April 21, 2016
2016 COA 57. No. 11CA2476. People v. Sandoval.
Juvenile—Direct Filing—Subject Matter Jurisdiction—Crime of Violence.
Defendant was 16 years old when, at a party, he brought the victim a drink mixed with a crushed pill, which she drank. Afterward, the victim appeared to be dizzy, stumbled, and had difficulty talking. Then defendant, along with two other male teenagers, sexually assaulted the victim. The prosecution directly filed two charges against defendant: (1) sexual assault by causing submission of the victim through the application of physical force and (2) sexual assault of the victim while he knew she was incapable of appraising the nature of her conduct. The prosecution later dismissed the first charge, and a jury found defendant guilty of the second charge. The district court sentenced defendant to eight years of sex offender specific intensive probation and 90 days in jail.
On appeal, defendant contended that the district court lacked subject matter jurisdiction to sentence him because neither offense charged in the complaint was a crime of violence under CRS 18-1.3-406 and thus did not qualify for direct filing in the district court. Because neither count was a crime of violence under CRS 18-1.3-406, the charges were not eligible for direct filing in the district court. The Court of Appeals held that (1) the juvenile court had exclusive jurisdiction over the charge on which defendant was tried, convicted, and sentenced in the district court; (2) the district court lacked subject matter jurisdiction; and (3) therefore, the judgment was a nullity and required dismissal.
The judgment and sentence were vacated and the case was remanded to the district court for dismissal.
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2016 COA 58. No. 13CA1922. People v. Ortiz.
Vehicular Eluding—Victim—Restitution—Evidence—Hearsay.
After a deputy sheriff stopped defendant’s vehicle to investigate a report of shots fired by a person driving a vehicle like defendant’s, defendant sped away. The officer gave chase, bumping into defendant’s car several times before defendant stopped. The People charged defendant with a number of crimes. Defendant and the People reached a plea agreement under which defendant agreed to plead guilty to one count of aggravated driving after revocation prohibited (reckless driving) and one count of violation of a protection order and the People agreed to drop the other charges. The district court accepted the agreement and sentenced defendant. On request of the People, the court ordered restitution for the damages to the patrol car.
On appeal, defendant contended that because he did not plead guilty to an offense that specifically identified the state patrol as a victim, the state patrol was not a victim within the meaning of the restitution statutes. However, the state patrol was a victim of vehicular eluding, which was included among the charges against defendant. Therefore, it was a victim for purposes of the restitution statutes, even though defendant pleaded guilty to other charges. Accordingly, the district court did not err in allowing the state patrol to seek restitution.
Defendant also contended that the evidence was insufficient to support the restitution award because it was entirely hearsay and basing the award on hearsay violated his right to due process. The prosecution is not limited by the rules of evidence in proving an amount of restitution, and an award of restitution may be based solely on a victim’s impact statement, which is hearsay. Considered as a whole, the evidence sufficiently showed the cost of the damage and that defendant caused it. In addition, defendant’s counsel conducted thorough cross-examination about the damage to the patrol car and defendant chose not to rebut the evidence; therefore, there is no due process violation.
The order was affirmed.
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2016 COA 59. No. 14CA0012. People v. Douglas.
Collision—Injuries—Animation—Simulation—Evidence—Restitution.
While driving his car, defendant looked down for a moment and struck a bicyclist with his vehicle, causing her injuries. Defendant drove away, claiming he had not seen the bicyclist. A jury convicted defendant of leaving the scene of an accident, failure to report an accident, and careless driving.
Defendant appealed the judgment and restitution order, contending that the trial court should not have allowed the prosecution to show the jury three short video depictions of an automobile–bicycle collision. He asserted that the videos were simulations—which are scientific evidence offered as substantive proof and must meet more rigorous foundational requirements for admission than animations, which are demonstrative evidence—and that the prosecution did not lay an adequate foundation to support the court’s decision to admit them. Defendant asserted alternatively that if the videos were animations, they were inadmissible because they were an unfair and inaccurate depiction. The Court of Appeals decided the videos were animations. The videos were prepared by a state trooper, who was an accident reconstruction specialist, to represent the trooper’s opinion about how the collision had occurred. The videos were substantially similar to the collision they depicted. The trial court did not abuse its discretion when it decided the videos were animations and admitted them into evidence as demonstrative exhibits.
Defendant also contended that the trial court abused its discretion when it ordered him to pay restitution to the insurer. The restitution amount only included the bicyclist’s lost wages, the replacement cost of her bicycle and some equipment that was damaged by the collision, and her medical expenses. The amount did not include reimbursement for pain and suffering. Therefore, the court did not abuse its discretion.
The judgment and order were affirmed.
