. Before entering the Psychiatric Intensive Care Unit, she asked the nursing staff whether there were any patients who presented a safety risk to her or her students. She was told there were none. However, shortly after entering the unit, a patient assaulted her. Exempla knew that the patient presented a special risk.

Marcellot sued Exempla, alleging it had been negligent in failing to take reasonable steps to prevent the patient from harming her and in failing to provide adequate staffing. She also asserted a claim under the Premises Liability Act. Exempla moved to dismiss the general negligence claims, contending that the premises liability statute provided the exclusive remedy for Marcellot. The court granted the motion and that determination was not appealed.

Exempla then moved to dismiss the premises liability claim, asserting immunity under CRS §13-21-117. The trial court agreed and dismissed the claim. Marcellot appealed. She argued that §13-21-117 covers affirmative duties to act, but does not protect a mental health care provider from liability where incorrect information is provided in response to a direct question. The Court of Appeals disagreed. The statute specifically states that a mental health hospital “shall not be liable for damages in any civil action for failure to warn or protect any person against a mental health patient’s violent behavior,” unless there has been a specific threat against that third party. The Court found this plain language broad and all-encompassing. It precludes liability for failure to warn, as well as failure to protect any person.

The Court also rejected Marcellot’s contention that §13-21-117 does not apply to inpatients. If that were the case, the General Assembly could have so stated. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Court May Make Finding of Good Cause at Any Time, Including At Time of Entering Deferred Judgment

The Colorado Court of Appeals issued its opinion in People in the Interest of D.S. on Thursday, November 8, 2012.

Juvenile Revocation of Deferred Adjudication—One-Year Extension for Good Cause.

D.S., a juvenile, appealed the district court’s revocation of his deferred adjudication. The judgment was affirmed.

In 2009, D.S. pleaded guilty to sexual assault on a child. As part of the plea agreement, D.S. and the prosecution stipulated to a two-year deferred adjudication requiring a sex-offender treatment program and other probationary conditions. The day before the deferred adjudication expired, D.S.’s probation officer filed to revoke it. D.S. admitted to violating the conditions of his deferred adjudication, and the court revoked the adjudication and imposed a two-year sentence of probation. D.S. petitioned for review in the Colorado Supreme Court pursuant to CAR 21. The Supreme Court denied his petition and defendant filed this appeal.

Defendant argued the district court lost jurisdiction over his deferred adjudication because it did not find good cause to extend the adjudication beyond one year, as required by the juvenile deferred adjudication statute. The Court of Appeals disagreed. D.S.’s argument was that the juvenile deferred adjudication statute requires a district court to make a finding at the end of a one-year period as to whether good cause exists to continue the deferred for an additional year. The statute provides that a “court may continue the case for an additional one-year period for good cause.” D.S. admitted the plain language does not identify when the good cause determination must be made. The Court held that the plain language allows a court to make its good cause determination at any time, including at the time of entering the deferred adjudication.

D.S. contended that the district court had made no such express finding of good cause when it entered the deferred adjudication. The Court held that an express finding is not necessary; all that is required are sufficient findings on the record to permit appellate review. That standard was satisfied here. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Where Trial Court Left Issue of Restitution Open and Additional Expenses Incurred by Victim Subsequent to Original Sentence, Double Jeopardy Does Not Apply

The Colorado Court of Appeals issued its opinion in People v. Rockne on Thursday, November 8, 2012.

Supplemental Restitution—CRS § 18-1.3-603.

Pursuant to CRS § 16-12-102(1), the People appealed the district court’s order denying an award of supplemental restitution to the victim. The order was vacated and the case was remanded for further proceedings.

In 2006, defendant was arrested and charged with attempted second-degree murder, first-degree assault, sexual assault, intimidating a witness or victim, false imprisonment, and false reporting. The charges were based on allegations that defendant had severely beaten his girlfriend, causing, among other things, a ruptured bladder. Rather than taking her to the hospital, defendant left her at home and went to a bar. While he was gone, the girlfriend crawled up three flights of stairs, found her cell phone, and called a taxi to transport her to the hospital. She was rushed into emergency surgery and hospitalized for more than a week.

In 2008, in exchange for dismissal of the charges, defendant entered a plea of no contest to a count of criminal mischief and was given a deferred judgment and sentence conditioned on paying restitution. The victim claimed $78,550 in restitution for medical treatment, psychological counseling, and other associated costs. Defendant objected. In August 2008, defendant and prosecution stipulated to a restitution award of $8,810. The court did not make the order final but “left the issue open,” putting defendant “on notice that restitution could be increased in the future.”

