October 19, 2018

Colorado Supreme Court: Totality of Circumstances, Including Drug Dog’s Alert, Provided Probable Cause for Car Search

The Colorado Supreme Court issued its opinion in People v. Bailey on Monday, October 15, 2018.

Searches and Seizures—Probable Cause—Search Without Warrant—Odor Detection—Use of Dogs.

In this interlocutory appeal, the supreme court considered whether the trial court erred in ruling that state troopers lacked probable cause to search defendant’s car when they placed Mason, a narcotics-detecting dog, inside the car to sniff around. The court held that the totality of the circumstances, including Mason’s alert to the odor of narcotics while sniffing the exterior of defendant’s car, provided the troopers with probable cause to search the car. The fact that Mason’s alert was not a final indication did not render it irrelevant to the troopers’ probable cause determination. Therefore, the court reversed the trial court’s order suppressing evidence collected by the troopers during a subsequent hand search of the car.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Unique Facts of Case Permit Use of Self-Defense Instruction for Robbery of Taxi Services

The Colorado Supreme Court issued its opinion in People v. DeGreat on Monday, October 15, 2018.

Self-Defense—Aggravated Robbery—Jury Instructions—Affirmative Defenses.

This case required the supreme court to decide whether a division of the court of appeals erred in concluding that the statutory right to self-defense can apply to justify a defendant’s robbery of taxi cab services. On the unique facts presented, the court concluded that the division correctly determined that defendant was entitled to a self-defense instruction as to the aggravated robbery charge, although the court’s reasoning differed from that on which the division relied. The court concluded that defendant presented some credible evidence to allow a reasonable jury to conclude that the robbery of services that he allegedly committed was committed in self-defense. Accordingly, the court affirmed the division’s judgment, albeit based on different reasoning.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Competency Records of Other Defendant in Related Case were Protected by Privilege

The Colorado Supreme Court issued its opinion in Zapata v. People on Monday, October 15, 2018.

Physician-Patient Privilege—Psychologist-Client Privilege—Competency Evaluations—Res Gestae.

In this case, the trial court declined to give defendant access to, or to review in camera, competency reports regarding another defendant in a factually related but separate case. Over objection, the trial court also admitted uncharged misconduct evidence as res gestae.

The supreme court held that competency reports are protected by the physician-patient or psychologist-client privilege and that the examinee did not waive the privilege as to defendant when he put his competency in dispute in his own case. The court also held that defendant’s confrontation right was not implicated and that defendant did not make a sufficient showing that the competency reports contained exculpatory evidence to justify their release to him or review by the trial court pursuant to due process or Crim. P. 16.

The court further held that any error in admitting the uncharged misconduct evidence as res gestae was harmless given the strong evidence of defendant’s guilt.

Accordingly, the court of appeals’ judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Tort Cannot Be Transaction Giving Rise to Obligation to Pay Money, Therefore Not Debt Per Fair Debt Collection Practices Act

The Colorado Supreme Court issued its opinion in Ybarra v. Greenberg & Sada, P.C. on Monday, October 15, 2018.

Finance, Banking, and Credit—Insurance—Statutory Interpretation—Torts.

Ybarra petitioned for review of the court of appeals’ judgment affirming the dismissal of her Colorado Fair Debt Collection Practices Act action against Greenberg & Sada, P.C. The district court dismissed for failure to state a claim, finding that damages arising from a subrogated tort claim do not qualify as a debt within the contemplation of the Act. The court of appeals agreed, reasoning that the undefined term “transaction” in the Act’s definition of “debt,” required some kind of business dealing, as distinguished from the commission of a tort; and to the extent an insurance contract providing for the subrogation of the rights of an insured constitutes a transaction in and of itself, that transaction is not one obligating the debtor to pay money, as required by the Act.

The supreme court held that because a tort does not obligate the tortfeasor to pay damages, a tort cannot be a transaction giving rise to an obligation to pay money, and is therefore not a debt within contemplation of the Act; and because an insurance contract providing for the subrogation of the rights of a damaged insured is not a transaction giving rise to an obligation of the tortfeasor to pay money, it also cannot constitute a transaction creating a debt within contemplation of the Act.

Accordingly, the court of appeals’ judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Announcement Sheet, 10/15/2018

On Monday, October 15, 2018, the Colorado Supreme Court issued four published opinions.

Ybarra v. Greenberg & Sada, P.C.

Zapata v. People

People v. DeGreat

People v. Bailey

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 Supreme Court: Dead Man’s Statute Now Applies in “All Civil Actions”

The Colorado Supreme Court issued its opinion in Estate of Brookoff v. Clark on Monday, September 24, 2018.

Statutory Interpretation—Dead Man’s Statute.

In this case, the supreme court interpreted Colorado’s “Dead Man’s Statute” in light of recent amendments that removed language limiting the statute’s applicability to matters in which a decedent’s estate was a party. Discerning no ambiguity in the current version of the statute, the court held that these amendments expand the scope of the statute such that it is now applicable “in all civil actions.” The court also held that because the statute applies irrespective of the potential impact of a judgment on an estate, the existence of insurance coverage is not a factor militating for or against the applicability of the statute.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Strict Privity Rule Bars Claims Against Attorneys by Non-Clients

The Colorado Supreme Court issued its opinion in Bewley v. Semler on Monday, September 24, 2018.

Strict Privity—Standing—Pleading.

