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colorado/10310964.json

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+"{\"id\": \"10310964\", \"name\": \"In re the MARRIAGE OF Drena D. MARSON, Appellee, and Steven M. Marson, Appellant\", \"name_abbreviation\": \"In re Marriage of Marson\", \"decision_date\": \"1996-11-29\", \"docket_number\": \"No. 96CA0142\", \"first_page\": \"51\", \"last_page\": \"54\", \"citations\": \"929 P.2d 51\", \"volume\": \"929\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T21:12:48.833737+00:00\", \"provenance\": \"CAP\", \"judges\": \"MARQUEZ and RULAND, JJ., concur.\", \"parties\": \"In re the MARRIAGE OF Drena D. MARSON, Appellee, and Steven M. Marson, Appellant.\", \"head_matter\": \"In re the MARRIAGE OF Drena D. MARSON, Appellee, and Steven M. Marson, Appellant.\\nNo. 96CA0142.\\nColorado Court of Appeals, Div. V.\\nNov. 29, 1996.\\nNo Appearance for Appellee.\\nSteven M. Marson, Pro Se.\", \"word_count\": \"1926\", \"char_count\": \"11919\", \"text\": \"Opinion by\\nJudge TAUBMAN.\\nIn this post-dissolution of marriage proceeding, Steven M. Marson (father) appeals the district court's order increasing the child support payable to Drena D. Marson (mother) and awarding her attorney fees. We affirm in part, vacate in part, and remand with directions.\\nThe parties' marriage of fourteen years was dissolved in 1985, and mother was awarded custody of their daughter. Father was awarded parenting time and was ordered to pay child support in the amount of $265 per month and to maintain health insurance for the child. Pursuant to a court-approved stipulation between the parties, child support was modified in 1990 to $862 per month, and the parties agreed to share equally any reasonable and necessary expenses for their daughter's medical, dental, or vision care not covered by insurance.\\nMother filed a motion to modify child support in 1994. Father, who lived in California and was acting pro se, did not attend the hearing held before a magistrate. Prior to the hearing, father filed various letters and documents with the court, and requested that his \\\"evidence package\\\" be reviewed during one-half of the two-hour hearing.\\nNoting that father had failed to appear at the hearing, the magistrate found him in \\\"default.\\\" Mother's motion to modify child support was granted, and child support was increased to $497 per month. This change was based in part on a reduction of the number of father's parenting time from 75 to 60 overnights. Furthermore, father was ordered to pay a $675 arrearage on child support, and to continue to share equally in the payment of the daughter's uninsured medical, dental, and orthodontia expenses. Father was ordered to pay $881 for his one-half share of the past-due orthodontia expenses, all of the past-due medical expenses in the amount of $812, $2,625 to reimburse mother for father's attorney fees stemming from the permanent orders, and $500 for part of -the attorney fees mother incurred in bringing the motion to modify child support.\\nUpon father's motion to review the magistrate's order, the district court affirmed the modification of child support and the $500 award of attorney fees, but reversed the $2,625 award of attorney fees.\\nAs- a threshold matter, we note that father .has attached to his brief certain documents,including a financial affairs affidavit, which do not appear in the record on appeal. These documents will not be considered. See In re Marriage of Murray, 790 P.2d 868 (Colo.App.1989). Furthermore, father requests relief pursuant to C.R.C.P. 60 for various discovery errors, fraud, and misrepresentation. However, because a C.R.C.P. 60 motion was not filed, these issues cannot become the subject of this appeal. See In re Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718 (Colo.1992) (arguments not presented to, considered, or ruled upon by the trial court may not be raised for the first time on appeal).\\nI. Child Support\\nFather contends that the district court made various errors in reviewing the magistrate's modification of child support. We agree with some, but not all, of these contentions.\\nA.\\nFirst, father contends that the $881 he was ordered to pay for orthodontia expenses was unsubstantiated, and that the amount of medical expenses was erroneous because, under the court-approved stipulation, the amount should have been shared equally by the parties. We conclude that the issue of these expenses must be reconsidered upon remand to the district court.\\nSection 14-10-115(13.5)(h)(I), C.R.S. (1996 Cum.Supp.) provides that extraordinary medical expenses incurred on behalf of a child must be added to the basic child support obligation and shared by the parents in proportion to their adjusted gross incomes. Extraordinary medical expenses under \\u00a7 14-10 \\u2014 115(13.5)(h)(II), C.R.S. (1996 Cum.Supp.) are uninsured expenses in excess of $100 for a single illness or condition incurred for, inter alia, reasonably necessary orthodontia, dental treatment, and any uninsured chronic health problem. In re Marriage of Ahrens, 847 P.2d 257 (Colo.App.1993).\\nThe inclusion of extraordinary medical expenses in the child support calculation contemplates ongoing, recurring expenses for chronic medical problems, thereby rendering it appropriate to increase, on a relatively permanent basis, the overall support obligation. See In re Marriage of Nielsen, 794 P.2d 1097 (Colo.App.1990) (extraordinary medical expenses were required to be divided pursuant to statute even though the parties had previously agreed for each to pay one-half of the expenses). Conversely, if the uninsured medical expenses do not exceed $100 for a single illness or condition, the custodial parent is to bear those costs. In re Marriage of Finer, 920 P.2d 325 (Colo.App.1996).\\nNeither the magistrate nor the district court, had the benefit of Finer when reviewing the motion to modify child support. Thus, on remand, the district court should determine whether the child's uninsured medical expenses are extraordinary within the meaning of the statute. If so, the child support payment should be revised accordingly. If not, father should not be ordered to make any contribution toward payment of those costs. See In re Marriage of Finer, supra. However, any expenses incurred pri- or to the filing of mother's motion to modify should be determined in accordance with the provisions of the court-approved stipulation, while expenses incurred after the filing of the motion should be determined in accordance with Finer. See \\u00a7 14-10-122(l)(d), C.R.S. (1996 Cum.Supp.).\\nB.\\nNext, father contends that wife's gross income was erroneously determined because income from two part-time jobs and income from her private speech pathology practice was not included. We disagree.\\nIn calculating child support, the magistrate used the $4,347 mother earned monthly from her \\\"primary\\\" source of income as a public school teacher. At the hearing, wife testified as to her income from her primary job and two part-time jobs, and no evidence was presented as to her private practice. While the magistrate recognized that mother's total gross monthly income from her primary job and two part-time jobs totalled $4,955, he expressed some uncertainty as to whether the income from extra part-time employment should be included on the child support worksheet.\\nUnder Colo. Sess. Laws 1992, ch. 39, \\u00a7 14-10-115(7)(a)(I) at 190, in effect at the time of the hearing, \\\"gross income\\\" for purposes of calculating child support included income from any source, including income from wages and salaries. Overtime pay was included in gross income only if overtime was required by the employer as a condition of employment. In re Marriage of Campbell, 905 P.2d 19 (Colo.App.1995).\\nHere, in excluding mother's extra income from part-time employment, the magistrate equated that amount with voluntary overtime pay. While we conclude that the result is correct, the analysis is not.\\nThere is no definition of \\\"overtime\\\" in the Uniform Dissolution of Marriage Act. However, because there are references in the Act to both income from overtime and income from \\\"extra\\\" employment, we conclude that the two terms are not interchangeable.\\nAnother subsection of the child support guidelines, which was in effect at the time of the hearing, sets forth various factors to be considered by a trial court when deviating from the child support guidelines. Among those enumerated factors are overtime pay and income from employment that is in addition to a full-time job. See Colo. Sess. Laws 1992, ch. 39, \\u00a7 14-10-115(3)(a) at 188-189; cf. \\u00a7 14-10-115(3)(a), C.R.S. (1996 Cum. Supp.) (now amended, effective with respect to orders entered on or after July 1, 1996, to provide that income that results in the employment of the obligor more than 40 hours per week or more than what would otherwise be considered to be full-time employment are now reasons for deviation). Thus, we conclude that the term \\\"overtime,\\\" as used in \\u00a7 14-10-115(7)(a)(I), does not include income from \\\"extra\\\" jobs.\\nWe note that this conclusion comports with the most recent amendments to this section. See \\u00a7 14-10-115(7)(a)(I)(C), C.R.S. (1996 Cum.Supp.) (effective July 1, 1996, \\\"gross income\\\" does not include income from additional jobs that result in the employment of the obligor more than 40 hours per week or more than what would otherwise be considered to be full-time employment).\\nFurthermore, the factors supporting deviation exclude factors that are already taken into consideration in the worksheet used to establish the guidelines amount. In re Marriage of Andersen, 895 P.2d 1161 (Colo.App.1995). Therefore, because income from \\\"extra\\\" jobs is included as a reason for deviation from the guidelines, it cannot also be included as a factor in establishing the guideline amount. For this reason, the magistrate correctly concluded that income from mother's two extra part-time jobs should not be included in the determination of her gross income used to calculate child support. Furthermore, since father did not request a deviation from the guideline amount, the magistrate was not bound to consider mother's additional income as a factor supporting deviation.\\nC.\\nFather's final contention as to child support is that the determination of his overnights with his daughter is erroneous. We conclude that the matter must be remanded to the district court for reconsideration.\\nThe amount of parenting time granted to a parent relates to custody, and issues relating to custody and child support are separate. See County of Clearwater v. Petrash, 198 Colo. 231, 598 P.2d 138 (1979).\\nHere, mother's motion for modification was for child support, not the amount of parenting time afforded father. Father's parenting time had been established in earlier litigation between the parties, and was not an issue in this hearing. There was no request to modify parenting time, no notice to father, and no evidence or findings to support a modification. Thus, the magistrate's unilateral change in the amount of parenting time was error.\\nOn remand, the district court is instructed to recalculate child support using 75 overnights, the number granted to father in the 1990 court-approved stipulation.\\nBecause of this disposition we need not consider other issues raised by father.\\nII. Attorney Fees\\nIn the notice of appeal, father listed the $500 attorney fee award as an issue on appeal, but failed to argue that issue in the brief. Thus, we conclude that the issue was abandoned and we decline to consider it. See W.C. in Interest of A.M.K., 907 P.2d 719 (Colo.App.1995).\\nWhile father did present the $2,625 attorney fee award in the brief as an \\\"illustration\\\" of the format of his brief, we note that this award of attorney fees was reversed by the district court in father's favor. Thus, there is nothing to review in regard to this award.\\nIII. Default\\nFather's last contention is that it was error to find him in \\\"default.\\\" The error, if any, is harmless, and therefore will be disregarded.\\nThe only reference to a default is in the magistrate's order, where he stated that: \\\"Having faded to appear, [father] is found to be in default.\\\" The magistrate did not use the term as contemplated by C.R.C.P. 55, and therefore, as a practical matter it had no effect on the proceedings. See In re Marriage of Sorensen, 679 P.2d 612 (Colo.App.1984).\\nThe order of the district court is vacated as to the orthodontia and medical expenses, the $675 child support arrearage, and the number of overnights. On remand, child support and the arrearage, if any, shall be recalculated in accordance with this opinion. The order is affirmed in all other respects.\\nMARQUEZ and RULAND, JJ., concur.\"}"

colorado/10324317.json

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+"{\"id\": \"10324317\", \"name\": \"Roberto DIAZ a/k/a Robert Diaz and Roberto A. Diaz, individually, as a member of Den-Mex Limited Liability Company, a Colorado limited liability company, and derivatively, on behalf of Den-Mex Limited Liability Company; Sara Diaz a/k/a Sara F. Diaz, individually, as a member of Den-Mex Limited Liability Company, and derivatively, on behalf of Den-Mex Limited Liability Company; and Copa Cabana Night Club Corporation, a Colorado Corporation, Plaintiffs-Appellants, v. Manuel FERNANDEZ a/k/a Manuel I. Fernandez, individually, as a manager of Den-Mex Limited Liability Company, and d/b/a Mammoth Gardens, Mammoth Events Center, and Latino U.S.A.; Magaly Fernandez, individually, as a manager of Den-Mex Limited Liability Company, and d/b/a Mammoth Gardens, Mammoth Events Center, and Latino U.S.A.; and Den-Mex Limited Liability Company, a Colorado limited liability company; Mammoth Events, Inc., a Colorado corporation, Defendants-Appellees\", \"name_abbreviation\": \"Diaz v. Fernandez\", \"decision_date\": \"1995-12-07\", \"docket_number\": \"No. 94CA1719\", \"first_page\": \"96\", \"last_page\": \"98\", \"citations\": \"910 P.2d 96\", \"volume\": \"910\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T23:53:18.738159+00:00\", \"provenance\": \"CAP\", \"judges\": \"JONES and BRIGGS, JJ., concur.\", \"parties\": \"Roberto DIAZ a/k/a Robert Diaz and Roberto A. Diaz, individually, as a member of Den-Mex Limited Liability Company, a Colorado limited liability company, and derivatively, on behalf of Den-Mex Limited Liability Company; Sara Diaz a/k/a Sara F. Diaz, individually, as a member of Den-Mex Limited Liability Company, and derivatively, on behalf of Den-Mex Limited Liability Company; and Copa Cabana Night Club Corporation, a Colorado Corporation, Plaintiffs-Appellants, v. Manuel FERNANDEZ a/k/a Manuel I. Fernandez, individually, as a manager of Den-Mex Limited Liability Company, and d/b/a Mammoth Gardens, Mammoth Events Center, and Latino U.S.A.; Magaly Fernandez, individually, as a manager of Den-Mex Limited Liability Company, and d/b/a Mammoth Gardens, Mammoth Events Center, and Latino U.S.A.; and Den-Mex Limited Liability Company, a Colorado limited liability company; Mammoth Events, Inc., a Colorado corporation, Defendants-Appellees.\", \"head_matter\": \"Roberto DIAZ a/k/a Robert Diaz and Roberto A. Diaz, individually, as a member of Den-Mex Limited Liability Company, a Colorado limited liability company, and derivatively, on behalf of Den-Mex Limited Liability Company; Sara Diaz a/k/a Sara F. Diaz, individually, as a member of Den-Mex Limited Liability Company, and derivatively, on behalf of Den-Mex Limited Liability Company; and Copa Cabana Night Club Corporation, a Colorado Corporation, Plaintiffs-Appellants, v. Manuel FERNANDEZ a/k/a Manuel I. Fernandez, individually, as a manager of Den-Mex Limited Liability Company, and d/b/a Mammoth Gardens, Mammoth Events Center, and Latino U.S.A.; Magaly Fernandez, individually, as a manager of Den-Mex Limited Liability Company, and d/b/a Mammoth Gardens, Mammoth Events Center, and Latino U.S.A.; and Den-Mex Limited Liability Company, a Colorado limited liability company; Mammoth Events, Inc., a Colorado corporation, Defendants-Appellees.\\nNo. 94CA1719.\\nColorado Court of Appeals, Div. III.\\nDec. 7, 1995.\\nJohn P. Tracy, Boulder, for Plaintiffs-Appellants.\\nMosley, Wells & McClain, LLC, Neil L. McClain, Michael P. Matthews, Regina T. Drexler, Denver, for Defendants-Appellees.\", \"word_count\": \"1058\", \"char_count\": \"6990\", \"text\": \"Opinion by\\nJudge RULAND.\\nPursuant to C.A.R. 1(a)(4), plaintiffs, Roberto and Sara Diaz, appeal from an order denying their motion for appointment of a receiver for defendant, Den-Mex Limited Liability Company (Den-Mex). We reverse and remand for further proceedings.\\nPlaintiffs hold a 49% interest in Den-Mex, a company which operates an FCC licensed radio station. Defendants, Manuel and Ma-galy Fernandez, hold a 51% interest in Den-Mex and act as the company's managers.\\nPlaintiffs filed a verified complaint against defendants alleging that the company's assets were being dissipated by mismanagement and fraudulent conduct on the part of defendants. In addition to claims for damages, plaintiffs' complaint requested an accounting, an injunction, and the appointment of a receiver for the company. Plaintiffs also filed a pre-trial motion for appointment of a receiver, and defendants responded to oppose the request.\\nBased upon written submissions and affidavits filed by the parties, the trial court denied plaintiffs' motion. As grounds for its order, the trial court noted that plaintiffs had not petitioned for the dissolution of the company and concluded that there was no compelling evidence of the company's insolvency resulting from fraud.\\nPlaintiffs contend that the trial court abused its discretion by denying their request for an evidentiary hearing relative to the motion. We conclude that the court applied an incorrect legal standard in its ruling and that plaintiffs established their entitlement to an evidentiary hearing.\\nAs pertinent here, C.R.C.P. 66(a)(1) provides for the appointment of a receiver when the moving party establishes:\\na prima facie right to the property, or to an interest therein, which is the subject of the action and is in possession of an adverse party and such property, or its . profits are in danger of being lost . or materially injured or impaired.\\nAlthough plaintiffs did not request dissolution of Den-Mex in their complaint, we note that the Colorado Limited Liability Company Act, \\u00a7 7-80-101, et seq., C.R.S. (1995 Cum.Supp.) grants a member of a limited liability company a personal property interest in the company. Section 7-80-702(1), C.R.S. (1995 Cum.Supp.). And, defendants do not dispute plaintiffs' ownership status under the Act. Therefore, based upon the express language of the rule, appointment of a receiver is authorized under appropriate circumstances without a pending request for dissolution of the company.\\nWith reference to the issue whether plaintiffs are entitled to an evidentiary hearing, we view Savageau v. Savageau, 132 Colo. 75, 285 P.2d 810 (1955) as instructive. In that case and consistent with the express language of C.R.C.P. 66(a)(1), the court held that appointment of a receiver was not appropriate merely to protect the rights of disgruntled stockholders in a corporation but that such an appointment would be proper:\\n[wjhere active fraud and deceit appear, where the corporation is insolvent, or for some reason or other it has ceased to carry on its authorized functions, and because thereof its property and assets are in danger of being dissipated or lost....\\nSavageau v. Savageau, 132 Colo. at 82, 285 P.2d at 813.\\nHence, given the express language of the rule and the criteria stated in Savageau, we conclude that it need not appear from the movant's request for appointment of a receiver that any imminent insolvency result only from fraud.\\nHere, the affidavits of the parties are in conflict whether plaintiffs, defendants, or both are in default as to payments due under an operating agreement to fund working capital requirements. There are also significant conflicts in the affidavits relative to the business knowledge and conduct of defendants in the operation of the radio station as well as whether either plaintiffs' other independent business or defendants' other independent businesses were to receive free advertising and under what circumstances.\\nHowever, plaintiffs filed an affidavit from a certified public accountant in support of their request which states that certain examinations were made of the company's books and records in conjunction with an independent audit to be paid for by plaintiffs. In addition to noting various deficiencies in the company's books, records, method of accounting, and management's disclosures, the affidavit states that the company is insolvent or in danger of insolvency because, among other things, there is a \\\"significant working capital deficit.\\\" Further, the auditor states that plaintiffs are not in default as to their contributions.\\nIn addition, the affidavit states that federal payroll taxes, Colorado withholding taxes, Colorado unemployment taxes and amounts due garnishors from employee wages have not been paid during relevant periods. The affidavit also states that: \\\"employees, third party service providers and even the Lessor/Licensee . [of the radio station] are repeatedly paid with checks from accounts lacking sufficient funds.... \\\" Finally, the affidavit states that the auditor \\\"observed significant and unusual related party transactions not in the ordinary course of company business\\\" which are then specified.\\nUnder these circumstances, we conclude that, with reference to their insolvency claim, if not their fraud claim as well, plaintiffs have established their entitlement to an evidentia-ry hearing relative to the appointment of a receiver under the criteria contained in C.R.C.P. 66(a)(1) as discussed in Savageau v. Savageau, supra.\\nBy reason of our resolution of this issue, we need not address plaintiffs' other challenges to the court's order.\\nAccordingly, the order is reversed and the cause is remanded for further proceedings consistent with the views expressed in this opinion.\\nJONES and BRIGGS, JJ., concur.\"}"

colorado/10340748.json

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+"{\"id\": \"10340748\", \"name\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kevin Jerome MOORE, Defendant-Appellant\", \"name_abbreviation\": \"People v. Moore\", \"decision_date\": \"1994-08-25\", \"docket_number\": \"No. 93CA0003\", \"first_page\": \"366\", \"last_page\": \"375\", \"citations\": \"902 P.2d 366\", \"volume\": \"902\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T18:43:34.517492+00:00\", \"provenance\": \"CAP\", \"judges\": \"METZGER, J., concurs.\", \"parties\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kevin Jerome MOORE, Defendant-Appellant.\", \"head_matter\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kevin Jerome MOORE, Defendant-Appellant.\\nNo. 93CA0003.\\nColorado Court of Appeals, Div. I.\\nAug. 25, 1994.\\nRehearing Denied Oct. 20, 1994.\\nCertiorari Granted Sept. 25, 1995.\\nGale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Linda C. Mi-chow, Sp. Asst. Atty. Gen., Denver, for plaintiff-appellee.\\nChambers, Dansky and Hansen, P.C., Nathan Chambers, Denver, for defendant-appellant.\", \"word_count\": \"4919\", \"char_count\": \"30426\", \"text\": \"Opinion by\\nJudge RULAND.\\nDefendant, Kevin Jerome Moore, appeals from the judgment of conviction entered upon a jury verdict finding him guilty of manslaughter. He also seeks review of the 12-year sentence imposed by the trial court. We affirm.\\nPrior to the homicide, defendant and a group of his high school friends were occupying a street comer. Some of the youths picked a fight with several soldiers, and defendant was observed throwing punches in that altercation. Later, he kicked the door of the ear in which the soldiers left the scene. A witness quoted defendant as stating at this point, \\\"Let's fight, let's fight.\\\"\\nShortly thereafter, defendant, along with at least one of his schoolmates, began to kick nearby newspaper stands. Defendant and his schoolmates were visibly upset and angry-\\nApproximately BO minutes later, the victim and his friend, also soldiers, were walking along the street where defendant and his group had congregated. The victim's friend heard one of the young men ask them, \\\"What are you guys doin' walkin' on our block?\\\" The victim then received a blow in the back of the head and fell to the ground.\\nThe victim's friend attempted to aid the victim but could not because he was attacked by some of the youths including defendant. Eventually, he fought his way to the victim who was lying on the ground unconscious.\\nAt least five of the youths including defendant were still kicking the victim. The friend tried to push the assailants away and pleaded with them to stop. However, one of the assailants kicked the friend, causing him to fall on top of the victim. The kicking blows by defendant and others continued against the victim and there was some evidence that defendant kicked the victim again after the others had stopped. A witness testified that she pleaded with defendant to stop and he replied: \\\"So, I don't care. If you want to, you can be next.\\\"\\nUltimately, the assailants dispersed. The victim died from blunt trauma to the head caused by hemorrhaging inside his skull.\\nDefendant was charged with extreme indifference murder in the first degree and murder in the second degree. The jury was also instructed on manslaughter and criminally negligent homicide as lesser included offenses. As noted, defendant was convicted of manslaughter.\\nI.\\nRelying on People v. Jefferson, 748 P.2d 1223 (Colo.1988), defendant first contends that the trial court committed reversible error by denying his motion for judgment of acquittal on the charge of extreme indifference murder because, he argues, there was insufficient evidence to support that charge. Specifically, defendant claims that the prosecution failed to prove \\\"universal malice\\\" because the \\\"killing conduct\\\" in this case was directed at a particular person, the victim.\\nIn addition, and relying upon cases such as Tate v. People, 125 Colo. 527, 247 P.2d 665 (1952), defendant asserts that the error was not harmless because the jury's deliberations on the various lesser included charges including criminally negligent homicide likely produced a compromise verdict. We conclude that the trial court did not err in denying defendant's motion.\\nSection 18 \\u2014 3\\u2014102(1)(d), C.R.S. (1986 Repl. Vol. 8B) provides that a defendant commits first degree murder if:\\nUnder circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, he knowingly engages in conduct which creates a grave risk of death to a person, or persons, other than himself and thereby causes the death of another.\\nWith reference to the component of universal malice, the Jefferson court, quoting Longinotti v. People, 46 Colo. 173, 102 P. 165 (1909), stated:\\nBy universal malice, we do not mean a malicious purpose to take the life of all persons. It is that depravity of the human heart, which determines to take life upon slight or insufficient provocation, without knowing or caring who may be the victim.\\nPeople v. Jefferson, supra, at 1228.\\nIn discussing the constitutionality of the extreme indifference murder statute, our supreme court explained in Jefferson that:\\nThe intent of the legislature has always been to prohibit extremely reckless con duct, when accompanied by evidence of 'universal malice.'\\nPeople v, Jefferson, supra, at 1231.\\nBy adding the words \\\"universal malice\\\" and \\\"generally\\\" to the statute in 1981, the Jefferson court perceived:\\n[A]n unmistakable indication of the legislative intent to . limit the application of extreme indifference murder to situations in which the actor demonstrates an indifference to human life generally, as distinguished from indifference to, or willingness to take, a particular human life.\\nPeople v. Jefferson, supra, at 1232.\\nThus, the court held that the offense is committed under the current statute \\\"only if the killing conduct is of a type which is not directed against a particular person at all\\\" and that the General Assembly intended to adopt different penalties for \\\"knowing conduct of a type directed against a particular individual [second degree murder], and . killing conduct . which by its very nature evidences a willingness to take human life without regard to the victim.\\\" People v. Jefferson, supra, at 1233.\\nThe Jefferson court indicated that a variety of factors may exhibit a legally sufficient degree of aggravated recklessness to support a finding of extreme indifference murder:\\nThe nature, duration and intensity of the actor's culpable state of mind, his manner of killing, his relationship to the vietim(s), and the presence or absence of mitigating factors \\u2014 may all affect a jury's determination of whether the extreme indifference statute fits the facts of a particular case.\\nPeople v. Jefferson, supra, at 1234.\\nHowever, contrary to defendant's contention, we do not read People v. Jefferson, supra, as limiting the jury's consideration of this charge here to the evidence relative to the blows inflicted upon the victim by defendant immediately before the victim's death. Instead, under the circumstances of this case, we conclude that the jury could properly consider the conduct of defendant from and after the time when he and his companions took control of the street corner as bearing upon his state of mind, his reckless conduct, and as indicating his intent to take human life without provocation and without regard to who the victim might be,\\nAs a result, and unlike in People v. Atkins, 844 P.2d 1196 (Colo.App.1992), here, there was evidence to support the charge. Specifically, the jury could have concluded that defendant had indiscriminately shoved, hit, kicked, and threatened one or more persons without provocation near the time of the victim's death, thus indicating excessively reckless conduct. Further, there was testimony that defendant had worked himself into a frenzy and that he did not know the victim or any of the other people he hit, kicked, or shoved, tending to establish his extreme indifference to the value of human life.\\nViewing that evidence in a light most favorable to the prosecution, as we must, we conclude that the jury could well have found defendant guilty of the charge beyond a reasonable doubt. See People v. Gonzales, 666 P.2d 123 (Colo.1983); People v. Braxton, 807 P.2d 1214 (Colo.App.1990). Thus, the trial court did not err in denying defendant's motion.\\nII.\\nDefendant contends that the court made various errors regarding jury instructions. Again, we find no merit in any of his contentions.\\nA.\\nDefendant first asserts that the jury was wrongly instructed that second degree murder is a lesser included offense of extreme indifference murder. However, a division of this court held to the contrary in People v. Rodriguez, 888 P.2d 278 (Colo.App.1994). We view that case as dispositive of defendant's contention.\\nB.\\nDefendant further contends that the trial court committed reversible error when it failed to instruct the jury on the misdemeanor charge of third degree assault. While defendant concedes that the tendered instruction was submitted by trial counsel improperly as a lesser included offense, nev ertheless, he asserts that the instruction should have been given either as a lesser non-included offense or as a theory of the case instruction. We perceive no error in the court's ruling.\\nA court is required to give a lesser included offense instruction whenever there is a rational basis for the jury to acquit the defendant on the greater charge and convict him on the lesser offense. People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974). Likewise, in People v. Skinner, 825 P.2d 1045 (Colo.App.1991), a division of this court held that the same legal standard should be used to determine whether a lesser non-included instruction is appropriate.\\nHere, defendant proposed that the jury be given an instruction on third degree assault, which is defined as follows:\\nA person commits the crime of assault in the third degree if he knowingly or recklessly causes bodily injury to another person or with criminal negligence he causes bodily injury to another person by means of a deadly weapon.\\nSection 18-3-204, C.R.S. (1986 Repl.Vol. 8B).\\nWe agree with the trial court's conclusion that there was no rational basis upon which the jury could convict defendant of assault on the victim and acquit him of manslaughter. This is because the victim' died from the injuries inflicted by defendant and his companions, and there was evidence both that defendant kicked the victim after his companions had stopped and that defendant's blows contributed to the cause of the victim's death.\\nOn the other hand, to the extent that defendant characterized the instruction as a theory of the case, we conclude that this concept was already contained in the given theory of the case instruction.\\nC.\\nIn regard to defendant's contention that the trial court erred in failing to instruct the jury on the legal defimtion of \\\"intentionally\\\" in conjunction with the instruction on eomplieity, People v. R.V., 635 P.2d 892 (Colo.1981) is dispositive.\\nIII.\\nDefendant next contends that the trial court improperly allowed evidence of defendant's other \\\"bad acts\\\" consisting of the assault which occurred approximately 30 minutes before the victim was assaulted. Again, we disagree.\\nGenerally, evidence of independent wrongdoing or bad acts is inadmissible. People v. Spoto, 795 P.2d 1314 (Colo.1990). Such evidence is admissible, however, when it is an integral part of the criminal transaction and may be relevant for the fact finder to understand the context in which the alleged crime occurred. And, in such circumstances, the evidence is not subject either to the general rule that excludes evidence of prior criminality or to the procedural requirements of Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959). People v. Czemerynski, 786 P.2d 1100 (Colo.1990).\\nAbsent a showing of abuse of discretion, a trial court's determination on the admissibility of evidence will not be reversed. People v. Lowe, 660 P.2d 1261 (Colo.1983).\\nHere, the court found the disputed testimony to be part of the res gestae of the criminal transaction. The record reflects no abuse of discretion by the court in that ruling.\\nContrary to defendant's contention, the time interval did not preclude admission of this evidence. In this context, a division of this court has previously allowed evidence that occurred \\\"within hours\\\" to be admitted as \\\"contemporaneous.\\\" Contemporaneous does not mean simultaneous. See People v. Tauer, 847 P.2d 259 (Colo.App.1993).\\nIV.\\nDefendant also argues that his cons\\\"onal right to a jury of Ms peers was abndged' We not P\\u2122ded.\\nDefendant's original court-appointed counsel filed a motion to change venue. Defendant now claims that, although he was represented by counsel, at no time was inquiry made as to whether defendant wished to have his trial moved. Following an extensive hearing, the district court ordered that venue be moved from El Paso County to Larimer County. Five months later, defendant, through new counsel, filed a motion to return the venue to El Paso County. His motion was denied.\\nThe decision whether to grant or deny a change of venue rests in the sound discretion of the trial court, and, absent a clear abuse of discretion, a trial court's decision will not be disturbed. Wafai v. People, 750 P.2d 37 (Colo.1988). Here, there is nothing in the record to indicate, nor does defendant suggest, that the trial court abused its discretion in determining that defendant could receive a fair and expeditious trial in Larimer County.\\nDefendant's motion to return the case to El Paso County merely stated that, given the length and complexity of the case, it would be more economical to try the case in that county where his co-defendants apparently were able to impanel a fair and impartial jury. However, as the court noted in its denial of defendant's motion, extensive pretrial publicity about the murder of the victim had increased during the five months between defendant's venue motions. Further, the court relied upon the fact that significant difficulties and time were required to pick a jury for a trial of one of defendant's co-defendants.\\nIn these circumstances, the trial court did not abuse its discretion in determining that venue should not be changed. See Wafai v. People, supra.\\nV.\\nDefendant's final contention is that the trial court abused its discretion in imposing an aggravated sentence of 12 years because its finding of extraordinary aggravating circumstances was based on elements of the crime for which he was convicted. Defendant's claim lacks merit.\\nDefendant's conviction of manslaughter, a class 4 felony, required the court to impose a two to eight year sentence. Section 18-1-105(1)(a)(IV), C.R.S. (1986 Repl.Vol. 8B). If, however, the court found extraordinary aggravating circumstances, it could impose a discretionary aggravated sentence not to exceed 16 years. Section 18-1-105(6), C.R.S. (1993 Cum.Supp.).\\nWhen a sentence outside the presumptive range is imposed, the court is required to place on the record its findings as to aggravating circumstances that justify variation from the presumptive range. People v. Vela, 716 P.2d 150 (Colo.App.1985). Further, there must be sufficient facts in the record to support the trial court's finding. People v. Walters, 632 P.2d 566 (Colo.1981). And, a trial court's sentencing decision will not be reversed absent a clear abuse of discretion. People v. Watkins, 684 P.2d 234 (Colo.1984).\\nHere, the court stated that:. \\\"If there ever was a crime of manslaughter that can be characterized by the brutality and extraordinary aggravating [circumstances], this crime was.\\\" The court found that the nature of the offense was extremely violent, the victim lay helpless and unconscious through most of the attack, and the victim in no way provoked the attack. The court further found that defendant not only minimized, but flatly denied his involvement in kicking the victim. The court also noted that defendant had consumed alcohol the night of the incident.\\nBased on the record before us, we conclude that the trial court considered appropriate factors and made sufficient findings to support its sentence. Hence, it will not be disturbed on review.\\nFinally, we reject defendant's assertion that the trial court improperly considered the elements of the offense as extraordinary aggravation. No constitutional or statutory provision prohibits the trial court's consideration of specific relevant facts, which in isolation, are not necessarily determinative of the essential elements of the offense as extraordinary aggravating circumstances justifying the imposition of a sentence in the aggravated range. People v. Sanchez, 769 P.2d 1064 (Colo.1989); People v. Hernandez-Luis, 879 P.2d 429 (Colo.App.1994).\\nThe judgment and sentence are affirmed.\\nMETZGER, J., concurs.\\nROY, J., dissents.\"}"

