July 17, 2019

Archives for October 1, 2015

Colorado Court of Appeals: Zip Line at Public School Inherently Dangerous So CGIA Does Not Apply

The Colorado Court of Appeals issued its opinion in Loveland v. St. Vrain Valley School District RE-1J on Thursday, September 24, 2015.

Governmental Immunity—Recreation Area Waiver.

In 2008, 9-year-old Alexa Rae Loveland was playing in her public elementary school’s playground. While using a zip line, she fell and fractured her wrist and right forearm. Alexa and her parents filed a tort action against the school’s principal and St. Vrain Valley School District RE-1J (District).

The District moved to dismiss under CRCP 12(b)(1), asserting lack of subject matter jurisdiction because public school districts and their employees are immune from tort liability under the Colorado Governmental Immunity Act (CGIA). The Lovelands argued immunity was waived under CRS§ 24-10-106(1)(e) because the injury arose from a “dangerous condition” of a “public facility located in any park or recreation area maintained by a public entity.” The trial court granted the District’s motion, finding that playground equipment is not a public facility.

On interlocutory appeal, a division of the Court of the Appeals reversed, holding that the zip line constituted a public facility located in a recreation area. The Supreme Court granted certiorariand held that “an individual zip line apparatus on a public playground does not qualify as a ‘public facility’ under the recreation area waiver when that apparatus is divorced from the rest of the playground.” Because the trial court made no findings of fact regarding “the remaining requirements of the recreation area waiver,” however, the Supreme Court remanded the case. On remand, the District again moved to dismiss and the trial court again granted the motion.

On this second appeal, the Lovelands argued that it was error for the trial court to conclude they had not satisfied the requirement that the injury was a result of a dangerous condition that was a result of the physical condition of the public facility. The Court of Appeals agreed. The zip line was inherently dangerous and its mere presence was the physical condition of the playground, the use of which created the dangerous condition that caused Alexa’s injuries.

The trial court also found that the Lovelands had not shown that the particular zip line constituted an unreasonable risk to public health or safety. The Court held there was not enough evidence presented on this issue and, thus, it was error for the trial court to hold this was not shown as a matter of law. A hearing is therefore necessary to make factual findings on this issue.

The Court further held that the trial court properly dismissed the claims against the principal because there was no allegation that she was involved in the decision to install the zip line. Rather, the allegations went to claims of negligent supervision, which are barred by the CGIA. Because an award of attorney fees is mandatory when a trial court dismisses an action under CRCP 12(b), the principal is therefore entitled to her reasonable attorney fees on appeal as they relate to the claims against her. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

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

Colorado Court of Appeals: Real Estate Broker Properly Disciplined by Commission for Conversion of HOA Funds

The Colorado Court of Appeals issued its opinion in In re Disciplinary Action Against the Real Estate Broker’s License of Bernard McConnell v. Colorado Real Estate Commission on Thursday, September 24, 2015.

Real Estate Commission Discipline.

In 2010 and 2011, while serving as president of the Pinecliff Homeowners Association (HOA), McDonnell wrote four checks totaling $10,000 on the HOA’s account payable to himself or his business. When the treasurer discovered one of these checks, McDonnell claimed he had written the check by mistake and repaid the HOA. When the treasurer’s term ended, McDonnell took custody of the HOA’s accounting records and refused to appoint a new treasurer.

The next year, an HOA board member called for a meeting to discuss accounting issues. McDonnell declined to attend and resigned. He then deposited the remaining $8,000 he had withdrawn for non-HOA purposes into the HOA bank account.

When the HOA board discovered the checks, they reported McDonnell to the police and the Colorado Real Estate Commission (Commission). No criminal charges were filed, but the Commission opened an investigation. The Commission charged McDonnell with four violations of the Colorado Real Estate Broker License Law. McDonnell appealed the Commission’s order sanctioning him on some of those counts.

The Court of Appeals first rejected McDonnell’s contention that the Commission did not have authority to sanction him for conduct that does not involve “selling, exchanging, buying, renting or leasing” real estate. The Court cited numerous provisions that allow the Commission to sanction a broker’s improper conduct outside of the real estate context, particularly when it speaks to the broker’s honesty, dignity, or moral character.

The Court also rejected McDonnell’s argument that CRS § 12-61-113(1)(g) (providing for sanctions for failure to properly account for funds) only applies to a licensee’s conduct involving real estate matters. The plain language of the section is clearly broader and not so limited.

McDonnell argued that CRS § 13-16-113(1)(g.5) (providing for discipline for conversion of funds of others and diverting funds of others without authorization) applies only to real estate transactions and that, even if it applies, his conduct was not conversion because he always intended to return the money. The Court disagreed, again holding that the section applies to more than just real estate transactions. Moreover, the Commission’s conclusion that McDonnell took the funds from the HOA without authorization and used them was amply supported in the record.