In this case, the supreme court considered whether the strict privity rule bars claims against attorneys by non-clients absent a showing of fraud, malicious conduct, or negligent misrepresentation. The court held that, absent any wrongdoing, the strict privity rule does bar claims against attorneys by non-clients because holding otherwise may force attorneys to place non-clients’ interests ahead of clients’ interests. Here, because Semler did not allege any fraud, malicious conduct, or negligent misrepresentation, he lacked standing to assert a breach-of-contract claim.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Exclusionary Rule Correctly Applied to Suppress Results of Illegal Collection of Juvenile’s DNA

The Colorado Supreme Court issued its opinion in Casillas v. People on Monday, September 24, 2018.

Evidence—Searches and Seizures—Exclusionary Rule.

In this criminal appeal, the supreme court reviewed whether the exclusionary rule required the suppression of evidence derived from a juvenile probation officer’s unauthorized collection of DNA from a juvenile in violation of C.R.S. § 19-2-925.6 and the Fourth Amendment. The court held that (1) juvenile probation officers are properly considered adjuncts to law enforcement; (2) the officer’s collection of the juvenile’s DNA for uploading to CODIS served an inherent law enforcement function; (3) nothing in the record suggests the officer conducted the buccal swab search in reliance on misinformation provided by a third party; and (4) the unlawful search here was not based on a reasonable misinterpretation of the law. Because suppression would have a deterrent effect by removing incentives to collect DNA from ineligible juvenile offenders, the court held that suppression was warranted. Accordingly, the court reversed the court of appeals’ judgment and remanded the case with instructions to vacate petitioner’s conviction.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Announcement Sheet, 9/24/2018

On Monday, September 24, 2018, the Colorado Supreme Court issued three published opinions.

Casillas v. People

Bewley v. Semler

Estate of Brookoff v. Clark

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 Supreme Court: Innocent Investor to Ponzi Scheme Lacks Any Right to Return on Investment

The Colorado Supreme Court issued its opinion in Lewis v. Taylor on Monday, September 17, 2018.

Uniform Fraudulent Transfer Act—Ponzi Schemes—Reasonably Equivalent Value.

The supreme court held that under the Colorado Uniform Fraudulent Transfer Act (CUFTA), an innocent investor who profits from his investment in an equity-type Ponzi scheme, lacking any right to a return on investment, does not provide reasonably equivalent value based simply on the time value of his investment. Here, an investor unwittingly invested in a Ponzi scheme. Before the scheme’s collapse, he withdrew his entire investment, plus a profit. A court-appointed receiver sued to claw back the investor’s profits under CUFTA, C.R.S. § 38-8-105(1)(a), which provides that a “transfer made . . . by a debtor is fraudulent as to a creditor . . . if the debtor made the transfer . . . [w]ith actual intent to hinder, delay, or defraud any creditor of the debtor.” The investor raised an affirmative defense, C.R.S. § 38-8-109(1), contending that he could keep his profit because he “took in good faith and for a reasonably equivalent value.” Because the time value of money is not a source of “value” under CUFTA and equity investors have no guarantee of any return on their investments, the court concluded that the investor did not provide “reasonably equivalent value” in exchange for his profit. Accordingly, the court reversed the court of appeals’ judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: No Error in Trial Court’s Decision Not to Allow Witness to Testify Via Skype

The Colorado Supreme Court issued its opinion in People v. Gutierrez on Monday, September 17, 2018.

Motions to Continue—Abuse of Discretion.

In this interlocutory appeal, the supreme court held that the trial court did not abuse its discretion by denying the People’s request to have their witness testify remotely via Skype. Trial courts have broad discretion to control the manner in which witnesses offer testimony, and a decision to prohibit a witness from testifying is reviewed for an abuse of discretion. Because the trial court worked extensively to accommodate the witness, the People were on notice about the importance of the witness appearing in-person, and because denying the People’s request to allow the witness to testify remotely is not outcome determinative, the court concluded that the trial court did not abuse its discretion.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: CCIOA Requires Execution and Recording of Amending Documents to Subdivide Parking Garage

The Colorado Supreme Court issued its opinion in Perfect Place, LLC v. Semler on Monday, September 17, 2018.

Common Interest Communities—Quieting Title—Deeds.

In this quiet title action, the supreme court reviewed whether the owner of a garage condominium unit validly subdivided the unit under C.R.S. § 38-33.3-213 of the Colorado Common Interest Ownership Act by merely painting or marking lines on the garage wall, and thereafter separately conveying the spaces thus marked as individual condominium parking units. Because C.R.S. § 38-33.3-213(3) provides that “no subdivision of units shall be effected” without executing and recording the necessary amendments to the condominium declaration, and because no documents were recorded in connection with his purported subdivision, the court held that the owner did not accomplish a valid subdivision of the garage unit in this case. The court further held that a quitclaim deed obtained from the owner was not void for fraud in the factum. Although evidence in the record suggests the owner may have been deceived as to the purpose of the deed, fraud in the factum requires proof that the grantor was ignorant as to the nature of the instrument itself. Here, the owner understood that he was signing a quitclaim deed, even if he failed to appreciate the ramifications of his act. Accordingly, the court reversed the court of appeals’ judgment and remanded the case for further proceedings to determine the resulting chain of title for the disputed parking units.

Summary provided courtesy of Colorado Lawyer.