colorado/10344522.json

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+"{\"id\": \"10344522\", \"name\": \"FARMERS INSURANCE EXCHANGE, Plaintiff-Appellee, v. Eric SITTNER, Defendant-Appellant\", \"name_abbreviation\": \"Farmers Insurance Exchange v. Sittner\", \"decision_date\": \"1995-06-15\", \"docket_number\": \"No. 94CA0247\", \"first_page\": \"938\", \"last_page\": \"941\", \"citations\": \"902 P.2d 938\", \"volume\": \"902\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T18:43:34.517492+00:00\", \"provenance\": \"CAP\", \"judges\": \"RULAND and ROY, JJ., concur.\", \"parties\": \"FARMERS INSURANCE EXCHANGE, Plaintiff-Appellee, v. Eric SITTNER, Defendant-Appellant.\", \"head_matter\": \"FARMERS INSURANCE EXCHANGE, Plaintiff-Appellee, v. Eric SITTNER, Defendant-Appellant.\\nNo. 94CA0247.\\nColorado Court of Appeals, Div. V.\\nJune 15, 1995.\\nRehearing Denied July 20, 1995.\\nAnderson, Campbell and Laugesen, P.C., Robert L. McGahey, Jr., Yvonne M. Kreye, Denver, for plaintiff-appellee.\\nBryans & Bryans, Richard W. Bryans, Richard W. Bryans, Jr., Denver, Colorado; White & Steele, P.C., Kevin W. Hecht, Denver, for defendant-appellant.\", \"word_count\": \"1419\", \"char_count\": \"9154\", \"text\": \"Opinion by\\nJudge ROTHENBERG.\\nDefendant, Eric Sittner, appeals from the declaratory judgment entered in favor of plaintiff, Farmers Insurance Exchange (Farmers). We affirm.\\nIn 1990, Sittner was seriously injured when he was hit by an Arapahoe County dump truck while riding his bicycle.\\nAt the time of the accident, Sittner was insured by Farmers under two policies. Upon Sittner's request, Farmers paid him Personal Injury Protection (PIP) benefits of $41,618.66 for medical bills and lost wages. Asserting that the county was the primary carrier, see \\u00a7 10-4-707(3), C.R.S. (1994 Repl. Vol. 4A), Farmers made a demand upon the county for reimbursement of the PIP benefits that Farmers had paid Sittner. The county reimbursed Farmers for those benefits and also paid Sittner's remaining PIP expenses incurred as a result of the accident.\\nSittner also filed a tort claim against the county seeking damages for the negligence of its employee.\\nIn June 1992, the county and Sittner entered into a settlement agreement resolving Sittner's tort claims. The parties stipulated that the reasonable value of Sittner's injuries exceeded $150,000. The county represented that it was self-insured for the first $150,000 of PIP coverage and/or liability damages per person. The county's position was that its maximum liability for PIP benefits and/or tort damages under the Governmental Immunity Act, \\u00a7 24-10-114, C.R.S. (1994 Cum. Supp.), was $150,000.\\nContrary to the advice of his insurer, Farmers, Sittner settled his claim with the county in accordance with the county's position. Consistent with that position, the county paid Sittner $88,697.74 under the settlement agreement. This amount was calculated by taking $150,000 (the maximum benefit conceded by the county) and subtracting PIP benefits it had paid to Sittner as well as the other $41,618.66 in PIP benefits the county had reimbursed to Farmers. In the settlement agreement, Sittner also reserved the right to pursue a claim against Farmers for reimbursement of the amounts the county had paid to Farmers.\\nThereafter, Sittner demanded that Farmers reimburse him for the $41,618.66 it had received from the county. According to Sitt-ner, the county's payment to Farmers reduced the amount of insurance available to compensate him in violation of \\u00a7 10-4-717(4), C.R.S. (1994 Cum.Supp.).\\nFarmers filed this declaratory judgment action against Sittner, seeking a determination as to whether Sittner was entitled to reimbursement. The trial court ruled that Sittner was not entitled to such reimbursement and entered a declaratory judgment in favor of Farmers.\\nThe court found that: (1) the limits set by the Governmental Immunity Act pertain to tort liability and are not subject to reduction by PIP benefits paid pursuant to the No-Fault Act; (2) Sittner had the full $150,000 tort liability available to him regardless of the fact that the county had reimbursed Farmers; and (3) since the county's reimbursement to Farmers did not reduce the amount of liability insurance available to compensate Sittner, Farmers was not required to reimburse Sittner.\\nSittner contends that the trial court erred in entering a declaratory judgment in favor of Farmers. More specifically, he contends that Farmers was not entitled to be reimbursed for PIP benefits it had paid Sittner and that such reimbursement by the county reduced the amount of insurance available to compensate him in violation of \\u00a7 10-4-717(4).\\nBecause we hold that PIP payments are not included within the maximum liability limit of $150,000 established under the Governmental Immunity Act, we reject Sittner's contention.\\nSection 10-4-717(4) states:\\nNothing in this section shall be construed to allow an insurer to claim and receive reimbursement, whether by arbitration, subrogation, litigation, intracompany set-off, or any other means, from the liability insurance of the tort-feasor in such a manner as to reduce the amount of liability insurance available to reasonably compensate an injured victim having a claim or cause of action under HM-714.\\nThe Colorado Auto Accident Reparations Act, \\u00a7 10-4-701, et seq., C.R.S. (1994 Repl.Vol. 4A) (No-Fault Act) governs the rights and liabilities for personal injuries resulting from automobile accidents. The basic purpose of the No-Fault Act is \\\"to avoid inadequate compensation to victims of automobile accidents\\\" by requiring registrants of motor vehicles to procure insurance which provides \\\"benefits to persons . injured in accidents involving such vehicles.\\\" Section 10-4-702, C.R.S. (1994 Repl.Vol. 4A). See Cingoranelli v. St. Paul Fire & Marine Insurance Co., 658 P.2d 863 (Colo.1983).\\nTo accomplish this objective the No-Fault Act requires self insureds to provide minimum PIP coverage in prescribed amounts payable regardless of fault. Section 10-4-706(1), C.R.S. (1994 Repl.Vol. 4A). See \\u00a7 10-4-705(1), C.R.S. (1994 Repl.Vol. 4A).\\nA PIP claim when a self insured entity is involved is a direct statutory action against the self insurer. PIP claims are distinct from tort claims in both purpose and effect. See Cingoranelli v. St. Paul Fire & Marine Insurance Co., supra; Marquez v. Prudential Property & Casualty Insurance Co., 620 P.2d 29 (Colo.1980) (intent of the No-Fault Act is to allow an injured party full PIP as well as full tort recovery absent double compensation). Cf. Newton v. Nationwide Mutual Fire Insurance Co., 197 Colo. 462, 594 P.2d 1042 (1979) (insurance policy allowing insurer to offset PIP benefits against uninsured motorist coverage void as against public policy; such a provision allows an insur- anee carrier to provide less than the statutorily mandated minimum coverage).\\nIn analyzing Sittner's argument, we also must consider the fact that he is bringing this action against Arapahoe County, a public entity.\\nWith limited exceptions, the Governmental Immunity Act bars any claim against a public entity for injuries that lie in tort or could lie in tort. Section 24-10-108, C.R.S. (1994 Cum.Supp.). One limited situation in which the General Assembly has deemed it appropriate to waive the defense of sovereign immunity is in an action involving the operation of a motor vehicle owned or leased by a public entity and operated by its employee while in the course of employment. Section 24\\u201410\\u2014106(1)(a), C.R.S. (1988 Repl.Vol. 10A). See Bertrand v. Board of County Commissioners, 872 P.2d 223 (Colo.1994); Bain v. Town of Avon, 820 P.2d 1133 (Colo.App. 1991).\\nSection 24-10-114(1), C.R.S. (1988 Repl. Vol. 10A) sets forth the maximum amounts that may be recovered under the Governmental Immunity Act. As relevant here, the maximum amount that may be recovered from a public entity for an injury to one person in any single occurrence is $150,000.\\nWhen a tort claim is filed against a governmental entity, PIP payments made by a governmental entity are separate and distinct from its tort liability because, as previously noted, two separate obligations are involved. The PIP payments are a statutory obligation imposed without regard to fault, whereas any tort liability arises from fault. See \\u00a7 10-4-705(1), and 10-4-706, C.R.S. (1994 Repl.Vol. 4A). Cf. Cingoranelli v. St. Paul Fire & Marine Insurance Co., supra.\\nIf a governmental entity were entitled to deduct PIP payments from its maximum liability under the Governmental Immunity Act, such a setoff conceivably could allow the governmental entity to pay only PIP benefits, and injured parties would receive nothing for their tort claims. Further, if PIP benefits exceeded the liability limits, the governmental entity's liability under the Governmental Immunity Act effectively would be reduced or eliminated. Such a result would lead to inadequate compensation to victims of automobile accidents.\\nApplying those principles, here, we hold that Sittner's claims for PIP benefits from Farmers and/or the county were separate and distinct from his tort claim against the county. Thus, since Sittner was eligible to receive $150,000 in settlement of his tort claim, even though he actually did not receive the full amount, the county's reimbursement to Farmers of PIP benefits paid did not reduce the amount of insurance available to compensate him. See Marquez v. Prudential Property & Casualty Insurance Co., supra.\\nAccordingly, the trial court did not err in entering a declaratory judgment in favor of Farmers.\\nIn view of our conclusion that the county's payment to Farmers did not diminish Sitt-ner's entitlement to full compensation, and inasmuch as the county is not a party to this proceeding, we do not determine whether such payment may have violated \\u00a7 10-4-713, C.R.S. (1994 Repl-Vol. 4A).\\nThe judgment is affirmed.\\nRULAND and ROY, JJ., concur.\"}"

colorado/10348779.json

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+"{\"id\": \"10348779\", \"name\": \"Perry BROWDER; Alice Browder; and The Water Wheel Partnership, a Colorado General Partnership, Plaintiffs-Appellants and Cross-Appellees, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant-Appellee and Cross-Appellant\", \"name_abbreviation\": \"Browder v. United States Fidelity & Guaranty Co.\", \"decision_date\": \"1993-10-21\", \"docket_number\": \"No. 92CA0995\", \"first_page\": \"16\", \"last_page\": \"17\", \"citations\": \"873 P.2d 16\", \"volume\": \"873\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-11T00:10:35.394115+00:00\", \"provenance\": \"CAP\", \"judges\": \"CRISWELL and RULAND, JJ., concur.\", \"parties\": \"Perry BROWDER; Alice Browder; and The Water Wheel Partnership, a Colorado General Partnership, Plaintiffs-Appellants and Cross-Appellees, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant-Appellee and Cross-Appellant.\", \"head_matter\": \"Perry BROWDER; Alice Browder; and The Water Wheel Partnership, a Colorado General Partnership, Plaintiffs-Appellants and Cross-Appellees, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant-Appellee and Cross-Appellant.\\nNo. 92CA0995.\\nColorado Court of Appeals, Div. IV.\\nOct. 21, 1993.\\nRehearing Denied Dec. 2, 1993.\\nCertiorari Granted May 2, 1994.\\nWolf & Slatkin, P.C., Jean C. Arnold, Jonathan L. Madison, Denver, for plaintiffs-appellants and cross-appellees.\\nVanatta, Sullan and Sandgrund, P.C., Ronald M. Sandgrund, Englewood, for defendant-appellee and cross-appellant.\", \"word_count\": \"896\", \"char_count\": \"5694\", \"text\": \"Opinion by\\nJudge PLANK.\\nPlaintiffs, Perry and Alice Browder, appeal from a summary judgment entered in favor of defendant, United States Fidelity & Guaranty Co. (USF & G). We affirm.\\nCentral to this dispute is a Special Multi-Peril (SMP) insurance policy issued by USF & G. Originally, it was purchased by the Fletcher Corporation (Fletcher) in February 1975. Fletcher was the owner and general construction contractor of the Water Wheel Inn Motel. Construction of the motel was completed by July 1975.\\nIn April 1976, the Browders purchased the Motel from Fletcher. As part of the sale, the SMP policy was assigned to the Brow-ders.\\nIn January 1985, the Browders noticed the ceiling of the motel was cracking and sagging. As a result, the Browders sued Fletcher for failure to construct the Water Wheel Inn in a workmanlike manner. Before trial, however, Fletcher filed for Chapter 7 bankruptcy protection, staying the lawsuit.\\nThe Browders then filed a proof of claim and commenced an adversary proceeding in the Fletcher bankruptcy. Fletcher and the Browders agreed to a stipulated judgment for $572,000. Nevertheless, the Browders have been unable to recover any of this amount because the Fletcher estate is bankrupt. As a result, the Browders brought this action against USF & G to recover part of their losses under the policy.\\nThe Browders do not seek to recover as insureds, but rather assert that their damages occurred while Fletcher was a USF & G insured and that they became subrogated to Fletcher's rights under the insurance policy once liability was established.\\nIn granting USF & G's motion for summary judgment, the trial court found both that the plaintiffs' loss was not covered under a certain SMP insurance policy and that no loss occurred during the relevant policy period. Plaintiffs contend that the trial court erred in so finding. We disagree.\\nSummary judgment is appropriate when \\\"the pleadings, affidavits, depositions, or admissions establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.\\\" Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 712 (Colo.1987).\\nThe Browders charge that the damage to the Water Wheel Inn began at the time of its negligent construction. However, the Browders were not third parties at the time they allege their damages accrued, and therefore, they cannot collect as subrogees under the policy for damages occurring at a time when Fletcher was the insured.\\nThe Browders rely on American Employer's Insurance Co. v. Pinkard Construction Co., 806 P.2d 954 (Colo.App.1990) and Trizec Properties, Inc. v. Biltmore Construction Co., 767 F.2d 810 (11th Cir.1985) in support of their contention that there was an \\\"occurrence\\\" during the period of Fletcher's coverage.\\nWe find neither case pertinent here. In Pinkard, the contractor, who was insured under a series of policies, installed a roof which began to corrode almost immediately. The Pinkard court applied the exposure theory which holds an insurer liable for damages during any policy period in which there was exposure to a damage-causing condition or agent and found that coverage was triggered under each policy.\\nWe agree that so long as the damage results from a progressive and continuous condition, an insurer can be held liable even in a situation in which the ultimate injury becomes manifest after the relevant policy term expires. Nevertheless, even though there may have been damage to the property during the period of Fletcher's policy, there could not have been any damage to the Browders because they owned no interest in the motel at that time.\\nIn a similar vein, in Trizec, the court held that \\\"the event which triggers potential coverage under an occurrence-type policy is the sustaining of actual damages by the complaining party .\\\" Trizec Properties, Inc. v. Biltmore Construction Co., supra, 767 F.2d at 812 (emphasis added).\\nFletcher was the named insured under the policy from the date it was purchased until it was assigned to the Browders. Since the sale of the property and the assignment of the policy occurred simultaneously, there is a definitive break between the liability coverage available to Fletcher as an insured and the first moment when the Browders could have sustained any property damage. Therefore, the Browders did not suffer any loss during the relevant policy period, and consequently, there was no occurrence which could have triggered coverage.\\nThe plaintiffs also contend that the trial court erred by finding that their losses were not covered because any negligent construction did not arise out of Fletcher's \\\"ownership, maintenance or use\\\" of the motel. However, inasmuch as we hold that summary judgment was properly granted in favor of USF & G, we decline to address this issue.\\nWe also decline to address USF & G's cross-appeal, which basically argues that the trial court erred in not granting summary judgment on a third alternative theory. It is unnecessary in light of our above holding.\\nHence, the summary judgment is affirmed.\\nCRISWELL and RULAND, JJ., concur.\"}"

colorado/10350292.json

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+"{\"id\": \"10350292\", \"name\": \"In the Matter of the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE, AND SUMMARY FOR A PETITION ON CAMPAIGN AND POLITICAL FINANCE. Douglas Bruce, Petitioner, and Richard K. Bainter and Patricia L. Johnson, Respondents, and Title Setting Board, Merilyn Handley, Rebecca Lennahan, and Stephen Erkenbrack, Respondents\", \"name_abbreviation\": \"In re the Title, Ballot Title & Submission Clause, & Summary for a Petition on Campaign & Political Finance\", \"decision_date\": \"1994-07-05\", \"docket_number\": \"No. 94SA146\", \"first_page\": \"311\", \"last_page\": \"321\", \"citations\": \"877 P.2d 311\", \"volume\": \"877\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T20:47:28.252040+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE, AND SUMMARY FOR A PETITION ON CAMPAIGN AND POLITICAL FINANCE. Douglas Bruce, Petitioner, and Richard K. Bainter and Patricia L. Johnson, Respondents, and Title Setting Board, Merilyn Handley, Rebecca Lennahan, and Stephen Erkenbrack, Respondents.\", \"head_matter\": \"In the Matter of the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE, AND SUMMARY FOR A PETITION ON CAMPAIGN AND POLITICAL FINANCE. Douglas Bruce, Petitioner, and Richard K. Bainter and Patricia L. Johnson, Respondents, and Title Setting Board, Merilyn Handley, Rebecca Lennahan, and Stephen Erkenbrack, Respondents.\\nNo. 94SA146.\\nSupreme Court of Colorado, En Banc.\\nJuly 5, 1994.\\nDouglas Bruce, pro se.\\nHolland & Hart, Brooke Jackson, Dana Cephas, Denver, for respondents.\\nGale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Maurice G. Knaizer, Deputy Atty. Gen., Gen. Legal Services Section, Denver, for respondents Title Setting Bd.\", \"word_count\": \"5697\", \"char_count\": \"37019\", \"text\": \"Justice SCOTT\\ndelivered the Opinion of the Court.\\nPetitioner Douglas Bruce, a registered elector for the State of Colorado, brings this original proceeding to challenge the action of the Initiative Title Setting Board (hereafter the Board) in setting the title, ballot title and submission clause, and summary for a proposed initiated amendment to the Colorado Constitution. The proposed amendment, entitled \\\"Campaign and Political Finance Initiative\\\" (hereafter the Initiative), limits campaign contributions for state-wide office candidates, establishes civil and criminal sanctions for contribution limits violations, and bars from elective office any candidate who violates the terms of the campaign financing amendment.\\nBruce argues that the title, ballot title and submission clause, and summary set by the Board are invalid as a matter of law because they do not fairly express the true meaning and intent of the proposed constitutional amendment, and hence are misleading to voters. In all, Bruce asserts fifteen grounds in support of this claim. We address each of his challenges seriatim, and for the reasons discussed below, affirm the Board's action.\\nI\\nOn March 4, 1994, respondents Richard K. Bainter and Patricia L. Johnson filed a draft of the Initiative with the legislative council and the office of legislative legal services. The Board convened a hearing on March 16, 1994, to set the title, ballot title and submission clause, and summary for the Initiative. Together with another registered elector, Bruce moved for a rehearing, contesting the validity of the title, ballot title and submission clause, and summary. At the rehearing held on April 6, 1994, the Board made minor revisions in the title and the ballot title and submission clause. .\\nSeeking further revisions to the title, ballot title and submission clause, and summary, Bruce filed for review of the Board's action, pursuant to section 1^10-107(2), 1B C.R.S. (1993 Supp.). Bruce now asserts that several ambiguities in the language adopted by the Board in setting out the title, ballot title and submission clause, and summary obscure the true intent and meaning of the Initiative such that it fails to adequately inform the electorate of its effects.\\nII\\nThe standards governing our review of a Board's title-setting actions are well established. As a rule, we do not address the merits of a proposed initiative, interpret the meaning of the language or suggest its probable application if adopted by the electorate. In re Limited Gaming in the City of Antonito, 873 P.2d 733, 739 (Colo. 1994). Furthermore, we will uphold the Board's choice of language if it \\\"clearly and concisely reflects the central features of the initiative.\\\" Id. (citing In re Limited Gaming in the Town of Idaho Springs, 830 P.2d 963, 970 (Colo.1992) and In re Limited Gaming in Manitou Spiings, 826 P.2d 1241, 1245 (Colo.1992)); see also In re Proposed Initiative Under the Designation Tax Reform, 797 P.2d 1283, 1288 (Colo.1990) (holding that unless clearly misleading, we will not interfere with the board's choice of language); In re Increase of Taxes on Tobacco Products Initiative, 756 P.2d 995, 999 (Colo.1988) (concluding it is not the function of the supreme court to rephrase the language adopted by the Board to obtain the most precise and exact ballot title or summary language possible). Thus we indulge all legitimate presumptions in favor of the propriety of the Board's action, and only in clear cases will we invalidate the title, ballot title and submission clause, or summary prepared by the Board. In re Casino Gaming Initiative, 649 P.2d 303, 306 (Colo.1982).\\nCertain tenets direct the Board's actions, and thus assist in our review of the propriety of its action in the present case. First, the language that the Board adopts must be brief, unambiguous and direct, see \\u00a7 1-40-106(3)(a) (the title board for statewide ballot issues shall prepare a clear and concise summary of the proposed law or constitutional amendment), and as such, it should reference only the central points of the proposed measure. In re Limited Gaming in the City of Antonito, 873 P.2d at 739. Along these same lines, the Board is not required to include every aspect of a proposed measure in the title and submission clause, see In re Election Reform Amendment, 852 P.2d 28 (Colo.1993), provide specific explanations of a proposal, see In re State Personnel System, 691 P.2d 1121 (Colo.1984), or discuss every possible effect of an initiated measure, see In re Sale of Table Wine in Grocery Stores, 646 P.2d 916 (Colo.1982). Rather, the initiated measure's title, ballot title and submission clause, and summary need only fairly reflect the content of the measure. In re Second Initiated Constitutional Amendment, 200 Colo. 141, 613 P.2d 867 (1980).\\nThus as a general rule we will reject the Board's action only where the language it has adopted is so inaccurate as to clearly mislead the electorate. Id.; see also In re State Personnel System, 691 P.2d at 1123. Bearing in mind this deferential standard of summary review governing challenges to the Board's title setting decisions, we address each of petitioner Bruce's arguments in turn.\\nIll\\nA\\nInitially, we note that some of Bruce's arguments constitute either challenges to the merits of the proposed measure or to its application, rather than protests to the accuracy and fairness of the language adopted by the Board. We decline to review such complaints. See In re Limited, Gaming in the City of Antonito, 873 P.2d 733 (Colo.1994).\\nThe objections raised by Bruce that exceed the scope of our review include: 1) that the requirement that candidates receive at least sixty per cent of their contributions from individuals is a \\\"sham\\\" because if that minimum refers to the number of contributions, \\\"the test can be met by a blizzard of $1 donations a week after the election [and, if it refers to dollar amounts], a loan by a successful candidate to his committee, later forgiven, or a shakedown of those who want belatedly to go with the winner, is allowed\\\"; 2) that the Initiative's purported aim to limit the amount of campaign contributions is a pretext, in light of the fact that candidates have a constitutional right to spend, without limitation, personal funds on campaign costs; 3) that because the term \\\"contribution\\\" alludes to the intent of the contributor, enforcement of the Initiative's provisions will be \\\"subjective\\\"; 4) that the Initiative's contributions limitations are not sufficiently \\\"comprehensive,\\\" because the proposed measure \\\"allows loans with no prohibition on waiver of repayment\\\"; 5) that the contributions limitations weaken the vigor of political parties; 6) that the Initiative's method of funding the commission will lead the commission to impose fines for self-interested, rather than valid reasons; 7) that the penalties established for violations of the limitations on campaign contributions rule are so \\\"draconian\\\" as to discourage qualified individuals from running for office; 8) that the fiscal impact statement assumes a July 1, 1994, effective date, despite the fact that the text of the fiscal note provides no basis for \\\"retro-activity\\\"; and finally, 9) that the method for selecting the commission, providing that two of the seven members of the commission be appointed by the Chief Justice of this court, and the remaining commissioners by various members of the state senate, creates an inherent conflict of interest between the commission membership and the appointers. Bruce contends that each of these alleged deficiencies in the Initiative should be disclosed to the voters.\\nBecause these matters do not implicate the fairness and accuracy of the language selected by the Board, but instead either impugn the merits of the proposed Initiative or contest the validity of the measure's application and enforcement, we reject these challenges as not within the scope of this review. We now proceed to the reviewable objections raised by Bruce.\\nB\\nBruce contends that the ballot title and submission clause fails to disclose that the proposed measure limits only those contributions to state and local campaigns, and does not include contributions to federal office campaigns. However, the title and submission clause state that the measure is an amendment to the state constitution, and the summary specifically delineates those state offices affected by the measure. As such, the electorate is not likely to be misled by the Board's failure to distinguish between state and local, and federal elections.\\nC\\nBruce next argues that the ballot title language incorrectly implies that there are currently no limits on independent campaign expenditures, and that there are no current reporting requirements for candidates. The language of the ballot title and submission clause that Bruce challenges states that the proposed measure \\\"requires notice and disclosure of independent expenditures in an election [and] reporting to the secretary of state by contributions, expenditures, and obligations.\\\"\\nWe perceive no misimpressions created by the Board's choice of language. The Board is only obligated to fairly summarize the central points of a proposed measure, and need not refer to every effect that the measure may have on the current statutory scheme. See In re Limited Gaming in the City of Antonito, 873 P.2d 733 and In re Casino Gaming Initiative, 649 P.2d 303, supra. Thus there is no requirement that the Board preface the language of this section with the note that limitations on independent expenditures and reporting requirements currently exist by statute, and that the Initiative imposes additional limits. As such, we reject Bruce's argument and thus decline to invalidate the ballot title language of this provision.\\nD\\nBruce argues that the ballot title and submission clause fails to state that persons who violate the provisions of the proposed measure are prohibited indefinitely from holding public office. According to Bruce, appending the term \\\"forever\\\" to the ballot title and submission clause will \\\"avoid an assumption by the public that it is only the office to which the candidate is elected, no matter which one, that is forfeited.\\\"\\nWe find no merit in this argument. The Board's choice of language, that the violating candidate \\\"forfeits the right to hold any elected public office,\\\" adequately conveys that the prohibition is indefinite and that it applies to \\\"any\\\" elected public office. We therefore will not interfere with the Board's choice of language as to this provision.\\nE\\nBruce argues that under In re Election Reform Amendment, 852 P.2d 28 (Colo. 1993), the statement of fiscal impact set out by the Board is deficient because that decision requires each \\\"distinct provision of the proposed amendment [to be] be addressed individually.\\\"\\nBruce misreads our decision in In re Election Reform Amendment. There, after reiterating the general rule that the Board typically is not required to formulate definitive estimates of the fiscal impact of a proposed measure because many variables affecting the fiscal effects of a proposed measure are unknown, see Spelts v. Klausing, 649 P.2d 303 (Colo.1982), we created an exception to that rule that applies whenever the \\\"indeterminacy appears to result from [a] multitude of provisions having separate and sometimes conflicting fiscal impacts producing an indeterminate aggregate impact.\\\" In re Election Reform Amendment, 852 P.2d at 37. We then held that where the Board could not determine the aggregate fiscal impact of a proposed measure, but had adequate information to assess the impact of a particular provision, the Board \\\"should state with specificity which provision will have fiscal impacts which are capable of being estimated, and which are truly indeterminate.\\\" Id.\\nIn the present matter, the provisions do not produce a \\\"separate and conflicting fiscal impact\\\" and the aggregate impact is known. Therefore, each provision of the proposed amendment need not be addressed individually, and the Board's summary of the Initiative's fiscal impact is sufficient.\\nF\\nIn Bruce's final challenge to the Board's action, he asserts that the Board lacks jurisdiction to set the title, ballot title and submission clause, and summary because the proponents of the Initiative did not \\\"prove\\\" that they were in compliance with the filing procedure set out in section 1-40-105(4), 1B C.R.S. (1993 Supp.). That section provides that the proponents of the measure must file with the secretary of state a copy of the original typewritten draft, an amended draft if one exists, and an original final draft of the initiative petition. A presumption exists that the secretary of state properly determined the sufficiency of the filing of a petition to initiate a measure under the initiative and referendum statute. Brownlow v. Wunch, 102 Colo. 447, 80 P.2d 444 (1938) (decided under former statute). Thus contrary to Bruce's contention that the proponents have not \\\"proved\\\" that they filed their petition in accordance with the statutory procedure set out in section 1-40-105(4), the burden of demonstrating procedural noncompliance rests with him, not the proponents of the Initiative. Because Bruce has not shown any defect in the proceeding that would destroy the Board's jurisdiction in this matter, we reject his jurisdictional challenge.\\nIV\\nIn summary, we conclude that the title, ballot title and submission clause, and summary fixed by the Board fairly and accurately convey the true meaning and intent of the t proposed amendment, that the fiscal impact statement is sufficiently specific, and that the Board had jurisdiction in this matter. Accordingly, we affirm the action of the Board.\\nAPPENDIX A\\nBE IT ENACTED BY THE PEOPLE OF THE STATE OF COLORADO:\\nThe Constitution of the State of Colorado is hereby amended by the addition of a new article to read:\\nARTICLE XXVIII CAMPAIGN AND POLITICAL FINANCE\\nSection 1. Definitions. \\\"Candidate committee\\\" means a person or persons with the common purpose of receiving contributions and making expenditures under the authority of a candidate for partisan political office. Any candidate for partisan political office shall have only one candidate committee.\\n\\\"Commission\\\" means the campaign and political finance commission.\\n\\\"Conduit\\\" means a person who transmits, or arranges the transmission of, more than one contribution directly to a candidate or candidate committee from another person. \\\"Conduit\\\" does not include the contributor's immediate family members, the candidate or campaign treasurer of the candidate committee receiving the contribution, a volunteer fund raiser hosting an event for a candidate committee, or a professional fund raiser if the fund raiser is compensated at the usual and customary rate.\\n\\\"Contribution\\\" means a gift, loan, pledge, or advance of money or guarantee of a loan made to or for any candidate for political office, candidate committee, or political committee for the purpose of influencing the nomination, retention, recall, election, or defeat of any candidate. \\\"Contribution\\\" includes, but is not limited to, a gift of money to or for any incumbent, or person holding public office, the purpose of which is to compensate the officeholder for public service or to help defray the officeholder's expenses incident thereto but which are not covered by official compensation; and any payment made after an election to meet any deficit or debt incurred during the course of a campaign. \\\"Contribution\\\" also includes gifts or loans of any item of real or personal property, other than money, made to or for any candidate committee or political committee. Personal services are a contribution from the person paying for the services. \\\"Contribution\\\" does not include services provided without compensation by individuals volunteering their time on behalf of a candidate committee or political committee.\\n\\\"Election cycle\\\" means the period of time beginning thirty days following a general election for the particular office and ending thirty days following the next general election for that office.\\n\\\"Independent expenditure\\\" means payment of money by any, person for the purpose of advocating the election or defeat of a candidate, which expenditure is not controlled by, coordinated with, or made upon consultation with any candidate or any agent of such candidate. \\\"Independent expenditure\\\" includes expenditures for political messages which unambiguously refer to any specific public office or candidate for such office, but does not include expenditures made by persons, other than political parties and political committees, in the regular course and scope of their business.\\n\\\"Person\\\" means any natural person, partnership, committee, association, corporation, labor organization, political party, or other organization or group of persons.\\n\\\"Political message\\\" means a message delivered by telephone, any print or electronic media, or other written material which advocates the election or defeat of any candidate for partisan political office or which unambiguously refers to such candidate or partisan political office.\\n\\\"Political committee\\\" means two or more persons who are elected, appointed, or chosen, or have associated themselves, for the purpose of accepting or making contributions, or making independent expenditures, to support or oppose a candidate for partisan public office at any election. \\\"Political committee\\\" does not include political parties or candidate committees as otherwise defined herein.\\n\\\"Political Party\\\" means any group of registered electors who, by petition or assembly, nominate candidates for the official general election ballot. \\\"Political party\\\" includes affiliated party organizations at the state, county, and election district levels and all such affiliates are considered to be a single entity for purposes of this article.\\nSection 2. Contribution limits. (1) Candidate committees shall receive at least sixty percent of their contributions from natural persons. Compliance with this requirement shall be determined by the campaign committee report filed thirty days following the applicable general election.\\n(2) No natural person or political committee shall make, and no candidate committee shall accept, aggregate contributions to a candidate committee for a primary or general election in excess of the following amounts:\\n(a) Five hundred dollars to any one candidate for governor;\\n(b) Two hundred fifty dollars to any one candidate for lieutenant governor, secretary of state, state treasurer, or attorney general; and\\n(c) One hundred dollars to any one candidate for the state senate, state house of representatives, state board of education, or regent of the University of Colorado.\\n(3) No candidate committee shall accept contributions from or make contributions to, another candidate committee.\\n(4) No political party shall accept contributions that are intended, or in any way designated, to be passed through the party to a specific candidate committee. Nor shall a political party accept aggregate contributions from any person that exceed twenty-five hundred dollars per year.\\n(5) No political party shall contribute more than five thousand dollars per election cycle to any one state senate, state representative, state board of education, or regent of the University of Colorado candidate committee and no more than twenty-five thousand dollars per election cycle to any one governor, secretary of state, state treasurer, or attorney general candidate committee. Political parties shall not contribute to lieutenant governor candidate committees.\\n(6) Only natural persons, political parties, and political committees may contribute to candidate committees.\\n(7) No political committee shall accept an aggregate contribution from any person in excess of two hundred fifty dollars per house of representatives election cycle.\\n(8) No person shall act as a conduit for a contribution.\\n(9) Nothing in this article shall prevent a candidate committee from receiving a loan from a financial institution organized under state or federal law if the loan bears the usual and customary interest rate, is made on a basis that assures repayment, is evidenced by a written instrument, and is subject to a due date or amortization schedule.\\nSection 3. Unexpended campaign contributions. Any unexpended campaign contributions held by a candidate committee thirty days following the applicable general election shall not be counted as contributions from natural persons in any subsequent election for purposes of section 2(1) no matter how those contributions were originally classified.\\nSection 4. Independent expenditures. (1) Any person making an independent expenditure in excess of five hundred dollars shall deliver notice in writing of such independent expenditure, as well as the amount of such expenditure, and a detailed description of the use of such independent expenditure, within twenty-four hours after obligating funds for such expenditure. Such notice shall be delivered to all candidates in the affected race and to the secretary of state, by hand delivery. The notice shall specifically state the name of the-candidate whom the independent expenditure is intended to support or oppose. Each independent expenditure shall require the delivery of a new notice.\\n(2) Any person making an independent expenditure in excess of five hundred dollars shall disclose in the political message produced by the expenditure, the full name of the person, the name of the registered agent, the amount of the expenditure, and the specific statement that the advertisement or material is not authorized by any candidate. Such disclosure shall be prominently featured in the political message.\\n(3) Expenditures by any person on behalf of a candidate for public office made upon consultation with, coordinated with, or controlled by that candidate shall be considered a contribution to the candidate and subject the candidate and the contributor to any applicable penalties contained in this article.\\nSection 5. Disclosure. (1) All candidate committees, political committees and political parties shall report to the secretary of state contributions to each such organization from each contributor to the organization, including the name, address, and occupation of each person who has contributed twenty dollars or more. Candidate committees, political committees, and political parties shall also report to the secretary of state all contributions, expenditures, and obligations made by the organization. Such reports shall be filed quarterly in odd numbered years and on the first day of May, June, July, August, September, October', fourteen days and seven days before, and thirty days after a general election in even numbered years, and such additional reports as required by law.\\n(2) All candidate committees, political committees, and political parties shall register with the secretary of state before accepting or making any contributions. Registration shall include a statement listing\\n(1) the organization's full name, spelling out any acronyms used therein,\\n(ii) a natural person authorized to act as a registered agent,\\n(iii) a street address and telephone number for the principle place of operations,\\n(iv) all affiliated candidates and political committees,\\n(v) the purpose or nature of interest of the committee or party.\\nSection 6. Campaign and political finance commission created. (1) There is hereby created a body corporate and a political subdivision of the state, a campaign and political finance commission. The commission shall not be counted toward any limitation on the number of state agencies contained in this constitution.\\n(2) The commission shall consist of seven members, no more than four being from the same political party. One member shall be appointed by the governor, one by the president and one by the minority party leader of the senate, one by the speaker and one by the minority party leader of the house of representatives, and two by the chief justice of the supreme court. Original appointments shall be made by the respective appointing authorities in the same order as listed above and within ninety days of the effective date of this article. Vacancies shall be filled within ninety days by the original appointing authority.\\n(3) The commission shall have the power to adopt rules and regulations governing the conduct of its business consistent with the provisions of this article.\\n(4) No member or employee of the commission shall hold or be a candidate for any other public office while a member or employee of the commission or one year thereafter, hold office in any political party or political committee, or participate in or contribute to the political campaign of any candidate for-partisan political office.\\n(5) The term of a commissioner shall be three years, except that, of the original members, the first three appointed shall serve a two year term. No member of the commission shall serve for more than two full terms.\\n(6) Members of the commission shall be reimbursed on a per them basis for actual attendance at meetings, hearings, and attending to any other necessary business of the commission at the same rate, or greater, as that paid to members of the general assembly. Members of the commission shall also be reimbursed for actual reasonable and necessary expenses incurred.\\n(7) The commission may subpoena witnesses, compel attendance and testimony, administer oaths and affirmations, take evidence, require by subpoena the production of books, papers, records, and other evidence necessary for the performance of its duties or exercise of its powers, including that of investigation. The commission shall have complete access to relevant records maintained by the secretary of state.\\n(8) The commission may hire staff, promulgate such rules, and utilize state hearing officers as it deems necessary for the performance of its duties which include, but are not limited to, the handling of investigations, complaints, hearings, and disposition of all matters addressed in this article. Except as otherwise provided in this article, the commission shall have exclusive original jurisdiction over the provisions of this article.\\n(9) The commission shall adjust the contribution limits and disclosure limits set forth in this article biennially to reflect the rate of inflation as determined by the consumer price index for urban consumers in the Denver-Boulder area.\\n(10) The commission is authorized to carry out the provisions of this article with appropriations which shall be made by the general assembly in an annual amount commensurate with the needs of the commission to fulfill its duties as prescribed in this article.\\nSection 7. Sanctions. (1) It shall be a class three misdemeanor for anyone to knowingly violate sections two and four of this article.\\n(2) Any person who violates any provision of this article relating to contribution limits shall be liable to the commission for double the amount contributed or received in violation of the applicable provision of this article. Candidates shall be personally liable for fines imposed against the candidate's committee.\\n(3) Any candidate adjudged guilty in a criminal action for a violation of any provision of this article shall forfeit his right to hold any elected public office. Not withstanding any other constitutional provision to the contrary, such candidate may be removed from office by order of any court of competent jurisdiction.\\nSection 8. Conflicting constitutional provisions declared inapplicable. Any provision in the constitution of this state in conflict or inconsistent with this article is hereby declared to be inapplicable to the matters covered and provided for in this article.\\nSection 9. This article is self-executing. Legislation may be enacted to facilitate its operations, but in no way limiting or restricting the provisions of this article or the powers herein granted.\\nSection 10. Severability. If any provision of this article, or the application thereof to any person or circumstance, is held invalid, such invalidity- shall not affect other provisions or applications of the article which can still be given effect. Therefore, the provisions of this article are declared to be severa-ble.\\nAPPENDIX B\\nTitle\\nAN AMENDMENT TO THE COLORADO CONSTITUTION TO LIMIT THE AMOUNT OF CAMPAIGN CONTRIBUTIONS, INCLUDING IN-KIND CONTRIBUTIONS, THAT MAY BE ACCEPTED BY CANDIDATE COMMITTEES, POLITICAL COMMITTEES, AND POLITICAL PARTIES; TO REQUIRE CANDIDATE COMMITTEES TO RECEIVE AT LEAST SIXTY PERCENT OF THEIR CONTRIBUTIONS FROM NATURAL PERSONS; TO PROHIBIT A CANDIDATE COMMITTEE FROM MAKING A CONTRIBUTION TO OR ACCEPTING A CONTRIBUTION FROM ANOTHER CANDIDATE COMMITTEE; TO PROHIBIT A POLITICAL PARTY FROM ACCEPTING CONTRIBUTIONS THAT ARE INTENDED TO BE PASSED THROUGH TO A CANDIDATE COMMITTEE; TO LIMIT THOSE PERSONS WHO MAY CONTRIBUTE TO A CANDIDATE COMMITTEE TO NATURAL PERSONS, POLITICAL PARTIES, AND POLITICAL COMMITTEES; TO TREAT UNEXPENDED CAMPAIGN CONTRIBUTIONS HELD BY A CANDIDATE COMMITTEE AS CONTRIBUTIONS FROM OTHER THAN NATURAL PERSONS IN A SUBSEQUENT ELECTION; TO REQUIRE NOTICE AND DISCLOSURE OF INDEPENDENT EXPENDITURES IN ELECTION; TO REQUIRE REPORTING TO THE SECRETARY OF STATE BY CANDIDATE COMMITTEES, POLITICAL COMMITTEES, AND POLITICAL PARTIES OF CONTRIBUTIONS, EXPENDITURES, AND OBLIGATIONS; TO CREATE THE CAMPAIGN AND POLITICAL FINANCE COMMISSION WITH JURISDICTION OYER THESE PROVISIONS; TO PROVIDE CIVIL AND CRIMINAL SANCTIONS FOR VIOLATIONS OF THE PROPOSED AMENDMENT; AND TO PROVIDE THAT A CANDIDATE FOUND GUILTY OF A CRIMINAL VIOLATION FORFEITS THE RIGHT TO HOLD ANY ELECTED PUBLIC OFFICE.\\nBallot Title and Submission Clause\\nSHALL THERE BE AN AMENDMENT TO THE COLORADO CONSTITUTION TO LIMIT THE AMOUNT OF CAMPAIGN CONTRIBUTIONS, INCLUDING IN-KIND CONTRIBUTIONS, THAT MAY BE ACCEPTED BY CANDIDATE COMMITTEES, POLITICAL COMMITTEES, AND POLITICAL PARTIES; TO REQUIRE CANDIDATE COMMITTEES TO RECEIVE AT LEAST SIXTY PERCENT OF THEIR CONTRIBUTIONS FROM NATURAL PERSONS; TO PROHIBIT A CANDIDATE COMMITTEE FROM MAKING A CONTRIBUTION TO OR ACCEPTING A CONTRIBUTION FROM ANOTHER CANDIDATE COMMITTEE; TO PROHIBIT A POLITICAL PARTY FROM ACCEPTING CONTRIBUTIONS THAT ARE INTENDED TO BE PASSED THROUGH TO A CANDIDATE COMMITTEE; TO LIMIT THOSE PERSONS WHO MAY CONTRIBUTE TO A CANDIDATE COMMITTEE TO NATURAL PERSONS, POLITICAL PARTIES, AND POLITICAL COMMITTEES; TO TREAT UNEXPEND-ED CAMPAIGN CONTRIBUTIONS HELD BY A CANDIDATE COMMITTEE AS CONTRIBUTIONS FROM OTHER THAN NATURAL PERSONS IN A SUBSEQUENT ELECTION; TO REQUIRE NOTICE AND DISCLOSURE OF INDEPENDENT EXPENDITURES IN AN ELECTION; TO REQUIRE REPORTING TO THE SECRETARY OF STATE BY CANDIDATE COMMITTEES, POLITICAL COMMITTEES, AND POLITICAL PARTIES OF CONTRIBUTIONS, EXPENDITURES, AND OBLIGATIONS; TO CREATE THE CAMPAIGN AND POLITICAL FINANCE COMMISSION WITH JURISDICTION OVER THESE PROVISIONS; TO PROVIDE CIVIL AND CRIMINAL SANCTIONS FOR VIOLATIONS OF THE PROPOSED AMENDMENT; AND TO PROVIDE THAT A CANDIDATE FOUND GUILTY OF A CRIMINAL VIOLATION FORFEITS THE RIGHT TO HOLD ANY ELECTED PUBLIC OFFICE?\\nSummary\\nThe measure imposes limitations on the amount of campaign contributions that maybe made and accepted by certain persons as follows: Candidate committees are required to receive at least 60% of their contributions from natural persons, are prohibited from making a contribution to or accepting a contribution from another candidate committee, and are limited to accepting contributions from natural persons, political committees, and political parties. Contributions from a natural person or political committee to a candidate committee in a primary or general election are limited to five hundred dollars for governor, two hundred fifty dollars for lieutenant governor, secretary of state, state treasurer, or attorney general, and one hundred dollars for state senate, state house of representatives, state board of education, or regent of the University of Colorado. Political parties are prohibited from passing con tributions through to specific candidates, are limited to accepting twenty-five hundred dollars in aggregate contributions annually from any person, are limited to contributing five thousand dollar's to candidate committees for state senate, state representative, state board of education, or regent of the University of Colorado and twenty-five thousand dollars to candidate committees for governor, secretary of state, state treasurer, or attorney general and are prohibited from contributing to lieutenant governor candidate committees. Political committees are limited to accepting two hundred fifty dollars in aggregate contributions from any person per house of representatives election cycle. Persons are prohibited from transmitting or arranging the transmission of more than one contribution directly to a candidate or candidate committee from another person.\\nThe measure treats unexpended campaign contributions held by a candidate committee following a general election as contributions from persons other than natural persons in a subsequent election for purposes of the 60% from natural persons contribution requirement.\\nThe measure defines an \\\"independent expenditure\\\" as a payment of money by a person for the purpose of advocating the election or defeat of a candidate, which is not controlled by, coordinated with, or made upon consultation with any candidate or any agent of the candidate. Persons making independent expenditures in excess of five hundred dollars are required to deliver a notice of the expenditure containing certain information to affected candidates and the secretary of state within a prescribed time period and also to disclose certain information about the expenditure in a political message produced by it.\\nThe measure requires candidate committees, political committees, and political parties to report to the secretary of state the contributions to and the contributions, expenditures, and obligations made by the organization. Those organizations would register with the secretary of state before accepting or making any contributions.\\nThe measure creates, as a separate political subdivision of the state, a campaign and political finance commission with authority to carry out the provisions of the measure.\\nThe measure would impose sanctions for violations of its provisions. The measure would make constitutional provisions which conflict with it inapplicable to the matters it covers.\\nThe fiscal impact of the measure for per diem and travel expenses of the campaign and political finance commission could be approximately $33,000 in a general election year and $16,500 in an odd numbered year. Approximately $100,000 would be required annually for additional clerical support and investigative activities of the offices of the Secretary of State and the Attorney General.\\n. The Initiative is attached as Appendix A.\\n. The Board's proposed Title, Ballot Title and Submission Clause, and Summary are set forth in Appendix B.\\n. That section provides as follows:\\n(2) If any person who filed a motion for a rehearing pursuant to subsection (1) of this section is overruled by the title board, then the secretary of state shall furnish such person, upon request, a certified copy of the petition with the titles, submission clause, and summary of the proposed law or constitutional amendment, together with a certified copy of the motion for rehearing and of the ruling thereon. If filed with the clerk of the supreme court within five days thereafter, the matter shall be docketed as a cause there pending, which shall be placed at the head of the calendar and disposed of summarily, either affirming the action of the title board or reversing it, in which latter case the court shall remand it with instructions, pointing out where the title board is in error.\\n. \\\"Contribution\\\" is defined, in part, to include a gift of money to an incumbent where the contributor's purpose \\\"is to compensate the officeholder for public service or to help defray the officeholder's expenses.... \\\"\\n. According to Bruce, adding the term \\\"additional\\\" to modify the language \\\"independent expenditures\\\" and \\\"reporting\\\" in the ballot title and submission clause would be a \\\"minimal improvement.\\\"\"}"

