February 21, 2019

Colorado Court of Appeals: All Prospective Guardians Must Undergo Statutory Vetting Process Prior to Appointment

The Colorado Court of Appeals issued its opinion in In re Interest of Arguello on Thursday, February 7, 2019.

Adult Guardianship—Court Visitor—Judicial Appointment of Permanent Guardian—Conflict—Visitor’s Report

Arguello is an adult resident of Pueblo who suffers from dementia, developmental disability, and mental health illness. The court appointed Baslick as emergency guardian when medical decisions needed to be made and family was unavailable. Baslick works for Colorado Bluesky Enterprises, Inc. (Bluesky), which provides Arguello with case management services. Soon after Baslick’s appointment, several individuals petitioned the court to be appointed permanent guardian.

The court appointed a court visitor to prepare a visitor’s report concerning all prospective guardians. The first visitor’s report did not recommend Baslick because of her employment with Bluesky and the existence of a potential conflict of interest under C.R.S. § 15-13-310(4), which precludes a long-term care provider from also serving as a guardian. After several hearings and finding no suitable guardian from among the petitioners, the court sua sponte appointed the Arc of Pueblo (ARC) as the permanent guardian. Bluesky and Baslick moved for reconsideration, and the district court denied the motion.

On appeal, Bluesky argued that it is not a long-term care provider under the statute and the court erred in applying the statutory prohibition to Baslick. Here, while Bluesky may not fall “squarely” within the definition of a long-term care provider, the facts demonstrate a potential conflict of interest between Bluesky and Baslick that rendered her unsuitable as a guardian for Arguello. Bluesky provides substantial assistance to Arguello in the form of case management services. As guardian, Baslick would be able to recommend increased funding for Arguello and thereby generate revenues for Bluesky. She would also have oversight of Bluesky’s case management services and could be hesitant, as a Bluesky employee, to question Bluesky’s actions. Accordingly, the district court’s conclusion is supported by the record, and the court acted within its discretion in finding that Arguello’s best interests would not be served by appointing Baslick.

Bluesky next contended that the court violated the statutory mandate in C.R.S. § 15-14-305(1) by appointing ARC without first appointing a visitor and receiving a report. The court is required to appoint a visitor for every petition for guardianship filed, and all prospective guardians must undergo the statutory vetting process set forth in C.R.S. §§ 15-14-304 and -305 before appointment may occur. The trial court erred in sua sponte appointing a guardian who did not go through this process.

The order appointing ARC as guardian for Arguello was reversed, and the case was remanded to appoint a visitor and follow the statutory procedure to appoint a guardian for Arguello. The order was otherwise affirmed.

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Colorado Court of Appeals: Bringing Malpractice Claim to Reduce Liability for Attorney Fees is Not Abuse of Process

The Colorado Court of Appeals issued its opinion in Parks v. Edward Dale Parrish, LLC on Thursday, February 7, 2019.

Torts—Malpractice—Abuse of Process—Breach of Fiduciary Duty—Attorney Fees—Expert Witness

Parrish and Edward Dale Parrish LLC (defendants) represented plaintiff in two cases, a partition case and a dissolution case, against plaintiff’s former, long-term girlfriend. Plaintiff was not satisfied with the results. After he failed to pay Parrish for his legal services, Parrish filed a notice of attorney’s lien in the partition case. In response, plaintiff filed this case against defendants, alleging that they provided negligent representation and breached their fiduciary duty to him in both cases. Defendants counterclaimed for breach of contract (seeking an award of fees incurred in previously representing plaintiff) and abuse of process (based on plaintiff bringing this case).

At the close of plaintiff’s evidence, defendants moved for directed verdicts on all of his claims. The district court concluded that the breach of fiduciary duty claim was duplicative of the negligence claim and dismissed that claim. Plaintiff moved for a directed verdict on the counterclaims, which the court denied. The jury returned verdicts for defendants on all claims and counterclaims. The court also awarded defendants costs for their expert witness. Plaintiff moved for judgment notwithstanding the verdict (JNOV). This motion was deemed denied when the district court did not timely act on it. 

