August 21, 2019

Archives for July 1, 2013

Colorado Supreme Court: Announcement Sheet, 7/1/13

Colorado Court of Appeals: District Court Lacked Subject Matter Jurisdiction in Paternity Action Because Each Presumed and Natural Father Not Given Notice

The Colorado Court of Appeals issued its opinion in In re the Support of E.K., and Concerning the People on Thursday, June 20, 2013.

Paternity—Subject Matter Jurisdiction—Parties—Notice.

In this paternity action, P.W.K. (obligor) appealed the district court’s judgment adopting a magistrate’s order that established his paternity of three children, E.K., J.K., and P.K. The judgment was vacated and the case was remanded with directions.

Obligor did not dispute that he was P.K.’s biological parent. Genetic-testing results excluded obligor as the biological parent of E.K. and J.K. Mother identified by name the separate biological fathers for E.K. and J.K., and she testified that each biological father had met his respective child. The magistrate adjudicated obligor the parent of the three children, incorrectly stating in her written order that obligor had admitted that he was their parent, and ordered him to pay child support and the costs of genetic testing.

The Court of Appeals considered on its own motion whether the district court lacked subject matter jurisdiction in this matter. A district court lacks jurisdiction to resolve matters in a paternity action unless each man presumed to be the children’s father and each man alleged to be the children’s natural father are made parties to or given notice of the action. Because the alleged biological fathers of E.K. and J.K. were not made parties to or given notice of this paternity action, the judgment was vacated for lack of subject matter jurisdiction. The case was remanded to the district court for further proceedings in compliance with the Uniform Parentage Act.

Summary and full case available here.

Colorado Court of Appeals: Juvenile Offender’s Sentence Not Functional Equivalent of Life Without Possibility of Parole

The Colorado Court of Appeals issued its opinion in People v. Lehmkuhl on Thursday, June 20, 2013.

Juvenile Prosecuted as Adult—Sentence—Cruel and Unusual Punishment—Constitutional—Eight Amendment—Parole—Mitigating Factors.

Defendant Jordan Lehmkuhl appealed the district court’s order denying his Crim.P. 35(c) motion challenging, on cruel and unusual punishment grounds, the constitutionality of sentences he received in connection with acts committed while he was a juvenile. The order was affirmed.

In October 2001, Lehmkuhl, who was then 17 years old, broke into a house where three high school girls were staying. While brandishing a gun, he bound the girls’ hands with duct tape, put a blanket over their heads, and rummaged around the house. He then took one of the girls out of the house, placed her in the trunk of a car, and, after driving the car for some distance, sexually assaulted her in the backseat of the car. Lehmkuhl was prosecuted as an adult, convicted, and sentenced to consecutive terms totaling seventy-six years to life imprisonment.

On appeal, Lehmkuhl contended that his sentence constituted unconstitutional cruel and unusual punishment because it does not provide him with a meaningful opportunity of being paroled within his lifetime. The Eighth Amendment categorically prohibits sentencing a juvenile convicted of a non-homicide crime to life imprisonment without the possibility of parole. Here, the record indicates that Lehmkuhl will become eligible for parole in 2050, when he is 67 years old. Pursuant to CRS § 13-25-103’s mortality table, Lehmkuhl’s life expectancy is 78.2 years. Therefore, Lehmkuhl would have a meaningful opportunity for release during his natural lifetime because his life expectancy exceeds his date of parole eligibility. Accordingly, Lehmkuhl’s sentence was not a de facto life without parole sentence.

Lehmkuhl next contended that in sentencing him, the district court did not properly consider his age and other mitigating factors. The record here, however, reflects that the district court considered Lehmkuhl’s youth, as well as several other mitigating factors, including his lack of a criminal record and reputation in the community. Thus, the record shows that the court afforded Lehmkuhl the individualized sentencing determination to which he claims he was entitled.

Summary and full case available here.

Colorado Court of Appeals: Trespass Claim Could Not Be Maintained Against Defendants in Personal Injury Case

The Colorado Court of Appeals issued its opinion in Mikes v. Burnett on Thursday, June 20, 2013.


Plaintiff Daniel Mikes appealed the district court’s grant of summary judgment in favor of defendants Lyndon B. Burnett, Joe Craven, and J & V Diller Ranch, LLC. The judgment was affirmed.

In July 2010, steers owned by Burnett and J & V Diller wandered onto neighboring land owned by Lester Friend. Friend asked several individuals, including Mikes, if they would assist him in herding the steers off his property. While Mikes was attempting to separate Burnett’s steers from Friend’s cows using his four-wheel vehicle, the vehicle flipped several times, and he was injured.

On appeal, Mikes contended that the trial court erred in granting summary judgment on his trespass claims. Specifically, he argued that he could maintain a claim for trespass of the steers because he was in possession of Friend’s land when he was injured. The owner of livestock is strictly liable for damages caused when the livestock trespass on another’s land. Further, a claim for trespass may be asserted by anyone injured while in possession of that land. Mikes did not claim he constructively possessed Friend’s land, and it was undisputed that Mikes does not own the land. Further, the record did not establish that Mikes had anything more than a temporary right to enter Friend’s land to help move the steers, and there is no evidence in the record suggesting that Friend granted Mikes any right to occupy, control, or manipulate the land in any manner. Consequently, as a matter of law, he could not maintain a trespass claim against defendants.

Summary and full case available here.