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+"{\"id\": \"10353099\", \"name\": \"The PEOPLE of the State of Colorado, Complainant, v. Joseph R. FARRANT, Attorney-Respondent\", \"name_abbreviation\": \"People v. Farrant\", \"decision_date\": \"1993-05-17\", \"docket_number\": \"No. 93SA51\", \"first_page\": \"452\", \"last_page\": \"456\", \"citations\": \"852 P.2d 452\", \"volume\": \"852\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-11T02:11:27.039785+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The PEOPLE of the State of Colorado, Complainant, v. Joseph R. FARRANT, Attorney-Respondent.\", \"head_matter\": \"The PEOPLE of the State of Colorado, Complainant, v. Joseph R. FARRANT, Attorney-Respondent.\\nNo. 93SA51.\\nSupreme Court of Colorado, En Banc.\\nMay 17, 1993.\\nLinda Donnelly, Disciplinary Counsel, Sandra J. Pfaff, Asst. Disciplinary Counsel, Denver, for complainant.\\nJoseph R. Farrant, pro se.\", \"word_count\": \"2039\", \"char_count\": \"12594\", \"text\": \"PER CURIAM.\\nA hearing panel of the Supreme Court Grievance Committee approved the findings and recommendation of a majority of the hearing board that the respondent be suspended from the practice of law for sixty days and be assessed the costs of the proceeding. We accept the panel's recommendation.\\nI\\nThe respondent was admitted to the bar of this court on December 1, 1987, is registered as an attorney upon this court's official records, and is subject to the jurisdiction of this court and its grievance committee. C.R.C.P. 241.1(b). The respondent did not answer the amended complaint filed by the assistant disciplinary counsel and as a result, the presiding officer of the hearing board entered an order of default against the respondent. C.R.C.P. 241.13(b). The allegations of fact contained in the amended complaint were thereby deemed admitted. People v. Kelley, 840 P.2d 1068, 1068 (Colo.1992); People v. Crimaldi, 804 P.2d 863, 864 (Colo.1991). The record reflects that on May 18, 1992, the respondent received notice that the final hearing was to be held on October 16, 1992, as required by C.R.C.P. 241.14(a). Although he was entitled to attend the final hearing notwithstanding the entry of default, C.R.C.P. 241.13(b), the respondent did not do so. The respondent has not objected to the entry of default or requested that it be set aside, see C.R.C.P. 241.13(b), did not object to the board's report and has not filed any exceptions to the hearing panel's action in this court. Based on the two-count amended complaint, and exhibits tendered by the assistant disciplinary counsel at the hearing, the hearing board found that the following facts had been established by clear and convincing evidence.\\nII\\nCount 1\\nThe respondent was retained in April, 1989, by Colorado Forensics and Toxicology, Inc. (Colorado Forensics), to file a Chapter 11 bankruptcy. Maura A. Sise-more (Sisemore), the complaining witness, had a 50% ownership interest in Colorado Forensics. The respondent filed the bankruptcy petition on June 26, 1989, but over the following months there was little progress toward formulating a reorganization plan and the case remained dormant. Financial and other disputes arose between Sisemore and Kathey Yerdeal, Ph.D, Sise-more's partner. Both parties accused the other of improprieties and Dr. Verdeal subsequently sold her interest in Colorado Forensics to Sisemore.\\nOn October 30, 1990, the respondent filed an application for compensation with the bankruptcy court, seeking approximately $11,000 in fees. Sisemore filed an objection to the application on November 21, 1990. The respondent wrote to Sisemore on December 13, 1990, enclosing a copy of a motion to withdraw. In the cover letter, respondent stated:\\nYou'll find enclosed a copy of our motion to withdraw from representation of Colorado Forensics and Toxicology. You'll also find enclosed a copy of the letter which I have prepared for Leo Weiss [the United States Trustee]. I have not mailed this letter to Mr. Weiss, nor do I wish to do so. My desire at this point is to withdraw as Counsel for Colorado Forensics and Toxicology and to be paid for my expenses. I would prefer that the Company survive; however, I think that if this letter is disclosed to Mr. Weiss and the [Bankruptcy] Court; or if there is a hearing on attorney fees then testimony at that hearing through myself, Kathy [sic] Verdeal and or Shane Madison, will probably result in the Court taking action which will probably destroy the feompany.\\nI don't send you this letter by any means as an extorsive device for my fees. I think it would be in the best interest for both you and I if some arrangements were made to pay me if I were allowed to withdraw as Counsel and in order that you could find someone who might best proceed for whatever course the Company seems to be appropriate.\\nI hope that I will hear from you with a response which will allow us to resolve this by the 19th of December, otherwise I feel that I should direct this letter to Mr. Weiss and proceed to prepare for what might ensue.\\nIn addition to the motion to withdraw, the respondent enclosed a copy of a letter he drafted, but did not send, to the United States Trustee assigned to the bankruptcy matter. The letter to the trustee purported to reveal criminal activity on the part of a principal of the corporation. It is notable that the respondent's letter to the trustee implied that he would be disclosing client confidences or secrets. In effect, the respondent threatened criminal prosecution in order to induce Sisemore to withdraw her objection to his application for attorney's fees and to immediately pay respondent the fees requested. The respondent's application for fees was never acted on, and the bankruptcy proceeding was dismissed in February 1991.\\nAs the hearing board concluded, the respondent's conduct violated DR 7-105(A) (a lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter).\\nCount 2\\nThe respondent filed a civil action on behalf of Rebecca Sefried (Sefried) against the Shelter General Insurance Company (Shelter) in Boulder County District Court on July 11,1988. The complaint sought the recovery of personal injury protection benefits for injuries Sefried sustained in an automobile accident. Sefried was a passenger in a car in which the driver's negligence was the probable cause of the accident. Although Sefried had claims for damages in addition to reimbursement of medical expenses, the respondent never asserted any such claims, despite Shelter's obligation to compensate Sefried for such claims. The case went to arbitration on November 13, 1989, and the respondent filed a demand for trial de novo on January 9, 1990.\\nOn May 23, 1990, the counsel for Shelter served a set of interrogatories upon the respondent. When the respondent failed to serve a response within the time provided, Shelter's counsel wrote a demand letter on July 2, 1990, to the respondent. When respondent did not answer the demand letter, counsel for Shelter filed a motion to compel on July 11. The motion to compel was granted on August 6, 1990, after the respondent failed to file a response. The court ordered the plaintiff to file a response to Shelter's interrogatories and ordered that Sefried pay defendant Shelter $100 in compensation for attorney's fees by August 16.\\nThe respondent took no action to respond to the interrogatories or to pay the assessed attorney's fees. On August 31, 1990, counsel for Shelter filed a motion for sanctions. The respondent did not reply to this motion, and on September 26,1990, the court entered an order requiring that plaintiff comply with discovery requests and that attorney's fees in the amount of $250 be paid by October 20, 1990, or else plaintiffs complaint would be dismissed. The court clarified its order on October 18, stating that the award of attorney's fees was assessed against the respondent personally-\\nThe respondent did not cause his client to provide the ordered discovery and did not pay the attorney's fees as required. In response, the defendant moved to dismiss Sefried's complaint. The respondent filed a response to the motion to dismiss, representing to the court that he had recently located his client and that he would respond to the discovery within five days. When he failed to do so, the court dismissed the complaint with prejudice on November 27, 1990.\\nOn December 10, 1990, the counsel for the defendant moved the court to enter judgment against the respondent and his client and such judgment was entered on January 2, 1991. When the respondent failed to appear pursuant to a subpoena in a C.R.C.P. 69 proceeding, a bench warrant issued. On May 30, 1991, a request for investigation was filed with the Office of Disciplinary Counsel. Shortly thereafter, the respondent paid the attorney's fee awards to the defendant's counsel.\\nThe hearing board properly determined that the respondent's conduct violated DR 1 \\u2014 102(A)(5) (a lawyer shall not engage in conduct prejudicial to the administration of justice), DR 6-101(A)(3) (a lawyer shall not neglect a legal matter entrusted to the lawyer), and DR 7-101(A)(l) (a lawyer shall not intentionally fail to seek the lawful objectives of the lawyer's client through reasonably available means); as well as C.R.C.P. 241.6(4) (any act or omission which constitutes gross negligence, if committed by a lawyer in his capacity as a lawyer, constitutes grounds for lawyer discipline).\\nIll\\nTwo of the three members of the hearing board recommended that the respondent be suspended for sixty days and the hearing panel approved this recommendation; however, the board was unanimous in its conclusion that respondent's conduct constituted misconduct. Under the American Bar Association's Standards for Imposing Lawyer Sanctions (1986 & Supp. 1992) (ABA Standards), in the absence of aggravating or mitigating factors, suspension is generally appropriate when:\\n(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury - to a client; or\\n(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.\\nABA Standards 4.42. The respondent's chronic and continued neglect in the Sef-ried matter is properly characterized as \\\"willful.\\\" People v. Williams, 824 P.2d 813, 814 (Colo.1992). The respondent's client sustained actual injury when her complaint was dismissed with prejudice because of the respondent's inexcusable inaction.\\nMoreover, the respondent's threat to reveal client confidences or secrets and to thereby cause criminal proceedings to be initiated against his client if his fee was not paid would itself justify suspension. See ABA Standards 6.22 (suspension is appropriate when a lawyer knows that he is violating a court order or rule, and there is injury or potential injury to a client).\\nTwo members of the hearing board found the following factors in aggravation: (1) in threatening to cause the institution of criminal proceedings against his client in order to collect his fee, the respondent acted with a selfish or dishonest motive, id. at 9.22(a); he engaged in multiple offenses, id. at 9.22(c); and (3) the respondent has refused to acknowledge the wrongful nature of his conduct, id. at 9.22(g). In addition, the majority determined that the respondent had failed to participate meaningfully in the proceedings since his initial answer and that he failed to appear before the board. The only mitigating factors found were the absence of a prior disciplinary history, id. at 9.32(a); and that the respondent was relatively inexperienced in the practice of law, id. at 9.32(f).\\nGiven the seriousness of the respondent's misconduct in these two separate instances and his failure to participate meaningfully in the disciplinary proceedings after the amended complaint was filed, we find that a sixty-day period of suspension is warranted and is appropriate. See People v. Crimaldi, 804 P.2d 863 (Colo.1991) (sixty-day suspension imposed where lawyer failed to prepare two wills promptly and professionally as agreed and where respondent defaulted before the hearing board and did not appear in supreme court, but where misconduct was mitigated by absence of prior disciplinary record). Accordingly, we accept the hearing panel's recommendation.\\nIV\\nIt is hereby ordered that Joseph R. Far-rant be suspended from the practice of law for sixty days, effective thirty days after the issuance of this opinion. C.R.C.P. 241.-21(a). It is further ordered that Farrant pay the costs of this proceeding in the amount of $436.96 within thirty days after the announcement of this opinion to the Supreme Court Grievance Committee, 600 Seventeenth Street, Suite 500-S, Dominion Plaza, Denver, Colorado 80202.\\n. The dissenting member of the hearing board would not have concluded that the respondent's failure to answer the amended complaint or appear before the hearing board was an aggravating factor. We disagree. The respondent's default and total failure to participate in the proceedings after the amended complaint was filed, both before the grievance committee and before this court, is a factor in aggravation. People v. Genchi, 849 P.2d 28, 30 (Colo.1993).\"}"

colorado/10363634.json

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+"{\"id\": \"10363634\", \"name\": \"Jon APPLING; Jeff Davis; Pat H. Appling; and Colokan, Inc., a Kansas corporation authorized to do business in the State of Colorado, Plaintiffs-Appellants, v. The FEDERAL LAND BANK OF WICHITA; Barth Farms, Inc.; David R. Heck; Linda L. Heck; William D. Shea; Robert T. Goodwin; Michigan Wisconsin Pipe Line Company; ANR Production Company; Calvin James Melcher; Viola Lucille Melcher; S.A. Chorney; and all unknown persons who claim any interest in the subject matter of this action, Defendants-Appellees\", \"name_abbreviation\": \"Appling v. Federal Land Bank of Wichita\", \"decision_date\": \"1991-07-18\", \"docket_number\": \"No. 90CA792\", \"first_page\": \"297\", \"last_page\": \"301\", \"citations\": \"816 P.2d 297\", \"volume\": \"816\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-11T02:10:32.146809+00:00\", \"provenance\": \"CAP\", \"judges\": \"MARQUEZ and ENOCH JJ., concur.\", \"parties\": \"Jon APPLING; Jeff Davis; Pat H. Appling; and Colokan, Inc., a Kansas corporation authorized to do business in the State of Colorado, Plaintiffs-Appellants, v. The FEDERAL LAND BANK OF WICHITA; Barth Farms, Inc.; David R. Heck; Linda L. Heck; William D. Shea; Robert T. Goodwin; Michigan Wisconsin Pipe Line Company; ANR Production Company; Calvin James Melcher; Viola Lucille Melcher; S.A. Chorney; and all unknown persons who claim any interest in the subject matter of this action, Defendants-Appellees.\", \"head_matter\": \"Jon APPLING; Jeff Davis; Pat H. Appling; and Colokan, Inc., a Kansas corporation authorized to do business in the State of Colorado, Plaintiffs-Appellants, v. The FEDERAL LAND BANK OF WICHITA; Barth Farms, Inc.; David R. Heck; Linda L. Heck; William D. Shea; Robert T. Goodwin; Michigan Wisconsin Pipe Line Company; ANR Production Company; Calvin James Melcher; Viola Lucille Melcher; S.A. Chorney; and all unknown persons who claim any interest in the subject matter of this action, Defendants-Appellees.\\nNo. 90CA792.\\nColorado Court of Appeals, Div. III.\\nJuly 18, 1991.\\nS. Ford Andersen, P.C., S. Ford Andersen, Lamar, for plaintiffs-appellants.\\nLefferdink & Bullock, John S. Leffer-dink, Lamar, for defendant-appellee Federal Land Bank of Wichita.\\nThomas L. Shinn, Lamar, for defendant-appellee Barth Farms, Inc.\\nSitting by assignment of the Chief Justice under provisions of the Colo. Const, art. VI, Sec. 5(3), and \\u00a7 24-51-1105, C.R.S. (1988 Repl.Vol. 10B).\", \"word_count\": \"1973\", \"char_count\": \"12428\", \"text\": \"Opinion by\\nJudge REED.\\nIn this C.R.C.P. 105 action, plaintiffs, Jon Appling, Jeff Davis, Pat H. Appling, and Colokan, Inc., appeal the summary judgment which determined the interest of Co-lokan, the Federal Land Bank of Wichita (FLBW), and Barth Farms, Inc. (Barth), in and to the oil, gas, and other minerals (mineral interests) lying in, under, and upon the subject property. We affirm.\\nThe mineral rights here in question all derive from a series of recorded warranty deeds involving the same surface area of land, commencing with the Ross conveyance on March 20, 1967. On that date, Siegel M. and Charlene Lewis Ross, as grantors, conveyed the subject property to Jon Appling and Jeff Davis without reserving or excepting in their deed any mineral interests in themselves.\\nAppling and Davis, as grantors, immediately then conveyed to the Rosses \\\"an undivided one-half interest in the mineral rights\\\" lying in, upon, or under the subject property, and also an undivided one-half interest in any mineral lease then or thereafter existing upon the premises. This deed further contained the typed statement that:\\n\\\"it being the intention hereby to convey only a royalty interest; the interest conveyed hereby, whether set forth above or below, is for a period of 20 years from and after the date of this conveyance, or as long thereafter as oil, gas and/or other minerals may be continuously produced in commercial quantities.\\\"\\nIt is undisputed that there were no outstanding mineral leases in existence at the time of the execution of these two deeds. It is also undisputed that there has never been any mineral production from the properties throughout the 20-year period set forth in the typed portion of the deed.\\nThereafter, by mesne conveyances, Colo-kan, a corporation in which Appling was president, became vested with the ownership interest previously held by Appling and Davis.\\nOn November 19, 1975, Colokan conveyed the property to Calvin Melcher. This conveyance contained an exception and reservation clause which reads:\\n\\\"EXCEPTING AND RESERVING therefrom, however, one-half of all oil, gas, and other minerals in, under, and that may be produced from the described premises; and further EXCEPTING AND RESERVING one-fourth of all oil, gas and other minerals in, under, and that may be produced from the described premises, or royalty interests therein, for the period as set out and recited in that certain royalty deed [by which mineral interests were conveyed to the Rosses].\\\"\\nOn May 1, 1985, Melcher conveyed his entire interest in the subject property to FLBW. On August 29, 1985, FLBW then conveyed the property to Barth, but excepted and reserved to itself an undivided one-half of the mineral and mineral rights \\\"it presently owns.\\\"\\nThe trial court, based upon these documents, and pursuant to cross-motions for summary judgment, determined that Colo-kan was the owner of an undivided one-fourth mineral interest and that FLBW and Barth were each the owners of an undivided three-eighths interest in and to the minerals lying in, upon, and under the subject property.\\nI.\\nPlaintiffs contend that the trial court erred in interpreting the conveyance from Colokan to Melcher and in determining its mineral interests thereunder. We disagree.\\nAll mineral interests of the individual plaintiffs in the subject property were conveyed by them to Colokan. Thus, a determination of the mineral interests excepted and reserved by Colokan in its conveyance to Melcher is dispositive of their claim.\\nA deed is to be construed in accordance with the intent of the parties as determined, if possible, within the four corners of the document. Brown v. Kirk, 127 Colo. 453, 257 P.2d 1045 (1953); First National Bank v. Allard, 31 Colo.App. 391, 506 P.2d 405 (1972), aff'd, 182 Colo. 297, 513 P.2d 455 (1973). And, since the deed from Colokan to Melcher is unambiguous, extrinsic evidence to alter, vary, or change the deed is not permissible. See O'Brien v. Village Land Co., 794 P.2d 246 (Colo.1990).\\nFurther, if, as here, the evidence consists of written documents, we are not bound by the trial court's findings. Burks v. Verschuur, 35 Colo.App. 121, 532 P.2d 757 (1975). Thus, we are not bound by the trial court's interpretation of the various deeds.\\nThe initial deed from the Rosses conveyed the subject property and all of its mineral interests to Appling and Davis. However, contrary to plaintiffs' contention, the subsequent conveyance from Appling and Davis to the Rosses created in the latter both an undivided one-half mineral interest and also a one-half royalty interest in any mineral lease that might thereafter exist on the premises.\\nPlaintiffs are estopped to contend that the conveyance to Ross was only a royalty interest because they characterized that grant as a mineral interest in the conveyance to Melcher. See Surface Creek Ditch & Reservoir Co. v. Grand Mesa Resort Co., 114 Colo. 543, 168 P.2d 906 (1946).\\nThe distinction between a mineral interest and a royalty interest has been defined in Simson v. Langholf, 133 Colo. 208, 293 P.2d 302 (1956) as follows:\\n\\\" '[A]n interest in royalty is an interest in the proceeds derived from the minerals which a lessee has located, developed and produced, while an interest in minerals is an interest in those natural resources before recovery, necessitating their location, development and production before being reduced to actual possession.' \\\"\\nThe Rosses' mineral interest, however, by the terms of the deed, was to exist only for a period of 20 years (and as long thereafter as there was continuous, commercial, mineral production). This interest would terminate automatically when this condition ceased to exist. Accordingly, the Rosses' mineral interest was a determinable fee in which Appling and Davis, as owners of the fee, also held a possibility of reverter. See School District No. 6 v. Russell, 156 Colo. 75, 396 P.2d 929 (1964).\\nThereafter, all of the interests of Ap-pling and Davis were conveyed to their corporation, Colokan. Thus, prior to Colo-kan's conveyance to Melcher, Colokan held an undivided one-half interest in the minerals; the Rosses held an undivided one-half interest in the minerals for a conditional term; and Colokan, or its successors, held a possibility of reverter in the interest of the Rosses.\\nSubsequently, Colokan conveyed the subject property to Melcher from which it excepted and reserved from the conveyance (1) one-half of the minerals on the subject property; and (2) one-fourth of the minerals or \\\"royalty interests therein for the period as set out in\\\" the royalty deed to the Rosses.\\nThe issue thus presented is whether the one-half mineral interest described in this exception and reservation clause is the undivided one-half interest outstanding in the Rosses, as held by the trial court, or whether, as contended by plaintiffs, it is a new mineral interest retained by Colokan in addition to the one-fourth interest also retained by it in the second exception and reservation clause. If this latter contention is correct, then it is obvious that Colo-kan, its warranty of title notwithstanding, has retained a three-fourths mineral interest which is in excess of the one-half mineral interest which it owned; and, further, it has made no provisions for the additional one-half interest outstanding in the Rosses.\\nWe conclude that the one-half interest referred to in this clause is the outstanding Ross mineral interest and that the trial court correctly determined that Brown v. Kirk, supra, is dispositive of this issue.\\nIn Brown, there existed an outstanding one-fourth mineral interest created by an exception and reservation clause in a deed when the former owners sold the land. Thereafter, the new landowners sold the subject property by warranty deed in which they excepted from that conveyance one-half of the mineral rights. The issue presented was whether this one-half interest included the interest of the former owner, so that the new purchaser acquired a one-half mineral interest in the property, or whether this interest was exclusive of that of the former owner so that the new purchaser acquired only a one-fourth interest.\\nThe Brown court affirmed the trial court's findings that the purchaser acquired a one-half mineral interest. In so doing, it held that the technical, legal distinctions between an exception and reservation should be disregarded. It further held that it is presumed that the sellers knew of the outstanding mineral interest created by the exception and reservation clauses in the deed by which they acquired title and that, by excepting the one-half interest, the sellers intended to protect themselves in their warranty. Thus, the excepted one-half interest included the former owners' outstanding one-fourth interest as well.\\nBrown represents the application of the Duhig principle. Simply stated, the Duhig principle provides that to the extent necessary to give to the grantee the undivided interest purported to be conveyed by the particular instrument, the exception or reservation is interpreted as including all outstanding mineral interests. See 1 H. Williams & C. Meyers, Oil & Gas Law \\u00a7 311 at 580.25, et seq. (1990).\\nThus, as in Brown, the exception and reservation by Colokan of the one-half mineral interest is the outstanding Rosses' mineral interest, and the exception and reservation of the one-fourth interest describes the mineral interest additionally retained by Colokan. Thus, Melcher acquired the subject property, and a one-fourth mineral interest. O'Brien v. Village Land Co., supra.\\nAs to the balance of the mineral interests, Colokan owned one-fourth of the total and the Rosses owned one-half. Melcher, as owner of the fee, also acquired the possibility of reverter to the Rosses' mineral interest because of the latters' conditional term.\\nBecause plaintiffs' mineral interests were not affected by conveyances subsequent to the Colokan-Melcher deed, we conclude that the trial court correctly determined that the sole interest of the plaintiffs in the subject property was Colokan's one-fourth mineral interest.\\nII.\\nBarth concedes the correctness of the trial court's determination concerning the mineral interest to which plaintiffs are entitled. It challenges in its brief, however, the court's determination concerning the mineral interests owned by FLBW and by it. These interests arose out of conveyances that occurred after those involving the plaintiffs and also out of the reversion of the Ross mineral interest at the end of the 20-year term. Barth argues that it is entitled to a larger mineral interest than that decreed by the court and that FLBW is entitled to a smaller mineral interest than decreed by the court. We refuse to consider these issues.\\nBarth has taken no cross-appeal of the trial court's determination. FLBW has elected to stand on the record and has filed no briefs.\\nIt is thus apparent that, by these contentions, Barth seeks, without filing any cross-appeal, to enlarge its rights and modify the trial court's judgment, all to the expense of FLBW. Stated conversely, these contentions, in no respect, seek to support the trial court's judgment relative to plaintiffs' claim. Under these circumstances, Barth, as an appellee that has not pursued a cross-appeal, is precluded from presenting these additional issues. City of Delta v. Thompson, 37 Colo.App. 205, 548 P.2d 1292 (1975).\\nThe judgment is affirmed.\\nMARQUEZ and ENOCH JJ., concur.\"}"