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2016 COA 60. No. 14CA1559. Calvert v. Mayberry.
Disciplinary Proceeding—Oral Contract—Colo. RPC 1.8(a)—Issue Preclusion—Void Agreement—Equitable Lien—Unclean Hands.
In a question of first impression, the Court of Appeals decided that an attorney who enters into a contract with a client that violates Colo. RPC 1.8(a) cannot later enforce the contract against the client.
The Colorado Supreme Court disbarred the attorney after a hearing board determined he had committed ethical violations, including some against the former client in this case. Specifically, the hearing board found that the attorney had loaned the former client over $100,000 and secured his interest in the loan funds by recording a false deed of trust in the chain of title on her house. The hearing board also found that the attorney had not complied with Colo. RPC 1.8(a) when he made the loans to the former client. The attorney then filed this case to recoup money he had loaned to the former client, claiming that he had an oral agreement with the client for repayment of the loans, and alternatively asserting that the trial court should impose an equitable lien on the former client’s house. The trial court granted summary judgment for the former client and her daughter (to whom she had quitclaimed her interest in the house), finding that because the oral contract between the former client and the attorney violated Colo. RPC 1.8(a), the attorney was ethically prohibited from enforcing that agreement.
The attorney appealed. On appeal, the former client contended that the doctrine of issue preclusion barred the attorney from relitigating factual issues that were litigated during the disciplinary proceeding. The Court agreed; therefore, the hearing board’s factual findings bind the attorney in this case, including its finding that the attorney violated Rule 1.8(a) when he entered into the oral contract with the former client, and the oral contract between the attorney and the former client is void and unenforceable. The attorney contended that the trial court erred in applying the doctrine of unclean hands to bar his request for an equitable lien. Based on the attorney’s misconduct, the Court disagreed. The attorney also asserted a fraud claim against the former client’s daughter, but his allegations did not support this claim, and it failed as a matter of law. The district court properly entered summary judgment.
The judgment was affirmed and the case was remanded to the trial court to determine whether fees should be awarded to the former client and her daughter.
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2016 COA 61. Nos. 14CA2099 & 14CA2463. Landmark Towers Association, Inc. v. UMB Bank.
Real Estate—Special District—Property Taxes—Time Bar—Waiver—Bill of Costs—Prevailing Party—Taxpayer’s Bill of Rights—Notice.
A real estate developer created a special district, the Marin Metropolitan District (District), as a vehicle for financing the infrastructure of a to-be-developed residential community, the European Village. The District issued bonds to finance the development, which were to be paid for by property taxes imposed on landowners within the District. A group of condominium owners who did not live in European Village learned that their properties had been included in the District under suspicious circumstances. The condominium owners received no benefit from the European Village development, and they had not been notified of and did not vote in the elections to create the District and approve the bonds and taxes. Acting through their homeowners association, plaintiff Landmark Towers Association, Inc. (Landmark), they brought two actions, one to invalidate the creation of the District and the other—this case—to invalidate the approval of the bonds and taxes and to recover taxes they had paid to the District. Following a bench trial, the district court granted Landmark part of the relief it requested, ordering partial refund of taxes paid and enjoining the District from continuing to collect taxes from the Landmark condominium owners.
On appeal, defendants, UMB Bank (UMB), Colorado Bondshares (Bondshares), and the District, contended that all of Landmark’s challenges to the validity of the taxes are barred by the 30-day time limit in CRS § 11-57-212. However, defendants waived this issue by not raising it at trial.
Bondshares and UMB contended that the district court erred in denying their bill of costs because they prevailed on Landmark’s fraudulent transfer and unjust enrichment claims against them. While no specific claims were asserted against Bondshares and UMB at trial, they were aligned with the District’s position and had not prevailed in the overall context of the litigation. The district court did not abuse its discretion in denying this claim.
Landmark contended that the district court erred in ruling that the District’s Taxpayer’s Bill of Rights (TABOR) election was valid. The Court of Appeals determined that the organizers who voted in the election were not eligible electors because the organizers’ contracts for options to purchase parcels were sham agreements. Therefore, the organizers illegally participated in the District’s TABOR election and their votes are void. It follows that the TABOR election was invalid. The Court also held that those under contract to purchase units in the Landmark Towers were eligible electors in the TABOR election who did not receive constitutionally required notice. Therefore, the district court erred; the TABOR election itself was illegal and the District’s taxes to pay the bonds were illegally levied. The District must refund all taxes paid illegally with simple interest and the Landmark buyers are entitled to an order enjoining the District from levying any further taxes without proper voter approval.
The judgment was affirmed in part and reversed in part, and the case was remanded.
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2016 COA 62. No. 14CA2396. People v. Valadez.
