July 22, 2019

Archives for July 9, 2014

Appendix A of CJD 05-03 Amended to Reflect New Rates

On Tuesday, July 1, 2014, the Colorado State Judicial Branch released amended Chief Justice Directive 05-03. The changes to the Chief Justice Directive amend the rates for court reporting and recording services. CJD 05-03 was amended in May as well, to reflect current administrative practices, revise certification requirements for reporters, and address grand jury responsibilities.

Click here for CJD 05-03 and click here for all the Chief Justice Directives.


Colorado Court of Appeals: Appeal of Deported Immigrant Denied as Moot Because Probation Completed and Reentry Prohibited

The Colorado Court of Appeals issued its opinion in People v. Garcia on Thursday, July 3, 2014.

Probation Revocation—Mootness.

In 2010, Garcia pleaded guilty to criminal impersonation for providing a false name and false identification documents to police officers when they pulled him over for driving under the influence (DUI). He was sentenced to sixty months’ probation and one year in jail, on condition that he leave the United States and not reenter without inspection and a visa. Garcia’s remaining jail time was waived and he was released to the custody of Immigration and Customs Enforcement (ICE) for deportation.

One year later, Garcia returned to the United States. He was arrested for a traffic violation and charged with violating the conditions of his probation. The trial court revoked his probation after finding he had reentered the United States without a valid passport or visa. He was resentenced to one year in the custody of the Department of Corrections, with credit for 211 days served. After he completed his sentence, ICE deported him. In 2012, Garcia returned to the United States and ICE deported him again.

Garcia filed a notice of appeal of the revocation of his probation and the People filed a motion to dismiss, arguing the appeal was moot. The Court of Appeals granted the People’s motion.

The doctrine of mootness precludes the Court from reviewing a case in which its decision will have no practical effect on an actual or existing controversy. Here, the Court found that the appeal was moot because: (1) Garcia had already served his sentence; (2) he was not contesting his conviction, which could affect his admission to the United States; and (3) he is permanently barred from reentering the United States because criminal impersonation is a crime involving moral turpitude.

Garcia argued that the Court should reach the merits of the appeal even if it is otherwise moot, because it is capable of repetition without conducting a review, and this presents a matter of public importance involving recurring constitutional violations. The Court disagreed. First, there is no chance that Garcia’s probation will be revoked again because he has completed his sentence, has been deported, and is permanently barred from reentry. Second, this case does not involve a matter of public importance because the appeal only concerned the revocation of Garcia’s probation. Accordingly, the appeal was dismissed.

Summary and full case available here.

Colorado Court of Appeals: Defamatory Statements Cannot Be Proved to Assert Actual Facts Against Plaintiff

The Colorado Court of Appeals issued its opinion in Giduck v. Niblett on Thursday, July 3, 2014.

Defamation—Personal Jurisdiction—Failure to State a Claim.

Plaintiffs Giduck and his wife are Colorado residents. Giduck carried out various servicesthough a business called Archangel Group, Ltd.

Plaintiffs sued seven defendants for defamation (libel per se and libel per quod); trespass; assault; invasion of privacy; intentional interference with contract; tortuous interference with prospective business advantage; extreme and outrageous conduct; civil conspiracy; aiding and abetting tortuous conduct; preliminary and permanent injunction; and violation of the Colorado Organized Crime Control Act, based on various Internet postings by defendants. Plaintiffs claimed defendants “waged a public campaign of defamation all over” the Internet to discredit Giduck. Defendants filed separate but similar motions to dismiss, which the trial court granted.

On appeal, plaintiffs argued it was error: (1) to conclude defendants’ statements were constitutionally privileged; (2) to dismiss claims three through twelve as a sanction for improperly amending their complaint; and (3) to grant defendant Monger’s motion to dismiss for lack of personal jurisdiction. The Court of Appeals addressed the personal jurisdiction issue first, because all of defendants except Martin asserted they were not subject to the in personam jurisdiction of the Colorado District Court. The Court concluded that plaintiffs failed to establish the district court’s personal jurisdiction over the foreign defendants and therefore the dismissal as to those defendants was proper.

The Court found a failure by defendants to make a prima facie showing of specific personal jurisdiction over them. Accordingly, the dismissal of foreign defendants was affirmed.

The dismissal involving Martin was based on the district court’s conclusion that all the statements made by defendants were protected opinion. The Court affirmed this ruling. Plaintiffs alleged that Martin made two defamatory statements. The Court concluded that both statements could not be reasonably interpreted as stating actual facts about Giduck.