colorado/10379022.json

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+"{\"id\": \"10379022\", \"name\": \"The PEOPLE of the State of Colorado, Complainant, v. Raymer Martin RHODES, II, Attorney-Respondent\", \"name_abbreviation\": \"People v. Rhodes\", \"decision_date\": \"1991-06-03\", \"docket_number\": \"No. 91SA31\", \"first_page\": \"787\", \"last_page\": \"791\", \"citations\": \"814 P.2d 787\", \"volume\": \"814\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T21:32:30.828323+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The PEOPLE of the State of Colorado, Complainant, v. Raymer Martin RHODES, II, Attorney-Respondent.\", \"head_matter\": \"The PEOPLE of the State of Colorado, Complainant, v. Raymer Martin RHODES, II, Attorney-Respondent.\\nNo. 91SA31.\\nSupreme Court of Colorado, En Banc.\\nJune 3, 1991.\\nLinda Donnelly, Disciplinary Counsel, John S. Gleason, Asst. Disciplinary Counsel, Denver, for complainant.\\nAtty.-respondent not appearing.\", \"word_count\": \"1776\", \"char_count\": \"11180\", \"text\": \"PER CURIAM.\\nIn this attorney discipline case the respondent, Raymer Martin Rhodes, II, was charged with five counts of professional misconduct. When respondent failed to answer the complaint, a default was entered against him by a hearing board of the Supreme Court Grievance Committee, pursuant to C.R.C.P. 241.13(b); People v. Dohe, 800 P.2d 71 (Colo.1990); People v. Richards, 748 P.2d 341 (Colo.1987). The hearing board ultimately recommended that the respondent be disbarred for his professional misconduct, and a hearing panel adopted that recommendation. We agree that the respondent's professional misconduct warrants disbarment.\\nI\\nThe respondent was admitted to the Bar of Colorado on October 17, 1980. Accordingly, he is subject to the jurisdiction of this court and its Grievance Committee. C.R.C.P. 241.1(b).\\nII\\nA\\nIn April of 1988, Timothy R. Scott was appointed personal representative of his deceased wife's estate. The respondent served as Scott's attorney.\\nIn May 1989, at the conclusion of a civil lawsuit, the estate was ordered to convey certain real property to a purchaser who had deposited a sum with the trial court in connection with the litigation. The trial court ordered the funds, totalling approximately $7,300.00, to be paid to a third party for disbursement at the closing. In June of 1989, subsequent to the closing, the escrow agent responsible for disbursement of contractually-based payments issued two checks, each in the amount of $596.29, to the estate in care of the respondent. The escrow company later issued a third check for the same amount when respondent represented that he had lost one of the earlier checks. This representation was false. The respondent cashed the three checks and converted the sums to his own use.\\nIn July of 1989, the respondent delivered a check issued on his office account in the amount of $1,714.05 to Scott and informed Scott that the check represented the proceeds paid to the estate at the closing. The check proved uncollectible, however, and the respondent did not comply with Scott's requests to furnish those proceeds. Scott ultimately filed a civil action against the respondent to recover the proceeds actually due the estate. A judgment for approxi mately $6,000 entered in that case against the respondent has not been satisfied.\\nB\\nIn early 1988, the respondent was engaged by the Acceleration National Insurance Company to represent three real estate broker insureds in connection with multiple claims asserted against them by several parties in connection with a real estate transaction. In June of 1988 two participants in the transaction, Scott and Jill Ingersoll, filed claims for breach of contract, breach of fiduciary duty, negligence and outrageous conduct against the three brokers in the pending civil lawsuit. The Ingersolls requested punitive as well as actual damages.\\nThe respondent did not inform the brokers, the insurance company or the company's adjuster of the fact that the Ingersolls had asserted a punitive damages claim. The respondent also failed to advise the brokers that the contract of insurance did not apply to punitive damages awards. To the contrary, the respondent informed one or more of the brokers on several occasions that all damage claims asserted by the Ingersolls were subject to coverage under the contract of insurance.\\nOn April 21, 1989, a jury returned a verdict in the civil action against the brokers and awarded the Ingersolls damages, including $15,000 in punitive damages. The respondent did not advise his clients of their rights to seek a stay of execution of the judgment, to file post-judgment motions or to file a notice of appeal. When the respondent failed to answer inquiries by the Ingersolls' attorney concerning the possibility of voluntary payments on the judgment lien, garnishment and execution proceedings were instituted against the respondent's clients.\\nAt a later date, the respondent informed the Ingersolls' attorney by letter that a draft to settle the matter could be anticipated within a week. The respondent subsequently informed the attorney that a settlement check had been received and returned to the insurer because of an unacceptable restrictive endorsement. These statements were false; as of the date of the respondent's initial letter, the insurance company was unaware of the outcome of the litigation.\\nC\\nIn October of 1988, the respondent obtained a loan in the amount of $15,000 from Clarence Wiley. In connection with the transaction, the respondent executed a promissory note in favor of Wiley for that amount, payable on or before December 25, 1988, and gave Wiley a document seemingly executed by one Ray Mayer as president of the Western Slope Investment and Development Company (Western), purporting to be a note for $40,000 payable by Western to the respondent. The respondent also provided Wiley with a copy of a deed of trust seemingly executed by Mayer as president of Western which purportedly encumbered property owned by the company and appeared to constitute security for the $40,000 note. The respondent initially told Wiley that the original deed of trust was in the process of being recorded, and later informed Wiley that an error in the ac-knowledgement portion of the deed of trust was being corrected.\\nThe respondent later admitted that he had fabricated both documents, had signed Mayer's name to them without authorization, and had notarized Mayer's forged signature on the deed of trust. Wiley ultimately obtained a default judgment against the respondent, for the principal amount of $15,000, which judgment has not been satisfied.\\nD\\nOn April 14, 1989, a deed of trust was recorded with the La Plata County Clerk and Recorder. The document appeared to have been executed by the respondent's wife and notarized by a Gloria A. Freitag. Although a notarial seal issued to Freitag was affixed to the document, she did not notarize the signature. The respondent forged the signatures of his wife and of Freitag on the document and affixed Frei- tag's seal to the document without her knowledge.\\nE\\nThe respondent was notified of the request for investigation in this case by certified and regular mail. The respondent failed to claim the certified mailings and failed to respond to the regular mailings. Demand letters mailed to the respondent's business and home addresses, requesting answers to the request for investigation were returned to the Committee.\\nIll\\nWhile representing Timothy Scott, the respondent violated DR 1-102(A)(1) (violation of a disciplinary rule), DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit or misrepresentation), DR 7-101(A)(3) (causing intentional damage to a client), DR 9-102(A) (failing to preserve identity of client funds), and DR 9-102(B)(1) (failing to promptly notify client of receipt of client funds). The respondent converted client funds and falsely informed an escrow agent that he had lost a check, in order to obtain additional sums for his own personal benefit. These several acts of fraudulent misconduct warrant disbarment. See People v. Gerdes, 782 P.2d 2 (Colo.1989); People v. Shafer, 765 P.2d 1025 (Colo.1988); American Bar Association Standards for Imposing Lawyer Sanctions, 4.11 (hereinafter ABA Standards.)\\nIn representing his broker clients, the respondent violated DR 1-102(A)(1) (violation of a disciplinary rule), DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit or misrepresentation), DR 6-101(A)(3) (neglect of a legal matter), DR 7-101(A)(l) (failing to seek lawful objectives of client), DR 7-101(A)(2) (failing to carry out contract of employment for professional services), and DR 7-101(A)(3) (prejudicing or damaging a client). The respondent not only neglected the case, to his clients' severe detriment, but also purposely misled his clients with respect to the availability of insurance proceeds to cover the pending punitive damages claim. Subsequent to the entry of judgment in the case, the respondent continued to ignore his clients' interests and fabricated information designed to mislead opposing counsel. Such continuous and intentional misconduct is sufficiently egregious to warrant imposition of the sanction of disbarment. See ABA Standards 4.41(b).\\nThe respondent again demonstrated his willingness to engage in fraudulent, deceitful and criminal conduct for his own benefit in the course of obtaining the loan from Wiley and in affixing the names of his wife and a third person to a recorded document. In addition to further violations of DR 1-102(A)(1) and DR 1-102(A)(4), such misconduct violates DR 1-102(A)(6) (engaging in conduct adversely reflecting on fitness to practice law) and C.R.C.P. 241.6(5), and of itself merits disbarment. See ABA Standards 5.11.\\nIt must also be noted that the respondent's failure to respond to the request for investigation and other communications from the Grievance Committee violated C.R.C.P. 241.6(7). On March 18, 1989, a letter of admonition was sent to the respondent by the Grievance Committee as a result of his failure to answer an earlier request for investigation. In addition, this court has ordered the respondent suspended from the practice of law for a period of one year and one day for professional misconduct strikingly similar to many of the acts here recited. People v. Rhodes, 803 P.2d 514 (Colo.1991).\\nAs indicated, imposition of the sanction of disbarment is merited for any one of the respondent's acts of misconduct. In addition, as the hearing board concluded, the following aggravating factors are present in this case: a prior disciplinary record (ABA Standards 9.22(a)); dishonest motive (ABA Standards 9.22(b)); a pattern of misconduct (ABA Standards 9.22(c)); multiple offenses (ABA Standards 9.22(d)); bad faith obstruction of the disciplinary process (ABA Standards 9.22(e)); and indifference to making restitution (ABA Standards 9.22(j)). Under all of the circumstances here present, any sanction other than dis barment would demean the grievance process itself.\\nIV\\nFor the above reasons, it is ordered that the respondent, Raymer Martin Rhodes, II, be disbarred and that his name be stricken from the role of lawyers authorized to practice before this court, effective on the date of this opinion. C.R.C.P. 241.21(a). It is further ordered that prior to seeking readmission the respondent shall pay the sum of $6,000 to Timothy R. Scott, as personal representative of the estate of Sandra Scott, and $15,000 to Clarence Wiley, together with interest thereon on said sums computed pursuant to section 13-21-101(3), 6A C.R.S. (1987). The respondent is further ordered to pay the costs of these proceedings, in the amount of $256.73, prior to seeking readmission. All of the aforementioned sums shall be paid to the Supreme Court Grievance Committee, 600 \\u2014 17th Street, Suite 500S, Denver, Colorado 80202-5435.\"}"

colorado/10383431.json

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+"{\"id\": \"10383431\", \"name\": \"K.R. SWERDFEGER and State Compensation Insurance Authority, Petitioners, v. Ray SWERDFEGER, The Industrial Claim Appeals Office of the State of Colorado, and Director, Division of Labor, Respondents\", \"name_abbreviation\": \"Swerdfeger v. Swerdfeger\", \"decision_date\": \"1990-02-08\", \"docket_number\": \"No. 89CA0528\", \"first_page\": \"618\", \"last_page\": \"620\", \"citations\": \"793 P.2d 618\", \"volume\": \"793\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T20:02:32.245381+00:00\", \"provenance\": \"CAP\", \"judges\": \"MARQUEZ and DUBOFSKY, JJ., concur.\", \"parties\": \"K.R. SWERDFEGER and State Compensation Insurance Authority, Petitioners, v. Ray SWERDFEGER, The Industrial Claim Appeals Office of the State of Colorado, and Director, Division of Labor, Respondents.\", \"head_matter\": \"K.R. SWERDFEGER and State Compensation Insurance Authority, Petitioners, v. Ray SWERDFEGER, The Industrial Claim Appeals Office of the State of Colorado, and Director, Division of Labor, Respondents.\\nNo. 89CA0528.\\nColorado Court of Appeals, Div. II.\\nFeb. 8, 1990.\\nOrdered Published May 3, 1990.\\nPaul Tochtrop, Denver, for petitioners.\\nSteven U. Mullens, P.C., Steven U. Mul-lens, Pueblo, for respondent Ray Swerdfeger.\\nDuane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Mary Ann Whiteside, Asst. Atty. Gen., Denver, for respondents Indus. Claim Appeals Office and Director, Div. of Labor.\", \"word_count\": \"648\", \"char_count\": \"4199\", \"text\": \"Opinion by\\nJudge SMITH.\\nK.R. Swerdfeger and State Compensation Insurance Authority (petitioners) seek review of a final order of the Industrial Claim Appeals Office (Panel) which granted claimant's petition to reopen and awarded further disability benefits. We affirm.\\nClaimant was injured in the course and scope of his employment. His injuries included a crushed pelvis with related impotence, injuries to the right and left knees, and traumatic congenital arthritis of the sacroiliac joint. Claimant was treated for his injuries by Drs. Boucher, Deverell, and Williams.\\nPetitioners' uncontested Special Admission of Liability under date of November 17, 1980, indicates that payments of temporary total disability benefits were made from November 2, 1978, to November 7, 1980. This admission further indicates that payments were made to claimant for permanent partial disability based on 10% loss of use of left leg at the knee and 25% loss of use of left leg at the hip. \\\"\\nOn October 9, 1980, Dr. Deverell reported to the State Compensation Insurance Authority that claimant had suffered a 25% permanent partial disability related to the pelvis. No determination was made in this regard. The last medical bill relating to the compensable injuries was paid to Dr. Boucher by the Authority on May 30, 1984.\\nPetitioners contend that the payment of a medical bill does not constitute \\\"compensation\\\" as that term is used in the reopening statute in existence at the time of claimant's injury. See Colo.Sess.Laws 1975, ch. 71, \\u00a7 8-53-119 at 307. That statute provided, in essence, that the Director had the discretion to reopen.any claim in which compensation had been paid, either within six years after the injury, or within two years after the last payment became due and payable, whichever period was longer. Therefore, they argue that claimant's petition to reopen was untimely since it was filed more than six years from the date of his injury. We disagree.\\nThe terms \\\"benefits,\\\" \\\"compensation,\\\" and \\\"award\\\" are used interchangeably throughout the Workmen's Compensation Act. Loffland Brothers Co. v. Industrial Claim Appeals Panel, 770 P.2d 1221 (Colo. 1989). Therefore, no great significance should be placed on the distinction between \\\"medical benefits\\\" and \\\"compensation.\\\" American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App.1985). Thus, we agree with the Panel's conclusion that the payment of claimant's medical bill was the equivalent of the receipt of medical benefits, which in turn constituted receipt of compensation as contemplated by \\u00a7 8-53-119.\\nThe cases cited by petitioners do not lead to a contrary result. Here, unlike the situation in Racon Construction Co. v. Industrial Claim Appeals Office, 775 P.2d 61 (Colo.App.1989), claimant was awarded temporary and permanent partial disability benefits in addition to medical benefits. Also, Royal Globe Insurance Co. v. Collins, 723 P.2d 731 (Colo.1986) can be distinguished because the issue there is the ap portionment of liability as between two insurers in an occupational disease claim. To the extent that the analysis in Padilla v. Industrial Commission, 696 P.2d 273 (Colo.1985) conflicts with that in Royal Globe Insurance Co., the Padilla view has been reaffirmed in Loffland.\\nFinally, our conclusion is buttressed by the 1988 amendments to \\u00a7 8-53-113, under which provisions for reopening of medical benefits are now expressly and separately set forth. See \\u00a7 8-53-113(2)(a) and 8-53-113(2)(b), C.R.S. (1989 Cum.Supp.).\\nOrder affirmed.\\nMARQUEZ and DUBOFSKY, JJ., concur.\"}"

colorado/10384534.json

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+"{\"id\": \"10384534\", \"name\": \"The PEOPLE of the State of Colorado, Appellee, In the Interest of Carl BUCHOLZ, Appellant\", \"name_abbreviation\": \"People ex rel. Bucholz\", \"decision_date\": \"1989-03-23\", \"docket_number\": \"No. 88CA0663\", \"first_page\": \"300\", \"last_page\": \"302\", \"citations\": \"778 P.2d 300\", \"volume\": \"778\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-11T02:10:25.274898+00:00\", \"provenance\": \"CAP\", \"judges\": \"STERNBERG and FISCHBACH, JJ., concur.\", \"parties\": \"The PEOPLE of the State of Colorado, Appellee, In the Interest of Carl BUCHOLZ, Appellant.\", \"head_matter\": \"The PEOPLE of the State of Colorado, Appellee, In the Interest of Carl BUCHOLZ, Appellant.\\nNo. 88CA0663.\\nColorado Court of Appeals, Div. III.\\nMarch 23, 1989.\\nRehearing Denied April 20, 1989.\\nCertiorari Denied Aug. 14, 1989.\\nH. Lawrence Hoyt, County Atty., and Ruth E. Cornfeld, Asst. County Atty., Boulder, for appellee.\\nGregg Friedman, Boulder, for appellant.\", \"word_count\": \"1068\", \"char_count\": \"6729\", \"text\": \"NEY, Judge.\\nCarl Bucholz, respondent, appeals the order of the district court extending his certification for long-term mental health care and treatment pursuant to \\u00a7 27-10-109, C.R.S. (1982 Repl.Yol. 11). We reverse.\\nFor a number of years, respondent has suffered from chronic paranoid schizophrenia. In September 1986, following a seventy-two hour mental health evaluation which indicated that he was mentally ill and, as a result, gravely disabled, he was certified for short-term mental health treatment pursuant to \\u00a7 27-10-107, C.R.S. (1982 Repl. Yol. 11). In December 1986 respondent's certification for short-term treatment was extended, and in March 1987, respondent was certified for long-term care. In September 1987, the district court ordered a six month-extension of the certification for long-term care.\\nIn February 1988 the People filed a petition for a second extension of long-term care and treatment, alleging that respondent remained gravely disabled as a result of mental illness. At respondent's request, a hearing was held to determine whether he was \\\"gravely disabled\\\" as defined in \\u00a7 27-10-102(5), C.R.S. (1982 Repl.Vol. 11).\\nThat statutory definition states:\\n\\\" 'Gravely disabled' means a condition in which a person, as a result of mental illness, is unable to take care of his basic personal needs or is making irrational or grossly irresponsible decisions concerning his person and lacks the capacity to understand this is so.\\\"\\nAt the time of the hearing, respondent was living with his mother and receiving treatment at a mental health facility on an outpatient basis. Dr. Krick, a psychiatrist involved in treating respondent, testified that the symptoms associated with respondent's schizophrenia were being controlled through the use of antipsychotic medication, and that respondent was not gravely disabled while he continued to take the prescribed medication on a regular basis.\\nHowever, it was Dr. Krick's belief that if respondent was not certified for treatment, he would stop taking his medication. Dr. Krick then described the symptoms respondent would experience within one to three months if he stopped taking his medication:\\n\\\"[H]e would become more preoccupied with his own internal thoughts and paranoid thinking and concerns. And he would be less attentive to the realistic needs of \\u2014 such as dealing with people, and keeping his physical appearance and physical health intact. He might very likely decide to stop eating, or perhaps even over-eat. He would have difficulty with sleeping, I would predict, and he might have difficulty just generally getting along with people.\\\"\\nDr. Krick was then asked whether these symptoms would render respondent gravely disabled. He replied:\\n\\\"Well, I think it would depend on where he's living. If these symptoms which I have just listed were troublesome enough to his mother, she might ask him to leave, and then he might very well have difficulty providing for himself the basic requirements of getting along. I think that, while he's living with his mother, he has most of these needs met and doesn't need to provide them for himself.\\n\\\"But my concern would be, if he did decompensate, it would be very difficult for him to get along at his home and he would choose to leave and become gravely disabled, or he might be asked to leave by his family.\\\"\\nNo allegation was made, nor evidence presented, that respondent posed a present or potential danger to others or himself. At the conclusion of the hearing, the trial court reaffirmed respondent's certification based on its finding that respondent, if not certified, would cease taking his medication and become gravely disabled in the future.\\nRespondent contends the trial court erred in finding him gravely disabled. We agree.\\nThe statutory provisions governing the certification of mentally ill individuals for involuntary short- and long-term treatment are set forth in the Act for the Care and Treatment of the Mentally Ill, \\u00a7 27-10-101, et seq., C.R.S. (1982 RepLVol. 11) (Care and Treatment Act). The Care and Treatment Act provides that an order certifying a patient for long-term involuntary mental health treatment expires within six months unless the professional person in charge of the patient's care and treatment requests an extension of the certification for an additional six months. If an extension of long-term involuntary mental health treatment is sought, the patient is entitled to demand a hearing at which the People must show by clear and convincing evidence (1) that the patient continues to be mentally ill and, as a result, is a danger to himself or others or is gravely disabled, and (2) that the patient has refused voluntary treatment or that reasonable grounds exist to believe the patient will not remain in a voluntary program. Sections 27-10-109 and 27-10-111, C.R.S. (1982 RepLVol. 11).\\nThe provisions of the Care and Treatment Act must be strictly construed because of their curtailment of personal liberty. Sisneros v. District Court, 199 Colo. 179, 606 P.2d 55 (1980). Also, if statutory language is plain, its meaning clear, and no absurdity is involved, it must be applied as written. See People v. District Court, 713 P.2d 918 (Colo.1986).\\nThe definition of \\\"gravely disabled\\\" provided in \\u00a7 27-10-102(5) refers to an existing rather than a prospective inability to provide for one's \\\"basic personal needs.\\\" Thus, the determination at a certification hearing as to whether a person is \\\"gravely disabled\\\" must focus on the individual's existing condition, and not on the possibility of future relapse. See Estate of Murphy, 134 Cal.App.3d 15, 184 Cal.Rptr. 363 (1982); People v. Nunn, 108 Ill.App.3d 169, 438 N.E.2d 1342 (1982). Cf. People v. Stevens, 761 P.2d 768 (Colo.1988) (when involuntary treatment is sought on the basis of a person's dangerousness, the evaluation of the person's condition must be made as of the time of each certification for short-term or long-term care and treatment).\\nHere, the order extending certification was not based upon respondent's condition at the time of the hearing but, rather, upon the possibility of respondent becoming gravely disabled in the future if he refused to take his medication. This is an insufficient basis on which to subject an individual to involuntary mental health treatment.\\nThe order is reversed.\\nSTERNBERG and FISCHBACH, JJ., concur.\"}"

colorado/10386565.json

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+"{\"id\": \"10386565\", \"name\": \"E. Lavonne KELLY d/b/a Palmer & Roy Co.; Alice G. Sinclair; John W. Van Der Peol d/b/a Baker & White Co.; Dr. Michael B. Miller d/b/a Brady & Ellsworth Co.; Randy R. Bourne d/b/a Conlan & Slater Co.; Karleen Sabey d/b/a Cox & William Co.; J.B. Kelly d/b/a Engall & Hains Co.; Florence Adams d/b/a Fisher & Parcell Co.; Charlene G. Salmon d/b/a Gage & Walters Co.; Brian Ogden d/b/a Hogan & Lawson Co.; Dr. Pearce Louisy d/b/a Hoke & Benson Co.; Lina A. Bartholomeusz; Barbara Clement; Donald Francis d/b/a Isaac & Baker Co.; Eleanor Peters d/b/a Whipple & Cornell Co.; Bryce Hall d/b/a Jensen & Lewis Co.; Vicki Roach d/b/a Kern & Harper Co.; H.P. Eveson d/b/a Kelly & Lamb Co.; Wanda Seyferth d/b/a Jacob & McKerby Co.; Graham Kelly d/b/a King & Ray Co.; Ville Rasmussen Davies d/b/a May Field & Preston Co.; Cheryl Kelly d/b/a Nelson & Taylor Co.; Michael Ying d/b/a Roger & Jess Co.; Carolyn Rizzo d/b/a Shaw & Burns Co.; Marguerite Graham d/b/a Simpson & Carter Co.; Alma Evans d/b/a Waller & Reynolds Co.; Myrle Peters d/b/a Isaac & Meyers Co.; Leo W. Knell d/b/a Nelson & Camp Co. and Ebert & Gates Co.; Mabel Fuqua, Leslie Henry and Ron Hager d/b/a Greenwood & Nash Co.; Merle L. Hardee d/b/a Anderson & Scott Co., Lane & Slater, Co. and Curtis & Frame Co.; Victoria Douglas; Doug Newell; Claire E. Nash; Ida Horne; William C. Horne; Fred Hanefeld; James R. Debleyker and Unknown Individuals, John Does 1 through 1700, Plaintiffs-Appellants, v. CENTRAL BANK AND TRUST COMPANY OF DENVER, Defendant-Appellee\", \"name_abbreviation\": \"Kelly v. Central Bank & Trust Co. of Denver\", \"decision_date\": \"1989-12-14\", \"docket_number\": \"No. 88CA0122\", \"first_page\": \"1037\", \"last_page\": \"1045\", \"citations\": \"794 P.2d 1037\", \"volume\": \"794\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T17:52:46.410719+00:00\", \"provenance\": \"CAP\", \"judges\": \"SMITH and FISCHBACH, JJ., concur.\", \"parties\": \"E. Lavonne KELLY d/b/a Palmer & Roy Co.; Alice G. Sinclair; John W. Van Der Peol d/b/a Baker & White Co.; Dr. Michael B. Miller d/b/a Brady & Ellsworth Co.; Randy R. Bourne d/b/a Conlan & Slater Co.; Karleen Sabey d/b/a Cox & William Co.; J.B. Kelly d/b/a Engall & Hains Co.; Florence Adams d/b/a Fisher & Parcell Co.; Charlene G. Salmon d/b/a Gage & Walters Co.; Brian Ogden d/b/a Hogan & Lawson Co.; Dr. Pearce Louisy d/b/a Hoke & Benson Co.; Lina A. Bartholomeusz; Barbara Clement; Donald Francis d/b/a Isaac & Baker Co.; Eleanor Peters d/b/a Whipple & Cornell Co.; Bryce Hall d/b/a Jensen & Lewis Co.; Vicki Roach d/b/a Kern & Harper Co.; H.P. Eveson d/b/a Kelly & Lamb Co.; Wanda Seyferth d/b/a Jacob & McKerby Co.; Graham Kelly d/b/a King & Ray Co.; Ville Rasmussen Davies d/b/a May Field & Preston Co.; Cheryl Kelly d/b/a Nelson & Taylor Co.; Michael Ying d/b/a Roger & Jess Co.; Carolyn Rizzo d/b/a Shaw & Burns Co.; Marguerite Graham d/b/a Simpson & Carter Co.; Alma Evans d/b/a Waller & Reynolds Co.; Myrle Peters d/b/a Isaac & Meyers Co.; Leo W. Knell d/b/a Nelson & Camp Co. and Ebert & Gates Co.; Mabel Fuqua, Leslie Henry and Ron Hager d/b/a Greenwood & Nash Co.; Merle L. Hardee d/b/a Anderson & Scott Co., Lane & Slater, Co. and Curtis & Frame Co.; Victoria Douglas; Doug Newell; Claire E. Nash; Ida Horne; William C. Horne; Fred Hanefeld; James R. Debleyker and Unknown Individuals, John Does 1 through 1700, Plaintiffs-Appellants, v. CENTRAL BANK AND TRUST COMPANY OF DENVER, Defendant-Appellee.\", \"head_matter\": \"E. Lavonne KELLY d/b/a Palmer & Roy Co.; Alice G. Sinclair; John W. Van Der Peol d/b/a Baker & White Co.; Dr. Michael B. Miller d/b/a Brady & Ellsworth Co.; Randy R. Bourne d/b/a Conlan & Slater Co.; Karleen Sabey d/b/a Cox & William Co.; J.B. Kelly d/b/a Engall & Hains Co.; Florence Adams d/b/a Fisher & Parcell Co.; Charlene G. Salmon d/b/a Gage & Walters Co.; Brian Ogden d/b/a Hogan & Lawson Co.; Dr. Pearce Louisy d/b/a Hoke & Benson Co.; Lina A. Bartholomeusz; Barbara Clement; Donald Francis d/b/a Isaac & Baker Co.; Eleanor Peters d/b/a Whipple & Cornell Co.; Bryce Hall d/b/a Jensen & Lewis Co.; Vicki Roach d/b/a Kern & Harper Co.; H.P. Eveson d/b/a Kelly & Lamb Co.; Wanda Seyferth d/b/a Jacob & McKerby Co.; Graham Kelly d/b/a King & Ray Co.; Ville Rasmussen Davies d/b/a May Field & Preston Co.; Cheryl Kelly d/b/a Nelson & Taylor Co.; Michael Ying d/b/a Roger & Jess Co.; Carolyn Rizzo d/b/a Shaw & Burns Co.; Marguerite Graham d/b/a Simpson & Carter Co.; Alma Evans d/b/a Waller & Reynolds Co.; Myrle Peters d/b/a Isaac & Meyers Co.; Leo W. Knell d/b/a Nelson & Camp Co. and Ebert & Gates Co.; Mabel Fuqua, Leslie Henry and Ron Hager d/b/a Greenwood & Nash Co.; Merle L. Hardee d/b/a Anderson & Scott Co., Lane & Slater, Co. and Curtis & Frame Co.; Victoria Douglas; Doug Newell; Claire E. Nash; Ida Horne; William C. Horne; Fred Hanefeld; James R. Debleyker and Unknown Individuals, John Does 1 through 1700, Plaintiffs-Appellants, v. CENTRAL BANK AND TRUST COMPANY OF DENVER, Defendant-Appellee.\\nNo. 88CA0122.\\nColorado Court of Appeals, Div. II.\\nDec. 14, 1989.\\nAs Modified on Denial of Rehearing Feb. 1, 1990.\\nCertiorari Denied July 16, 1990.\\nMoyer, Beal & Vranesic, H. Earl Moyer, Lakewood, Arthur M. Schwartz, P.C., Arthur M. Schwartz, Bradley J. Reich and Michael W. Gross, Denver, and Pryor, Carney & Johnson, P.C., Rodney R. Patula and Elaine A. Menter, Englewood, for plaintiffs-appellants.\\nThomas J. Bissell and John E. Bush and Gorsuch, Kirgis, Campbell, Walker & Grover, James H. Turner, Denver, for defendant-appellee.\", \"word_count\": \"3849\", \"char_count\": \"24125\", \"text\": \"Opinion by\\nJudge TURSI\\nPlaintiffs, a certified class of several hundred investors, appeal the summary judgment entered in favor of defendant, Central Bank and Trust Company of Denver, on their claims alleging (1) payment of checks with unauthorized indorsements and (2) aiding and abetting a scheme to defraud. We affirm in part and reverse in part.\\nIn 1981, plaintiffs chose to invest in a Cayman Islands entity, Tradecom, Ltd., a business involved in precious metals arbitrage. Their investments, in the form of cashier's checks, were payable to the order of Tradecom and delivered to Arvey Drown, Tradecom's purported agent. Drown indorsed these checks and deposited them at Central Bank into a checking account.\\nMost of the 934 checks worth $11,227,473 were indorsed:\\n\\\"Tradecom Limited For deposit only 072 575\\\"\\nOther checks, totalling $576,850, were indorsed:\\n\\\"For deposit only 072 575\\\"\\nThis in'cluded one check, for $57,000, which apparently was deposited without indorsement and was indorsed by Central Bank's officer:\\n\\\"For deposit only 072 575 Tradecom by Mark E. Thomson Commercial Loan officer\\\"\\nThe referenced account, #072 575, was not that of Tradecom (which had no accounts at Central Bank), but rather was that of Equity Trading Corporation, a company owned and managed by Drown, also purportedly an agent of Tradecom.\\nPlaintiffs subsequently lost most of their investments in Tradecom, and they sued Central Bank for negligence, conversion, money had and received, breach of warranties, and aiding and abetting a scheme to defraud. They alleged that neither Drown nor Equity Trading was an agent of Trade-com and the check indorsements by Drown were unauthorized and ineffective; that, over the course of 13 months, the Bank negligently or recklessly permitted Drown improperly to divert the checks, payable to Tradecom, into Equity Trading's checking account; and that Central Bank did not follow reasonable commercial standards. Central Bank answered plaintiffs' complaint, and both parties moved for summary judgment.\\nOn December 18, 1987, the trial court ordered summary judgment for Central Bank on all of plaintiffs' claims. Its order was essentially composed of three separate rulings: First, it ruled that plaintiffs had failed to proffer any significant evidence of an absence of actual authority for Drown to indorse and deposit Tradecom checks into Equity Trading's account and concluded, accordingly, that plaintiffs could not prevail on their first four claims and summary judgment for defendant was appropriate. Second, it ruled against plaintiffs in their cross-motion for summary judg ment on the cheeks totalling $576,850 bearing no indorsements. And third, it granted summary judgment for Central Bank on plaintiffs' aiding and abetting claims because plaintiffs' evidence was fragmentary and factually inadequate to afford any association between the Bank's action (or inaction) and any loss suffered by the plaintiffs. Plaintiffs appeal all of these rulings.\\nI.\\nPlaintiffs first argue that summary judgment was inappropriate for Central Bank on their first four claims because the Bank did not meet its burden of establishing the absence of any genuine issue of material fact. We agree in part and disagree in part.\\nIn a motion for summary judgment, the movant bears the burden of establishing the nonexistence of a genuine issue as to any material fact. This burden has two distinct components: an initial burden of production, which when satisfied shifts to the non-movant, and an ultimate burden of persuasion, which always remains on the movant. See Continental Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo.1987).\\nIn this case, the parties dispute what Central Bank's initial burden of production should be. While we recognize this issue is uncertain and not clearly established by the Uniform Commercial Code, see H. Bailey, Brady on Bank Checks \\u00a7 25.23 (6th ed. 1987), we need not address it in this appeal since our review of the record indicates that, under any circumstances, Central Bank adequately bore its initial burden of production.\\nIn moving for summary judgment, Central Bank asserted that it was entitled to judgment because: (1) its evidence established that Drown was in fact an agent of Tradecom authorized to indorse and deposit Tradecom checks at Central Bank; and (2) there was no evidence in the record to indicate that the indorsements were not genuine or authorized, the necessary element of plaintiffs' claims. In support of these assertions, it offered the affidavit of Drown as well as executed powers of attorney making Drown the agent for Trade-com.\\nIn relevant part, the powers of attorney appoint Drown as Tradecom's attorney in the United States and expressly authorize him to:\\n\\\"execute and do any and all of the acts and things following with full rights of substitution:\\n1. To transact manage carry on and do all and every business matter and things requisite and necessary or in any matter connected with or having reference to the business and affairs of the Company in any part of the world....\\n2. To invest any money received of the Company in such manner and upon such securities as the Attorney [Drown] shall think fit or to deposit the same or any part thereof with any banker . and . withdraw any such money and apply the same to any of the purposes herein mentioned.\\n8. To . endorse on behalf of the Company any cheques drafts or other negotiable instruments which the Attorney may deem necessary or proper in relation to the Company affairs.\\\" (emphasis added)\\nSince such a power of attorney is a recognized means of appointing a general agent with actual authority to act for the principal, see Independence Indemnity Co. v. International Trust Co., 96 Colo. 92, 39 P.2d 780 (1934), and since a signature or indorsement is not \\\"unauthorized\\\" if made with actual authority, see \\u00a7 4-1-201(43), C.R.S., we conclude that as a matter of law this showing by Central Bank satisfied its initial burden of production and the burden appropriately shifted to plaintiffs.\\nTo meet their burden, plaintiffs were required to muster sufficient evidence to make out a triable issue of fact, otherwise summary judgment for the Central Bank was appropriate. Continental Air Lines, Inc., v. Keenan, supra.\\nPlaintiffs contend they satisfied their respective burden by identifying direct and circumstantial evidence from which a jury could find that Drown was not an agent and was not authorized to indorse and deposit Tradecom checks into Equity Trading's account. In this regard, they assert: (1) that the existence of an agency agreement is a question of fact for the jury; (2) that Drown's testimony regarding agency and authority can be discredited; and (3) that the two powers of attorney can be discredited because one was executed by non-officers of Tradecom in 1984 (after the Equity Trading account at Central Bank had been closed) and because one was executed on April 23, 1981 (which was 17 days after the Equity Trading account was opened at Central Bank).\\nAlthough plaintiffs' first assertion is generally correct, it is not absolutely so. If the evidence as to the agent's authority is undisputed, or different reasonable and logical inferences may not be drawn therefrom, the question as to the existence of the agency relationship is one of law which should be determined by the trial court. See Stortroen v. Beneficial Finance Co, 736 P.2d 391 (Colo.1987); Cheney v. Hailey, 686 P.2d 808 (Colo.App.1984).\\nIn this case, the questions of agency and authority were ones of law for the trial court. Nothing plaintiffs assert shows that the April 23, 1981, power of attorney was not effective during and throughout the period of Drowns' indorsements and deposits of checks to Equity Trading's checking account. Drown's agency and authority were basically undisputed, and no reasonable and logical inferences to the contrary can be drawn.\\nPlaintiffs' attempt to discredit the Bank's affirmative evidence of agency and authority without offering any concrete evidence from which a reasonable juror could return a verdict in their favor. However, even if we assume that plaintiffs might discredit some of defendant's testimony, absent any significant probative evidence to defeat a properly supported motion for summary judgment, discrediting testimony is normally not sufficient to defeat the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Bose v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984).\\nA.\\nBecause there was no triable issue of fact concerning Drown's agency and authority to indorse and deposit the cashier's checks, and because proof of a forged or unauthorized indorsement is a necessary predicate to Central Bank's liability, plaintiffs could not prevail as to the 11 million dollars of checks that contained an indorsement which included the \\\"Tradecom Limited\\\" name. See \\u00a7 4-1-201(43), 4-3-403(1), 4-3-401(2), 4-3-206(3), 4-3-419(l)(c), C.R.S.; In re Flight Transportation Corp. Securities, 825 F.2d 1249 (8th Cir.1987), cert. denied, 485 U.S. 936, 108 S.Ct. 1113, 99 L.Ed.2d 273 (1988); Grosberg v. Michigan National Bank-Oakland, 420 Mich. 707, 362 N.W-2d 715 (1984); Leigh Co. v. Bank of New York, 617 F.Supp. 147 (D.C.N.Y.1985); Parton v. Robinson, 574 S.W.2d 679 (Ky.App.1978).\\nConsequently, with respect to these checks indorsed with Tradecom's name, we conclude that the trial court properly granted summary judgment for Central Bank on plaintiffs' first four claims.\\nB.\\nThe trial court erred, however, in granting Central Bank summary judgment on the $57,000 check indorsed by Central Bank's commercial loan officer.\\nIn order for Central Bank to have become a holder under this indorsement, and thus have obtained title, Central Bank would have had to have been authorized to provide Tradecom's indorsement under \\u00a7 4-4-205(1), C.R.S. This, however, was impossible since Tradecom was not Central Bank's \\\"customer.\\\" See In re Sun Belt Electrical Constructors, Inc. 64 B.R. 377 (Bankr.N.D.Ga.1986) (Bank not authorized to supply non-depositor third party payee's indorsement); Mid-Atlantic Tennis Courts, Inc. v. Citizens Bank & Trust Co., 658 F.Supp 140 (D.Md.1987). Consequently, this indorsement is unauthorized as a matter of law, and summary judgment should not have been ordered for Central Bank on this check.\\nC.\\nPlaintiffs also contend that the trial court erred in granting summary judgment for Central Bank on the remaining $519,-850 of cashier's checks lacking any signature and merely indorsed \\\"For deposit only 072 575.\\\" We agree.\\nUnder \\u00a7 4-3-419(l)(c), C.R.S., a check is converted when it is paid on a forged indorsement. In this context, a collecting or depository bank \\\"pays\\\" a check when it credits its customer's account with the proceeds of a check collected from the drawee bank. See Central, Inc. v. Cache National Bank, 748 P.2d 351 (Colo.App. 1987). If such payment occurs on a check with no indorsement or a missing indorsement, it is the legal equivalent of payment on a forged indorsement. See Denver Electric & Neon Service Corp. v. Gerald H. Phipps, Inc., 143 Colo. 530, 354 P.2d 618 (1960) (Pre-UCC law); Chilson v. Capital Bank, 237 Kan. 442, 701 P.2d 903 (1985); Humberto Decorators, Inc. v. Plaza National Bank, 180 N.J.Super. 170, 434 A.2d 618 (1981).\\nThe term \\\"indorsement\\\" is generally understood to mean the indorser's writing of his or her signature on the instrument or the affixing of the indorser's name or some designation identifying the indor-ser on the instrument. La Junta State Bank v. Travis, 727 P.2d 48 (Colo.1986). A check simply inscribed \\\"For deposit only\\\" to an account other than payee's account and without the payee's signature is not an effective \\\"indorsement.\\\" See Central, Inc. v. Cache National Bank, supra; Mid-Atlantic Tennis Courts, Inc. v. Citizens Bank & Trust Co., supra; Citizens Bank v. Thornton, 172 Ga.App. 490, 323 S.E.2d 688 (1984).\\nIf the instrument is order paper and the depository bank does not, or cannot, supply the missing indorsement of its customer, the absence of an indorsement can be fatal to negotiation and transfer of title. See \\u00a7 4-3-110(1), 4-3-202(1), 4-3-201(3), and 4-4-205(1), C.R.S.; Mid-Atlantic Tennis Courts, Inc. v. Citizens Bank & Trust Co., supra. One such situation is when the depository bank's customer and the payee are not the same person. In this case, the depository bank is unauthorized to, and cannot, supply the missing indorsement of the payee since the payee is not the bank's \\\"customer\\\" under \\u00a7 4-4-205. See Mid-Atlantic Tennis Courts, Inc. v. Citizens Bank & Trust Company, supra; In re Sun Belt Electrical Constructors, Inc., supra. In this situation, the depository bank does not become a holder of the checks and does not obtain good title to them. See \\u00a7 4-1-201(20), 4-3-201(3) and Comment 8, and 4-3-307(2) and Comment 2, C.R.S. Payment of such check proceeds to its depositor subjects the depository bank to liability for conversion. See \\u00a7 4-3-419(l)(c), C.R.S.; Mid-Atlantic Tennis Courts, Inc. v. Citizens Bank & Trust Co., supra.\\nIn this case, it was undisputed that Drown, or someone in his employ, deposited $519,850 worth of cashier's checks at Central Bank bearing the simple inscription \\\"For deposit only 072 575.\\\" These checks, which bore no signature indorsement of the payee, Tradecom, or anyone else, were paid and credited to account 072 575. This was not an account of Tradecom, which was not a customer of Central Bank. Under these circumstances, Central Bank was not a holder of these checks by negotiation. It obtained no title to these checks. It is, consequently, subject to conversion liability under \\u00a7 4-3-419(l)(c) for making payment on the equivalent of a forged indorsement.\\nCentral Bank argues that it should not be liable to plaintiffs for conversion since (1) the inscription \\\"For deposit only 072 575\\\" constitutes a restrictive indorsement with which its employees complied, and since (2) Drown was Tradecom's agent, au thorized to indorse and deposit these cashier's checks. We reject these arguments.\\nCentral Bank's first argument misconstrues \\u00a7 4-3-205, C.R.S. This section, and \\u00a7 4-3-204, C.R.S., characterize various types of indorsements. Section 4-3-205 describes restrictive indorsements. It, however, does not declare that the words of restriction, \\\"for deposit,\\\" constitute an \\\"in-dorsement.\\\" Instead, the words \\\"for deposit\\\" or \\\"for deposit only\\\" are alone but a written direction which are inadequate, without a signature, to negotiate an instrument and transfer title of order paper. See \\u00a7 4-3-201, 4-3-202, and 4-3-401, C.R.S.; Central, Inc. v. Cache National Bank, supra.\\nCentral Bank's second argument also fails. Negotiation of order paper requires the authorized indorsement of the named payee. See \\u00a7 4-3-202, C.R.S. The question of whether the payee's indorsement is authorized, however, does not arise unless there is an indorsement in the first place. The checks here bore no \\\"indorsement\\\" and were, thus, never negotiated to Central Bank. This is so regardless of whether Drown was authorized or not. Consequently, we conclude that it is immaterial whether Drown had authority to negotiate checks on behalf of Tradecom. The checks simply were not negotiated, and payment of these checks subjected Central Bank to conversion liability. See Mid-Atlantic Tennis Courts, Inc. v. Citizens Bank & Trust Co., supra.\\nII.\\nBased upon the principles set forth in sections B and C above, plaintiffs argue that the trial court erred in denying their cross motion for summary judgment on these $576,850 of cashier's checks. We agree.\\nPlaintiffs' entitlement to summary judgment at this time depends only on whether Central Bank is entitled to prove the affirmative defense recognized in \\u00a7 4-3-419(3). This section provides:\\n\\\"Subject to the provisions of this title concerning restrictive indorsements a . depositary . bank . who has in good faith and in accordance with the reasonable commercial standards applicable to the business of such [depositary bank] dealt with an instrument or its proceeds on behalf of one who was not the true owner, is not liable in conversion or otherwise to the true owner beyond the amount of any proceeds remaining in his hands.\\\"\\nAlthough, as we ruled above, the vast majority of the Tradecom checks were properly indorsed, deposited, and paid at Central Bank, we conclude that Central Bank did not, as a matter of law, act in accordance with reasonable commercial standards in handling the $576,850 of checks deposited without Tradecom's signature. See Mid-Atlantic Tennis Courts, Inc. v. Citizens Bank & Trust Co., supra. Therefore, we conclude the defense in \\u00a7 4-3-419(3) is not available to Central Bank. Consequently, there is no genuine issue of material fact precluding plaintiffs from entry of summary judgment against Central Bank on their conversion claims for $576,850.\\nIII.\\nPlaintiffs' last argument concerns the entire amount of their investments. They contend the trial court erred in granting Central Bank summary judgment on their claims alleging the Bank recklessly gave substantial assistance to Drown in his scheme to defraud. We agree.\\nIn this case, plaintiffs sought recovery under \\u00a7 ll-51-125(5)(b), C.R.S. (1987 Repl. Yol. 4B). This statute, which allows a private cause of action, provides:\\n\\\"Any person who, recklessly . gives substantial assistance to a person who is liable under subsection (2) or (3) of this section [concerning fraud in the sale of securities] shall be jointly and severally liable to the same extent as such person.\\\"\\nSummary judgment is a drastic remedy and should be granted only if the movant shows that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See C.R.C.P. 56(c); Closed Basin Landowners Ass'n v. Rio Grande Water Conservation District, 734 P.2d 627 (Colo.1987). The absence of dispute as to all issues of material fact must be clearly shown. All favorable inferences should be drawn in favor of the nonmovant and any doubts should be resolved against the movant. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988); KN Energy, Inc. v. Great Western Sugar Co., 698 P.2d 769 (Colo.1985), cert. denied, 472 U.S. 1022, 105 S.Ct. 3489, 87 L.Ed.2d 623 (1985).\\nIn this case, the trial court granted summary judgment and thereby implicitly determined there was no genuine dispute that the elements of recklessness and substantial assistance required by \\u00a7 11-51-125 were absent. Its order states that the facts \\\"[cjollectively . [were] inadequate to afford any association between the bank's action (or inaction) and any loss suffered by the plaintiffs.\\\" Our review of the record, however, indicates there were sufficient facts, doubts, and inferences, to preclude summary judgment.\\nIn the normal course of business, it is unusual for a corporate payee of checks to endorse them in blank and deliver them to third persons in the absence of an appropriate reason and pursuant to appropriate corporate authorization. Customarily, such reason and authorization are stated in the form of a corporate resolution which is submitted to the bank. See Belmar Trucking Corp. v. American Trust Co., 65 Misc.2d 31, 316 N.Y.S.2d 247, 8 UCC Rep. Serv. 73 (N.Y.Civ.Ct.1970). Central Bank concedes as much.\\nWhen faced with this atypical situation, reasonable standards of banking practice require a depository bank to make inquiry as to the reason and authority for the deposit to a third person's account of a check endorsed by a corporate payee before accepting the check for deposit. See Belmar Trucking Corp. v. American Trust Co., supra.\\nCentral Bank's own internal policy for accepting business deposits seemed to require as much. Tellers are instructed to examine appropriate resolutions on file to see if other account names may be on the account. Such inquiry, however, did not happen here since uncontradicted evidence indicates that Central Bank did not have any Tradecom resolutions or authorizations in its files.\\nOther uncontradicted evidence indicates that a Central Bank officer met with Drown on at least one occasion and instructed him on the method to be utilized in indorsing the checks, and this officer, without authority, indorsed one of the checks for Tradecom for deposit in Equity's account.\\nIn light of these facts, the large number of checks, the large dollar amounts, and the fact that Central Bank's officers do not recall ever seeing a power of attorney or other authorization making Drown the agent of Tradecom, we conclude that a reasonable inference could be drawn that Central Bank's handling of deposits recklessly gave substantial assistance to Drown in his purported scheme to defraud. Consequently, the trial court's granting of summary judgment was improper and may not stand. Cf. Wright v. Schock, 571 F.Supp. 642 (N.D.Cal.1983) (holding that supplying \\\"normal banking services\\\" to a party is not \\\"aiding and abetting\\\" under the securities laws).\\nThe judgment is affirmed insofar as plaintiffs failed to meet their burden of showing evidence that the checks indorsed by Drown with Tradecom's name were unauthorized. The judgment is otherwise reversed, and the cause is remanded with directions that the court enter judgment for plaintiffs on their conversion claims concerning the $576,850 worth of checks not endorsed with Tradecom's name and to hold further proceedings on the remaining issues.\\nSMITH and FISCHBACH, JJ., concur.\"}"

