April 17, 2019

Archives for January 12, 2015

Colorado Supreme Court: Announcement Sheet, 1/12/2015

On Monday, January 12, 2015, the Colorado Supreme Court issued two published opinions.

Tulips Investments, LLC v. State of Colorado

People v. Blagg

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Court of Appeals: No Statutory Requirement for Law Enforcement to Inquire Into Immigration Status of Detainee

The Colorado Court of Appeals issued its opinion in People v. Cruz-Velasquez on Wednesday, December 31, 2014.

Exoneration From Bond Liability.

Vargas, a bonding agent, posted a $10,000 appearance bond on behalf of defendant. When defendant failed to appear at a hearing, Vargas received notice of bail forfeiture. Vargas did not request a show-cause hearing, and the court ordered the bond forfeited.

Vargas filed a “Motion Seeking Exoneration of Bond Liability” and a “Motion Seeking Reconsideration of Bond Exoneration Liability Denial, or a Hearing into the Argument.” The court summarily denied both. The motion was re-filed through counsel, and the court denied it in a written order.

The Court of Appeals reviewed the district court’s denial of bond exoneration for abuse of discretion. CRS § 16-4-117(5)(b)(III) provides that, upon failure to request a show cause hearing and thirty-five days after the entry of forfeiture, the court must enter judgment against the surety. The judgment may be vacated “if it appears that justice so requires.”

Here, the Court found no abuse of discretion. Vargas made no attempt to explain his failure to request a show-cause hearing. Surety’s arguments on appeal regarding the failure of jail personnel to determine defendant’s illegal immigration status were not supported by the record. Further, his argument that there is a requirement for jail personnel to make such an inquiry was misplaced. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: District Court Authorized to Waive Some of Drug Offender Surcharge

The Colorado Court of Appeals issued its opinion in People v. Archuleta-Ferales on Wednesday, December 31, 2014.

Drug Offender Surcharge.

Defendant pleaded guilty to conspiracy to distribute a schedule II controlled substance, a class 3 felony, in exchange for an eight-year prison sentence and the dismissal of other charges. At the providency hearing, the district court advised defendant that there would also be a mandatory $3,000 drug offender surcharge, which could not be waived. Defense counsel asked for clarification regarding the surcharge, arguing that CRS § 18-19-103(6)(a) permitted “at least some portion of [the surcharge], if not all of it,” to be waived if the court found that defendant was financially unable to pay it. The court responded that it couldn’t waive any of the surcharge if it found that defendant could pay any of it.

At sentencing, defense counsel asked the court to waive all but $480 of the surcharge based on defendant’s testimony that she would earn only $4.99 per month while in prison. The court rejected the request.

On appeal, the Court of Appeals held that the district court misconstrued its authority under CRS § 18-19-103(6). The plain language of the statute affords district courts the authority to waive any portion of the otherwise mandatory surcharge that it finds the offender is financially unable to pay. The portion of defendant’s sentence requiring her to pay the entire drug offender surcharge was reversed, and the case was remanded to the district court for reconsideration of defendant’s request to waive at least a portion of the surcharge.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Copyright Claims Carrying “Extra Element” Beyond Copyright Act Properly Tried in State Court

The Colorado Court of Appeals issued its opinion in Long v. Cordain on Wednesday, December 31, 2014.

Breach of Contract—Copyright Law—Breach of Fiduciary Duty—Civil Theft—Request for Accounting—Federal Law—Subject Matter Jurisdiction.

Cordain was a leading proponent of the Paleo Diet and had already published two books and several articles on the Paleo Diet before he met Long. Long and Cordain thereafter formed a company, Paleo Diet Enterprises, LLC (PDE), to commercially market the Paleo Diet. A few years later, Long and Cordain had a falling out. Cordain dissolved PDE and formed a new company, The Paleo Diet, LLC (TPD), without Long. Cordain filed a motion to dismiss, claiming that the federal courts had jurisdiction to determine the copyright claims. While this matter was pending, Long filed similar actions in federal court.

Long argued that the district court erred in dismissing his claims against Cordain for lack of subject matter jurisdiction. Generally, federal courts have exclusive jurisdiction over any claim for relief arising under any act of Congress relating to copyrights. However, if the state claim requires an “extra element” beyond those required for relief under the Copyright Act, then it is not “equivalent to” a copyright action, and the state court may hear the claim. Here, Long’s complaint advanced four state-law causes of action: breach of contract, breach of fiduciary duties, civil theft, and a request for an accounting. Long’s breach of contract claim, which alleged that Cordain violated the LLC Agreement, required proof of acts different from those required to establish a copyright infringement action. Long’s breach of fiduciary duty claim, in which he would have to prove, among other things, that Cordain breached a fiduciary duty he owed to PDE, also satisfied the extra elements test. Additionally, the civil theft claim as a whole satisfied the extra element test because it required proof of “theft, robbery, or burglary” of tangible and intellectual property. Therefore, these claims contained an extra element that distinguished them from a claim arising under copyright law. Because these claims did not seek a remedy expressly granted by the Copyright Act, and did not require construction of the Act, they did not arise under federal copyright law, and the district court erred by dismissing them. Finally, Long’s request for accounting did not involve federal law at all, and the court erred by dismissing this claim, as well. The orders were vacated in part and dismissed in part, and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Testimony of Treating Physician About Preexisting Condition Properly Admitted in Personal Injury Case

The Colorado Court of Appeals issued its opinion in Gonzales v. Windlan on Wednesday, December 31, 2014.

Personal Injuries—Expert Testimony—Non-retained Expert—Noneconomic Damages—Costs—Prevailing Party.

This case arose from a car accident in which Windlan drove through an intersection without the right-of-way and struck a car driven by Gonzales. The jury found Windlan 60% at fault and Gonzales 40% at fault for the accident. The trial court found Windlan to be the prevailing party and awarded costs to her in the amount of $15,637.77.

On appeal, Gonzales contended that the trial court abused its discretion in admitting Dr. Sayed’s expert testimony about a radiologist’s MRI report from October 2009. Dr. Sayed was Gonzales’s primary care physician, treated Gonzales after the accident, reviewed the MRI report from another specialist at the time, and opined that the MRI report showed a degenerative condition that was probably present before Gonzales’s accident and did not indicate an acute injury as claimed by Gonzales. Although he was not a radiologist, Dr. Sayed had the knowledge and experience to testify about MRI reports because he regularly reviewed and relied on them in the course of his medical practice. Therefore, Dr. Sayed was qualified to give expert testimony about the 2009 MRI report, and such testimony was properly admitted as non-retained expert testimony.

Gonzales also contended that the jury award of zero noneconomic damages was contrary to the evidence and inconsistent with the jury award of $640 for economic damages. There was ample evidence, however, to support the jury’s finding that Gonzales’s injuries were minor and did not result in compensable noneconomic damages.

Gonzales also contended that the trial court abused its discretion in finding that Windlan was the prevailing party and granting Windlan’s motion for costs under CRCP 54(d). The jury’s verdict generally aligned with Windlan’s position on each contested issue. It found Gonzales 40% at fault for the accident (Gonzales claimed that Windlan was fully at fault); awarded damages in an amount equal to an amount billed by the doctor who diagnosed Gonzales with a temporary muscle strain (Gonzales sought $212,000 in economic damages); and awarded no damages for noneconomic losses or physical impairment (Gonzales’s counsel requested noneconomic damages between $25,000 and $2 million). Therefore, the trial court did not abuse its discretion in finding Windlan to be the prevailing party and awarding costs to Windlan. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 1/9/2015

On Friday, January 9, 2015, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Carter v. Colvin

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