July 19, 2019

Archives for January 22, 2013

Colorado Court of Appeals: Prosecution Not Required to Prove Aggravating Factors for Heightened Sentencing When Crime is Per Se Crime of Violence

The Colorado Court of Appeals issued its opinion in People v. Hunsaker on Thursday, January 17, 2013.

Crim.P. 35(b)—Sexual Assault on a Child—Crime of Violence—Presumptive Sentencing Range.

The People appealed the trial court’s order granting the Crim.P. 35(b) motion of defendant, who had been convicted of two sexual offenses that were subject to indeterminate sentencing under the Colorado Sex Offender Lifetime Supervision Act (Act). The order was reversed and the case was remanded with directions.

A jury convicted defendant of one count of sexual assault on a child, a class 4 felony, and one count of sexual assault on a child as part of a pattern of sexual abuse, a class 3 felony. On the first count, the trial court sentenced defendant to an indeterminate term of eight years to life imprisonment. On the second count, the trial court imposed an indeterminate sentence of sixteen years to life imprisonment. The maximum of the presumptive sentencing range for class 4 and class 3 felonies is six years and twelve years, respectively.

Although the prosecution conceded that the sentence on the first count was illegal, it contended that the post-conviction court erred by vacating defendant’s original sentence of sixteen years to life imprisonment on the conviction for sexual assault of a child as part of a pattern of abuse. Defendant argued that his original sentences were illegal, because the bottom end of each sentence improperly exceeded the maximum of the presumptive sentencing range for the respective class of felony. He contended that such bottom ends could be imposed only if the trial court expressly found that there were aggravating factors that supported a bottom end in the aggravated range. The bottom end of an indeterminate sentence for a sex offense that is also a crime of violence is intended to be imposed in the same manner and within the same strictures as a determinate sentence prescribed for any crime of violence: specifically, between the midpoint in, and twice the maximum of, the presumptive range for the applicable felony class. As a result, the prosecution is not required to prove aggravating factors before a court can impose a bottom end above the maximum of the presumptive range for the class 3 felony offense of sexual assault on a child as part of a pattern of abuse, which is a per se crime of violence.

Summary and full case available here.

Colorado Court of Appeals: Separate Property Placed in Joint Ownership During Marriage Presumed To Be Marital Property Absent Clear and Convincing Evidence to the Contrary

The Colorado Court of Appeals issued its opinion in In re Marriage of Krejci on Thursday, January 17, 2013.

Dissolution of Marriage—Property Distribution—Child Support Calculation—Third-Party Donation to Marital Property—Underemployment—Dividends as Income.

Husband appealed from the property distribution provisions of permanent orders entered in connection with dissolution of his marriage to wife, as well as from findings concerning wife’s income for purposes of calculating child support. Wife conditionally cross-appealed from the property distribution. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Husband argued that the trial court erred by classifying the marital home as wife’s separate property to the extent that her mother contributed to the equity by paying off the mortgage during the marriage. When a spouse places separate property in joint ownership during the marriage, a presumption that the donor spouse intended a gift to the marriage arises, and the gifted property is presumed marital absent clear and convincing evidence to the contrary. Here, the parties purchased the marital home jointly during their marriage, and wife’s mother paid off the mortgage several years later. After the payoff, the mother signed a trust instrument that didn’t mention husband and described all previous gifts to wife as advances on her inheritance. The trial court found the funds were part of wife’s inheritance and therefore her separate property under CRS § 14-10-113(2)(a).

The novel issue in this case is whether the marital presumption applies to a gift by a third party that increases the value of a jointly-owned asset. The Court of Appeals concluded that such a gift is presumably a gift to the marriage, and this presumption can only be rebutted by clear and convincing evidence. Because the trial court did not apply this presumption, the case was remanded.

Husband also argued it was error to classify all of wife’s Merrill Lynch investment account, including the marital increase in value, as wife’s separate property. The Court agreed. Appreciation of a spouse’s separate property during the marriage is marital property subject to equitable division under CRS § 14-10-113(1). Here, during the marriage, wife deposited her inheritance from the estates of her mother and brother into the parties’ joint investment account. Husband later agreed to remove his name from this account. When his name was removed, the value was $323,978. At the date of the hearing, it was $517,545. Wife argued that $53,653 was marital increase based on the difference between her total inheritance ($463,892) and the value at the hearing. The trial court classified the entire account as wife’s separate property, explaining that the funds derived from her inheritance. The Court held this was not supported by the record. The trial court was instructed on remand to determine the marital increase in the value of the account and distribute that increase equitably.

Wife cross-appealed, arguing that the trial court erred in determining the marital increase in value of husband’s interest in Race Place, a real estate investment company. The Court disagreed, finding that wife presented no evidence or authority as to why the trial court erred or abused its discretion.

Husband contended that the trial court abused its discretion by failing to make findings as to whether wife was voluntarily underemployed. The Court agreed. On remand, the trial court must reconsider this issue and enter findings supporting its determination.

Husband further argued that the trial court abused its discretion by failing to include in wife’s income the dividends she earns on her investments. The Court agreed. Under CRS § 14-10-115(5)(a)(I)(F), a parent’s gross income for child support purposes includes dividends. On remand, the trial court must recalculate wife’s income to include dividends in an amount to be determined by the court.

Summary and full case available here.