colorado/10388724.json

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+"{\"id\": \"10388724\", \"name\": \"The PEOPLE of the State of Colorado, Complainant, v. Sheldon Francis GOLDBERG, Attorney-Respondent\", \"name_abbreviation\": \"People v. Goldberg\", \"decision_date\": \"1989-02-27\", \"docket_number\": \"No. 88SA434\", \"first_page\": \"408\", \"last_page\": \"411\", \"citations\": \"770 P.2d 408\", \"volume\": \"770\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T20:04:48.032768+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The PEOPLE of the State of Colorado, Complainant, v. Sheldon Francis GOLDBERG, Attorney-Respondent.\", \"head_matter\": \"The PEOPLE of the State of Colorado, Complainant, v. Sheldon Francis GOLDBERG, Attorney-Respondent.\\nNo. 88SA434.\\nSupreme Court of Colorado, En Banc.\\nFeb. 27, 1989.\\nGeorge S. Meyer, Deputy Disciplinary Counsel, Denver, for complainant.\\nTheodore A. Borillo, Denver, for attorney-respondent.\", \"word_count\": \"1202\", \"char_count\": \"7558\", \"text\": \"ERICKSON, Justice.\\nThis is a disciplinary proceeding against the respondent, Sheldon Francis Goldberg. Respondent entered into a stipulation, agreement, and conditional admission of misconduct with disciplinary counsel and an inquiry panel of the Grievance Committee accepted the stipulation, agreement, and conditional admission of misconduct. The Grievance Committee recommended that the respondent be suspended for ninety days and assessed the costs of these proceedings. We approve the recommendation, and order that the respondent be suspended for ninety days and that he pay the costs of these proceedings.\\nThe respondent was admitted to the bar of this court on April 17, 1963, and is subject to the jurisdiction of this court. C.R.C.P. 241.1(b). The stipulation, agreement, and conditional admission of misconduct was approved by the respondent and his counsel and by disciplinary counsel. The facts set forth in this opinion are taken from the stipulation and were sworn to and verified by the respondent. The Grievance Committee, in approving the stipulation and recommendation for a ninety-day suspension, emphasized that prior to the imposition of discipline in this case, the respondent had received eight letters of admonition.\\nI.\\nThe complainant, Philip E. Young, retained the respondent to assist him in a dispute over visitation rights and paid a retainer of $500. Shortly thereafter, the visitation issue was resolved by Young and his former wife, and the respondent was advised that Young would not require his services. The respondent advised Young that he would not refund the unused por tion of the retainer but that he would allow Young a credit of $425. Thereafter, the respondent was retained in a dissolution of marriage action involving Young and his second wife just before Young had moved to California to accept new employment. The respondent rendered services to Young relating to the dissolution petition, temporary restraining order, temporary support, custody, maintenance, and attorney fees. Thereafter, Young wrote the respondent and advised him that he would not require further service and that he assumed the retainer covered his fees, inasmuch as he had not heard from the respondent for over a month. In response, the respondent moved to withdraw and billed Young $1,227.60 for his services. Young deducted $400 of the unused retainer and sent the respondent $252.10. The respondent continued to bill for an additional $450.50 and on January 13, 1987, filed suit for that amount plus a $300 collection fee and interest in the amount of $47.96, totaling $798.46. Thereafter Young filed a request for investigation with the Grievance Committee.\\nOn January 29,1987, Young flew to Denver to appear in court on the return date set on the fee lawsuit and expected that the matter would be concluded. When he realized that he would have to return again, he settled the case with the respondent for $400. After the settlement was reached, the respondent added that he expected Young to drop his grievance against him. Young paid the fee and asked that the grievance charges be dismissed.\\nThe respondent's conduct violates C.R.C. P. 241.6 concerning discipline of attorneys and also violates DR 1-102(A)(1) (violation of a disciplinary rule) (ABA Model Rule 8.4(a)) and DR 1-102(A)(5) (engaging in conduct that is prejudicial to the administration of justice) (ABA Model Rule 8.4(d)).\\nII.\\nThe complaining witness, John T. Piper, retained the respondent in October 1984, to represent him in a pending dissolution of marriage proceeding. Piper and his wife owned rental properties and held an interest in two promissory notes. Because of disputes over collection of rent and income from the notes, Piper requested that the respondent collect the money and pay the expense on the rental properties from the money collected. At the permanent orders hearing the respondent accounted for the monies he had received and the expenses he had paid. In the accounting the respondent included as income a $240 security deposit made by a tenant which was clearly identified as a security deposit. As a result, Piper had to reimburse the tenant when the tenant vacated the apartment. The error resulted in Mrs. Piper receiving $240 more than she was entitled to receive.\\nOn December 29, 1984, a bookkeeper for the respondent erroneously deposited a rental check for $345 into the respondent's account instead of into his trust account, but the respondent thereafter made up the payment. In the course of the investigation, the respondent stated he always kept a cushion of his own money in the trust account. Thereafter the respondent continued to receive and disburse funds and again overpaid Mrs. Piper in the amount of $243 from his trust account. From June 1985 through December 1985, respondent received five payments on the note belonging to the Pipers totalling $2,004.35. Mr. Piper was entitled to one-half of the amount and to a further payment of $200. Mrs. Piper was paid her share of the money collected, but the respondent never paid Mr. Piper the $1,202.17 that the respondent owed him, although he did later credit the amount against his claim for attorney fees.\\nThe respondent withdrew as counsel for Mr. Piper on July 28, 1986, and was reminded of his responsibility to account to his client by the court. The comingling of the respondent's funds with his trust account and his failure to account to his client violates C.R.C.P. 241.6 concerning discipline of attorneys and also violates the Code of Professional Responsibility, DR 1-102(A)(1) (violation of a disciplinary rule) (ABA Model Rule 8.4(a)), DR 9-102(A) (preserving identity of funds and property of a client) (ABA Model Rule 1.15), DR 9- 102(B)(3) (maintaining complete records of a client's funds and rendering appropriate accounting) (ABA Model Rule 1.15), and DR 9-102(B)(4) (promptly paying client the funds in possession of the lawyer that the client is entitled to receive) (ABA Model Rule 1.15).\\nIII.\\nThe respondent's conduct when considered with his eight prior letters of admonition warrants suspension for ninety days. The ABA Standards for Imposing Lawyer Sanctions, section 9.22(d) (Multiple Offenses), suggests that the respondent's pri- or offenses coupled with his substantial experience in the practice of law warrant suspension. People v. Zinn, 746 P.2d 970 (Colo.1987). The stipulation, agreement, and conditional admission of misconduct was approved by the respondent and his counsel, and the respondent consents to the imposition of a ninety-day suspension. Respondent has demonstrated that he is capable of a wide variety of misconduct. His unprofessional conduct taken alone might not warrant suspension, but the lengthy history of repeated violations requires suspension. Zinn, at 971.\\nAccordingly, the respondent, Sheldon Francis Goldberg, is suspended for a period of ninety days and is ordered to pay the costs of these proceedings in the amount of $277.62 to the Grievance Committee, 600 17th Street, Suite 500-S, Denver, Colorado 80202-5435, within thirty days of the date of this opinion. The respondent shall have thirty days from February 27, 1989, to wind up his affairs before the ninety-day suspension takes effect. C.R.C.P. 241.-21(a).\"}"

colorado/10395118.json

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+"{\"id\": \"10395118\", \"name\": \"Sammy NARANJO, Petitioner-Appellant, v. Harry B. JOHNSON, Superintendent, Fremont Correctional Facility, Canon City, Colorado, Respondent-Appellee\", \"name_abbreviation\": \"Naranjo v. Johnson\", \"decision_date\": \"1989-03-27\", \"docket_number\": \"No. 87SA311\", \"first_page\": \"784\", \"last_page\": \"788\", \"citations\": \"770 P.2d 784\", \"volume\": \"770\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T20:04:48.032768+00:00\", \"provenance\": \"CAP\", \"judges\": \"MULLARKEY, J., does not participate.\", \"parties\": \"Sammy NARANJO, Petitioner-Appellant, v. Harry B. JOHNSON, Superintendent, Fremont Correctional Facility, Canon City, Colorado, Respondent-Appellee.\", \"head_matter\": \"Sammy NARANJO, Petitioner-Appellant, v. Harry B. JOHNSON, Superintendent, Fremont Correctional Facility, Canon City, Colorado, Respondent-Appellee.\\nNo. 87SA311.\\nSupreme Court of Colorado, En Banc.\\nMarch 27, 1989.\\nSammy Naranjo, Canon City, pro se.\\nDuane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Terrence A. Gillespie, Asst. Atty. Gen., Denver, for respondent-appellee.\", \"word_count\": \"2059\", \"char_count\": \"12703\", \"text\": \"ERICKSON, Justice.\\nThis pro se appeal was taken by petitioner Sammy Naranjo from the denial of his application for issuance of a writ of habeas corpus. The district court denied the petition for habeas corpus and advised the petitioner that he may have a good issue, but that the issue is more properly addressed to the sentencing court in Larimer County under Crim.P. 35(c). The trial judge pointed out that the petitioner unsuccessfully applied for a writ of habeas corpus on the same issue in civil action No. 88CV244 in Division II of the District Court for Fremont County. In this case the petitioner did not seek relief pursuant to Crim. P. 35(c) which provides a procedure to obtain postconviction relief. Rather, he limited his petition to the assertion of constitutional claims under section 13-45-103, 6A C.R.S. (1987), because his claim could not, under the circumstances of this case, be addressed under Crim.P. 35(c). Accordingly, we reverse and remand to the district court with directions to hear the petitioner's claim for habeas corpus.\\nI.\\nPreviously, we have reviewed the petitioner's and his co-defendant's convictions on two occasions. See People v. Naranjo, 200 Colo. 1, 612 P.2d 1099 (1980) (Naranjo I); People v. Naranjo, 200 Colo. 11, 612 P.2d 1106 (1980) (Naranjo II). In Naran-jo I, we reversed petitioner's conviction for first-degree kidnapping and vacated the life sentence imposed with a recommendation he \\\"not be eligible for parole prior to twenty two years.\\\" We remanded the case for sentencing on the lesser offense of second degree kidnapping and upheld the petitioner's conviction of sexual assault and the accompanying forty-five and one-half to fifty year sentence. The recommendation as to parole eligibility that was made when the life sentence was imposed for first-degree kidnapping was of no force and effect after Naranjo I was decided, and also does not conform to the indeterminate to ten-year sentence that was imposed for second degree kidnapping. The petitioner sought habeas corpus in the Fremont County District Court because of his confinement in the state penitentiary in Canon City.\\nNaranjo's petition for habeas corpus challenges the construction and application of sections 17-2-204 and -207, 8A C.R.S. (1986), governing eligibility for parole in such a manner that he must serve more than twenty years of his sentence for the class two felony of first-degree sexual assault before he can be considered for parole, while persons sentenced for more serious class-one felonies during the same time period are eligible for parole in ten years. Naranjo asserts, though not artfully, that the statutes on which this disparity is based are either unconstitutional oh their face or as applied by the department of corrections because they deny him equal protection of the laws and impose cruel and unusual punishment. The question before us is the availability of habeas corpus as a means to test the legal merit of these contentions.\\nII.\\nIn Marshall v. Kort, 690 P.2d 219 (Colo.1984), we held that a petitioner found not guilty by reason of insanity and committed to the Colorado State Hospital could challenge the conditions of his confinement and assert a constitutional right to treatment by way of habeas corpus. Id. at 220, 223, 225. We reached this conclusion even though the habeas corpus statute does not specifically provide for relief based on the conditions of a petitioner's confinement. We recognized that the essential purpose of the writ of habeas corpus \\\"demands that it be administered with the initiative and flexibility to insure that miscarriages of justice within its reach are surfaced and corrected.\\\" Id. at 222 (quoting Harris v. Nelson, 394 U.S. 286, 290, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1969)). We further noted that \\\"any restriction in excess of legal restraint that substantially infringes on basic rights may be remedied through habeas corpus, even if total discharge does not result.\\\" Marshall v. Kort, 690 P.2d at 222. Moreover, habeas corpus is available when the petitioner \\\"is deprived of some right to which, even in his confinement, he is lawfully entitled.\\\" Id. (quoting Ex Parte Rider, 50 CaL.App. 797, 195 P. 965, 966 (1920)).\\nNaranjo alleges that the respondent, who is the superintendent of the Fremont Correctional Facility, has determined that Nar-anjo will not be eligible to apply for parole until he has served twenty years of his forty-five and one-half to fifty year sentence for first-degree sexual assault. Nar-anjo asserts that the statutes upon which the superintendent bases this conclusion are unconstitutional, either on their face or as applied. Naranjo further asserts that he has already served ten years of his sentence and therefore should be eligible for parole consideration at this time.\\nIII.\\nCrim.P. 35(c) provides broad and inclusive postconviction remedies, but does not provide an avenue for relief in this case. In our view Naranjo's confinement in the state penitentiary in Fremont County, accompanied by statutory limitations on his right to parole consideration that are allegedly unconstitutional, causes the District Court of Fremont County to be the proper forum for review of the claim for habeas corpus. Appropriate grounds for relief under Crim.P. 35(c) include allegations that the defendant's sentence was imposed in violation of the constitution or laws of the United States or Colorado. Crim.P. 35(c)(2)(I). Additionally, a party aggrieved under Crim.P. 35(c) must claim either a right to be released or to have a judgment of conviction set aside on one of the grounds enumerated in Crim.P. 35(c)(2). Crim.P. 35(c)(3). Naranjo makes no such claim.\\nIn this instance, Naranjo specifically did not challenge the imposition of his sentence, nor did he assert a right to be released or to have his conviction set aside. Instead, Naranjo argued only that he is being unconstitutionally denied the opportunity to be considered for parole. Because Naranjo's allegations do not challenge the imposition of his sentence, do not assert a right to be released or to have his conviction overturned, and do not assert any other basis for relief under Crim.P. 35(c), the district court incorrectly stated that his claim was \\\"more properly addressed\\\" under Crim.P. 35(c).\\nAlthough Naranjo's claims do not state a basis for relief under Crim.P. 35(c), Naran-jo has raised specific allegations of violations of his constitutional rights, and \\\"a forum should be provided to hear such serious claims.\\\" Marshall v. Kort, 690 P.2d at 224. In this case, review is provided under the habeas corpus statutes. Review of Naranjo's claims by way of habeas corpus is consistent with the application of the writ adopted by this court in Marshall v. Kort, 690 P.2d 219 (Colo.1984).\\nNaranjo claims that he was deprived of some right to which, even in his confinement, he was lawfully entitled. See id. at 222. Moreover, Naranjo has requested relief short of a total discharge from custody. In Marshall v. Kort, we recognized that such issues may be raised properly by way of a claim for habeas corpus. 690 P.2d at 222. Additionally, because Naranjo's claims are insufficient for post-conviction relief under Crim.P. 35(c), his application satisfies the general condition that habeas corpus relief is available only when other relief is not available. See, e.g., Blevins v. Tihonovich, 728 P.2d 732, 733 (Colo.1986). Finally, the availability of habeas corpus relief for Naranjo's claims is consistent with the application of the general policies underlying postconviction remedies and would also serve the interests of finality and judicial economy.\\nAccordingly, the Fremont County District Court erred by dismissing Naranjo's application for habeas corpus. We reverse and remand the case to the district court with directions to hold a hearing on the merits of Naranjo's application for habeas corpus.\\nMULLARKEY, J., does not participate.\\n. The procedure for obtaining relief by habeas corpus is set out in section 13-45-101(1), 6A C.R.S. (1987), and provides:\\nIf any person is committed or detained for any criminal or supposed criminal matter, it is lawful for him to apply to the supreme or district courts for a writ of habeas corpus, which application shall be in writing and signed by the prisoner or some person on his behalf setting forth the facts concerning his imprisonment and in whose custody he is detained, and shall be accompanied by a copy of the warrant of commitment, or an affidavit that the said copy has been demanded of the person in whose custody the prisoner is detained, and by him refused or neglected to be given. The court to which the application is made shall forthwith award the writ of habe-as corpus, unless it appears from the petition itself, or from the documents annexed, that the party can neither be discharged nor admitted to bail nor in any other manner relieved. Said writ, if issued by the court, shall be under the seal of the court, and directed to the person in whose custody the prisoner is detained, and made returnable forthwith.\\nPostconviction relief of the type sought by the petitioner is not available under the provisions of Crim.P. 35(c)(2), which states:\\n(2) Notwithstanding the fact that no review of a conviction of crime was sought by appeal within the time prescribed therefor, or that a judgment of conviction was affirmed upon appeal, every person convicted of a crime is entitled as a matter of right to make application for postconviction review upon the grounds hereinafter set forth. Such an application for postconviction review must, in good faith, allege one or more of the following grounds to justify a hearing thereon:\\n(I) That the conviction was obtained or sentence imposed in violation of the Constitution or laws of the United States or the constitution of this state or laws of this state;\\n(II) That the applicant was convicted under a statute that is in violation of the Constitution of the United States or the constitution of this state, or that the conduct for which the applicant was prosecuted is constitutionally protected;\\n(III) That the court rendering judgment was without jurisdiction over the person of the applicant or the subject matter;\\n(IV) That the sentence imposed exceeded the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law;\\n(V) That there exists evidence of material facts, not theretofore presented and heard, which, by the exercise of reasonable diligence, could not have been known to or learned by the defendant or his attorney prior to the submission of the issues to the court or jury, and which requires vacation of the conviction or sentence in the interest of justice;\\n(VI) Any grounds otherwise properly the basis for collateral attack upon a criminal judgment; or\\n(VII) That the sentence imposed has been fully served or that there has been unlawful revocation of parole, probation, or conditional release.\\n.In White v. Denver District Court, 766 P.2d 632 (Colo.1988), we held that an insufficient habeas corpus petition should be treated as a Crim.P. 35(c) motion in order to provide review on the merits of the claims raised by the petitioner. However, in White the petitioner had asserted claims cognizable under Crim.P. 35(c). White, 766 P.2d at 636. In the instant case, Naranjo's claims do not raise any issues cognizable under Crim.P. 35(c). Cf. People v. Shackelford, 729 P.2d 1016, 1017 (Colo.App.1986) (claim that Department of Corrections is improperly calculating prisoner's good-time credits is not cognizable under Crim.P. 35(c), at least until prisoner, by his own calculations, is entitled to release). Accordingly, the trial court could not properly treat Naranjo's habeas corpus petition as a Crim.P. 35(c) motion.\\n. See, e.g., People v. Turman, 659 P.2d 1368, 1370 (Colo.1983) ([T]he \\\"protection of constitutional rights requires that postconviction remedies be broad and flexible.\\\").\\n. See ABA Standards for Criminal Justice 22-4.2 n. 1 (1980) (commentary) (\\\"An applicant whose pleading is dismissed as insufficient is induced to try again with a better pleading. This is not conducive to real finality, which follows from dispositions on the merits rather than on the quality of the pleadings.\\\").\"}"

colorado/10401500.json

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+"{\"id\": \"10401500\", \"name\": \"In the Matter of the ESTATE OF Peggy HICKLE, Protected Person/Appellant, v. Elaine CARNEY, Appellee\", \"name_abbreviation\": \"Estate of Hickle v. Carney\", \"decision_date\": \"1987-11-19\", \"docket_number\": \"No. 86CA1392\", \"first_page\": \"360\", \"last_page\": \"361\", \"citations\": \"748 P.2d 360\", \"volume\": \"748\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T21:29:15.852335+00:00\", \"provenance\": \"CAP\", \"judges\": \"VAN CISE and BABCOCK, JJ., concur.\", \"parties\": \"In the Matter of the ESTATE OF Peggy HICKLE, Protected Person/Appellant, v. Elaine CARNEY, Appellee.\", \"head_matter\": \"In the Matter of the ESTATE OF Peggy HICKLE, Protected Person/Appellant, v. Elaine CARNEY, Appellee.\\nNo. 86CA1392.\\nColorado Court of Appeals, Div. I.\\nNov. 19, 1987.\\nGordon & Marschhausen, Pamela A. Gordon, Denver, for protected person/appellant.\\nNo appearance for appellee.\", \"word_count\": \"388\", \"char_count\": \"2377\", \"text\": \"ENOCH, Chief Judge.\\nPeggy Hickle appeals from an order appointing a conservator of her estate. We set aside the order.\\nAppellant suffers from a mental illness, but she maintains that her illness does not impair her ability to manage her financial affairs. In August 1986, the district court held a consolidated hearing at which it considered the petition for the appointment of a conservator along with other issues not pertinent here. The court then issued an order appointing a conservator.\\nAppellant alleges that the court erred in failing to make specific factual findings on the question of her ability to manage effectively her property and affairs. We agree.\\nSection 15-14-401(3), C.R.S., authorizes the appointment of a conservator only if \\\"the court determines that the person is unable to manage [her] property and affairs effectively for reasons such as mental illness....\\\" In such a proceeding, the court must make findings of fact and state separately its conclusions of law. C.R.C.P. 52(a). \\\"These findings must be so explicit as to give the appellate court a clear understanding of the basis of the trial court's decision and to enable it to determine the ground on which it reached its decision.\\\" In Re Marriage of Jaramillo, 37 Colo.App. 171, 543 P.2d 1281 (1975).\\nThe record reflects that the court found appellant was suffering from a mental illness that \\\"affected her ability to carry on her life functions.\\\" However, the court made no findings on the appellant's ability to manage her property. Although a mental illness, or any other illness, may impair life functions, a conservator may be appointed only if the ability to manage property is also impaired. The record reflects that there was a conflict in the evidence on the issue.\\nBecause we cannot determine the grounds on which the trial court reached its decision to appoint a conservator, the order is set aside and the cause is remanded with directions to make the findings of fact and conclusions of law required in accordance with C.R.C.P. 52(a) and enter an appropriate order thereon.\\nVAN CISE and BABCOCK, JJ., concur.\"}"

