May 19, 2019

Colorado Court of Appeals: District Court Erred in Ruling Defendant Knew of Bond Condition Prohibiting Travel

The Colorado Court of Appeals issued its opinion in People v. Donald on Thursday, July 26, 2018.

Criminal Law—Bond Conditions—Failure to Appear—Mens Rea.

Defendant was arrested and charged with a felony. During his court appearance, the judge set bond and announced his court date. Defendant subsequently posted bond and was released from jail. The bond paperwork provided that, as a condition of his release, defendant was prohibited from leaving Colorado without court approval. Defendant failed to appear in court, and he was arrested in Mississippi five weeks later. A jury convicted defendant of knowingly violating a condition of bond by leaving Colorado and knowingly failing to appear for trial or other proceedings.

On appeal, defendant contended that the prosecution failed to establish beyond a reasonable doubt that he knew of his court date and knowingly failed to appear. However, defendant was present when the court announced the court date, and there was sufficient evidence to permit the jury to reasonably infer that defendant was aware of the court date and that he knowingly failed to appear.

Defendant also contended that the prosecution failed to establish beyond a reasonable doubt that he knew of the bond condition that prohibited him from leaving Colorado. Here, there was no evidence that the bond condition was announced or discussed in open court; it was set forth only in the bond paperwork. The prosecution failed to present any evidence showing that defendant had personally signed the bond paperwork or that he was otherwise aware of the bond condition that prohibited out-of-state travel. Therefore, the evidence was insufficient to establish defendant’s knowledge of the specific bond condition therein beyond a reasonable doubt.

The judgment and sentence were affirmed in part and vacated in part.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Posting Bond is Necessary but Insufficient Condition to Stay Dissolution Proceedings

The Colorado Court of Appeals issued its opinion in In re Marriage of Finn on Thursday, December 30, 2016.

Post-Dissolution Marriage Proceeding—Request for Stay—Romero v. City of Fountain.

Husband and wife had entered into a marital agreement. Wife later filed for dissolution of the marriage, and the trial court subsequently issued a detailed order directing husband to make certain payments to wife within 20 days. Husband filed a motion for post-trial relief pursuant to C.R.C.P. 59 and 60, which was denied. Husband appealed and also filed a motion for stay with the trial court and requested approval of his supersedeas bond; both requests were denied.

Pursuant to C.A.R. 8, husband sought a stay of the trial court’s orders requiring him to pay wife certain sums of money and to return her artwork and other personal property. Husband presented a redacted copy of a cashier’s check in the amount necessary for a supersedeas bond and represented that his counsel would deposit the check if his motion were granted.

Stays pending appeal are controlled by C.A.R. 8(a). Romero v. City of Fountain adopted a four-part test for determining whether a stay should be issued under CAR 8: (1) whether the moving party has made a strong showing that it is likely to prevail on the merits, (2) whether the moving party will suffer irreparable harm if a stay is not granted, (3) whether other interested parties would be harmed by granting the stay, and (4) whether the public interest will be harmed by granting the stay. Romero involved a motion to stay an order denying an injunction. Husband argued that Romero does not apply here.

A stay is an exercise of judicial discretion and not a matter of right. The Colorado Court of Appeals first concluded that posting a supersedeas bond alone is insufficient to mandate a stay in a family law case. As to both the monetary and nonmonetary orders, the court then determined that a court considering a stay of that part of a judgment involving marital and separate property must consider the first three Romero factors; the fourth factor, harm to the public interest, is ordinarily not relevant in the context of a dissolution of marriage. The court found that (1) husband had not made even a cursory showing as to why his appeal was likely to succeed on the merits; (2) husband’s contention that he faces “clear” irreparable harm if a stay is not granted was unpersuasive; and (3) wife would be harmed by the issuance of a stay, because she would be denied benefits she negotiated in the marital agreement.

The motion for stay was denied.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Bond Condition Does Not Impermissibly Impair Defendant’s Right to Parent his Children

The Colorado Court of Appeals issued its opinion in People v. Fallis on Thursday, June 4, 2015.

Bond Conditions—Right to Parent.

A Weld County grand jury indicted petitioner for second-degree murder of his wife. The trial court released petitioner on bond. One of the bond conditions was that petitioner remain in Colorado during the pendency of this criminal case. Petitioner filed a motion to reconsider the bond condition, which was denied.