On appeal, plaintiff first contended that the district court erred in denying his motion for directed verdict and motion for JNOV on defendants’ abuse of process counterclaim. Bringing a malpractice case to obtain a result that such an action is designed to achieve doesn’t constitute an improper use of process, regardless of the motive. Here, the district court erred in reasoning that the jury could find an abuse of process if it found merely that defendants didn’t provide negligent representation. Given the lack of evidence of any improper use of process, the district court should have granted plaintiff’s motion for a directed verdict or motion for JNOV on the abuse of process counterclaim.

Plaintiff next contended that the district court erred in dismissing as duplicative his breach of fiduciary duty claim relating to the partition case. Where the professional negligence claim and breach of fiduciary duty claim arise from the same material facts and the allegations pertain to an attorney’s exercise of professional judgment, the breach of fiduciary duty claim should be dismissed as duplicative.  Here, plaintiff alleged that Parrish breached his fiduciary duty by entering into a stipulation without his consent. The same allegation underlies in part the negligence claim and implicates Parrish’s exercise of professional judgment. Therefore, the district court did not err in dismissing the breach of fiduciary duty claim.

Plaintiff also contended that the district court erred in denying his motion for a directed verdict on defendants’ breach of contract counterclaim. Defendants claimed that plaintiff breached a contract by failing to pay them attorney fees. Plaintiff argued that defendants had to prove the reasonableness of the fees they sought through expert testimony, and because defendants didn’t present any such testimony, the claim necessarily fails. When breach of contract damages are unpaid attorney fees, laypersons can determine the reasonableness of fees without an expert’s help. Here, Parrish testified about the services rendered, the reasonableness of the time spent on the services, and the fees charged for the services, and the jury considered the bills to plaintiff. Thus, the jury had sufficient evidence to assess the reasonableness of the claimed fees.

The judgment in favor of defendants on the abuse of process counterclaim was vacated. The judgment was affirmed in all other respects. The case was remanded for the district court to enter judgment in plaintiff’s favor on the abuse of process counterclaim and to amend the judgment as to damages accordingly.

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Colorado Court of Appeals: Announcement Sheet, 2/14/2019

On Thursday, February 14, 2019, the Colorado Court of Appeals issued no published opinion and 35 unpublished opinions.

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: BAA Did Not Err in Determining Contiguous Parcel was “Vacant Land”

The Colorado Court of Appeals issued its opinion in Martin Trust v. Board of County Commissioners on Thursday, February 7, 2019.

Taxation—Property Tax—Residential Property—Vacant Land.

The Martins bought two adjacent parcels of land in La Plata County. The east parcel (the residential parcel) contains the Martins’ home on a .62-acre lot, and the west parcel (the adjacent lot) is an unimproved .72-acre lot that adjoins the residential parcel’s western boundary. For tax year 2014, the Martin Family Partnership, LLLP (the partnership) held the title to the adjacent lot and the Martins held the title to the residential parcel as joint tenants. The partnership and the Martins thereafter transferred title to both parcels to the Martin Trust (the Trust), which held the titles for tax years 2015 to 2016.

The County Assessor classified the adjacent lot as vacant land for tax years 2014 to 2016, and the Trust sought to have it reclassified as residential. It appealed the Assessor’s decision to the Board of Equalization of La Plata County and the Board of County Commissioners of La Plata County (collectively, the Boards). The Boards denied both appeals. The Trust appealed those decisions to the Board of Assessment Appeals (BAA). The BAA upheld the County Assessor’s 2014 classification of the adjacent lot as vacant land, finding that the parcels were not under common ownership because they were separately titled and the owners were “separate and distinct legal entities.” For the 2015 to 2016 classifications, the BAA partially granted the Trust’s appeal, stating it was persuaded by the Trust’s claim that there would be a loss of views if a residence was constructed on the adjacent lot. But the BAA determined that only two-thirds of the adjacent lot was used as a unit in conjunction with the residential parcel for maintaining views from that parcel, and on that basis, it ordered that only the two-thirds portion of the adjacent lot be reclassified as residential.