colorado/10416194.json

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+"{\"id\": \"10416194\", \"name\": \"Victoria Ruth LOVATO, Plaintiff-Appellant, v. Patricia HERRMAN, Defendant-Appellee\", \"name_abbreviation\": \"Lovato v. Herrman\", \"decision_date\": \"1984-03-15\", \"docket_number\": \"No. 82CA0296\", \"first_page\": \"240\", \"last_page\": \"242\", \"citations\": \"685 P.2d 240\", \"volume\": \"685\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T19:33:54.950952+00:00\", \"provenance\": \"CAP\", \"judges\": \"BERMAN and BABCOCK, JJ., concur.\", \"parties\": \"Victoria Ruth LOVATO, Plaintiff-Appellant, v. Patricia HERRMAN, Defendant-Appellee.\", \"head_matter\": \"Victoria Ruth LOVATO, Plaintiff-Appellant, v. Patricia HERRMAN, Defendant-Appellee.\\nNo. 82CA0296.\\nColorado Court of Appeals, Div. II.\\nMarch 15, 1984.\\nAs Modified on Denial of Rehearing May 3, 1984.\\nCertiorari Denied Aug. 7, 1984.\\nFasing & Fasing, P.C., Gregory J. Fas-ing, Timothy L. Fasing, Lakewood, for plaintiff-appellant.\\nHall & Evans, Richard A. Hanneman, Alan Epstein, Denver, for defendant-appel-lee.\", \"word_count\": \"792\", \"char_count\": \"4856\", \"text\": \"KELLY, Judge.\\nIn this case involving a rear-end auto accident, the plaintiff, Victoria Ruth Lova-to, appeals the trial court's entry of judgment on the jury's verdict in favor of the defendant, Patricia Herrman. Plaintiff argues that the trial court erred in its admission and exclusion of certain evidence of liability and in its submission of an instruction to the jury on sudden equipment failure. We affirm.\\nLovato's vehicle was struck from behind by a vehicle driven by Herrman. According to plaintiff's version of the incident, this collision resulted in a chain reaction in which the Lovato vehicle struck the vehicle in front of her which struck an RTD bus in front of it; but the sequence of the impacts was disputed at trial.\\nLovato contends that the trial court erred in admitting the testimony of Herr-man concerning alleged statements made to her by an unidentified person who, though not involved in the accident, was the driver of the car immediately behind Herrman. We disagree.\\nOver objection, Herrman testified that at the scene of the accident that driver had jumped into her car and excitedly told her (1) she was not at fault, and (2) the driver of the vehicle in front of Lovato had a bottle to his mouth and had hit the bus first. The trial court admitted the testimony under the exception to the hearsay rule for an excited utterance, defined by CRE 803(2) as a \\\"statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.\\\"\\nThe availability of the declarant as a witness is immaterial to the admissibility of such an out-of-court statement, CRE 803, and the declarant may be a bystander rather than a participant in the event. People v. Dement, 661 P.2d 675 (Colo. 1983). To qualify a statement as an excited utterance admissible under the exception, there must be an event sufficiently startling to render normal reflective thought processes of the declarant inoperative, and the declarant's statement must have been a spontaneous reaction to that event and not the result of reflective thought. People v. Dement, supra. There is no requirement in CRE 803(2' that there be corroborative evidence of the existence of the declarant.\\nHere, the collision qualifies as a \\\"startling event,\\\" the declarant's remarks were made only moments later in reaction to that event, and Herrman testified that the declarant was excited. Moreover, as Herman's testimony in camera and the drawing of the scene in plaintiff's Exhibit A disclose, the declarant had been driving on a side street and had turned the corner into a position immediately behind Herr-man, and it may properly be inferred that the declarant was able to observe the accident and was affected by it. We conclude that there was sufficient evidence to show that there existed continuing stress, that the statements were of sufficient temporal proximity to the event to infer that the exciting influence continued, and that the statements were a spontaneous reaction to that influence. Hence, they were admissible under CRE 803(2).\\nLovato also contends that the trial court erred in admitting the investigating officer's testimony concerning his arrest of another driver involved in this chain-reaction accident for driving under the influence of alcohol. Relying on Ripple v. Brack, 132 Colo. 125, 286 P.2d 625 (1955), she argues that under \\u00a7 42-4-1508, C.R.S., the arrest of any person for a traffic offense, as well as a conviction for such an offense, may not be admitted in any civil action. We need not reach the issue.\\nEven if we assume that the statute does prohibit the admission of testimony concerning the arrest, we conclude that here the totality of the testimony reveals no prejudicial effect. Although the officer testified that he had arrested the other driver \\\"for investigation of driving under the influence,\\\" he further testified that it had been determined that the driver was not under the influence. Hence, the effect of the testimony about the arrest was neu tralized and could not have influenced the result as did the questioning in Ripple, supra.\\nLovato's other allegations of error are without merit. See People v. Abbott, 638 P.2d 781 (Colo.1981); Carsell v. Edwards, 165 Colo. 335, 439 P.2d 33 (1968); Barnhill v. Public Service Co., 649 P.2d 716 (Colo. App.1982); Colo. J.I. 11:13 (2d ed. 1980).\\nThe judgment is affirmed.\\nBERMAN and BABCOCK, JJ., concur.\"}"

colorado/10419268.json

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+"{\"id\": \"10419268\", \"name\": \"A. Joe DOWNING, as father and next friend of Jonlon J. Downing, a minor, Plaintiff-Appellant, v. OVERHEAD DOOR CORPORATION, a Texas corporation, Defendant-Appellee\", \"name_abbreviation\": \"Downing ex rel. Downing v. Overhead Door Corp.\", \"decision_date\": \"1985-05-02\", \"docket_number\": \"No. 83CA0171\", \"first_page\": \"1027\", \"last_page\": \"1034\", \"citations\": \"707 P.2d 1027\", \"volume\": \"707\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T19:45:56.250042+00:00\", \"provenance\": \"CAP\", \"judges\": \"KELLY and TURSI, JJ., concur.\", \"parties\": \"A. Joe DOWNING, as father and next friend of Jonlon J. Downing, a minor, Plaintiff-Appellant, v. OVERHEAD DOOR CORPORATION, a Texas corporation, Defendant-Appellee.\", \"head_matter\": \"A. Joe DOWNING, as father and next friend of Jonlon J. Downing, a minor, Plaintiff-Appellant, v. OVERHEAD DOOR CORPORATION, a Texas corporation, Defendant-Appellee.\\nNo. 83CA0171.\\nColorado Court of Appeals, Div. III.\\nMay 2, 1985.\\nRehearing Denied June 6, 1985.\\nCertiorari Denied Oct. 15, 1985.\\nQuigley & Goss, Neil Quigley, Douglas K. Goss, Denver, for plaintiff-appellant.\\nMadden and Strate, P.C., William J. Madden, Wheatridge, for defendant-appellee.\", \"word_count\": \"2813\", \"char_count\": \"17742\", \"text\": \"METZGER, Judge.\\nIn this products liability case, plaintiff, A. Joe Downing, as father and guardian of minor Jonlon Downing, sought to recover from defendant, Overhead Door Corporation, a manufacturer of garage doors, for Jonlon's injuries which resulted when Jon-lon was pinned underneath a garage door manufactured by defendant. Plaintiff appeals the judgment entered upon a jury verdict in favor of defendant, contending that the trial court erred (1) in excluding an insurance adjuster's report pertaining to installation and service records for the garage door, (2) in excluding evidence of warnings adopted by defendant several years before the injury, (3) in refusing his tendered jury instructions, and (4) in failing to grant a new trial based on defense counsel's misconduct. We reverse and remand for a new trial.\\nThe record discloses the following events. Jonlon, age five, and her family moved to their new home on January 24, 1978. Two days after moving into their house, at about 11:30 a.m., Jonlon's mother permitted Jonlon to go outside to play with a neighbor boy who lived three houses away.\\nThe Sorensons resided two houses away from the Downings. Around noon, Mrs. Sorenson left her home in her car to run an errand, and left her garage door open. The Sorensons had an R80Z type electric garage door opener, manufactured by Overhead Door. The operating pushbutton switch for the door was located well within a child's reach inside the garage. When Mrs. Sorenson returned, some 15 minutes later, she discovered that her garage door had closed partially, pinning Jonlon underneath. Jonlon was lying on her stomach, with her upper body outside the garage and her lower body inside.\\nJonlon was hospitalized for one month. She sustained permanent brain damage as a result of the incident, and missed one year of school. She now requires extensive special education assistance and has noticeable speech and physical defects.\\nPlaintiff contends that Jonlon mistook the opener pushbutton for a doorbell, activated the garage door herself, and that the garage door caught her as she was running out of the garage and it failed to spring back, thus pinning her underneath. It is undisputed that, until 1973, Overhead Door failed to warn consumers of the potential consequences and dangers associated with installing the garage door's operating button within a child's reach. It is further undisputed that plaintiff provided such warnings for its new units manufactured between 1973 and 1978, but homeowners or distributors who had purchased or installed the units prior to 1973 were not warned.\\nThe pushbutton which activated the garage door opener was designed as a door bell look-alike and was installed in the location where a door bell would normally be installed, approximately four feet from the floor. The instruction manual, after 1973, contained a notice stating, \\\"Button should be out of reach of children.\\\" Additionally, a decal was included which stated: \\\"Caution, operate door only when fully visible, properly adjusted, and free of obstructions. Do not permit children to play in area of door. See instruction manual for proper operation.\\\"\\nI.\\nPlaintiff first contends that the trial court improperly excluded as hearsay the \\\"Investigative Report\\\" of the Sorensons' insurance adjuster. The report contained the dates of door maintenance, and a description of problems experienced with the door. It also listed the year of installation of the opener, 1969, which was relevant to the presumption of adequacy after ten years of use. The adjuster made notes during a telephone conversation occurring shortly after Jonlon's accident with the manager of Overhead Door of Denver, an independent distributor and service outlet for defendant. The conversation concerned the installation and service records for the Sorensons' garage door and R80Z openers in general. These service records were later destroyed and were unavailable at trial. Plaintiff argues that the adjuster's report, based on his notes from the phone conversation, was admissible under CRE 803(6), the business records exception. We agree.\\nRelevant and material business records qualify for the business records exception when supported by an adequate foundation showing that: (1) the records were made in the regular course of business; (2) those participating in the record making were acting in the routine of business; (3) the input procedures were accurate; (4) the entries were made within a reasonable time after the occurrence in question; and (5) the information w\\u00e1s transmitted by a reliable person with knowledge of the event reported. Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo.1984).\\nThe reliability of such a record is demonstrated by evidence of its having been made pursuant to established and routine company procedures for the systematic conduct of its business. Teac Corporation of America v. Bauer, 678 P.2d 3 (Colo.App.1984).\\nThe records of Overhead Door of Denver were filed by street address and each file contained all copies of installation and service invoices for the garage door located at that address. The manager of Overhead Door of Denver testified that he read the file for the Sorensons' garage door to the adjuster during their telephone conversation.\\nThe adjuster's report which resulted from that conversation was prepared as part of the normal routine business practice necessary for each insurance file. The adjuster prepared the report using information he received from one in knowledge, the agent for Overhead Door of Denver. This report was prepared within a relatively brief time after the telephone conversation. See Herman v. Steamboat Springs Super 8 Motel, Inc., 634 P.2d 1005 (Colo.App.1981).\\nWhile defendant claims the report is prejudicial and self-serving, it has failed to show anything untrustworthy about the preparation, storage, or use of the report. Ford v. Board of County Commissioners, 677 P.2d 358 (Colo.App.1983); see CRE 803(6). Thus, since the report is, in effect, a written memorial of installation and service records, prepared by the insurance agent from information obtained from the servicer, and was done in the regular course of business, we conclude that the trial court erred in refusing to admit the report pursuant to CRE 803(6).\\nII.\\nPlaintiff further contends that the trial court erred as a matter of law in instructing the jury, pursuant to \\u00a7 13-21-403(3), C.R.S. (1984 Cum.Supp.) that:\\n\\\"[t]en years after a product is first sold for use or consumption, it shall be rebutt-ably presumed that the product was not defective and the manufacturer or seller thereof was not negligent and that all warnings and instructions were proper and adequate.\\\"\\nPlaintiff argues that the jury lacked sufficient evidence concerning the sale date of the Sorensons' garage opener, and therefore, it could not reasonably conclude that the product was not defective. We agree.\\nWhere a jury instruction fairly presents the issues and is supported by the evidence, the parties are entitled to have it given. See Anderson v. Munoz, 159 Colo. 229, 411 P.2d 4 (1966). However, CJI-Civ.2d 14:24 (1980) (Notes on Use) cautions that the instruction is proper:\\n\\\"if there is sufficient evidence of the basic facts on which the presumption stated in this instruction is applicable in any case where damages for injury, death or property damage are claimed to have been the result of breach of warranty, strict liability in tort, or the manufacturer's or seller's being negligent.\\\"\\nDefendant contends that there was sufficient evidence presented to permit the instruction to be given and that it was for the jury to decide when the garage door opener was first sold. We agree that this constitutes a question of fact for the jury; however, the jury did not have evidence with which to make such a conclusion. According to the presumption, an injury complained of must have occurred within ten years of the date the product was first sold for use or consumption. That ten-year period runs from the sale of the individual product or item which causes the personal injury, death, or property damage, not from the first sale of the particular model to the public, as defendant contends.\\nJonlon was injured on January 26, 1978. The evidence disclosed that defendant began manufacturing R80Z Overhead Door Openers in October 1967. Testimony was also given that according to its serial number, the garage door opener in this case was allegedly manufactured on September 26, 1968. Only installers sold R80Z openers, and the records concerning sale and installation dates for the Sorensons' garage door opener had been destroyed before trial. The trial court refused to allow the insurance adjuster's report, which contained the date of installation, into evidence.\\nThus, the jury was without sufficient evidence reasonably to conclude, by a preponderance of the evidence, that the basic facts giving rise to the presumption existed. Accordingly, it was error to instruct the jury concerning this presumption.\\nIII.\\nPlaintiff next contends that the trial court improperly excluded evidence that, beginning in 1973, defendant added warnings concerning placement of the pushbut-tons for its garage door openers. Plaintiff asserts that, while these warnings were adopted subsequent to the installation of the Sorensons' R80Z opener, this pre-acci-dent evidence was admissible to show that defendant had breached its duty to warn by failing to provide similar warnings to the Sorensons and other consumers who purchased R80Z operators prior to the time defendant first issued its warnings in 1973. We agree.\\nSection 13-21-404, C.R.S. (1984 Cum. Supp.), provides that:\\n\\\"[I]n any product liability action, evidence of any scientific advancements in technical or other knowledge or techniques, or in design theory or philosophy, or in manufacturing or testing knowledge, techniques, or processes, or in labeling, warnings of risks or hazards, or instructions for the use of such product, where such advancements were discovered subsequent to the time the product in issue was sold by the manufacturer, shall not be admissible for any purpose other than to show a duty to warn.\\\" (emphasis added)\\nDefendant urges that the duty to warn is a concept that has its origin in negligence, not strict liability, and that plaintiff is thereby precluded from asserting an argument concerning defendant's duty to warn under a strict liability theory. This argument was rejected in Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983 (1975) and Hamilton v. Hardy, 37 Colo.App. 375, 549 P.2d 1099 (1976).\\nThe difference between negligence and strict liability is the focus of the trier of fact. Under a negligence theory, the reasonableness of the manufacturer's conduct must be determined. Under a strict liability theory, the determination is whether the product is defective, or, if not defective, unreasonably unsafe, and whether, under an objective standard, after weighing the relevant costs and benefits, a warning was required. Finn v. G.D. Searle & Co., 35 Cal.3d 691, 200 Cal.Rptr. 870, 677 P.2d 1147 (1984).\\nThe manufacturer must give both adequate directions to assure effective use and adequate warning of potential danger to assure safe use. Providing instructions for the safe use or installation of the product is not a functional equivalent or appropriate substitute for adequate warnings of danger that might be encountered if the instructions given are not followed. Brown v. Sears, Roebuck & Co., 136 Ariz. 556, 667 P.2d 750 (1983). Here, the test for defect is whether some feature of the installation, i.e., whether the materials used or the manner of installation itself threatened harm to persons using the item. See Southwestern Bell Telephone Co. v. Griffith, 575 S.W.2d 92 (Tex.Civ.App.1978). While the installation instructions contained detailed descriptions of where and how to install the operator and mounting brackets, they do not contain any instructions regarding installation of the pushbutton. Thus, providing instructions for the installation of the product which lack detail or specificity is no substitute for adequate warnings of the dangers possible where misuse may have disastrous results. Brown v. Sears, Roebuck & Co., supra.\\nWe have previously held that evidence of pre-accident remedial measures is admissible to demonstrate a defendant's pre-existing knowledge of the danger inherent in the product, the feasibility of giving a warning, and the existence of a duty to warn users of the defect. Good v. A.B. Chance Co., 39 Colo.App. 70, 565 P.2d 217 (1977). The need for such a warning is determined by the nature of the product. Thus, where a manufacturer or supplier of a product is, or should have been, aware that a product is unreasonably dangerous absent a warning, and such warning is feasible, strict liability in tort attaches if an appropriate and conspicuous warning is not given. Burke v. Almaden Vineyards, Inc., 86 Cal.App.3d 768, 150 Cal.Rptr. 419 (1978). A failure to comply with the duty to warn adequately of potentially dangerous propensities may itself constitute a defect in the product. Hiigel v. General Motors Corp., supra; Bailey v. Montgomery Ward & Co., 690 P.2d 1280 (Colo.App.1984).\\nDefendant concedes that there is a duty to warn of dangerous conditions, but argues that such a duty exists only in regard to those products not yet sold. In our view, defendant's argument construes the statute too narrowly.\\nThe requirement for a warning, or the adequacy of a warning if one is given, is determined by taking into consideration the likelihood of accident and the seriousness of the consequences of a failure to warn. Kysor Industrial Corp. v. Frazier, 642 P.2d 908, 22 A.L.R. 4th 195 (Colo.1982). The duty to warn exists where a danger concerning the product becomes known to the manufacturer subsequent to the sale and delivery of the product, even though it was not known at the time of the sale. R. Hursh, American Law of Products Liability \\u00a7 8:9 (1974).\\nAfter a product involving human safety has been sold and dangerous defects in design have come to the manufacturer's attention, the manufacturer has a duty either to remedy such defects, or, if a complete remedy is not feasible, to give users adequate warnings and instructions concerning methods for minimizing danger. Braniff Airways, Inc. v. Curtiss-Wright Corp., 411 F.2d 451 (2d Cir.1969), cert. denied, 396 U.S. 959, 90 S.Ct. 431, 24 L.Ed.2d 423 (1969); Noel v. United Aircraft Corp., 342 F.2d 232 (3rd Cir.1965).\\nIn products liability actions it is often the case that remedial measures are taken after the manufacture and sale of a product but prior to an accident. While evidence of these subsequent repairs is generally inadmissible to prove negligence, Barnes v. Safeway Stores, Inc., 30 Colo.App. 281, 493 P.2d 687 (1971), this principle is not applicable in a products liability context. Martinez v. Atlas Bolt & Screw Co., 636 P.2d 1287 (Colo.App.1981); L. Frumer & M. Friedman, Products Liability \\u00a7 12.04[2] (1984).\\nThe Massachusetts Supreme Judicial Court, in do Canto v. Ametek, Inc., 367 Mass. 776, 328 N.E.2d 873 (1975) permitted evidence of safety features developed by the manufacturer after the sale of a commercial ironer but before an accident. The court distinguished between post-accident repairs and pre-accident improvements, deciding that pre-accident safety improvements are admissible to show the feasibility of new safety features; to show knowledge of the safety features; and to establish the manufacturer's duty to warn of a deficiency in the safety feature of the product as sold.\\nThe court reasoned that:\\n\\\"Although the admissibility of evidence of post-accident improvements may tend to discourage the making of safety improvements for fear that the fact will be used against the defendant, improvements made before an accident are not discouraged similarly.\\\"\\nThis rationale is applicable to the facts of this case.\\nHere, evidence of the subsequent warning would have directly supported a reasonable, logical, and natural inference that a hazard existed which was not obvious and which created an unreasonable risk of harm in the absence of warning. See Burke v. Almaden Vineyards, Inc., supra. The warning decal was prepared and distributed with new units prior to Jonlon's accident. This evidence was probative of defendant's pre-accident knowledge of the danger inherent in the product, and the feasibility of giving a warning to make the product less dangerous to use. See Bartlett v. General Electric Co., 90 A.D.2d 183, 457 N.Y.S.2d 628 (1982). Since a factual basis existed for submitting the case to the jury under a failure to warn theory, the trial court's refusal to do so was error.\\nIV.\\nFinally, plaintiff contends that the trial court erred in denying his motion for a mistrial which was based on several comments made by defense counsel during closing argument. In light of our disposition on other issues, we choose not to determine whether defense counsel's improper and inappropriate remarks constitute a separate basis for reversal.\\nThe judgment is reversed and the cause is remanded for further proceedings consistent with the views expressed in this opinion.\\nKELLY and TURSI, JJ., concur.\"}"

colorado/10421888.json

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+"{\"id\": \"10421888\", \"name\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roger Wayne VIDUYA, Defendant-Appellant\", \"name_abbreviation\": \"People v. Viduya\", \"decision_date\": \"1985-06-24\", \"docket_number\": \"No. 83SA48\", \"first_page\": \"1281\", \"last_page\": \"1293\", \"citations\": \"703 P.2d 1281\", \"volume\": \"703\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T19:38:10.444640+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roger Wayne VIDUYA, Defendant-Appellant.\", \"head_matter\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roger Wayne VIDUYA, Defendant-Appellant.\\nNo. 83SA48.\\nSupreme Court of Colorado, En Banc.\\nJune 24, 1985.\\nRehearing Denied Aug. 19, 1985.\\nDuane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Can-trick, Solicitor Gen., John Milton Hutchins, Asst. Atty. Gen., Denver, for plaintiff-ap-pellee.\\nDavid F. Vela, 'State Public Defender, Margaret L. O\\u2019Leary, Lyndy Ohneck, Jody Sorenson Theis, Judy Fried, Deputy State Public Defenders, Denver, for defendant-appellant.\", \"word_count\": \"5616\", \"char_count\": \"34293\", \"text\": \"LOHR, Justice.\\nRoger Wayne Viduya appeals his conviction for vehicular homicide. See \\u00a7 18-3-106, 8 C.R.S. (1978). Because the trial judge applied the wrong legal standard when concluding that statements made by Viduya to the police were constitutionally obtained and admissible at trial, we reverse and remand with directions to hold a new hearing on that issue. We affirm all the other challenged rulings of the trial court.\\nI.\\nAt approximately 10:00 p.m. on February 6, 1981, a car driven by Viduya struck and killed pedestrian Rocco Borquez as Viduya was driving east on 112th Street in Adams County. Viduya was charged by information with causing the death of Borquez by driving in a reckless manner and by driving while under the influence of intoxicating liquor, the two means by which vehicular homicide can be committed pursuant to section 18-3-106(1), 8 C.R.S. (1978).\\nOn September 8, 1981, after trial to a jury in Adams County District Court, Vidu-ya was found guilty of vehicular homicide. The jury was provided with a verdict form that not only required the jurors to find Viduya either guilty or not guilty of the offense, but also required them, if they found Viduya guilty, to specify whether he committed the offense by operating a motor vehicle in a reckless manner, or by operating a motor vehicle while under the influence of intoxicating liquor, or both. The jury found that Viduya committed the offense of vehicular homicide while operating a motor vehicle in a reckless manner. Viduya was sentenced to two years with the department of corrections. He appeals, raising seven assignments of error.\\nII.\\nA.\\nViduya contends that the district court erred in denying his motion to suppress statements made by him to police officers after the accident. We conclude that further proceedings in the trial court are necessary to resolve this issue.\\nAt the hearing on Viduya's motion to suppress, Officer Holden, the first police officer on the scene and the officer who arrested the defendant, testified as follows: Holden arrived at the scene of the accident while on routine patrol. As he approached that location, he saw a large cloud of steam rising from a car lying in the ditch off the road. As he got closer, he could see a person lying in the middle of the road and approximately seven or eight other people in the vicinity. He radioed for emergency aid and got out of his car to check the prostrate victim, Rocco Borquez. Borquez had no pulse and was not breathing.\\nTwo men at the scene then asked Holden if he needed to know who had been driving the car that was in the ditch. Holden said that he did, whereupon the two men pointed out a man approximately seventy-five yards away, walking away from the location of the accident. Holden \\\"hurriedly approached\\\" the man walking away \\u2014 Vidu-ya, although not yet identified by name\\u2014 and asked him if he had been driving the vehicle that was in the ditch. Viduya said, \\\"no.\\\" Holden then requested that Viduya return with him to the scene of the accident. In Holden's words, \\\"I advised him that we were investigating a serious accident and since he was in the area he would have to come back.\\\"\\nHolden returned with Viduya to the accident scene and had him stand near a fence alongside 112th Street while Holden went back to talk to the two men. They confirmed that Viduya was the person they had seen getting out of the vehicle involved in the accident. Sometime during this period, although after the first encounter with Viduya, Holden noted that Viduya appeared to be intoxicated. After confirming the identification, Holden returned to Vidu-ya and placed him under arrest for vehicular assault. The officer advised Viduya of his Miranda rights at this time. Vidu-ya agreed to answer questions. He said he had been driving the car but that he did not remember being in an accident or striking any objects or pedestrians. Viduya also stated that he had consumed approximately six beers in the last five hours, and gave varying answers, when asked at different times how fast he had been traveling. Another officer testified that the defendant made further statements at the police station after again being advised of his Miranda rights.\\nPrior to trial, Viduya moved to suppress all statements made by him relating to the alleged vehicular homicide. At the hearing on that motion, Viduya asserted that his initial response to Holden's question concerning whether he was driving the vehicle involved in the accident was a statement given while in custody but without a proper Miranda advisement and that all subsequent statements were the fruits of the initial improper questioning. The district court denied the motion. Viduya assigns this ruling as error.\\nB.\\nIn Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless the prosecution demonstrates that the defendant was adequately advised of his privilege against self-inerimi-nation and his right to counsel, and thereafter voluntarily, knowingly and intelligently waived those rights. The reason for the automatic warning requirement is that without such a safeguard, the compelling pressures inherent in police custody \\\"work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely,\\\" in violation of the Fifth Amendment to the United States Constitution. Id. at 467, 86 S.Ct. at 1624.\\nBy \\\"custodial interrogation,\\\" the Court meant \\\"questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.\\\" Id. at 444, 86 S.Ct. at 1612. We have held that this question of custody turns on an objective assessment of whether a reasonable person in the suspect's position would believe himself to be deprived of his freedom of action in any significant way. People v. Black, 698 P.2d 766, 768 (Colo.1985); People v. Johnson, 671 P.2d 958, 961 (Colo.1983); People v. Algien, 180 Colo. 1, 7, 501 P.2d 468, 471 (1972). Several factors must be considered in determining whether a person is in custody, including:\\n[T]he time, place and purpose of the encounter; the persons present during the interrogation; the words spoken by the officer to the defendant; the officer's tone of voice and general demeanor; the length and mood of the interrogation; whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; the officer's response to any questions asked by the defendant; whether directions were given to the defendant during the interrogation; and the defendant's verbal or nonverbal response to such directions.\\nPeople v. Black, 698 P.2d at 768; People v. Thiret, 685 P.2d 193, 203 (Colo.1984).\\nIn denying the defendant's motion to suppress his original statement, the district court ruled:\\nWith respect to the statements made by the Defendant at the time the initial inquiry was made of the Defendant, to-wit, \\\"Were you driving?\\\" and the Defendant answered in the negative. The officer at that time was investigating an accident, which he had no way of knowing how it occurred. A body is lying in the middle of the street. Other people have identified the Defendant as the driver of that vehicle. For all the officer knew at that point, the victim could have been ejected from the vehicle in a collision with another object. So, that particular question I do not find to be inappropriate in view of the fact that there was no suspicion at that time of any offense by the Defendant, and the officer asked the question in the course of a valid investigation! !\\nThe court thus premised its denial of Vidu-ya's motion to suppress his original response on the facts that Officer Holden had not yet determined that an offense had been committed and that Holden's investigation had not focused on the defendant as a criminal suspect at the time the officer made his initial inquiry. The district court applied the wrong legal standard by failing to determine whether Viduya was in custody for the purposes of Miranda at the time of the initial questioning. People v. Black, 698 P.2d at 768. Compare Miranda v. Arizona with Escobedo v. Illinois, 378 U.S. 478, 490-91, 84 S.Ct. 1758, 1764-65, 12 L.Ed.2d 977 (1964). See also People v. Parada, 188 Colo. 230, 233, 533 P.2d 1121, 1122 (1975) (\\\"Miranda substituted the 'custodial interrogation' requirement for the 'focus of the investigation' test which had earlier been enunciated in Escobedo_\\\").\\nThe district court's failure to apply the proper legal standard requires us to reverse the judgment and remand for a new hearing on this issue. People v. Black; People v. Johnson. On remand, the district court has discretion to receive additional evidence and shall make findings of fact on the issue of custody, using the legal standards set forth in this opinion and considering the applicability of the United States Supreme Court's holding in Berkemer v. McCarty, \\u2014 U.S. -, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), to the facts as found by the court. If the court finds that Viduya's answer to Officer Holden's original inquiry was admissible despite the absence of Miranda warnings, the court should reinstate the judgment of conviction. However, if the court finds the answer inadmissible, it should then consider the admissibility of Viduya's subsequent statements, made after full Miranda warnings, considering the applicability of the United States Supreme Court's holding in Oregon v. Elstad, \\u2014 U.S.-, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), to the facts as found by the court. If the court determines that the subsequent statements were inadmissible, a new trial will be required. If the court determines that the subsequent statements were admissible, but the answer to the original question was not, the court should consider whether the admission of that answer requires a new trial or was harmless error.\\nBecause of the manner in which we have resolved this issue, we find it necessary to address Viduya's other assignments of error.\\nIII.\\nA.\\nViduya contends that the district court erred by failing to grant his motion, made after all the evidence had been presented, to dismiss the vehicular homicide charge to the extent that it was based on driving under the influence of intoxicating liquor or, in the alternative, to strike the testimony concerning the results of his blood alcohol tests. The defendant argues that a due process violation occurred because of the failure on the part of the prosecution to preserve a second sample of his blood and because the results of the testing of the single available sample were so inconsistent as to render that sample invalid. As noted above, the jury explicitly declined to find that Viduya was under the influence of intoxicating liquor when he committed the offense of vehicular homicide. However, Viduya's argument that the blood alcohol evidence was improperly admitted remains relevant, because it is possible that the jury considered the evidence of Viduya's drinking when it found that he committed the offense of vehicular homicide by operating the motor vehicle in a reckless manner. Cf. Yerby v. People, 176 Colo. 115, 117, 489 P.2d 1308, 1309 (1971) (testimony concerning defendant's drinking admissible as factor in determining recklessness).\\nThe defendant was arrested at the scene of the accident and transported to a hospital, where two samples of his blood were drawn by a medical technologist. The two tubes containing the samples were sealed in a cardboard box and transported by the police to Kier Laboratories for analysis. Toxicologist Lawrence Kier analyzed the first sample of Viduya's blood on February 7, 1981, the day after the accident, and concluded that he had a blood alcohol level of 0.122 percent. Kier so testified at trial on September 1, 1981. A blood alcohol level of 0.10 percent or more raises the presumption that the defendant was under the influence of alcohol for the purposes of the vehicular homicide statute. \\u00a7 18-3-106(2)(c), 8 C.R.S. (1978).\\nThe second sample of the defendant's blood supposedly was preserved in a refrigerator at Kier Laboratories. Viduya's attorney arranged to have Dale Wingeleth, another toxicologist, analyze the second sample. Wingeleth performed the test on August 29, 1981, and obtained results showing a blood alcohol level of approximately 0.07 percent. On September 2, Win-geleth and Viduya's attorney discovered that the sample of blood given to Winge-leth by Kier Laboratories was labeled with two different numbers, one number indicating that it was indeed the second sample of Viduya's blood taken on February 6, 1981, and the other number indicating a wholly different source. Nothing in the record reflects that it was ever determined, or was possible to determine, whether this was the second sample of the defendant's blood.\\nThe defendant moved to dismiss the charge for failure to preserve the second sample. The district court denied the motion and ordered that the remainder of the first sample of Viduya's blood, still preserved at Kier Laboratories, be delivered to Wingeleth for analysis. Wingeleth's tests on this sample yielded a blood alcohol level of 0.208 percent. Wingeleth testified that, in his opinion, the great difference between Kier's result and his result when testing portions of the same sample resulted in a sample and test without scientific validity. After all the evidence had been presented, the defendant moved that the charge be dismissed to the extent that it was based upon driving under the influence of intoxicating liquor or, in the alternative, that all testimony relating to the blood tests be stricken. The motion was denied. Viduya assigns this denial as error.\\nB.\\nThe destruction or suppression by the prosecution of evidence favorable to an accused violates due process when the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). In determining whether a defendant's due process rights have been abridged by the prosecution's suppression of exculpatory evidence, three factors must be considered: (1) whether the evidence was suppressed or destroyed by the prosecution; (2) whether the evidence is exculpatory; and (3) whether the evidence is material to the defendant's case. People v. Roan, 685 P.2d 1369, 1370 (Colo.1984); People v. Sams, 685 P.2d 157, 162 (Colo.1984); Garcia v. District Court, 197 Colo. 38, 45-46, 589 P.2d 924, 929 (1979); People v. Hedrick, 192 Colo. 37, 40-41, 557 P.2d 378, 380 (1976).\\nWe need not address the second and third factors of the test, as the record shows that the relevant evidence was not destroyed or suppressed. The prosecution properly preserved the remainder of the first sample of Viduya's blood tested by Kier, and Viduya was given an opportunity to test this very same sample. While the second sample of blood was taken for the express purpose of preserving that sample for testing by the defendant, constitutional due process rights of the accused were not violated when the defendant was required instead to test the first sample, the sample also tested by the People. Only if the remainder of the first sample had been destroyed or contaminated, and thus had become unavailable to the defendant, would the Brady doctrine be implicated in this case.\\nExcept for the fact that Kier and Wingeleth reached widely different results when testing, nothing in the record establishes or indicates that the first sample was improperly opened, tested, capped or stored by Kier, thus allowing it to be contaminated and unusable by the defendant. Wingeleth testified that opening a sample, withdrawing and analyzing a portion, and then capping the remainder of the sample does not in and of itself cause a contamination. He also testified that he had no idea why his result differed from Kier's. The simple fact that the experts for the adverse parties disagreed greatly as to Viduya's blood alcohol level after testing different portions of the same blood sample does not prove that the blood sample became contaminated and, thus, that the prosecution destroyed potentially exculpatory evidence.\\nUnder all these circumstances, we find that no due process violation occurred. Therefore, the district court did not err in refusing to dismiss the charge in part or to strike the evidence relating to the tests of Viduya's blood alcohol level as a remedy for such a violation.\\nIV.\\nThe defendant contends that the district court erred when it would not allow his counsel to question two prosecution witnesses about certain of their observations at the scene of the accident. Specifically, the trial court would not allow Viduya's counsel to ask eyewitness Thompson whether, based on his observations, it appeared to him that Viduya \\\"was trying to avoid the pedestrian\\\" immediately before the accident occurred. The court found that the question sought an answer that was speculative and not the subject of proper lay opinion testimony. See CRE 701. Later, the court would not permit Viduya's counsel to ask police officer Martin, who questioned Viduya at the police station in the early morning hours after the accident, whether, based on his experiences with accident victims, people who have been in accidents \\\"sometimes are a little shaky.\\\" The defense obviously was attempting to establish that Viduya's physical and mental condition after the accident could have been due to the effects of the accident, and not to the effects of alcohol. The district court refused to allow Martin to answer this question, concluding that it was irrelevant whether the officer knew about other accidents and other accident victims.\\nWhile the rulings made by the district court were unduly restrictive, we cannot say that reversible error occurred. Reversible error may not be predicated upon a ruling that excludes evidence unless a substantial right of a party is affected. CRE 103(a).\\nEyewitness Thompson was not allowed to give his opinion as to whether it appeared that Viduya attempted to avoid hitting Borquez. An affirmative response would have aided in rebutting the charge that Viduya was reckless. However, Thompson did testify that when struck, Borquez may have been standing on the edge of the blacktop, not off the road on the shoulder as testified by other witnesses; that Viduya turned his car back toward the road, away from Borquez, before striking him; and that in his opinion, Viduya was not traveling at an excessive rate of speed. Supplementation of this testimony by admitting Thompson's opinion concerning Viduya's apparent motive when turning away from the pedestrian at the last instant before impact would not have aided Viduya's case materially.\\nWhile Officer Martin was not allowed to testify concerning the physical and mental condition of people who have recently been in an auto accident, Officer Holden, first on the scene of the accident and the officer who arrested Viduya, was allowed to testify that drivers of cars in injury accidents \\\"sometimes\\\" experience orientation problems after such an accident. A similar statement by Martin would have been merely cumulative.\\nBecause no substantial right of Viduya's was affected by the district court's rulings limiting his questioning of the two witnesses, reversible error did not occur.\\nV.\\nViduya next argues that the district court erred by failing to exclude certain expert testimony by Officer Wilson. Wilson, who was qualified as an expert in accident reconstruction, was permitted to testify concerning headlight illumination tests in which he participated involving vehicles of a type other than the Gremlin driven by the defendant. Based on these tests, Wilson testified that the headlights of the Gremlin should have illuminated the roadway for a sufficient distance so that the defendant should have been able to see Borquez walking along the road and stop before hitting him, even traveling at 55 mph, Viduya's speed as calculated by Wilson. Defense counsel objected that this testimony was prejudicial but not probative because it was not based on the illumina- tive capability of the headlights of the Gremlin involved in the accident. Wilson testified, however, that headlight illumination distances did not vary much among types of automobiles with the same headlight system or among automobiles of the same type. On this basis, the court refused to exclude the testimony.\\nOn this record, we find no error. Officer Wilson's headlight illumination opinion testimony was based on his experience and training, and his testimony concerning the lack of variation among types of vehicles established that the testimony was relevant to the vehicle driven by Vidu-ya. The fact that the headlights of the particular vehicle involved in the accident had not been tested was explored fully by the defendant on cross-examination. The weight to be given the officer's opinion was properly left to the jury for resolution. See Wise v. Hillman, 625 P.2d 364, 367-68 (Colo.1981).\\nVI.\\nViduya argues that the district court erred in admitting into evidence a photograph of the dead victim, and in not granting a mistrial because of the emotional reaction by the victim's wife when shown the photograph. The People sought admission of the photograph primarily so that the doctor who performed the autopsy on Borquez could identify him. The photograph was also shown to the deceased's wife for the purpose of identification. Pri- or to the introduction of the photograph, defense counsel offered to stipulate to identity and to cause of death. Because of the offered stipulation, the defendant argued that whatever probative value the photograph may have had was lost and was substantially outweighed by its prejudicial impact. See CRE 403. The district court found the picture neither inflammatory nor \\\"gory\\\" and refused to exclude it, although stating that as long as the defense was willing to stipulate to identity, the photograph \\\"may not be necessary.\\\"\\nWhile Viduya's counsel made an additional objection when the victim's wife reacted emotionally to the display of the photograph, he did not move for a mistrial on these grounds until the next day, after the People presented another witness and rested their case, and after the defense presented four witnesses and rested its case. The court denied the motion, again finding that the photograph was not inflammatory. The court stated that it did not know how the prosecution \\\"could have avoided\\\" the emotional reaction by the witness.\\nIt is within the discretion of the district court to decide whether otherwise relevant photographs are unnecessarily inflammatory or unfairly prejudicial to the defendant, and the court's decision will be reversed only upon a showing of an abuse of that discretion. People v. Mattas, 645 P.2d 254, 260 (Colo.1982); People v. White, 199 Colo. 82, 84, 606 P.2d 847, 849 (1980). Nothing about the photo, or about the emotional reaction produced in the victim's wife, indicates that the district court abused its discretion in determining that the photograph at issue was not unduly inflammatory and that it need not be excluded. In People v. White, the prosecution was allowed to introduce photographs of a murder victim taken at the time an autopsy was performed and depicting the head and face of the deceased. 199 Colo, at 83, 606 P.2d at 848-49. Reviewing a challenge similar to the one made here, we held that such photographs have probative value when they are offered to show the identify of the victim, among other things. We also held that such photographs are not inadmissible solely because the defendant has stipulated to identity or because identity has been established through other prosecution witnesses. 199 Colo, at 84, 606 P.2d at 849. That holding is dispositive of the issue here.\\nUnder all these circumstances, including the fact that the defendant's motion for a mistrial was not timely made, we find no error in the district court's admission of the photograph and denial of the motion for mistrial.\\nVII.\\nFinally, Viduya claims that the district court erred by not requiring the People to prove that he was both reckless and intoxicated when his car struck Borquez, because of the manner in which Viduya was charged. The defendant was charged by information as follows:\\nROGER WAYNE VIDUYA, did unlawfully and feloniously operate and drive a motor vehicle in a reckless manner and while driving under the influence of intoxicating liquor, which conduct was the proximate cause of death of Rocco Bor-quez. .\\nAs defined in section 18-3-106, 8 C.R.S. (1978), vehicular homicide is a single offense. The statute describes two ways in which this offense can be committed\\u2014 causing the death of another while operating a motor vehicle in a reckless manner, subsection 1(a), or while under the influ-' ence of any drug or intoxicant, subsection 1(b). It is proper in one count of an information to charge all ways in which an offense might be committed, stating the several alternatives conjunctively with the use of \\\"and.\\\" People v. Edwards, 184 Colo. 440, 442-43, 520 P.2d 1041, 1042 (1974); Self v. People, 167 Colo. 292, 300, 448 P.2d 619, 623 (1968); Hernandez v. People, 156 Colo. 23, 28-31, 396 P.2d 952, 955-56 (1964); Cortez v. People, 155 Colo. 317, 319-20, 394 P.2d 346, 348 (1964). It is then proper to instruct the jury in the disjunctive, requiring conviction if any of the statutory alternatives is established by the evidence. People v. Edwards, 184 Colo, at 443, 520 P.2d at 1042; Hernandez v. People, 156 Colo, at 29-30, 396 P.2d at 956. Cf. People v. Marquez, 692 P.2d 1089, 1099-1100 (Colo.1984) (general verdict will support conviction even though jury was instructed that crime could be committed in alternative ways); People v. Ledman, 622 P.2d 534, 541 (Colo.1981) (same).\\nViduya argues that the vehicular homicide statute actually defines two separate offenses having different elements and requiring different culpable mental states. We disagree. Simply because the alternative ways for committing a single offense require proof of different acts and even different culpable mental states does not mean that a single offense has not been defined by the statute, or that the offense may not be alleged in a single count of an information and presented to the jury in the alternative. See People v. Marquez, 692 P.2d at 1099-1100, and at 1104-05 (Lohr, J., concurring); People v. Ledman, 622 P.2d at 541. What we said in People v. Holmes, 129 Colo. 180, 183, 268 P.2d 406, 407 (1954), is also true here:\\nTwo distinct and separate offenses are not joined in the count of the information before us, it does not set out offenses created by different statutes for which different punishments are provided. All that is set out is one transaction for which there is one punishment, and, in effect, is only one offense. In the count, different possible acts that relate to one transaction are set out; are a connected charge thereof; and joinder thereof in one count is permissible.\\nThe fact that the alternative ways for committing vehicular homicide are not joined in the statute by the disjunctive \\\"or\\\" is of no importance. Cortez v. People, 155 Colo, at 320, 394 P.2d at 348. The statute is divided into two subsections \\\"which are disjunctive in the very nature of the construction of the section.\\\" Id. Only one offense, with one punishment, is described, although the offense can be committed in either one of the two ways detailed.\\nHere, Viduya was properly charged in the information, and the jury was properly instructed on the alternative ways of committing vehicular homicide. The jury had the alternative of finding that Viduya committed the offense while driving in a reckless manner, or while driving under the influence of intoxicants, or both (although this last finding would establish only one offense and result in one punishment). The jury found that Viduya committed the offense by causing the death of Borquez while operating a motor vehicle in a reckless manner. Evidence in the record supports this verdict.\\nVIII.\\nWe reverse the conviction of Roger Wayne Viduya for vehicular homicide and remand for a new hearing on Viduya's motion to suppress as outlined in Part II of this opinion.\\n. Section 18-3-106 was amended after the accident, but prior to trial, and amended again subsequent to trial. See \\u00a7 18-3-106(l)(b) and (4), 8 C.R.S. (1984 Supp.). The amendments are not material to the issues in this case.\\n. Viduya's notice of appeal was filed on November 19, 1981, in the court of appeals. The appeal was transferred to this court pursuant to section 13-4-110, 6 C.R.S. (1973), because Vidu-ya raised a challenge to the constitutionality of the vehicular homicide statute, section 18 \\u2014 3\\u2014 106, 8 C.R.S. (1978 & 1984 Supp.). The court of appeals does not have subject matter jurisdiction over cases in which the constitutionality of a statute is in question. \\u00a7 13 \\u2014 4\\u2014102(l)(b), 6 C.R.S. (1973). Viduya argued that the term \\\"proximate cause\\\" as used in the vehicular homicide statute is vague, thereby violating due process of law. While the appeal was pending, we explicitly rejected this argument in People v. Rostad, 669 P.2d 126 (Colo.1983). That decision is dispositive of the constitutional issue raised here by Viduya.\\n. The defendant testified that he was walking toward a nearby 7-Eleven store to call for help.\\n. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).\\n. The Fifth Amendment to the United States Constitution provides, in relevant part, that \\\"No person . shall be compelled, in any criminal case, to be a witness against himself_\\\"\\n. The court followed its oral ruling with the following written ruling:\\nThe Court concludes that this statement [Vi-duya's initial response that he was not driving the vehicle] should not be suppressed. The officer had no reason to suspect that a crime had been committed at that time. His inquiry was proper investigation at the scene of an accident. There was no requirement for an advisement of Miranda rights at that time and Defendant's constitutional rights were not violated.\\nThe district court declined to suppress any subsequent statements made by Viduya, finding that all these statements were made voluntarily after a full advisement of Viduya's Miranda rights.\\n. Viduya also claims that Officer Holden had probable cause to arrest him at the time of the initial questioning, and for this reason the initial questioning was \\\"custodial interrogation.\\\" Contrary to Viduya's argument, Officer Holden did not have probable cause to arrest him when Holden first asked Viduya whether he was driving the car. See People v. Roybal, 655 P.2d 410, 412-13 (Colo.1982). In Roybal, this court held that probable cause to arrest Roybal did not exist when the record indicated that Roybal had been driving a vehicle involved in an accident and had an odor of alcohol about him but when there was no evidence that the accident occurred as a result of misconduct by the defendant. In the present case, too, evidence of misconduct was lacking. However, the fact that probable cause to arrest Viduya did not exist at the time of the initial questioning is not disposi-tive of the issue of whether Viduya was subject to custodial interrogation for the purposes of Miranda at that time.\\n.In Berkemer v. McCarty, \\u2014 U.S. -, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the United States Supreme Court held that a person temporarily detained pursuant to an ordinary traffic stop is not \\\"in custody\\\" for the purposes of Miranda. The Court concluded that a Miranda advisement need be given only when the motorist's freedom of action has been curtailed to a \\\"degree associated with a formal arrest.\\\" 104 S.Ct. at 3151, quoting California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam). We do not decide here whether the rule announced by the Court in Berkemer applies to accident investigations. The application of the Berkemer standard to accident investigations was neither presented to the trial court nor briefed by the parties in this court, except for a single reference by the People in a memorandum of supplemental authority. See People v. Black, 698 P.2d 766, 768 n. 6 (Colo. 1985) (declining to consider Berkemer for the same reason).\\n. Before the jury, the defendant was allowed to expose and explore in full the problems with the second sample, the delivery of the remainder of the first sample to Wingeleth, the great difference between the results of Kier's test of that sample and the results of Wingeleth's test, Win-geleth's discussion of the various ways in which a blood sample might become contaminated, and Wingeleth's opinion that the great difference in test results meant that the blood alcohol level testing was scientifically invalid.\\n. At the time of the accident, the vehicular homicide statute provided, in relevant part:\\n(l)(a) If a person operates or drives a motor vehicle in a reckless manner, and such conduct is the proximate cause of the death of another, he commits vehicular homicide.\\n(b) If a person operates or drives a motor vehicle, while under the influence of any drug or intoxicant, and such conduct is the proximate cause of the death of another, he commits vehicular homicide. This is a strict liability crime.\\n\\u00a7 18-3-106, 8 C.R.S. (1978). Subsection (l)(b) has been amended immaterially, see note 1, and is now subsection (l)(b)(I). See \\u00a7 18 \\u2014 3\\u2014 106(l)(b)(I), 8 C.R.S. (1984 Supp.).\"}"