The Court affirmed the dismissal of claims three through twelve because plaintiffs failed to comply with its order for a more definite statement. It found nothing was added to the amended complaint that tied any defendant to any of the nine claims.

Because the district court properly dismissed the complaint against all defendants pursuant to CRCP 12(b)(2) or 12(b)(5), they were entitled to their reasonable attorney fees incurred on appeal. The judgment was affirmed and the matter was remanded for a determination of reasonable attorney fees.

Summary and full case available here.

Colorado Court of Appeals: Online Travel Companies Do Not Actually Furnish Lodging and Therefore Are Not Liable for Lodger’s Tax

The Colorado Court of Appeals issued its opinion in Expedia, Inc. v. City & County of Denver on Thursday, July 3, 2014.

Online Travel Companies’ Collection of Municipal Taxes for Hotel Accommodations.

The City and County of Denver (City) imposes a Lodger’s Tax of 10.75% on the purchase price for lodging. “Lodging” includes overnight accommodations, furnished for consideration, in a hotel or similar establishment. The tax must be collected from travelers and remitted to the City by “vendors.” The City argued that plaintiff online travel companies (OTCs) are vendors that must collect and remit the Lodger’s Tax on the fees they charge their customers, in addition to the tax on the room rate charged by the hotel.

The OTCs facilitate booking reservations on behalf of its customers. The OTC calculates the Lodger’s Tax based solely on the discounted room rate charged by the hotel, excluding the additional fees collected from the traveler and retained by the OTC. The OTC does not disclose to the customer the discounted rate the OTC pays the hotel, the amount representing the OTC’s fees, or the portion of the final price attributable to the Lodger’s Tax.

The hotel invoices the OTC for the contractual room rate and the Lodger’s Tax on that discounted rate. The hotel assumes responsibility for remitting the collected Lodger’s Tax to the City. The Lodger’s Tax remitted is based on the discounted rate charged the OTC, but the City argued it should be based on the full amount paid by the customer to the OTC.

The City began investigating the OTC’s obligations under the Lodger’s Tax in 2003. The City took no action until 2010, when it issued the assessments at issue in this case. The City’s manager of finance issued Lodger’s Tax assessments to the OTCs from 2001 through April 2010 totaling $40 million.

The parties stipulated that if they were liable for the Lodger’s Tax on their fees since 2001, they owed $4,652.522 in back taxes, not including penalties and interest. A hearing officer found that the OTCs were liable for the tax since 2001, and they owed interest and a 15% nonpayment penalty.

The district court affirmed, but found error in the hearing officer not having applied the ordinance’s three-year limitations period relevant to tax assessments. It therefore vacated the assessments to the extent they pertained to taxes payable more than three years before the date of the assessments. The OTCs appealed the portion of the order holding them liable, and the City cross-appealed the application of the statute of limitations.

The Court of Appeals held that the Lodger’s Tax did not apply to the fees charged by the OTCs for two reasons: (1) the OTCs are not vendors within the meaning of the ordinance because they do not furnish lodging, and (2) their fees are not included within the purchase price for lodging under the ordinance because the fees are not directly connected with the furnishing of lodging. The City argued that making sales of lodging is synonymous with selling lodging. The Court agreed that the OTCs are not vendors under the ordinance because they do not actually furnish lodging. It was an abuse of discretion to find otherwise.

The Court found that OTC fees are not directly connected with furnishing lodging because they are compensated only for providing travel-related information and online facilitation services. Therefore, under a provision of the Lodger’s Tax, their fees are excluded. The matter was remanded to vacate all of the tax assessments against the OTCs.

Summary and full case available here.

Colorado Court of Appeals: Prevailing Employee Presumptively Entitled to Attorney Fees Under Colorado Wage Claim Act

The Colorado Court of Appeals issued its opinion in Lester v. The Career Building Academy on Thursday, July 3, 2014.

Attorney Fees Under the Colorado Wage Claim Act.

Lester appealed a jury verdict awarding him $12,307.69 in unpaid compensation based on breach of an implied contract with defendant, The Career Building Academy (TCBA). TCBA is a Colorado nonprofit corporation that provides vocational training, with an emphasis on residential construction, to high school students.

In 2011, Lester orally agreed to work as TCBA’s chief operating officer. Rick Johnson, TCBA’s founder, promised to pay Lester an annual salary of $150,000, of which $75,000 would be paid by TCBA and $75,000 by Johnson Heating and Plumbing (JHP).