On appeal, the Trust contended that the BAA erred when it concluded that the adjacent lot was vacant land for tax year 2014 and partly vacant land for tax years 2015 to 2016. Conversely, the Boards contended that the BAA erred when it reclassified the adjacent lot as residential land for tax years 2015 to 2016. The majority concluded that for two contiguous parcels of land to both qualify as “residential land” (1) one parcel must have a residence on it, (2) the other must have a man-made structure or water rights that are an integral part of the use of the residence on the neighboring parcel, and (3) the land must be used as a unit in conjunction with the residential improvements on the parcels. Further, the requirement that contiguous parcels be used as a unit does not include the “use” of vacant land by looking across it at objects beyond the land. Here, there is no evidence that there are any structures on the adjacent lot that are an integral part of the residence on the residential parcel. Therefore, the adjacent lot does not qualify as residential land.

The BAA’s order for tax year 2014 denying residential land designation regarding the adjacent lot was affirmed, and the order for tax years 2015 to 2016 granting such designation for the adjacent lot was reversed. The case was remanded for issuance of an order consistent with the majority’s opinion.

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Colorado Court of Appeals: Trial Court Erred in Finding Outrageous Government Conduct and Dismissing Case

The Colorado Court of Appeals issued its opinion in People v. Burlingame on Thursday, February 7, 2019.

Attempting to Influence a Public Servant—False Reporting—Outrageous Governmental Conduct—Work Product Privilege.

Defendant alleged that she went out drinking one night with a coworker and then went with him to his home. She reported that later that evening the coworker’s roommate raped her.

DNA evidence conclusively showed that it could not have been the roommate who had sexual contact with defendant; rather, the coworker had had sexual contact with defendant. Two prosecutors, a prosecutor’s office investigator, and a police detective interviewed defendant about these results at her home. The interview was conducted in the presence of family members and friends and was recorded on video. During the interview, defendant became upset and told the investigators and prosecutors to leave, and they did. Prosecutors charged defendant with two counts of attempting to influence a public servant and one count of false reporting.

At a hearing, defendant argued that the videotape of the interview should be suppressed and the case should be dismissed because the government’s conduct was outrageous. Prosecutors repeatedly used the work product privilege to block evidence showing why they chose to videotape the interview or that might explain their decision making process in filing the charges. The trial court dismissed the case against defendant based on a finding of outrageous government conduct.

On appeal, the People asserted that the trial court erred in concluding that there was outrageous government conduct warranting dismissal of the charges against defendant. Outrageous governmental conduct is conduct that violates fundamental fairness and shocks the universal sense of justice. Here, the trial court concluded, without evidentiary support, that videotaping the defendant was improper. Further, the prosecutor’s proper use of the work product privilege cannot from the basis for a finding of outrageous conduct. In addition, the trial court found a violation of the Victim Rights Act without identifying the specific section violated, and the videotape shows that defendant was treated with respect and was not harassed or abused. While the government’s behavior might be considered poor judgment or even legal error, the trial court’s findings of fact do not support its conclusion that the government’s conduct was outrageous. Because the trial court’s findings of fact are not supported by the record, they were arbitrary and thus an abuse of discretion.

The order dismissing the case was reversed and the case was remanded with directions to reinstate the charges and to consider the motions still pending before it, including whether the interview should be suppressed because the totality of the circumstances surrounding it constituted psychological coercion.

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Colorado Court of Appeals: Defense Counsel’s Error in Declining to Object to Inapplicable Jury Instruction Amounted to Forfeiture

The Colorado Court of Appeals issued its opinion in People v. Ramirez on Thursday, February 7, 2019.

Criminal Law—Jury Instructions—Waiver—Forfeiture.

Defendant was convicted in one trial of charges stemming from four consolidated criminal cases. This case was remanded from the Supreme Court to reconsider the disposition of the conviction for first degree assault in light of People v. Rediger, 2018 CO 32.