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+"{\"id\": \"10422964\", \"name\": \"Robert O. SMITH, Plaintiff-Appellant, v. Alan CHARNES, Executive Director, Department of Revenue, State of Colorado; the Motor Vehicle Division, State of Colorado; and Barbara Stafford, Hearing Officer, Defendants-Appellees\", \"name_abbreviation\": \"Smith v. Charnes\", \"decision_date\": \"1986-12-02\", \"docket_number\": \"No. 85SA42\", \"first_page\": \"1287\", \"last_page\": \"1292\", \"citations\": \"728 P.2d 1287\", \"volume\": \"728\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T18:24:54.184555+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert O. SMITH, Plaintiff-Appellant, v. Alan CHARNES, Executive Director, Department of Revenue, State of Colorado; the Motor Vehicle Division, State of Colorado; and Barbara Stafford, Hearing Officer, Defendants-Appellees.\", \"head_matter\": \"Robert O. SMITH, Plaintiff-Appellant, v. Alan CHARNES, Executive Director, Department of Revenue, State of Colorado; the Motor Vehicle Division, State of Colorado; and Barbara Stafford, Hearing Officer, Defendants-Appellees.\\nNo. 85SA42.\\nSupreme Court of Colorado, En Banc.\\nDec. 2, 1986.\\nJohn S. Tatum, Leonard M. Chesler, The Law Firm of Leonard M. Chester, Denver, for plaintiff-appellant.\\nDuane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. For-man, Sol. Gen., Anthony S. Trumbly, Asst. Atty. Gen., Denver, for defendants-appel-lees.\", \"word_count\": \"2346\", \"char_count\": \"14740\", \"text\": \"DUBOFSKY, Justice.\\nThe plaintiff, Robert 0. Smith, appeals from a judgment of the Jefferson County District Court affirming the revocation of his driver's license by the Department of Revenue, Motor Vehicles Division (department) under section 42-2-122.1, 17 C.R.S. (1984). The plaintiff argues that insufficient evidence that he drove a vehicle within the meaning of section 42-2-122.1 was presented at the administrative hearing before the department, that section 42-2-122.1 is unconstitutionally vague, and that holding the license revocation hearing white related criminal proceedings were pending abridged his right to due process and his privilege against self-incrimination. We affirm the judgment of the district court.\\nOn February 29, 1984, an officer of the Wheatridge Police Department was advised that there was a vehicle stopped on an Interstate 70 off-ramp. At 2:33 a.m., the police officer found the vehicle parked with its motor running and lights on. The plaintiff was behind the wheel of the vehicle, either unconscious or asleep. The officer asked the plaintiff several times to leave the vehicle and, when the plaintiff reached for the gearshift lever, the officer reached in the vehicle and turned off the ignition. After the officer assisted the plaintiff in leaving the vehicle, the plaintiff clung to the door, then staggered and fell against the rear of the vehicle. When asked by the officer if he would be willing to perform roadside sobriety maneuvers, the plaintiff responded, \\\"No, I'm guilty.\\\" The officer detected the odor of an alcoholic beverage on the plaintiff's breath and noticed that his eyes were bloodshot and speech was slurred. The officer then arrested the plaintiff.\\nThe plaintiff agreed to submit to a breath test. At 3:14 a.m., the arresting officer, a certified intoxilyzer machine operator, administered the test, which indicated that the plaintiff had a breath alcohol content of .225 grams of alcohol per two hundred ten liters of breath. The arresting officer issued the plaintiff a notice of revocation or denial of his driver's license under section 42-2-122.1.\\nAt the plaintiffs request, the revocation was reviewed at an administrative hearing on May 2, 1984. The plaintiff objected to the timing of the hearing because criminal charges based on the February 29th incident were pending in Jefferson County Court. The hearing officer refused to reschedule the hearing, noting the statutory requirement that a hearing concerning license revocation be held within 60 days after the hearing is requested.\\nThe arresting officer testified at the hearing, and the results of the intoxilyzer test were admitted. The plaintiff, asserting his privilege against self-incrimination, declined to testify or to present any evidence. In closing argument, counsel for the plaintiff asserted that there was insufficient evidence that the plaintiff drove a vehicle or that the intoxilyzer test had been administered within one hour of the alleged offense as required by section 42-2-122.1. The hearing officer ruled against the plaintiff, finding that at the time the plaintiff was first contacted by the arresting officer, the plaintiff was obstructing traffic, and that the intoxilyzer test was administered within one hour of that alleged offense. The hearing officer ordered the plaintiffs license revoked for one year.\\nOn May 4, 1984, the plaintiff filed a complaint in the district court seeking judicial review of the revocation. He reasserted his arguments about the sufficiency of the evidence and the timing of the hearing, and, in addition, argued that section 42-2-122.1 is unconstitutionally vague. The district court affirmed the order of revocation, and the plaintiff appealed to this court.\\nI.\\nSection 42-2-122.1, 17 C.R.S. (1984), provides in relevant part:\\n(l)(a) The department shall revoke the license of any person upon its determination that the person:\\n(I) Drove a vehicle in this state when the amount of alcohol in such person's blood was 0.15 or more grams of alcohol per hundred milliliters of blood or 0.15 or more grams of alcohol per two hundred ten liters of breath at the time of the commission of the alleged offense or within one hour thereafter, as shown by chemical analysis of such person's blood or breath, .\\nThe plaintiff argues that the statute is void for vagueness because it fails to give adequate notice of the conduct that it proscribes. Specifically, he asserts that the average person has no way of knowing when one has reached the statutory limit of .15 grams of alcohol per hundred milliliters of blood or per two hundred ten liters of breath and therefore has no reasonable way of conforming conduct to avoid a violation of the statute.\\nA statute that forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess as to its meaning and differ as to its application violates the due process clauses of the fifth amendment to the United States Constitution and article II, section 25 of the Colorado Constitution. Connolly v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); People v. Schoondermark, 699 P.2d 411 (Colo.1985); People v. Enea, 665 P.2d 1026 (Colo.1983). Conversely, a statute satisfies the requirements of due process when it provides fair notice of the conduct that has been determined to be unlawful. People v. Franklin, 683 P.2d 775 (Colo.1984); People v. Rostad, 669 P.2d 126 (Colo.1983); People v. Boyd, 642 P.2d 1 (Colo.1982).\\nNumerous courts in other jurisdictions have rejected claims that statutes proscribing driving with a blood alcohol content in excess of a set limit are violative of due process. See, e.g., Van Brunt v. State, 646 P.2d 872 (Alaska App.1982); Fuenning v. Superior Court, 139 Ariz. 590, 680 P.2d 121 (1983); Burg v. Municipal Court, 35 Cal.3d 257, 198 Cal.Rptr. 145, 673 P.2d 732 (1983), cert. denied 466 U.S. 967, 104 S.Ct. 2337, 80 L.Ed.2d 812 (1984); State v. Rose, 312 N.C. 441, 323 S.E.2d 339 (1984); State v. Tanner, 15 Ohio St.3d 1, 472 N.E.2d 689 (1984); Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983); Greaves v. State, 528 P.2d 805 (Utah 1974); State v. Franco, 96 Wash.2d 816, 639 P.2d 1320 (1982); State v. Muehlenberg, 118 Wis.2d 502, 347 N.W.2d 914 (App.1984). At issue in Burg, for example, was a provision of the California Vehicle Code prohibiting driving a vehicle while having .10 per cent or more, by weight, of alcohol in one's body. Responding to the defendant's contention that the provision was unconstitutionally vague, the California Supreme Court stated, \\\"The very fact that he has consumed a quantity of alcohol should notify a person of ordinary intelligence that he is in jeopardy of violating the statute.\\\" 198 Cal.Rptr. at 153, 673 P.2d at 741. Under similar circumstances, the Arizona Supreme Court in Fuenning, 680 P.2d at 129, stated, \\\"Those who drink a substantial amount of alcohol within a relatively short period of time are given clear warning that to avoid possible criminal behavior they must refrain from driving.\\\"\\nThe plaintiff suggests no reason why we should decline to follow the rationale of the cases cited, other than his asser tion that it is impossible for the average person to determine exactly the amount of alcohol the person may consume before exceeding a specified blood or breath alcohol content level. However, as the Burg court pointed out, there is an abundance of information available that illustrates the amount of different alcoholic beverages that an individual might consume before reaching a specific blood alcohol content level. 198 Cal.Rptr. at 154, 673 P.2d at 742. Considering the availability of such information and the fact that the consequences of statutes like section 42-2-122.1 can be avoided by the exercise of reasonable moderation, we conclude that section 42-2-122.1 provides sufficient notice of the conduct that has been determined to be unlawful to meet the requirements of due process.\\nII.\\nThe plaintiff next contends that the timing of the administrative hearing violated both his constitutional right to due process and his privilege against self-incrimination guaranteed by the fifth amendment to the United States Constitution and article II, section 18 of the Colorado Constitution. First, he suggests that due process prohibits holding an administrative hearing where the hearing involves the same issue underlying pending criminal proceedings. However, we previously have recognized that there is no right to a continuance of administrative proceedings pending the outcome of parallel criminal proceedings. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095, 1100 n. 11 (Colo. 1985). See also People ex rel. Heckers v. District Court, 170 Colo. 533, 463 P.2d 310 (1970).\\nSecond, the plaintiff argues that the timing of the administrative hearing infringed upon his constitutional privilege against self-incrimination by forcing him to choose whether to exercise the privilege, and thereby forego the opportunity to rebut unfavorable evidence at the hearing, or to forego the privilege, thereby possibly providing evidence that might be used against him in subsequent criminal proceedings. This argument misperceives the privilege against self-incrimination. The privilege protects a person in administrative, civil, or criminal proceedings from being compelled to give testimony that directly or indirectly might incriminate him in criminal proceedings. People v. Fisher, 657 P.2d 922 (Colo.1983). The privilege does not guarantee a person who declines to exercise the privilege and testifies that the testimony may not be used against him in subsequent proceedings. Where, as here, a decision to stand on the privilege has been respected, and where there is no indication that the exercise of the privilege itself has been held against the person, cf. Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), the dilemma faced by the plaintiff because of the timing of the administrative hearing is not of constitutional significance. See Wimmer v. Lehman, 705 F.2d 1402 (4th Cir.), cert. denied 464 U.S. 992, 104 S.Ct. 484, 78 L.Ed.2d 681 (1983); Hoover v. Knight, 678 F.2d 578 (5th Cir.1982); Diebold v. Civil Service Commission, 611 F.2d 697 (8th Cir.1979); United States v. Rilliet, 595 F.2d 1138 (9th Cir.1979).\\nThe plaintiff also asserts that the hearing officer abused her discretion in refusing to reschedule the revocation hearing until the criminal proceedings were completed. Section 42-2-122. l(7)(e), however, requires revocation hearings to be held \\\"as soon as possible, but in no event later than 60 days after the filing of a request for a hearing.\\\" On March 5, 1984, the plaintiff requested a hearing. The only mention by the plaintiff of scheduled criminal proceedings concerned a court date on May 18, 1984. This date was outside the statutory 60-day limit for holding the revocation hearing. Thus, even assuming that the hearing officer might have had discretion to schedule the revocation hearing for any time within the 60-day period, she had no discretion to accommodate the plaintiff by scheduling the hearing after his court date and properly denied the plaintiff's request for a continuance.\\nIII.\\nThe plaintiff contends that the evidence presented at the administrative hearing was insufficient to establish that he violated section 42-2-122.1 by driving a vehicle while having a blood or breath alcohol content in excess of the statutory limit as determined by chemical analysis of his blood or breath within one hour of the alleged offense. Brewer v. Motor Vehicle Division, 720 P.2d 564 (Colo.1986), resolves this issue. The plaintiff in Brewer was found asleep behind the wheel of his car which was parked in the middle of a street with the engine running and lights on. An intoxilyzer test administered within one hour of the time the plaintiff was found indicated an alcohol content of .178 grams per 210 liters of the plaintiff's breath. We held that the plaintiff, when first found by the arresting officer, was in actual physical control of his vehicle and that proof of actual physical control was sufficient to establish that he drove a vehicle within the meaning of section 42-2-122.1. We also held that because the intoxilyzer test was administered within one hour of the time when the police officer found the plaintiff, the test was administered \\\"within one hour of the alleged offense\\\" as required by the statute.\\nThe circumstances here in which the plaintiff was discovered asleep or unconscious behind the wheel of a vehicle stopped, with engine running and lights on, on a public highway, are indistinguishable from the circumstances in Brewer. Although it may be, as the plaintiff asserts, that the hearing officer miscast the \\\"alleged offense\\\" referred to in section 42-2-122.1 as obstructing traffic, the hearing officer also determined that the plaintiff, when found by the arresting officer, was in control of his vehicle. The hearing officer further determined that the intoxilyzer test was administered within one hour after the police officer first found the plaintiff. These findings, which are supported by the evidence, are a sufficient basis for the revocation of the plaintiff's license under section 42-2-122.1.\\nThe judgment of the district court is affirmed.\\n. The plaintiff filed a notice of appeal of the district court's decision with this court because he questions the constitutionality of section 42-2-122.1, 17 C.R.S. (1984). See \\u00a7 13-4-102 and 13-4-110, 6 C.R.S. (1973).\\n. See, e.g., Colorado Driver's Manual at 55-56 (1984 rev.).\\n. In so holding, we relied on the definition of \\\"driver\\\" in section 42-1-102(22), 17 C.R.S. (1984), as \\\"every person . who drives or is in actual physical control of a motor vehicle upon a highway.\\\"\\n. Section 42-1-102(33), 17 C.R.S. (1984), defines \\\"highway\\\" as \\\"the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel or the entire width of every way declared to be a public highway by any law of this state.\\\"\"}"

colorado/10425456.json

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+"{\"id\": \"10425456\", \"name\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael CORBETT, n/k/a Hasani F. Chinangwa, Defendant-Appellant\", \"name_abbreviation\": \"People v. Corbett\", \"decision_date\": \"1985-09-19\", \"docket_number\": \"No. 84CA0157\", \"first_page\": \"1337\", \"last_page\": \"1340\", \"citations\": \"713 P.2d 1337\", \"volume\": \"713\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T17:08:26.184312+00:00\", \"provenance\": \"CAP\", \"judges\": \"PIERCE and BABCOCK, JJ., concur.\", \"parties\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael CORBETT, n/k/a Hasani F. Chinangwa, Defendant-Appellant.\", \"head_matter\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael CORBETT, n/k/a Hasani F. Chinangwa, Defendant-Appellant.\\nNo. 84CA0157.\\nColorado Court of Appeals, Div. I.\\nSept. 19, 1985.\\nRehearing Denied Oct. 17, 1985.\\nCertiorari Denied March 3, 1986.\\nDuane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for plaintiff-appellee.\\nDavid F. Vela, State Public Defender, Seth J. Benezra, Deputy State Public Defender, Denver, for defendant-appellant.\", \"word_count\": \"950\", \"char_count\": \"6046\", \"text\": \"KELLY, Judge.\\nDefendant, Michael Corbett, n/k/a Hasa-ni Chinangwa, appeals the trial court's de nial of his motion to vacate a consecutive life sentence pursuant to Crim.P. 35(c). We affirm.\\nIn 1975, defendant was indicted on three counts of first degree murder which were severed for trial. On March 12, 1976, defendant was convicted on Count 1 and was sentenced to life imprisonment. On April 26,1976, defendant was convicted on Count 2 and was sentenced to death. The trial court subsequently issued a mittimus which provided in pertinent part: \\\"[I]t is further ordered that if for any reason the above death sentence be reduced or commuted, that all sentences imposed hereunder shall run consecutive to the life sentence heretofore imposed on said Defendant on a conviction of first degree murder in Count One of this criminal action.\\\"\\nIt is evident that this alternate sentence was included by the trial court because of the provisions of \\u00a7 18-1-105(4), C.R.S. (1978 Repl.Vol. 8), which states:\\n\\\"In the event the death penalty as provided for in this section is held to be unconstitutional by the Colorado supreme court or the United States supreme court, a person convicted of a crime punishable by death under the laws of this state shall be punished by life imprisonment. In such circumstance, the court which previously sentenced a person to death shall cause such person to be brought before the court, and the court shall sentence such person to life imprisonment.\\\"\\nIn January of 1977, defendant entered a plea of guilty to Count 3 of the indictment and was sentenced to a concurrent life term. In 1978, the Colorado Supreme Court ruled the death penalty statute unconstitutional, and defendant filed a motion to resentence on Count 2. After a hearing on his motion, defendant was sentenced to a life term to run consecutively to the life sentence imposed on Count 1. Subsequently, defendant filed a motion, pursuant to Crim.P. 35(c), to vacate this consecutive life sentence and for an order that the sentence run concurrently with sentences previously imposed. The trial court denied defendant's motion.\\nI.\\nDefendant first argues that the trial court's mittimus, which provided that, if the death penalty were reduced or commuted, all sentences imposed would run consecutively to the first life sentence, is void because defendant was denied his right of allocution at the May 28 hearing concerning that portion of the sentence. For different reasons, we agree that that portion of the sentence is void.\\nOnly the General Assembly may define crimes and prescribe punishments. People v. Hinchman, 196 Colo. 526, 589 P.2d 917 (1978), cert, denied, 442 U.S. 941, 99 S.Ct. 2883, 61 L.Ed.2d 311 (1979). A court may not impose a sentence that is inconsistent with the terms specified by statute. People v. District Court, 673 P.2d 991 (Colo.1983). The court may not circumvent legislative dictates by failing to sentence within legislatively prescribed boundaries, for to do so would be an invasion of the General Assembly's exclusive province to set punishments. People v. Hinchman, supra.\\nSection 16-11-101, C.R.S. (1978 Repl.Vol. 8) specifically delineates the court's alternatives in sentencing. The statutes do not provide any authority for an alternative sentence such as the trial court imposed here in the event the death penalty were found to be unconstitutional. As a result, the trial court's alternative sentence is illegal and therefore void. See People v. District Court, supra.\\nII.\\nDefendant next argues that when the death penalty statute was declared unconstitutional, his death sentence was automatically converted to a concurrent life sentence under \\u00a7 18-1-105(4), C.R.S. (1978 Repl.Vol. 8). Defendant asserts that this statute is self-operative and that his life sentence is retroactive to the date he was received at the correctional facility under the death sentence. He rests this argument on the provisions of \\u00a7 17-20-118, C.R.S. (1984 RepLVol. 8) which requires that a sentence be computed from the day of reception at the institution. Thus, defendant argues that since he had already commenced serving the self-operative concurrent life sentence, the trial court's imposition of the consecutive life sentence at the resentencing hearing resulted in an increase in sentence which was already being served. Defendant asserts that this resulted in a violation of his constitutional protection against double jeopardy. We disagree.\\nSection 18-1-105(4), C.R.S., does not allow for an automatic conversion to a life sentence as argued by defendant, but rather, requires that a person be brought before the sentencing court to be resentenced to life imprisonment. Neither does the statute specify whether the life sentence shall be imposed consecutively or concurrently.\\nThe imposition of concurrent sentences is required only if the counts for which a defendant is convicted are supported by identical evidence. People v. Montgomery, 669 P.2d 1387 (Colo.1983). If the charges are not supported by identical evidence, it is within the discretion of the trial court to impose either consecutive or concurrent sentences. People v. Montgomery, supra. Here, the charges against defendant were not supported by identical evidence, and therefore, the trial court acted within its discretion when it imposed a consecutive sentence upon resentencing.\\nIn view of our disposition, we need not address defendant's other contentions of error.\\nJudgment affirmed.\\nPIERCE and BABCOCK, JJ., concur.\"}"