On appeal, petitioner argued that the trial court transgressed on his presumption of innocence in setting the bond condition and unconstitutionally interfered with his right to parent his children, who reside in Indiana. The court did not treat petitioner as guilty of the charged offense; instead, the court properly considered the nature of the charged offense and the penalty that would be imposed if he was found guilty beyond a reasonable doubt. Further, the court did not limit petitioner’s right to parent his children. Any such restrictions arise from circumstances outside the trial court’s control: petitioner’s decision to move himself and his children to Indiana after his wife’s death, and the temporary decision of an Indiana court prohibiting the children from being removed from Indiana. Accordingly, the court did not abuse its discretion in imposing the bond condition. The petition for review of the bail order was dismissed.

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

Tenth Circuit: Federal Appellate Rules Provide for Bond Only for Costs Allowable by Rule or Statute

The Tenth Circuit Court of Appeals issued its opinion in Tennille v. Western Union Co. on Monday, December 22, 2014.

Plaintiffs initiated a class action against Western Union based on Western Union’s retention of funds from failed wire transfers. After several years of litigation, plaintiffs and Western Union settled the case. The district court preliminarily certified a class of more than one million customers who experienced a failed wire transfer between January 1, 2001 and January 3, 2013, and ordered the class administrator to notify those class members of the class action, the proposed settlement, and the opportunity for them to opt out of the class or to object to the settlement. Several class members objected. The district court overruled all objections, certified the class, approved the settlement, and entered final judgment. Objectors Dorsey and Nelson appealed the district court’s denial of their objections. Plaintiffs asked the district court to require Dorsey and Nelson, as a condition of their appeal, to post a $1,007,294 appeal bond—$647,674 to notify class members of Objectors’ merits appeals challenging the settlement, $334,620 as administrative costs to maintain the settlement agreement pending Objectors’ appeal, and $25,000 as costs for printing and copying and preparing a supplemental record. The district court granted plaintiffs’ request, and Objectors appealed.

The Tenth Circuit first addressed plaintiffs’ contention that it lacked jurisdiction to hear the appeal, since the bond order was not a final, appealable order. The Tenth Circuit determined it had jurisdiction over the appeal on at least two bases. The district court’s bond order was entered “in aid of appellate court jurisdiction,” and since the Tenth Circuit has jurisdiction to review Objectors’ merits appeals, it also has jurisdiction over the bond appeal. Second, the district court’s bond order was a final order ending the post-judgment bond proceeding, and as such the Tenth Circuit has jurisdiction to hear the appeal.

Moving to the bond itself, the Tenth Circuit found unanimous circuit precedent allowing Rule 7 cost recovery only for costs expressly provided for by rule or statute. Because no rule or statute provides for costs for notifying class members or administrative costs, the district court erred in allowing those costs. The Tenth Circuit rejected plaintiffs’ argument that the district court has discretion to include in an appeal bond any cost a defendant may encounter in defending an appeal. The Tenth Circuit characterized plaintiffs’ argument as seeking damages for the delay caused by Objectors’ merits appeal, but noted the Federal Appellate Rules do not have separate provisions for class actions and the purpose of a Rule 7 bond is not to compensate for damages.

Next, Objector Dorsey challenged the district court’s imposition of a $25,000 bond to cover costs of preparation and transmission of the record. Plaintiffs failed to justify the need for $25,000. Because Objector Dorsey suggested he would be amenable to imposition of a $5,000 bond to cover such costs, the Tenth Circuit reduced the bond accordingly. Objector Nelson claimed she would experience hardship from the imposition of any bond, but the Tenth Circuit found that a $5,000 bond is not so burdensome as to deprive her of due process or equal protection of law, and found that she failed to establish that the smaller bond would deprive her of due process.

The district court’s bond imposition was affirmed, but the bond was reduced to $5,000. Objectors were ordered to post the bond within 14 days or their merits appeals would be dismissed.

Colorado Supreme Court: When Court Grants Motion for New Trial, Defendant Restored to Original Bond Status

The Colorado Supreme Court issued its opinion in People v. Blagg on Monday, January 12, 2015.

Bond Hearing—Motion for New Trial—Victims’ Rights Act.

In this original proceeding under CAR 21, the Supreme Court issued an order to show cause, which it now makes absolute. The Court held that when a trial court grants a motion for a new trial, the defendant is restored to the bond status that existed upon the filing of charges. In a capital case, this requires that the court hold the defendant without bond until he or she requests admission to bail. Once requested, the court must set a hearing, at which the district attorney may seek to have bail denied because the proof is evident or the presumption great. Even if the district attorney does not contend the proof is evident or the presumption great, the court must still hold a hearing to set bail. In either circumstance, because such a hearing is a “critical stage” as defined by the Victims’ Rights Act enabling legislation, CRS § 24-4.1-302(2)(c)(I)(E), the alleged victim (or the alleged victim’s family if the alleged victim is deceased) has the right to be present and heard at the hearing.