On remand, Ramirez argued that the trial court’s jury instruction on deadly physical force, which related to the charges of first degree assault, second degree assault, and third degree assault, was improper. It was error for the court to instruct the jury on deadly physical force because defendant was not accused of causing death. By giving an inapplicable instruction and incorporating it into the elemental instruction for first, second, and third degree assault, the court would have caused the jury to have an incorrect understanding of the elements of those charges. The prior court of appeals’ division concluded that Ramirez had waived his contention of instructional error because his defense counsel stated he believed the instruction to be “a correct statement of the law,” and therefore declined to consider it. Defense counsel apparently lacked awareness of the error. Under these circumstances, the court could not conclude that counsel intentionally relinquished a known right on defendant’s behalf. Here, defense counsel’s error in declining to object to the jury instruction amounted to a forfeiture, not a waiver. The trial court committed plain error.

The conviction of first degree assault was reversed and the case was remanded for a new trial solely as to that charge. In all other respects, the judgment was affirmed.

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Colorado Court of Appeals: Announcement Sheet, 2/6/2019

On Thursday, February 6, 2019, the Colorado Court of Appeals issued five published opinions and 26 unpublished opinions.

People v. Ramirez

People v. Burlingame

Martin Trust v. Board of County Commissioners

Parks v. Edward Dale Parrish, LLC

In re Interest of Arguello

Summaries of these cases are forthcoming.

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: Colorado Court Must Recognize and Give Effect to South Carolina Liquidation Order

The Colorado Court of Appeals issued its opinion in Garrou v. Shovelton on Thursday, January 24, 2019.

Interlocutory Appeal—Uniform Insurers Liquidation Act—Federal Liability Risk Retention Act—Enforcement of South Carolina Order.

The Garrous sued Shovelton, among others, for medical malpractice. Shovelton’s malpractice insurer is Oceanus, a South Carolina industrial insured captive corporation formed as a risk retention group. In 2017, a South Carolina court issued an order commencing liquidation proceedings against Oceanus that, among other things, imposed an injunction and an automatic stay of proceedings against the insurer, its assets, and its policyholders. Shovelton moved to stay the proceedings based on the South Carolina order. The district court denied the motion, and Shovelton moved for C.A.R. 4.2 certification of the court’s order denying the stay.

On appeal, Shovelton contended that the district court erroneously denied his motion for stay because Colorado and South Carolina are reciprocal states under the Uniform Insurers Liquidation Act (UILA), so Colorado must give full faith and credit to any injunction order in a liquidation proceeding. Because Colorado and South Carolina are reciprocal states under the UILA, Colorado must recognize South Carolina’s order. In addition, the Federal Liability Risk Retention Act of 1986 governs risk retention groups and requires Colorado to honor the South Carolina order. South Carolina has jurisdiction over Oceanus and its policyholders, including Shovelton. The district court erred in denying the motion for stay as to Shovelton.

The order was reversed and the case was remanded with directions to stay the proceedings as to Shovelton and to enter any further orders deemed necessary and appropriate as to the remaining parties.

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Colorado Court of Appeals: Electronically Stored Photograph Qualifies as “Physical Evidence” for Purposes of Tampering Statute

The Colorado Court of Appeals issued its opinion in People v. Rieger on Thursday, January 24, 2019.

Order of Dismissal—Tampering with Physical Evidence—Electronic Documents are Physical Evidence.

Rieger had been charged in a separate case with numerous offenses in connection with an alleged assault on his girlfriend. While in jail, Rieger corresponded with his girlfriend through Telmate, an electronic messaging system that allows detainees to communicate with people outside the jail. Through Telmate, the girlfriend forwarded a picture to Rieger of bruises on her arms that he had allegedly caused during the assault. Rieger asked her to remove the picture because it could incriminate him. She removed the picture from the Telmate account.

A District Attorney’s investigator reviewed the Telmate account, which led to a charge in this separate case of solicitation to commit tampering with physical evidence. After a preliminary hearing, the district court dismissed the case, finding that the definition of physical evidence did not apply to the electronic record under C.R.S. § 8-8-610.