Consecutive Sentencing—Department of Corrections—Misdemeanor—County Jail.
While serving a prison sentence in the custody of the Department of Corrections (DOC), defendant committed a misdemeanor assault. The district court imposed a consecutive county jail sentence on the misdemeanor and ordered defendant to serve the remainder of his prison sentence before his jail sentence. Defendant subsequently filed a motion to amend the mittimus to reflect time served on the jail sentence so the detainer would be removed from his prison sentence. The court denied the motion.
On appeal, defendant argued that the district court erred by not ordering him to serve his jail sentence first. This pending county jail sentence created a detainer on defendant’s prison sentence that affected his parole eligibility date and his eligibility for transitional placements in the community. When a district court determines that a concurrent sentence is not warranted for a misdemeanor committed by a prisoner in a state prison facility, as here, the court must toll the prison sentence, order that the county jail sentence for the misdemeanor be served before the remainder of the prison sentence, and send a mittimus to the DOC reflecting its sentence. After fully serving the jail sentence, the prisoner must then be transferred back to the custody of the DOC to serve the remainder of his prison sentence.
The order was reversed and the case was remanded for resentencing.
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2016 COA 63. No. 15CA0161. People v. August.
Double Jeopardy—Prosecution Intentionally Seeking a Mistrial.
Defendant was tried twice on charges of kidnapping and sexual assault of his former wife. The first trial was declared a mistrial and the charges were dismissed on federal double jeopardy grounds based on a finding that the prosecution had willfully violated a court order. On appeal, a division of the Court of Appeals concluded that the reprosecution would only be barred if the prosecutor had acted with the intent to provoke a mistrial, and the case was remanded with directions to make findings on this issue. On remand, the trial court found that the prosecutor had not intended to provoke defendant into moving for a mistrial, denied defendant’s motion to dismiss the charges, and held a second trial.
At the second trial the defense objected to the prosecution’s closing statement referencing a prior assault and remark that "history repeats itself" as an impermissible reference to propensity. The court agreed with the defense, declared a mistrial, and heard argument as to whether the charges should be dismissed under the double jeopardy provisions of the U.S. and Colorado constitutions. The trial court dismissed the charges on double jeopardy grounds, finding that the prosecutor had willfully goaded the defense into asking for a mistrial in order to try the case a third time and benefit from the experience of the second trial’s weaknesses.
On appeal, the People argued that the trial court erred. The Court agreed, finding that the state and federal standard on this issue is the same: a retrial is barred only if prosecutorial misconduct giving rise to the mistrial was intended to provoke the defense into moving for a mistrial. Double jeopardy bars retrial in the mistrial context only where the prosecutor’s intent is to avoid a jury verdict. In evaluating the prosecutor’s conduct, the trial court used an improper legal standard and may not have considered the totality of the circumstances surrounding the prosecutor’s conduct.
The order of dismissal was vacated and the case was remanded to the trial court for reconsideration of its ruling and further findings of fact consistent with the Court’s opinion.
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2016 COA 64. No. 15CA0288. Colorado Insurance Guaranty Ass’n v. Sunstate Equipment Co., LLC.
Recoupment—Insolvent Insurer—High Net Worth—First Party Insured—Equal Protection—Procedural Due Process—Special Legislation—Summary Judgment—Attorney Fees.
This was a recoupment action under CRS § 10-4-511(4)(a)(I) (net worth provision) in which the trial court entered summary judgment in favor of plaintiff Colorado Insurance Guaranty Association (CIGA) and against defendant Sunstate Equipment Company, LLC (Sunstate) for workers’ compensation benefits that CIGA paid to a Sunstate employee. Sunstate had paid the benefits after its workers’ compensation insurer became insolvent and was liquidated. The court allowed Sunstate an offset based on liquidation proceeds paid to CIGA and refused to award CIGA its attorney fees incurred in connection with the employee’s claim.
Sunstate appealed on four grounds: (1) the net worth provision is unconstitutional; (2) the immunity created by CRS § 10-4-517 (immunity provision) is unconstitutional special legislation, and the trial court erred in holding that it bars Sunstate from raising affirmative defenses based on CIGA’s alleged mishandling of the employee’s claim; (3) it was error to decline to require CIGA to show that it had reviewed the applicable insurance policy to determine the "covered benefits" to which the employee was entitled; and (4) the trial court miscalculated the offset. On cross-appeal, CIGA asserted that the trial court erred in allowing Sunstate any offset for the liquidation proceeds and refusing to award CIGA its attorney fees.
On the constitutional issues, the Court of Appeals looked at opinions from other states that have net worth statutes similar to Colorado’s and held that there was no violation of equal protection or procedural due process.