Colorado Court of Appeals: Land Planning Is Not a Profession that Is Held to an Independent Duty or Standard of Care

The Colorado Court of Appeals issued its opinion in Stan Clauson Associates, Inc. v. Coleman Brothers Construction, LLC on Thursday, January 17, 2013.

Summary Judgment—Negligence—Economic Loss Rule—Professional Standard of Care.

Defendants Coleman Brothers Construction, LLC and Coleman Ranch, LLC (collectively, Coleman) appealed the entry of summary judgment in favor of plaintiff Stan Clausen Associates Inc. (SCA) on their negligence counterclaims. The appeal was dismissed in part and the judgment was affirmed.

In a letter agreement dated August 21, 2006, SCA agreed to provide land planning and development services to Coleman regarding the Crown Mountain property. In early 2007, Coleman and SCA orally agreed that SCA would provide a development analysis for another property on Emma Road in Basalt. The district court concluded that the oral agreement contained the same terms as the 2006 letter agreement. This conclusion was not appealed.

In 2009, SCA sued Coleman for breach of the agreement regarding the Emma Road property. Coleman counterclaimed, alleging that SCA had negligently provided inaccurate advice about whether the Emma Road property could be subdivided and developed. The trial court granted SCA’s motion for summary judgment, concluding that the economic loss rule barred Coleman’s negligence counterclaims. The parties settled SCA’s claims against Coleman but stipulated that Coleman retained its negligence claims and could appeal the court’s dismissal.

Under the economic loss rule, “a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such breach absent an independent duty of care under tort law.” [Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256, 1264 (Colo. 2000).]Professionals are held to duties and standards of care independent of those established by contracts for their services. If a contract for professional services does not explicitly adopt the professional standard of care, fulfillment of that standard of care is a duty that is independent of the services agreement, and the economic loss rule will not bar a claim for breach of the professional duty. Coleman did not identify, and the Court could not find, a Colorado case holding a land planner to a professional standard of care.

Coleman argued that the agreement with SCA focused primarily on the financial relationship, billings, and payments, and not on SCA’s professional duty to Coleman. Therefore, Coleman contended that SCA had an independent duty to act without negligence in providing professional services. The trial court found no recognized common law duty of care owed by a land planner to anyone and found that SCA performed its tasks in good faith and to the best of its abilities.

The Court of Appeals concluded that SCA did not owe Coleman a duty independent of the agreement because land planning is not a profession that is held to an independent duty and standard of care under any Colorado statute or common law. The Court also found that the allegedly negligent actions of SCA provided a basis for a breach of contract claim and, therefore, there was no error in the trial court’s applying the economic loss rule to bar Coleman’s negligence counterclaims. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: C.R.S. § 38-38-111(2) Does Not Bar Garnishment of Excess Foreclosure Funds by Judgment Creditor

The Colorado Court of Appeals issued its opinion in TCF Equipment Finance, Inc. v. Public Trustee for the City and County of Denver on Thursday, January 17, 2013.

Writ of Garnishment by Judgment Debtor on Public Trustee Foreclosure Funds.

The Public Trustee for the City and County of Denver (Public Trustee) appealed the trial court’s order upholding a writ of garnishment served by TCF Equipment Financial, Inc. (TCF) for the purposes of collecting on a judgment against a judgment debtor, Matthew Gold, whose property had been foreclosed on by the Public Trustee. The order was affirmed.

TCF obtained a judgment against Gold that was not satisfied. TCF seized Gold’s commercial equipment, which satisfied a portion of the judgment. A month before entry of judgment, Gold’s real property was foreclosed on by the mortgaging bank. The foreclosure sale yielded substantial excess funds. The redemption period expired, and the excess funds were held in escrow by the Public Trustee. The parties agree that TCF could not have filed a notice to redeem, or attempted to participate in the foreclosure sale, because the foreclosure predated the judgment. However, TCF sought to garnish the funds held by the Public Trustee before their return to Gold.

The Public Trustee argued that, pursuant to CRS § 38-38-111(2), the Public Trustee has a legal obligation to return any excess funds to the judgment debtor after the expiration of the redemption period. The trial court disagreed, finding the garnishment was for funds remaining after the foreclosure had been completed.

On appeal, the Public Trustee argued that during a foreclosure, a judgment creditor cannot use garnishment as a means to gain priority over a judgment debtor, because the foreclosure statute clearly specifies excess proceeds are to be distributed to the judgment debtor. The Court of Appeals disagreed. CRCP 103(13) provides for the garnishment of a public body, and CRCP 103(2)(a) spells out the garnishment procedure. TCF contended it is a judgment creditor and that CRS § 38-38-111(2) is not the sole method to recover excess funds generated from a foreclosure sale. The Court agreed, holding that a judgment creditor’s garnishment claim filed after the close of the redemption period in a foreclosure sale is not barred by the foreclosure statute.

The Court found that TCF was not a junior lienor in the foreclosure proceeding. However, once the Public Trustee determined that the overbid funds were to be paid to the owner, garnishment of those funds is outside the foreclosure procedure. The garnishment statute provides a mechanism for a judgment creditor to reach the judgment debtor’s assets possessed by a third party. If the legislature had intended to prohibit garnishment actions commenced after a foreclosure sale, it could have done so. The Court found no reason to treat the Public Trustee any differently than any other entity holding funds of a judgment debtor.

Summary and full case available here.