On appeal, the People contended that the district court improperly dismissed the case because it erred in interpreting the definition of “physical evidence” to exclude electronic documents. C.R.S. § 18-8-610(2) defines physical evidence as including articles, objects, documents, records, or other things of physical substance. The court of appeals concluded it is clear that electronically stored documents or information fall within the ambit of “physical evidence.” Further, electronically stored, digital images qualify as physical evidence for purposes of the tampering with physical evidence statute. It was therefore error to dismiss on the grounds that electronically stored images are not physical evidence.

Rieger argued that even if the photo was physical evidence, the dismissal should be affirmed because the electronic duplicate uploaded to Telmate is not physical evidence. The court perceived no reason why a duplicate of a photograph is not physical evidence for purposes of the tampering statute.

Rieger further argued that the removal of the image does not evince a specific intent to make the image unavailable at trial. Here, Rieger asked the girlfriend to remove the photograph because it could incriminate him. In addition, this evidence was being reviewed in relation to a probable cause determination after a preliminary hearing, which is a low standard to meet. The evidence was sufficient to induce a person of ordinary prudence and caution to entertain a reasonable belief that Rieger intended to deprive the prosecution of the ability to use the picture. Probable cause supported the charge of tampering with physical evidence. Therefore, the case should not have been dismissed.

The order of dismissal was reversed and the matter was remanded with directions to reinstate the case.

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Colorado Court of Appeals: Maintenance Payor’s Good Faith Decision to Retire Does Not Automatically Require Grant of Motion to Modify

The Colorado Court of Appeals issued its opinion in In re Marriage of Thorstad on Thursday, January 24, 2019.

Post-Dissolution Action—C.R.S. § 14-10-122(2)—Modification of Maintenance upon Retirement—Rebuttable Presumption—C.R.S. § 14-10-114.

The parties were divorced in 2002. They had a separation agreement that required husband to pay wife maintenance and reserved jurisdiction for the court to modify maintenance. Husband retired from his job, in part due to health problems. He requested termination of his maintenance obligation based on C.R.S. § 14-10-122(2)(a), (b), and (c), which establish a rebuttable presumption that a decision to retire was made in good faith when certain conditions are met. These subsections did not exist in their present form when the parties entered into their separation agreement. The magistrate granted the request. Wife sought review in the district court, which denied her petition.

On appeal, wife argued that the trial court erred when it relied on C.R.S. § 14-10-122 instead of C.R.S. § 14-10-114 when granting husband’s motion. C.R.S. § 14-10-122 was the correct statute for the trial court to use. However, if a payor satisfies the retirement provisions in subsections -122(2)(b) and (c) that the decision to retire was made in good faith, the payor’s good faith retirement becomes one of the factors for the court to consider in analyzing whether under subsection -122(1)(a) the payor can show a substantial and continuing change of circumstances that makes the existing maintenance order unfair. In doing so, the court must also consider the factors listed in the 2001 version of C.R.S. § 14-10-114(3) and (4) (the new version of C.R.S. § 14-10-114 is applicable to petitions filed on or after January 1, 2014). Here, the trial court erred because it treated husband’s good faith decision to retire as conclusive in resolving his motion; the order failed to address whether husband’s retirement and declining health were continuing and changed circumstances that rendered his obligation unfair; and the trial court did not consider husband’s and wife’s needs and abilities as required by the 2001 version of C.R.S. § 14-10-114(3) and (4). Further, the separation agreement did not reserve jurisdiction over the question of what effect husband’s retirement would have on his maintenance obligation. Thus, the separation agreement did not require the trial court to use C.R.S. § 14-10-114 to resolve husband’s motion instead of C.R.S. § 14-10-122(1)(a), (2)(a), (2)(b), and (2)(c).

The order was reversed and the case was remanded for the court to (1) determine whether husband’s circumstances have changed in such a substantial and continuing way as to make the existing terms of the maintenance obligation unfair, and (2) consider wife’s request for appellate attorney fees under C.R.S. § 14-10-119.

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Colorado Court of Appeals: Presumption of Regularity Applied to 20-Year-Old Default Judgment; Error to Place Burden on Plaintiff to Prove Valid Service

The Colorado Court of Appeals issued its opinion in Tallman v. Aune on Thursday, January 24, 2019.