During his first six months, Lester was paid twice, totaling $7,884 in gross pay. Lester resigned and sent a wage demand to TCBA. TCBA rejected the demand, contending that Lester agreed to volunteer as chief operating officer. Lester sued TCBA and JHP, seeking unpaid wages and compensation, as well as penalties and attorney fees.

A jury determined Lester had entered into an implied contract with TCBA and returned a verdict in his favor for $12,307.69. The court dismissed Lester’s claim against JHP. Following the verdict, Lester requested that the court award him statutory penalties and attorney fees under the Colorado Wage Claim Act (CWCA). TCBA argued that the CWCA did not apply to an implied contract. After applying factors in Carruthers v. Carrier Access Corp., 251 P.3d 1199 (Colo.App. 2010), used to determine an award of attorney fees to prevailing employers, the trial court denied the request.

On appeal, Lester argued it was error to apply the Carruthers factors to a prevailing employee who is presumptively entitled to an award of attorney fees. The Court of Appeals agreed. CRS §8-4-110(1) allows a court to award costs and attorney fees to the prevailing party on a CWCA claim. Unlike a prevailing employer, a prevailing employee is presumptively entitled to attorney fees under the CWCA. The attorney fee issue was remanded for reconsideration under the correct standard by the trial court.

Lester also argued it was error for the trial court to have, sua sponte, dismissed his claims against JHP as a matter of law. The Court found no reversible error. It also determined that because JHP was neither a member of TCBA nor an individual, the alter ego doctrine could not be applied to it.

The Court held that if the trial court decides that Lester is entitled to attorney fees in the trial court, Lester also should be awarded appellate attorney fees. The denial of attorney fees under the CWCA was reversed and the case was remanded to the trial court to consider Lester’s request for attorney fees, incurred in the trial court and on appeal.

Summary and full case available here.

Colorado Court of Appeals: Automatic Reversal Still Required in Civil Case Despite Supreme Court’s Ruling in Novotny

The Colorado Court of Appeals issued its opinion in Morales-Guevara v. Koren on Thursday, July 3, 2014.

Motor Vehicle Accident Damages Calculation—Jury Selection—Automatic Reversal Rule.

At trial, defendant did not dispute that she caused a motor vehicle accident by driving while intoxicated. Damages were in dispute. Defendant challenged plaintiff’s claim that the accident was the cause of a heart attack he suffered two months later.

During voir dire, there was an exchange between plaintiff’s counsel and a prospective juror concerning whether she could properly apply the burden of proof to the issue of the causation of the heart attack. After receiving a negative response, plaintiff challenged her for cause. Neither defendant nor the court tried to rehabilitate the prospective juror. The court denied the challenge, plaintiff removed the juror using a peremptory challenge, and plaintiff then exhausted his remaining peremptory challenges.

On appeal, plaintiff raised two issues: (1) whether the trial court abused its discretion in denying plaintiff’s challenge for cause to the prospective juror and, if so, (2) whether the “automatic reversal rule” announced in the civil case of Denver City Tramway Co. v. Kennedy,50 Colo. 418, 117 P. 167 (1911), remains binding after the Supreme Court’s decision in the criminal case of People v. Novotny, 2014 CO 18, 320 P.3d 1194.

The automatic reversal rule provides that, when a trial court improvidently denies a challenge for cause to a prospective juror and then, after exercising a peremptory challenge to that juror, a litigant exhausts his or her peremptory challenges, reversal is required without a showing of prejudice. The resolution of this issue turns on whether the Supreme Court overruled Denver City Tramway and its progeny in Novotny.The Court of Appeals concluded that the trial court abused its discretion in denying the challenge for cause and the automatic reversal rule still applies in civil cases, thereby requiring reversal.

Here, the record disclosed that the prospective juror clearly stated she would be unable to follow the law. She made no affirmative assurance that she would follow the court’s instructions after expressing her unwillingness to do so. She should have been excused from the jury and it was an abuse of discretion not to do so.

The Court also discussed the case law behind the automatic reversal rule and the recent Novotny decision. It concluded that Novotny did not overrule Denver Tramway and its progeny, and that the application of the automatic reversal rule still controls in the civil context. The judgment was reversed and the case was remanded for a new trial.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 7/8/2014

On Tuesday, July 8, 2014, the Tenth Circuit Court of Appeals issued three published opinions and five unpublished opinions.

United States v. Slape

United States v. Doe

Integris Health, Inc. v. Insurance Co. of the State of Pennsylvania, Inc.

Dahlberg v. MCT Transportation, LLC

United States v. Hendrix

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.