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

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: Statutory Language Deprived Court of Appeals of Jurisdiction in Bond Revocation Case

The Colorado Court of Appeals issued its opinion in People v. Jones on Thursday, September 11, 2014.

Bond—Revocation—Petition for Review—Jurisdiction.

In this felony case, the trial court set bond for defendant. He posted the bond, and the jail released him from its custody. While he was free on bond, a second court found that there was probable cause to believe that he had committed another felony. Based on that finding, the trial court revoked his release on bond in this case, and it ordered that the jail hold him without bond until this case was resolved. Defendant filed a petition for review in this court.

The prosecution argued that the Court of Appeals did not have jurisdiction over defendant’s petition for review. Defendant filed his petition for review relying on CRS §16-4-204(1), which authorizes review of trial court orders issued under CRS §§16-4-104, -107, and -201. Here, the prosecution’s motion to revoke defendant’s bond relied on CRS §16-4-105(3), which is not mentioned in CRS §16-4-204(1). Because it is not mentioned, a defendant cannot seek appellate review of an order issued under CRS §16-4-105(3) by filing a petition for review under CRS §16-4-204(1). Therefore, the Court of Appeals did not have jurisdiction over defendant’s petition for review, and the appeal was dismissed. Defendant may, however, seek the Supreme Court’s discretionary review of the trial court’s order under CAR 21.

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

Colorado Court of Appeals: Construction Contract Undeniably for Public Works Project and Bond Required

The Colorado Court of Appeals issued its opinion in Tarco, Inc. v. Conifer Metropolitan District on Thursday, April 25, 2013.

Breach of Contract—Summary Judgment—CRS § 38-26-106.

In this breach of contract action, plaintiff Tarco, Inc., a construction contractor, appealed the district court’s grant of summary judgment for defendant Conifer Metropolitan District (CMD). The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

In 2005, Tarco and CMD entered into a series of contracts for construction projects related to the development of a shopping center. Tarco alleged that the work on two of the contracts was substantially complete and that CMD wrongfully withheld payment on them.

Tarco sued, based on nonpayment, and CMD counterclaimed, alleging material breach by Tarco. After two years of litigation, CMD moved for partial summary judgment, asserting that Tarco couldn’t recover under the contracts because it did not satisfy CRS § 38-26-106 (the bond statute). The district court granted the motion. Tarco did not dispute that it did not provide a bond, and the district court concluded that the bond statute barred recovery by contractors failing to post bond.

On appeal, Tarco argued that the court erred by granting summary judgment. Tarco contended that there was a genuine disputed issue of material fact as to whether the contracts at issue were for “public works” projects. If they were not, they were not subject to the bond statute. The Court of Appeals found there was no disputed issue that the projects were public works. The bond statute applies to “any building, road, bridge, viaduct, tunnel, excavation, or other public works for any . . . political subdivision of the state.” The Supreme Court has interpreted “public works” extremely broadly. The contracts at issue were for the construction of a highway overpass and infrastructure components around the shopping center, including sewers, fire hydrants, retaining walls, paving, and roadways. The Court found these clearly to be public works subject to the bond statute, noting that there was no disputed issue of material fact in this regard.

CMD asserted that the bond statute is a “nonclaim statute” that creates an absolute bar to recovery or destroys the claim for relief itself, thus precluding Tarco’s equitable claims of waiver and estoppel. The Court disagreed. Nonclaim statutes deprive a court of subject matter jurisdiction. The Colorado Governmental Immunity Act (CGIA) is a nonclaim statute. CRS § 15-12-803 in the Colorado Probate Code is another. They are rare. The bond claim statute merely provides that unless a bond is provided, “no claim in favor of the contractor arising under the contract shall be audited, allowed, or paid.” It is not a nonclaim statute, and therefore Tarco’s noncompliance does not preclude its assertion of equitable defenses.

Tarco claimed there was a genuine and material factual dispute as to whether CMD affirmatively waived the bond requirement. CMD countered that, as a special district, it did not possess the power to waive the requirement. The Court agreed that a special district does not possess the power to waive the requirement of the bond statute. CRS § 32-1-1001 provides the express common powers of special districts, but does not include the power to waive the bond requirement. The Court will not imply such a power. Therefore, there was no genuine issue of material fact as to whether CMD waived its rights under the bond statute, because it could not.