Default Judgment—Presumption of Regularity—Lost or Destroyed Records—C.R.C.P. 60(b)(3).

In 1996, Tallman obtained a default judgment against Aune. About 15 years after the judgment entered, the district court destroyed the case file under its records retention policy. In 2016, Tallman filed writs of garnishment to enforce the judgment and the writs issued. Shortly after, Aune filed a motion to vacate the default judgment and quash the writ of garnishment, asserting that he had not been aware that a judgment had been entered against him and he had not been served. In response, Tallman admitted he could not produce the affidavit of service, but he attached copies of the default motion and default judgment and cited the register of actions entry noting service had been made. The district court granted Aune’s motion to vacate, finding that Tallman failed to establish by clear and convincing evidence that Aune was properly served. It also denied Tallman’s motion to revive the default judgment as moot. Tallman moved for reconsideration, arguing that the presumption of regularity must apply. The district court dismissed the case.

On appeal, Tallman argued that the district court erred in vacating the default judgment and it should have applied the presumption of regularity to presume the default judgment was entered with jurisdiction. Here, though the return of service is no longer available, the register of actions, the limited record, and the 1996 default judgment show service was effectuated, so the presumption of regularity applies. The district court erred in declining to apply the presumption of regularity to the default judgment when it granted the motion to vacate. Further, the burden remained on Aune to overcome the presumption as to the default judgment. At most, Aune provided the district court with an unsworn assertion that he had not been served two decades ago. These inferences do not constitute sufficient evidence to overcome the presumption of regularity. For the same reason, Aune didn’t satisfy his burden of proof to present clear and convincing evidence to set aside the default judgment

Tallman also requested the court of appeals to direct the district court to “grant a nunc pro tunc order for revival of judgment,” arguing he complied with the procedural requirements to revive the default judgment. Because the default judgment must be reinstated, the motion to revive is not moot.

The judgment was reversed and the case was remanded to reinstate it and to consider Tallman’s request to revive the default judment.

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Colorado Court of Appeals: Insurer’s Notice of Cancellation Must Be Accurate or It Is Ineffective

The Colorado Court of Appeals issued its opinion in Brown v. American Standard Ins. Co. of Wisconsin on Thursday, January 31, 2019.

Automobile Insurance Coverage Cancellation Requirements—Accuracy of Reason for Cancellation.

In March 2014, Brown purchased motorcycle insurance from American Standard Insurance Co. (American Standard). In August 2014 American Standard mailed Brown a notice that it was cancelling his policy for lack of a driver’s license. In September 2014, Brown was involved in a motorcycle accident. He made a claim against the American Standard uninsured/underinsured motorist coverage. American Standard denied coverage for the accident, and Brown sued. American Standard moved for summary judgment. Brown filed a response to the motion supported by an affidavit attesting that he had a valid Colorado driver’s license both at the time of cancellation and on the date of the accident. The trial court concluded there were no issues of material fact and granted the motion.

Brown appealed the summary judgment. Colorado law requires insurers to strictly comply with statutory and contractual requirements when canceling an automobile policy. A cancellation notice, other than one for nonpayment, must include either a reason for cancellation or a statement that a reason will be provided upon request. It is implicit in these requirements that the stated reason for cancellation be factually accurate. The court of appeals held, as a matter of first impression, that when an insurer provides a reason for cancellation the reason given must be accurate or the notice of cancellation is ineffective. Here, there is a disputed issue of material fact as to whether Brown had a valid driver’s license at the time of cancellation, and the trial court erred in treating the cancellation notice as dispositive on summary judgment.

American Standard contended that its policy cancellation was effective regardless of whether the cancellation reason was inaccurate because Brown didn’t contest the cancellation until well after the accident and not before filing suit. The fact that Brown did not challenge the cancellation before bringing suit on the policy did not constitute a waiver of his right to sue under the policy or a ratification of the allegedly improper cancellation.

The summary judgment was reversed and the case was remanded.

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