The Court further rejected McDonnell’s argument that CRS § 12-61-113(1)(t) (providing for discipline for any other conduct that constitutes dishonest dealing) only applies in the real estate context. It also rejected his argument that his actions did not rise to the level of dishonest dealing. Although “dishonest dealing” is not defined in Colorado statute or case Law, a court can determine the meaning of an undefined phrase of common usage by ascertaining its usual and ordinary meaning. Here, McDonnell’s misrepresentations and misappropriations demonstrate the ordinary meaning of a dishonest act.

The Court agreed with McDonnell that he could not be disciplined under CRS § 12-61-113(1)(n) (providing for discipline for incompetency or endangerment to the public). The administrative rule implementing this section provides an exhaustive list of grounds for unworthiness or incompetence, none of which were done by McDonnell and none of which apply outside of the real estate context. Accordingly, the Court affirmed the Commission’s conclusions as to three of the four counts, along with the Commission’s sanctions.

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

Colorado Court of Appeals: Restitution Award Vacated Where No Evidence Defendant Proximately Caused Damage

The Colorado Court of Appeals issued its opinion in People in Interest of D.I. on Thursday, September 24, 2015.

Restitution— Unendorsed Expert Testimony.

A police officer responded to a dispatch of someone recklessly driving a car that had been reported stolen two days earlier. The sole occupant of the car, D.I., was arrested. After he was in custody, officers saw that the ignition had been “punched” so that it could be started with a screwdriver. They found a screwdriver near the driver’s seat and no keys.

D.I. was charged with theft, first-degree aggravated motor vehicle theft, and possession of burglary tools (the screwdriver). The juvenile court adjudicated D.I. for committing the crimes of second-degree aggravated motor vehicle theft and possession of burglary tools. He was sentenced to “up to two years of probation or further court order” and ordered to pay $3067.91 in restitution for damage to the car.

On appeal, D.I. argued the trial court abused its discretion when it ordered restitution because there was no evidence that he proximately caused the damage to the car. The Court of Appeals agreed. According to the court’s findings, the damage to the car was inflicted two days before the time the court found that D.I. exercised control over the car. Therefore, the restitution order must be vacated.

D.I. argued that it was error to admit unendorsed expert testimony from a lay witness when it allowed a police officer to testify about the use of screwdrivers to operate stolen vehicles. The Court concluded that even if some of the testimony should not have been admitted, any error was harmless. The judgment of conviction was affirmed and the restitution order was vacated.

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

Tenth Circuit: A Defendant Cannot be Charged with Obstruction of Justice for Failing to Report Her Crime

The Tenth Circuit Court of Appeals issued its opinion in United States v. Kupfer on Tuesday, July 7, 2015.

Elizabeth Kupfer failed to report over $790,000 in gross income for joint tax returns filed from 2004 to 2006. She was charged with three counts of tax evasion, one for each year, and the jury found her guilty on each of the three counts. She was sentenced to three years in prison. She appealed, arguing (1) the district court’s jury instruction on willfulness was insufficient because it failed to describe particular mental states that did not constitute willfulness, such as negligence, inadvertence, mistake, or accident; (2) the trial court erroneously failed to conduct a hearing based on one juror’s affidavits averring improper conduct by another juror; and (3) the district court improperly increased the offense level based on obstruction of justice for Kupfer’s failure to disclose her crime.

The Tenth Circuit first addressed the jury instructions. The district court correctly instructed the jury that willfulness was required for a finding of guilt, and that willfulness referred to “the voluntary intent to violate a known legal duty.” Kupfer argued that although the instructions were correct as far as they went, they should have gone further and elucidated conduct that does not qualify as willfulness. The Tenth Circuit disagreed. Relying on circuit precedent, the Tenth Circuit found no error in the court’s failure to instruct on what conduct is not considered willful, and found that the district court’s decision was well within its discretion.

Next the Tenth Circuit evaluated the issue of whether the district court erred in failing to conduct a hearing on the juror’s affidavits of another juror’s misconduct. The district court received affidavits from the same juror from both the defense and prosecution, and declined Kupfer’s motions for a hearing and a mistrial. The district court could have reasonably concluded that the two affidavits relayed all the information it would have gleaned from the juror in a hearing, and it was a proper exercise of the court’s discretion to decline to hold a hearing.

The Tenth Circuit then addressed Kupfer’s argument that her sentence was improperly increased. The Tenth Circuit agreed. A defendant cannot be charged with obstruction of justice for failing to report her crime. The Tenth Circuit vacated the sentence and remanded for resentencing.

The Tenth Circuit affirmed the judgments of the district court but remanded for resentencing.

Tenth Circuit: Unpublished Opinions, 9/30/2015

On Wednesday, September 30, 2015, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Barrera-Estrada v. United States

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