The Court concluded that there was such an issue of material fact as to whether the doctrine of equitable estoppel applied to CMD’s conduct. A party asserting equitable estoppel must establish that the party to be estopped knew the facts and either intended the conduct to be acted on or so acted that the party asserting estoppel must have been ignorant of the true facts, and the party asserting estoppel must have reasonably relied on the other party’s conduct with resulting injury. Based on the evidence presented, the Court concluded that Tarco had demonstrated a genuine issue of material fact as to whether the foregoing facts were established. Therefore, CMD was equitably estopped by its conduct from asserting the bond statute as a defense to Tarco’s contract claims. The judgment was reversed as to the determination that the bond statute is a nonclaim statute and as to the dismissal of Tarco’s equitable estoppel claim, and the case was remanded for further proceedings.

Summary and full case available here.

HB 12-1316: Modifying Bond Recovery Procedures for Defendants Who May Be in the Country Illegally

On February 22, 2012, Rep. Amy Stephens introduced HB 12-1316 – Concerning Bond Conditions when a United States Immigrations and Customs Enforcement Detainer is Lodged Against a Defendant. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, if there is probable cause to believe that a defendant is in the country illegally and he or she is charged with a felony or class 1 or class 2 misdemeanor, the investigating law enforcement agency shall notify the defendant’s bail bond agent. The bill requires notification to a person’s bail bond agent if there is a United States immigration and customs enforcement detainer lodged against the defendant; rather than based on probable cause to believe that a defendant is in the country illegally and a person is charged with a felony or a class 1 or class 2 misdemeanor.

Under current law, a bail bond agent is exempt from having his or her bond forfeited if the defendant is removed from the country, and a bail bond agent is not required to sign a waiver of understanding concerning such forfeiture. The bill requires a bail bond agent to execute a waiver that states he or she understands that if the defendant is removed from the country the bond is forfeited. The bill also requires the bond of the bail bond agent to be forfeited if the defendant is removed from the country.

If a law enforcement agency holding a defendant for a felony or class 1 or class 2 misdemeanor determines that a United States immigration and customs enforcement detainer is lodged against the defendant, the law enforcement agency shall notify the district attorney and any pretrial services agency of the defendant’s presumed immigration status. If the defendant posts bond, the law enforcement agency shall notify the district attorney of the posting of the bond prior to notifying immigration and customs enforcement that the defendant is eligible for release to their custody.

Summaries of other featured bills can be found here.

Colorado Court of Appeals: Bail Bondsman Properly Denied Renewal of License After He Breached Fiduciary Duty to Person Who Deposited Money for Bond

The Colorado Court of Appeals issued its opinion in Colorado Division of Insurance v. Trujillo on March 29, 2012.

Fiduciary Duty—Bail Bonding Agent—License—Bond Premium.

In this case concerning the fiduciary duties owed by a bail bonding agent to his client, respondent Milton Michael Trujillo appealed the final order of petitioner, the Colorado Division of Insurance (Division), affirming the initial decision of the agency’s administrative law judge (ALJ) to revoke and deny his application for renewal of his bail bonding agent and insurance producer licenses. The order was affirmed.

In December 2004, Connie Espinoza gave Trujillo, a licensed bail bonding agent and insurance producer, $3,500 in cash to post bond for her son. Trujillo was unable to post bond for Espinoza’s son. Rather, he gave Connie Cordova, an acquaintance of Espinoza’s son, $2,360 (the $3,500 less $1,140 used to post a bond for Cordova’s friend), claiming that Cordova was the actual owner of the money. Espinoza did not consent to this transaction.

Trujillo contended that the Division erred in denying renewal of his insurance producer and bail bonding agent licenses because the agency misinterpreted CRS §10-2-704 when it determined that he owed a fiduciary duty to Espinoza and should not have returned the bond premium to Cordova. Ted Espinoza is the “insured” under CRS §10-2-704(1)(a), because Trujillo undisputedly received the $3,500 to procure for him a surety bond. Therefore, the $3,500 premium belonged to Connie Espinoza as agent for her son Ted, and it became an unearned premium when Trujillo was unable to post a bond. In the absence of an express agreement, a fiduciary relationship is established between a bail bonding agent and an insured or the insured’s agent when the bonding agent receives a bond premium therefrom, regardless of ownership of the premium. Here, once it was clear that the premium was unearned, Trujillo had a statutory obligation to treat it in a fiduciary capacity and return it to Connie Espinoza. Therefore, the Division’s ultimate finding that Trujillo had a fiduciary duty to Espinoza and breached that duty in failing to return the money to her was reasonable, was supported by substantial evidence, and was not an abuse of discretion.

Summary and full case available here.