On the immunity provision, the Court determined that providing CIGA with immunity is rationally and reasonably related to a legitimate government purpose and concluded Sunstate did not show beyond a reasonable doubt how the immunity provision violates the constitutional ban on special legislation. The Court also concluded that under the immunity provision, the court properly barred Sunstate from raising its affirmative defenses.
The argument that CIGA failed to prove covered benefits by reference to the insurance policy was without merit. But while CIGA was entitled to recover for covered claims, the trial court erred in concluding that CIGA was immune from challenges to whether payments were for covered claims, and it was error to simply accept the spreadsheet provided as a basis for entering summary judgment on the amount. This issue was therefore remanded for further proceedings.
The Court held as a matter of law that Sunstate was not entitled to an offset. Under the net worth provision, CIGA had the right to recover from Sunstate "the amount of any covered claim." Sunstate argued that allowing CIGA to recover the full amount of the claimant’s claims without accounting for the early access distributions (EADs) in the bankrupt insurer’s bankruptcy would result in a double recovery for CIGA. But California law, which controlled the liquidation of the bankrupt insurer, does not allow for such a double recovery; to the extent that CIGA recovered its payments on the claim from Sunstate, it would have to return any EADs paid to the bankruptcy estate.
Finally, the Court rejected CIGA’s assertion that the attorney fees it incurred in defending and handling the claim were part of a "covered claim" and therefore were recoverable from Sunstate. The Court concluded that the plain language of the Colorado Insurance Guaranty Association Act precludes including such attorney fees in a covered claim.
The judgment was affirmed in part and reversed in part, and the case was remanded.
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2016 COA 65. No. 15CA1210. Amerigas Propane and Indemnity Insurance Co. of North America v. Industrial Claim Appeals Office.
Mutual Mistake—Workers’ Compensation Claim—Reopening Settlement Agreement.
The worker was injured while working for Amerigas Propane and filed a claim for compensation. The worker and the employer (including the insurer) agreed to settle the claim. The settlement agreement clearly stated that the worker would forever waive his right to request compensation for unknown injuries. It also stipulated that the claim could only be reopened on grounds of fraud or mistake of fact. The worker later moved to reopen the settlement, alleging a mistake of fact in that he had a newly discovered injury that was unknown at the time of the settlement and it was related to the original injury. An administrative law judge (ALJ) reopened the claim. The employer appealed to the Industrial Claim Appeals Office (Panel) and the Panel affirmed. The employer then filed this appeal.
The Court of Appeals examined the language of the settlement agreement, specifically its statement that the worker waived his right to compensation for "unknown injuries" that arose "as a consequence of" or "result[ed]" from the original injury. The Court found the newly discovered injury was clearly and unequivocally covered by this language and therefore the case could not be reopened.
The Panel’s order was set aside and the case was remanded to the Panel to direct the ALJ to vacate the worker’s benefits award and to deny his motion to reopen the settlement.
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2016 COA 66. No. 15CA1347. Archuletta v. Industrial Claim Appeals Office.
Workers’ Compensation—Temporary Total Disability Benefits—CRS 8-42-105(3)(c)—CRS § 8-42-103—CRS § 8-42-105(1).
Claimant sustained a work-related injury in February 2014. His physician imposed temporary restrictions and released him to modified duty. On March 5, the attending physician released him to full duty work with no restrictions. On May 21, the attending physician determined claimant had reached maximum medical improvement (MMI) with no impairment restrictions. Employer filed a final admission of liability.
Claimant continued to maintain that he could perform only light duty work because of his injury. He was laid off one week after reaching MMI because, according to him, he was "hurt on the job," could no longer perform his duties, and was on "light duty." He requested a division-sponsored independent medical examination (DIME) to challenge the MMI finding. The DIME physician concluded he was not at MMI. An administrative law judge (ALJ) then awarded claimant temporary total disability (TTD) benefits, finding that he was laid off because of his industrial injury. On review, the Industrial Claims Appeal Office (Panel) reversed, finding that under CRS § 8-42-105(3)(c), once a claimant has been released to full duty work TTD benefits must cease.
On appeal, claimant argued that CRS § 8-42-105(3)(c) applies only to the termination of benefits and because he didn’t have any benefits when the attending physician released him to work, his case should have been analyzed under CRS §§ 8-42-103 and -105(1), which apply to the commencement of benefits and do not have a restriction based on release to full duty. The Court of Appeals agreed, holding that CRS § 8-42-105(3)(c) did not apply to claimant’s case because the statute can only terminate benefits that have already commenced and therefore can only be applied prospectively.
The order was set aside and the case was remanded with directions to reinstate the ALJ’s order.
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