Subsequently, defendant’s deferred judgment and sentence were revoked, his judgment of conviction was entered, and he was sentenced to six years’ probation by a second judge. At his December 2009 sentencing hearing, the subject of supplemental restitution for reconstructive surgery for the victim was raised. The prosecutor stated that no bills had been submitted and it was agreed that everything owing had been paid, though the possibility of future medical expenses had been reserved by the first judge. The second judge, responding to defense counsel, stated that there was nothing before him concerning a request for supplemental restitution.

In September 2010 and in April 2011, the People filed requests for more than $35,000 in supplemental restitution. Defendant objected, and a third judge denied the People’s request for supplemental restitution, finding it would violate the restitution statute and defendant’s double jeopardy rights.

On appeal, the People argued that (1) double jeopardy is violated only when the restitution statute does not authorize an increase in restitution; (2) the restitution statute authorizes an increase in restitution when a previous restitution order was not final; (3) contrary to the court’s finding, the December 2009 restitution order was not final; and (4) neither the prosecution nor the court knew of the additional expenses, so neither the statute nor defendant’s double jeopardy rights would be violated by an increase in the restitution obligation.

Before 2000, the law did not permit a court to modify an order of restitution once a legal sentence was imposed and the defendant began serving it. In 2000, the legislature amended the statute to give courts greater latitude in awarding restitution. The Court of Appeals agreed with the People that the ninety-day period of limitation contained in the amendments applies only to efforts to procure an initial order of restitution and not to efforts to increase a previously entered order for restitution. CRS §18-1.3-603(3) allows an increase in a previously imposed restitution order when “the final amount of restitution due has not been set by the court” and the “additional victims or additional losses [were] not known to the judge or the prosecutor at the time the order of restitution was entered.”

Defendant argued that the December 2009 restitution order was a final amount. The Court disagreed. The record clearly reflects that the final amount of restitution had not been set. The question then becomes whether the victim’s additional losses were not known to the prosecution or the court at the time of the previous order. Because the third judge made no determination of this issue, the Court remanded for such a determination. If the trial court concludes that neither it nor the prosecution knew of the victim’s losses as of the December 2009 hearing, the court should consider the People’s supplemental requests for restitution and determine them on the merits. If the court determines the victim’s losses were known to either it or the prosecution, then the supplemental requests for restitution should be denied.

Summary and full case available here.

Colorado Court of Appeals: Lot With No Residential Improvements Can Still Qualify as Residential Land for Property Taxation

The Colorado Court of Appeals issued its opinion in Fifield v. Pitkin County Board of Commissioners on Thursday, November 8, 2012.

Nonresidential Classification for Tax Purposes—CRS § 39-1-102(14.4)(a).

Petitioners James and Betsy Fifield (taxpayers) appealed from an order of the Board of Assessment Appeals (BAA) denying their petition challenging the nonresidential classification of their property for the 2008 and 2009 tax years. The order was vacated and the case was remanded for further proceedings.

In 2007, taxpayers divided their Pitkin County property into two contiguous residential lots, both of which they own. Lot 1 contains their home. Lot 2 has no buildings or structures, but has a paved road and utility line. The road is the only access to taxpayers’ home and also serves a neighboring subdivision.

The assessor classified Lot 2 as vacant land for tax years 2008 and 2009. Taxpayers petitioned the BAA to reclassify Lot 2 as residential land for those tax years. The BAA denied the petition, holding that there was no residential improvement on Lot 2 and thus it was not residential land.

The Court of Appeals held that it was error for the BAA to require that Lot 2 contain a residential improvement to qualify as residential land. CRS §39-1-102(14.4)(a) defines “residential land” as “a parcel or contiguous parcels of land under common ownership upon which residential improvements are located and that is used as a unit in conjunction with the residential improvements located thereon.” Based on this plain language, the Court concluded that residential land must contain a residential dwelling unit and be used as a unit in conjunction with the residential improvements on the residential land. Here, taxpayers’ residential land consists of those portions of Lot 1 and Lot 2 that were used as a unit in conjunction with the home on Lot 1. The case was remanded to the BAA to determine what portions of Lot 1 and Lot 2 were used as a unit in conjunction with a residential improvement for tax years 2008 and 2009, and thus were entitled to residential classification.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 11/13/12

On Tuesday, November 13, 2012, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

McBride v. Bank of America

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.