colorado/10426495.json

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+"{\"id\": \"10426495\", \"name\": \"John LANE, Plaintiff-Appellant, v. ARKANSAS VALLEY PUBLISHING COMPANY, a Colorado corporation, Merle Baranczyk and Ed Quillen, Defendants-Appellees\", \"name_abbreviation\": \"Lane v. Arkansas Valley Publishing Co.\", \"decision_date\": \"1983-05-05\", \"docket_number\": \"No. 81CA1090\", \"first_page\": \"747\", \"last_page\": \"753\", \"citations\": \"675 P.2d 747\", \"volume\": \"675\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T22:02:12.572504+00:00\", \"provenance\": \"CAP\", \"judges\": \"BERMAN and COYTE, JJ., concur.\", \"parties\": \"John LANE, Plaintiff-Appellant, v. ARKANSAS VALLEY PUBLISHING COMPANY, a Colorado corporation, Merle Baranczyk and Ed Quillen, Defendants-Appellees.\", \"head_matter\": \"John LANE, Plaintiff-Appellant, v. ARKANSAS VALLEY PUBLISHING COMPANY, a Colorado corporation, Merle Baranczyk and Ed Quillen, Defendants-Appellees.\\nNo. 81CA1090.\\nColorado Court of Appeals.\\nMay 5, 1983.\\nRehearing Denied June 2, 1983.\\nCertiorari Denied Dec. 19, 1983.\\nSpurgeon, Haney & Howbert, P.C., Gregory R. Piche, Nancy Chase Miller, Colorado Springs, for plaintiff-appellant.\\nCooper & Kelley, Thomas B. Kelley, Paul D. Cooper, Denver, for defendants-appel-lees.\\nRetired Court of Appeals Judge sitting by assignment of the Chief Justice under provisions of the Colo. Const., Art. VI, Sec. 5(3), and \\u00a7 24-51-607(5), C.R.S.1973 (1981 Cum.Supp.)\", \"word_count\": \"2656\", \"char_count\": \"16418\", \"text\": \"STERNBERG, Judge.\\nThe plaintiff, John Lane, brought a libel action against the Arkansas Valley Publishing Company, publisher of The Mountain Mail; Merle Baranczyk, the newspaper's editor; and Ed Quillen, reporter and columnist. The defendants' motion for summary judgment was granted and the trial court dismissed the action. Lane appeals and we affirm.\\nA series of articles, most of which were satirical in tone, was published in The Mountain Mail, a newspaper serving the town of Salida and surrounding areas of Chaffee County. At that time there was a campaign to recall Lane from his position as county commissioner. The articles, which appeared in signed columns and editorials, were critical of Lane's performance of his official duties. The recall effort was successful, and Lane asserts that his recall was the direct result of damage to his reputation caused by defamatory statements in the articles.\\nAlleging that the statements complained of were constitutionally privileged as opinion and political rhetoric, the defendants moved for summary judgment. In the alternative, they requested a determination of which statements were privileged and which were not so that discovery and trial preparation could proceed. In their brief in support of the motion for summary judgment, the defendants analyzed each article, to demonstrate that each one was an opinion with a factual basis. Attached to the brief as exhibits were the news stories from which the facts were taken.\\nLane argued in his brief in opposition to defendants' motion that the statements la-belled by defendants as opinion imply that he has committed illegal acts, and that they suggest the existence of an undisclosed, defamatory factual basis. He did not refute the factual basis, but did submit affidavits of individuals who initially had interpreted the satirical articles in their literal sense.\\nAt the outset of the hearing on the motion for summary judgment the defendants stated that it was their intention to focus on whether there had been false statements, reserving the issue of malice for trial or a later motion. They then addressed each article and demonstrated that the facts contained therein had been the subject of prior news articles, the truth of which was not disputed. Lane prefaced his argument by redefining the scope of the hearing to whether the articles were statements of fact or opinion. He reaffirmed this understanding at the close of the hearing, stating that \\\"malice and the factual issues\\\" would be addressed at a later time, and the court agreed to this limitation.\\nThe court granted the motion for summary judgment, ruling that the statements were constitutionally protected opinions, and that Lane failed to carry his burden of proof on the falsity of the factual assertions and defendants' malice or reckless disregard for the truth.\\nOn appeal, Lane argues that the trial court erred in rendering a decision on issues not before it and in its conclusion that the articles were constitutionally protected opinions.\\n1.\\nWe hold that it was proper for the court to address the issues of falsity and reckless disregard for truth on the motion for summary judgment.\\nC.R.C.P. 56(c) provides that a summary judgment may be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Once a movant makes a convincing showing, C.R.C.P. 56(c) requires that the opposing party adequately demonstrate that a real controversy exists. Ginter v. Palmer & Co., 196 Colo. 203, 585 P.2d 583 (1978).\\nBoth parties' trial court briefs addressed the full range of issues despite the limited scope of the hearing, and the court did not err in basing its ruling on the briefs and supporting materials in the court's file. In a different setting the Supreme Court stated:\\n\\\" 'Defendant urges that this question of law cannot be determined until the court is apprised of all the facts. However on the facts submitted if the question of law is capable of determination the decision should not be withheld because of a claim of other facts, not disclosed, which might result in a different determina-tion_' It is apparent from the matters that were before the court that a different result would not have been obtained had the president of the company been called as a witness to testify on the issue_\\\" Norton v. Dartmouth Skis, Inc., 147 Colo. 436, 364 P.2d 866 (1961) (emphasis in original)\\nHere, the matters before the court were sufficient to inform it whether the articles implied the assertion of undisclosed facts and, where there was an issue as to truth or falsity of those facts, whether defendants acted with reckless disregard of whether they were false or not.\\nII.\\nTurning to the substantive issues, we address first the trial court's conclusion that several of the articles were constitutionally protected opinion, and agree that the trial court properly granted defendants' motion for summary judgment with respect to these articles.\\nRemarks disparaging the conduct of public officials must Be considered against the background of a \\\"profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.\\\" New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). To that end, the Supreme Court extended special protection to political opinions when it stated, \\\"[T]here is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges or juries but on the competition of other ideas.\\\" Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).\\nIn Bucher v. Roberts, 198 Colo. 1, 595 P.2d 239 (1979), the court adopted the approach of the Restatement (Second) of Torts \\u00a7 566 (1976) to determine whether a statement is one of fact, and thus actionable, or one of opinion. Using that approach, the court held a statement which is ostensibly an opinion is actionable \\\"only if it implies the allegation of undisclosed defamatory facts as the basis of the opinion.\\\" Comment c of Restatement \\u00a7 566 elaborates on this point, stating:\\n\\\"If the defendant bases his expression of a derogatory opinion on the existence of 'facts' that he does not state but that are assumed to be true by both parties to the communication, and if the communication does not give rise to the reasonable inference that it is also based on other facts that are defamatory, he is not subject to liability, whether the assumed facts are defamatory or not.\\\" (emphasis added)\\nThe Supreme Court reaffirmed this analysis in Burns v. McGraw-Hill Broadcasting Co., Inc., 659 P.2d 1351 (1983), but added additional inquiries. Citing Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781 (9th Cir.1980), the court enumerated factors to be examined when the speech at issue might be considered protected opinion: whether the statement is prefaced by the phrase \\\"in my opinion\\\" or language of similar import; the entire context of the statement; and the circumstances surrounding the statement, including the medium through which it is communicated and the audience to which it is directed.\\nUsing this line of inquiry, a comment may appear on its face to be a statement of fact, but when considered in its context would readily be perceived to be rhetorical hyperbole, and not intended to be understood in its literal sense. See National Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974); Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970). This approach ex pressly recognizes that comments made in the context of a hotly contested political campaign should not be judged by the same standard as those made in other contexts.\\nAn article in the form of an opinion which could imply the commission of illegal activity is actionable if the context in which it appears suggests it was meant literally. Cianci v. New Times Publishing Co., 639 F.2d 54 (2d Cir.1980). But, it is not actionable if it would be understood as rhetorical hyperbole meant to express an opinion on the plaintiff's performance of his job. Okun v. Superior Court, 29 Cal.3d 442, 175 Cal.Rptr. 157, 629 P.2d 1369 (1981); Palm Beach Newspaper, Inc. v. Early, 334 So.2d 50 (Fla.App.1976).\\nIn Information Control Corp. v. Genesis, supra, the court held that comments clearly going to the merits of a controversy under public scrutiny, but which could have been interpreted as a charge of illegal activity, were not libelous because in that context an audience may anticipate efforts to persuade by the use of rhetoric and epithet. The same was true of statements made in Okun v. Superior Court, supra, in the context of a campaign to repeal a city ordinance.\\nUse of the technique of satire, as in many of the articles here, does not alter the analysis. The particular style of writing involved is part of the \\\"context\\\" to be examined when determining whether the statement could reasonably be understood as an assertion of fact. As with other forms of expression, if a satirical writing reasonably implies the assertion of a factual charge that would be defamatory if made expressly it is not protected by the cloak of constitutional privilege. Pring v. Penthouse International, Ltd., 695 F.2d 438 (10th Cir.1982); Restatement (Second) of Torts, supra (comment d). See also Hill, Defamation & Privacy Under the First Amendment, 76 Colum.L.Rev. 1205 at 1310 (1976).\\nA.\\nThe first article complained of is a column published on May 4, 1979, in which the author purports to quote from a letter attributed to Lane. The letter is signed by \\\"John Lane, Supreme Commander\\\" and informs county employees of a new personnel code along the lines of a code for military discipline. The article also comments on an incident involving so-called \\\"secret meetings.\\\" Both of these topics had been the subject of extensive reporting and controversy, as evidenced by defendant's exhibits. Lane alleges that this letter defamed him by portraying him as anti-democratic and militaristic.\\nTaken out of context, the article appears to assert that Lane was the author of such a letter. Although admittedly false, that in itself is not actionable libel because the context of the letter must be considered to determine whether it may reasonably be understood to imply the assertion of fact. As with the article in Myers v. Boston Magazine Co., Inc., 380 Mass. 336, 403 N.E.2d 376 (1980), in which a sportswriter stated that a sportscaster was enrolled in a remedial speech class, the format and language indicates the letter was a tongue-in-cheek effort to portray the author's opinion of Lane's personnel policies and conduct of office. The factual basis for the opinion is disclosed in the article. Thus, the trial court was correct in granting summary judgment with respect to this article. See Restatement \\u00a7 566, supra.\\nB.\\nLane complains of articles published on October 5, 1979, November 8, 1979, December 6, 1979, and January 18, 1980, in the form of conversations with a character named \\\"Ananias Ziegler,\\\" which the trial court labelled \\\"obvious satire\\\" and protected by the First Amendment. We note that \\\"Ananias\\\" is a biblical character noted for untruthfulness, while \\\"Ziegler\\\" is the surname of former President Nixon's press secretary. The article in which the character is introduced informs the reader that Ananias Ziegler formerly was in charge of inflating body counts in Vietnam, did public relations work for former President Nixon, and was hired by Lane with county funds to respond to the recall campaign. The articles comment on Lane's efforts to fight the recall effort, his decisions on housing development, his campaign practices, a proposed budget, and expenses to retain an independent auditor.\\nLane contends that these articles are factual assertions that he committed illegal acts by hiring Ananias Ziegler with county funds for personal gain. He also asserts the articles imply the existence of an insider who acknowledges that Lane ignored the official hiring procedure, is partial to real estate developers, is not concerned about the legality of his campaign, and holds a cynical and contemptuous attitude toward the public.\\nHere, in the context of a heated recall campaign, the trial court correctly concluded that the comments of a fictional character with an unlikely background cannot be taken as serious allegations of illegal use of county funds or other illegal activity and were protected opinions. Moreover, to the extent that the comments allude to a factual basis, because defendants demonstrated that these facts had been the subject of news articles and Lane submitted no evidence to the contrary, Lane did not sustain his burden of making a prima facie showing that defendants published defamatory falsehoods with reckless disregard of whether they were true or false. See DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980).\\nC.\\nTwo articles published on November 30, 1979, and February 15, 1980, entitled \\\"The Mail's Opinion,\\\" speculate on how a new ordinance will be enforced, make a general charge that county administration is disorganized, allege that funds are not wisely spent, contend that public opinion is ignored, and make other assertions. The articles contain the facts upon which the comments are based. The facts having been disclosed in the articles, and there being no charge that the facts are false, these articles are protected opinions as well. Bucher v. Roberts, supra; DiLeo v. Koltnow, supra.\\nIn the context of intense political debate, where the audience may anticipate efforts to persuade by the use of fiery rhetoric or hyperbole, the articles we have considered in this section II are in the realm of opinion. See Okun v. Superior Court, supra.\\nIII.\\nWe now address Lane's claim that certain editorials contained erroneous factual assertions that were libelous. In editorials published September 21, 1979, October 11, 1979, and October 19, 1979, defendants criticize budget decisions and charge Lane with holding secret meetings and lying. They are not couched in satirical language, and, in contrast with other language about plaintiff's suspected motivation, attitude toward the public, or competence as county commissioner, these statements may reasonably be interpreted as assertions of fact rather than protected opinion.\\nWhen a communication involves a factual assertion, to survive a motion for summary judgment, a plaintiff must present a prima facie case that the defendant published defamatory falsehoods with actual malice, and make this showing with convincing clarity. DiLeo v. Koltnow, supra. An opposing party may not rest on the mere allegations of his pleadings; rather, he must set forth specific facts showing there is a genuine issue for trial. DiLeo v. Koltnow, supra. The trial court ruled that Lane did not meet this burden, and we agree.\\nIn this case, in support of their motion for summary judgment defendants submitted excerpts from depositions and news articles demonstrating the factual ba sis for the editorials. Lane was unable to show in response that the factual bases were false or that defendants did not undertake a reasonable investigation before publishing the editorials. It was Lane's responsibility to present a genuine issue whether defendants published alleged defamatory falsehoods knowing them to be false, or with reckless disregard as to their truthfulness. DiLeo v. Koltnow, supra. This Lane did not do; thus, summary judgment was properly granted.\\nThe judgment is affirmed.\\nBERMAN and COYTE, JJ., concur.\"}"

colorado/10427407.json

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+"{\"id\": \"10427407\", \"name\": \"H.M.O. SYSTEMS, INC., a Colorado corporation, Plaintiff-Appellant and Cross-Appellee, v. CHOICECARE HEALTH SERVICES, INC., a Colorado corporation, Defendant-Appellee and Cross-Appellant; CHOICECARE HEALTH SERVICES, INC., a Colorado corporation, Plaintiff-Appellee and Gross-Appellant, v. F. Parker FOWLER, Jr., individually and d/b/a Systems Search, Defendant-Appellant and Cross-Appellee; J. Richard BARNES, Commissioner of Insurance of the State of Colorado, Plaintiff-Appellee, v. CHOICECARE HEALTH SERVICES, INC., a Colorado corporation, Defendant-Appellee, and H.M.O. Systems, Inc., a Colorado corporation, and F. Parker Fowler, Jr., individually, Claimant-Appellant\", \"name_abbreviation\": \"H.M.O. Systems, Inc. v. Choicecare Health Services, Inc.\", \"decision_date\": \"1983-03-03\", \"docket_number\": \"Nos. 81CA1036-81CA1038\", \"first_page\": \"635\", \"last_page\": \"640\", \"citations\": \"665 P.2d 635\", \"volume\": \"665\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-11T00:09:48.713071+00:00\", \"provenance\": \"CAP\", \"judges\": \"COYTE and BERMAN, JJ., concur.\", \"parties\": \"H.M.O. SYSTEMS, INC., a Colorado corporation, Plaintiff-Appellant and Cross-Appellee, v. CHOICECARE HEALTH SERVICES, INC., a Colorado corporation, Defendant-Appellee and Cross-Appellant. CHOICECARE HEALTH SERVICES, INC., a Colorado corporation, Plaintiff-Appellee and Gross-Appellant, v. F. Parker FOWLER, Jr., individually and d/b/a Systems Search, Defendant-Appellant and Cross-Appellee. J. Richard BARNES, Commissioner of Insurance of the State of Colorado, Plaintiff-Appellee, v. CHOICECARE HEALTH SERVICES, INC., a Colorado corporation, Defendant-Appellee, and H.M.O. Systems, Inc., a Colorado corporation, and F. Parker Fowler, Jr., individually, Claimant-Appellant.\", \"head_matter\": \"H.M.O. SYSTEMS, INC., a Colorado corporation, Plaintiff-Appellant and Cross-Appellee, v. CHOICECARE HEALTH SERVICES, INC., a Colorado corporation, Defendant-Appellee and Cross-Appellant. CHOICECARE HEALTH SERVICES, INC., a Colorado corporation, Plaintiff-Appellee and Gross-Appellant, v. F. Parker FOWLER, Jr., individually and d/b/a Systems Search, Defendant-Appellant and Cross-Appellee. J. Richard BARNES, Commissioner of Insurance of the State of Colorado, Plaintiff-Appellee, v. CHOICECARE HEALTH SERVICES, INC., a Colorado corporation, Defendant-Appellee, and H.M.O. Systems, Inc., a Colorado corporation, and F. Parker Fowler, Jr., individually, Claimant-Appellant.\\nNos. 81CA1036-81CA1038.\\nColorado Court of Appeals, Division 1.\\nMarch 3, 1983.\\nRehearing Denied March 31, 1983.\\nBanta, Hoyt, Banta, Greene, Hannen & Everall, J. Mark Hannen, Englewood, G. William Beardslee, Fort Collins, for H.M.O. Systems, Inc., and F. Parker Fowler, Jr.\\nArthur P. Roy, Greeley, for Choicecare Health Services, Inc.,. and J. Richard Barnes.\", \"word_count\": \"2357\", \"char_count\": \"14874\", \"text\": \"STERNBERG, Judge.\\nPlaintiff H.M.O. Systems, Inc., sued defendant Choicecare Health Services, Inc., for damages, alleging breach of a lease and of a contract. Following trial to the court, judgment entered for HMO and damages were awarded for breach of the contract, but not of the lease. HMO appeals the court's finding that it is not entitled to damages under the lease, and both parties appeal the amount of damages awarded for breach of contract. Choicecare had been placed in receivership in a related action consolidated with this appeal, and HMO also appeals the priority of its damages claim as designated by the receiver. We affirm in part and reverse in part.\\nThe subject of the law suit was two separate contracts entered into in February 1977 between Choicecare and HMO and its predecessors. The first contract, the \\\"Master Equipment Lease,\\\" provided that Choicecare was to lease certain computer hardware for a term of 48 months. It contained an option to purchase. HMO had originally purchased the equipment from Hewlett-Packard, and Choieecare's monthly rental payments to HMO were equal to the monthly payment on the promissory note executed by HMO to United Bank of Fort Collins to finance the purchase. Choicecare deposited the lease payments directly to an account from which the United Bank automatically collected its payments. The option price was designated as the remaining balance of the lease payments. The lease also made Choicecare responsible for maintenance costs, taxes, risk of loss, and all warranties were disclaimed.\\nThe lease included the following remedies upon default: repossession of the equipment, and forfeiture of all lease payments, plus liquidated damages, specified as the entire balance of lease payments plus interest.\\nContemporaneously with this lease, the parties entered into another agreement whereby Choicecare agreed to pay $15,000 for a non-expiring license to use a computer software system developed by HMO expressly for Choicecare's claims processing needs. In consideration of Choicecare's initial involvement and investment in the system, and its agreement to make office space and the computer available to HMO to assist in marketing it to other health maintenance organizations, Choicecare was to receive a royalty for each system sold.\\nChoicecare became insolvent and was placed into receivership by the Insurance Commissioner in January 1980. As a result of its insolvency, Choicecare failed to make the January lease payment, whereupon HMO declared a default and attempted to repossess the equipment. In March of that year, the receivership resumed the lease payments and attempted to exercise the option to purchase the equipment.\\nHMO filed suit under the lease seeking return of the equipment, liquidated damages, and attorney fees. HMO also sought damages for breach of Choicecare's contract to provide a demonstration model for the computer equipment and software. Choice-care counterclaimed for royalties due under the contract.\\nThe trial court found that Choicecare retained the right to exercise its purchase option as a form of redemption and denied HMO's claim under the liquidated damages clause, finding that payment of the debt by exercise of the option to purchase avoided any basis for liquidated damages. The court found a breach of the second agreement in Choicecare's inability to provide a demonstration model for future sales, and fixed the amount of damages at $85,000. This amount was subject to set off in the amount of $4,000 for royalties owing at the time of default.\\nBoth parties requested that the court amend its findings and judgment, alleging they did not comply with C.R.C.P. 52(a) in that they were not sufficiently detailed to determine the theory for the award or measure of damages. This request was denied.\\nI.\\nOn appeal HMO argues the trial court erred in not applying the default provisions of the lease agreement according to their terms, which would have given it repossession of the equipment or its market value and liquidated damages. We disagree. .\\nAny transaction, regardless of its form, which is intended to create a security interest is subject to Article 9 of the Uniform Commercial Code. Lease Finance, Inc. v. Burger, 40 Colo.App. 107, 575 P.2d 857 (1977); \\u00a7 4-9-102, C.R.S.1973. Whether a transaction is characterized as a lease or sale is not controlling, but rather it is the intention of the parties which is controlling, that intention to be determined by the facts of each case. Lease Finance, Inc., supra; see \\u00a7 4-1-201(37), C.R.S.1973. In Lease Finance, Inc., supra, the factors examined to determine the character of a transaction included:\\n\\\"(1) Whether the lessee is given an option to purchase the equipment, and, if so, whether the option price is nominal . . (2) whether the lessee acquires any equity in the equipment . (3) whether the lessee is required to bear the entire risk of the loss; or (4) pay all charges and taxes imposed on ownership; (5) whether there is a provision for acceleration of rental payments; (6) whether the property was purchased specifically for lease to this lessee . and (7) whether the warranties of merchantability and fitness for a particular purpose are specifically excluded by the lease agreement.\\\"\\nThat each of these factors is contained in this master lease agreement leads to the conclusion it was in fact a security agreement. Although the option price was not nominal, it was below the fair market value of the equipment. This fact, and the fact that the price corresponded to the balance due under the note given to United Bank, diminishing as rental payments were made, is indicative of an intent to give Choicecare equity in the property. Aoki v. Shepherd Machinery Co., 665 F.2d 941 (9th Cir.1982). Thus, the transaction is subject to Article 9 of the Uniform Commercial Code. Accordingly, under \\u00a7 4-9-506, C.R. S.1973, the debtor, Choicecare, acquired the right to redeem the equipment at any time before HMO disposed of it. And, Choice-care exercised this right by bringing the payments to date and paying the remaining amount due on the note.\\nThe trial court's remedy recognized the equitable interest in the property that \\u00a7 4-9-506, C.R.S.1973, was designed to protect. Although it couched its ruling in pre-U.C.C. language, the court's treatment of the matter is consistent with the principles of Article 9, and therefore, we affirm those findings and conclusions. See Klipfel v. Neill, 30 Colo.App. 428, 494 P.2d 115 (1972).\\nII.\\nHMO also asserts error in the trial court's denial of its request for liquidated damages. We affirm the trial court.\\nPayment of the option price and the consequent release of HMO's note to United Bank, plus Choicecare's substantial improvement to the property at its own expense, were the bases for denying liquidated damages.\\nA liquidated damages clause is unenforceable if it is in the nature of a penalty, and whether such is the case is determined by whether the parties intended to liquidate damages; whether the amount of liquidated damages, when viewed from the time of contracting, was a reasonable estimate of the presumed actual damages that a breach would cause; and whether it was difficult to determine the amount of actual damages that would result when viewed from the time of contracting. O'Hara Group Denver, Ltd. v. Marcor Housing Systems, Inc., 197 Colo. 530, 595 P.2d 679 (1979).\\nHere, the liquidated damages clause gave HMO the amount outstanding on the loan plus ten percent interest. The default clause also provided for repossession and/or resale of the equipment with all proceeds accruing to HMO. Looking at these provisions from the time the transaction was entered into, we note that HMO would have received the proceeds of sale, all payments previously made under the lease, and the outstanding balance of the note executed to United Bank plus ten percent. Hence, its enforcement would have resulted in an unconscionable forfeiture, and it was therefore unenforceable. Oldis v. Grosse-Rhode, 35 Colo.App. 46, 528 P.2d 944 (1974).\\nThe trial court reached the same result although not on these grounds. A correct judgment will not be disturbed on review even if the reason for the decision was wrong. Silverstein v. Sisters of Charity, 43 Colo.App. 446, 614 P.2d 891 (1979).\\nIII.\\nThe trial court found that the software contract was breached by Choicecare's insolvency. Both parties assert error in the award of damages; HMO arguing the amount was insufficient, and Choicecare arguing damages were not proven. Both parties also argue the findings and conclusions were insufficient under C.R.C.P. 52(a).\\nIn its amended findings, the court concluded that the amount of damages the non-defaulting party should receive is the reasonable expenditures made in anticipation of performance plus any reasonable, non-speculative profits the non-defaulting party would have received had the contract been performed. We disagree.\\nSeveral theories of compensation were advanced by HMO. The underlying argument is that the contract price was established in expectation of continued access to the computer. Using this rationale, HMO requested the difference between the contract price of the software license and the fair rental value of a similar package on a time-share basis; the difference between the cost incurred to develop the program and the contract price; and the lost profits resulting from its inability to demonstrate the program on Choicecare's equipment. We conclude that, subject to the court's findings on lost profits, the only award HMO is entitled to is the loss in value to it of the Choicecare performance.\\nThe measure of damages for breach of contract is that sum which places the non-defaulting party in the position that party would have enjoyed had the breach not occurred. Kniffin v. Colorado Western Development Co., 622 P.2d 586 (Colo.App.1980). Lost profits are not awarded unless the loss resulted from the breach. Cope v. Vermeer Sales & Service of Colorado, Inc., 650 P.2d 1307 (Colo.App. 1982). And, if recovery also includes reasonable expenditures in preparation for performance or in performance, this amount is limited by the contract price. Restatement (Second) of Contracts \\u00a7 349, comment a.\\nThe ambiguity in the court's findings of fact, and the evidentiary rulings at trial, make it unclear whether the court found a causal relationship between the lost profits alleged and the breach, although it appears this may have been part of the basis for the award. Recovery under the theory of breach of contract requires that a causal relationship exist and that compensation for these damages were within the contemplation of the parties. Cope v. Vermeer Sales & Service of Colorado, Inc., supra. This is a matter to be determined by the trier of fact. R.F. Carle Co. v. Biological Sciences Curriculum Study Co., 616 P.2d 989 (Colo.App.1980). Accordingly, we remand for more specific findings on this issue.\\nWe reject HMO's contention that it should recover for the market rental value of the computer software received by Choicecare. The contract unambiguously states the total price for the services and all of the other obligations of the parties, and HMO will not be allowed to introduce extrinsic evidence of other considerations which contradict the terms of the agreement. Buckley Bros. Motors, Inc. v. Gran Prix Imports, Inc., 633 P.2d 1081 (Colo.1981). As a related argument, HMO seeks recovery for the fair rental value of the software to compensate for its use during receivership. Choicecare acquired a non-expiring license to use the software for a lump sum payment, and for the reasons discussed above, this agreement will not be altered.\\nHMO cannot recover separately any loss based on its developmental costs, for to the extent these costs exceeded the contract price of $15,000, it would have sustained such loss even had the contract been fully performed. See Restatement (Second) of Contracts \\u00a7 349, comment a. Any allow- anee of recovery based on developmental costs was therefore error.\\nTo put HMO in the position it would have occupied had the breach not occurred, it should be compensated for loss of access to Choicecare's computer for the period between the breach and the expiration of the contract. The general measure of damages, therefore, is the loss in value to HMO of access to the computer. Kniffin v. Colorado Western Development Co., supra. Any cost HMO avoided by not having to complete its own performance should be subtracted from this figure. Restatement (Second) of Contracts \\u00a7 347.\\nIV.\\nLastly, HMO argues that the judgment awarded should not have been classified a Class IV claim under \\u00a7 10-3-507(3), C.R.S.1973 (1982 Cum.Supp.). Instead, it argues, because the equipment was not owned by Choicecare, it should have been awarded the fair market value of the equipment, which is not subject to classification under \\u00a7 10-3-507(3), C.R.S.1973 (1982 Cum. Supp.). We disagree.\\nThe court properly found that HMO did not have an ownership interest in the equipment. Whatever money judgment is ultimately entered, it will fall within \\u00a7 10-3-507(3)(d), C.R.S.1973 (1982 Cum.Supp.).\\nThe judgment placing title to the computer hardware in Choicecare under the lease and denying liquidated damages, repossession, or an award for its fair market value is affirmed. The judgment awarding damages for breach of the software contract is reversed, and the cause is remanded for specific findings on the causal relationship between the breach of contract and alleged loss of profits, and for a hearing to determine the amount which it would have cost HMO to obtain access to comparable equipment for the duration of the contract and to determine the amount of attorney fees, if any, to be awarded under \\u00a7 4r-9-506, C.R.S.1973.\\nCOYTE and BERMAN, JJ., concur.\"}"

colorado/10428457.json

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+"{\"id\": \"10428457\", \"name\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Flozell Jefferson BEASLEY, Defendant-Appellant\", \"name_abbreviation\": \"People v. Beasley\", \"decision_date\": \"1984-03-29\", \"docket_number\": \"No. 83CA0316\", \"first_page\": \"1323\", \"last_page\": \"1326\", \"citations\": \"687 P.2d 1323\", \"volume\": \"687\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T20:16:23.971441+00:00\", \"provenance\": \"CAP\", \"judges\": \"BERMAN and METZGER, JJ., concur.\", \"parties\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Flozell Jefferson BEASLEY, Defendant-Appellant.\", \"head_matter\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Flozell Jefferson BEASLEY, Defendant-Appellant.\\nNo. 83CA0316.\\nColorado Court of Appeals, Div. I.\\nMarch 29, 1984.\\nRehearing Denied April 26, 1984.\\nCertiorari Denied Aug. 20, 1984.\\nDuane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Patricia A. Wallace, Asst. Atty. Gen., Denver, for plaintiff-ap-pellee.\\nOtt, Kirkwood & Cronan, Edward L. Kirkwood, Denver, for defendant-appellant.\", \"word_count\": \"1035\", \"char_count\": \"6439\", \"text\": \"PIERCE, Judge.\\nDefendant, Flozell Jefferson Beasley, appeals a jury verdict of sane returned at the conclusion of his second sanity trial, citing as reversible error two rulings made by the trial court which (1) allowed a psychiatrist who had examined defendant for purposes of determining sanity in another unrelated criminal action to testify for the state; and (2) allowed another psychiatrist to express an expert opinion based upon the trial court record of the original sanity trial, which included local and out-of-state police reports, his own diagnostic report, and pre-sentence reports. We affirm.\\nDefendant was charged with felony murder, robbery, and conspiracy in March 1976. He entered a plea of not guilty by reason of insanity in June 1976, at which time the trial court advised him of the consequences of his plea.\\nThereafter, the trial court granted motions of both the prosecution and defense, ordering several psychiatrists to examine defendant, prepare diagnostic reports, and testify at trial concerning defendant's sanity. The sanity trial was held in February 1977, and defendant was found sane.\\nDuring the summer of 1977, defendant was tried and found guilty of felony murder and robbery. This conviction was appealed and affirmed. See People v. Beasley, (Colo.App. No. 77-876, Oct. 11, 1979) (not selected for official publication).\\nIn November 1981 defendant sought post-conviction relief under Crim.P. 35(c), alleging ineffective assistance of counsel and trial court error concerning testimony of expert witnesses during the sanity trial. The trial court granted defendant's motion, and a second sanity trial in November 1982 resulted in a verdict of sane.\\nI.\\nDefendant first contends the trial court erred in a number of respects concerning the testimony of a psychiatrist who had not been appointed or ordered to examine defendant during this action, but who had examined defendant concerning his sanity and competency to stand trial in conjunction with a separate and unrelated 1976 criminal action.\\nA.\\nDefendant neither objected to nor argues on appeal the relevancy of the witness' testimony, but instead, asserts that testimony violated the governing statutory guidelines set forth in \\u00a7 16-8-106, C.R.S. (1978 Repl.Vol. 8).\\nEarly v. People, 142 Colo. 462, 352 P.2d 112 (1960), construing C.R.S.1953, 39-8-1, controls here because the statutory sections in effect at the time of Beasley's second sanity trial, \\u00a7 16-8-103 and 16-8-106, do not reflect any substantial changes from C.R.S.1953, 39-8-1, a repealed statute.\\nC.R.S.1953, 39-8-1(1), provided as follows:\\n\\\"If one of the defenses of the defendant is insanity, it must be pleaded at the same time with all other pleas, unless it is to be the sole plea of the charge. It must be pleaded orally, either by defendant or by his counsel, in the form not guilty by reason of insanity at the time of the alleged commission of the crime. A defendant who does not plead not guilty by reason of insanity shall be conclusively presumed to have been sane at the time of the commission of the offense charged, provided that the court for good cause shown may allow a change of plea at any time before the commencement of trial. A defendant who pleads not guilty by reason of insanity, without also pleading not guilty, thereby admits the commission of the offense charged.\\\"\\nEarly held that this section of the statute did not operate to exclude any other possible mental examinations of an accused. Therefore, \\u00a7 16-8-103 and 16-8-106, C.R.S., its successors, do not provide the exclusive procedure to be followed. Hence, we hold that the trial court did not err in allowing the witness here to testify concerning defendant's sanity. With this ruling, we also reject defendant's argument that good cause must be shown before additional examinations of a defendant may be obtained for use at a sanity trial.\\nB.\\nDefendant's contention that this witness' examination occurred without advisement by the court is also without merit.\\nDefendant correctly states that \\u00a7 16-8-103(4), C.R.S. (1978 Repl.Vol. 8) requires a trial court to advise a defendant of the consequences of the plea of not guilty by reason of insanity.\\nHere, because the record does not show that defendant received a plea advisement prior to this witness' examination of him he asserts that prejudicial error occurred. On appeal, the record is incomplete, and, accordingly, we can only assume the trial court properly advised defendant upon accepting his plea. Till v. People, 196 Colo. 126, 581 P.2d 299 (1978).\\nC.\\nIn light of our disposition of the issue raised in Part A, supra, defendant's next contention, concerning this witness' failure to submit a report to the trial court concerning his evaluation, is also without merit. Because an evaluation of a defendant can occur outside the boundaries of \\u00a7 16-8-106, submission of a report by such a physician would not be required unless his examination and reports were pursuant to court order.\\nII.\\nFinally, defendant contends the trial court erred when it allowed another psychiatrist to express his expert opinion based, in part, upon copies of the diagnostic report he had submitted in conjunction with the original sanity trial, police reports, and pre-sentence reports, all of which became a part of the trial court record in the original sanity trial. We disagree.\\nUnder most circumstances an expert may base his opinion upon facts or data made known to him prior to trial. CRE 703 all of this information need not be admissible in evidence, provided it is of a type reasonably relied upon by experts in the field in forming their opinions. People v. Beasley, 43 Colo.App. 488, 608 P.2d 835 (1979). The expert may also refresh his memory with the aid of the trial court record, a public record, which included his previous testimony and his diagnostic report to the court. CRE 612.\\nAccordingly, the judgment is affirmed.\\nBERMAN and METZGER, JJ., concur.\"}"

colorado/10428533.json

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+"{\"id\": \"10428533\", \"name\": \"Bryant BAKER, Plaintiff-Appellant, v. Helen Erna BAKER, Defendant-Appellee\", \"name_abbreviation\": \"Baker v. Baker\", \"decision_date\": \"1983-06-23\", \"docket_number\": \"No. 82CA0776\", \"first_page\": \"767\", \"last_page\": \"770\", \"citations\": \"667 P.2d 767\", \"volume\": \"667\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-11T00:05:31.848370+00:00\", \"provenance\": \"CAP\", \"judges\": \"BERMAN and KELLY, JJ., concur.\", \"parties\": \"Bryant BAKER, Plaintiff-Appellant, v. Helen Erna BAKER, Defendant-Appellee.\", \"head_matter\": \"Bryant BAKER, Plaintiff-Appellant, v. Helen Erna BAKER, Defendant-Appellee.\\nNo. 82CA0776.\\nColorado Court of Appeals.\\nJune 23, 1983.\\nStephen M. Joynt, Evergreen, for plaintiff-appellant.\\nRalph B. Rhodes, Denver, for defendant appellee.\", \"word_count\": \"1095\", \"char_count\": \"6698\", \"text\": \"TURSI, Judge.\\nHusband appeals from an order to enforce certain provisions of a separation agreement entered into in connection with the parties' divorce in 1971. With the exception of two modifications, we affirm.\\nBy the separation agreement, which had been made a part of the divorce decree, wife was awarded custody of the parties' two children, and husband agreed to pay $250 monthly support for the children, all reasonable dentist and doctor bills of the children, and the expense of school clothing up to $150 for the children each September. He agreed also to make available to the wife for a monthly rent of $150 a house which was his separate property, and which he agreed not to encumber while the wife elected to remain in possession. Wife had a three-year option to purchase by taking over the mortgage payments.\\nIn 1981, the wife filed a \\\"Motion for Sundry Relief\\\" claiming that the husband had breached the agreement by asking for $435 monthly rent. She sought an order restraining the husband from conveying the property, and contended that the agreement implicitly created a tenancy in common. She also requested an increase in child support, reimbursement for the chil dren's dental and doctor bills, and $1,500 for unpaid clothing allowance.\\nAfter a hearing, the court found that the language of the agreement gave the wife a life tenancy, and therefore ordered that she be allowed to continue in possession of the premises for $150 monthly rent for as long as she so elected. It further found that the husband owed $2,536.35 for medical and dental expenses, and $1,200 in clothing payments and ordered them paid. The court found that the older child was emancipated, and raised the support for the remaining child to $500 per month.\\nI.\\nWife contends that this appeal should be dismissed as untimely because husband failed to file a notice of appeal within 30 days of the court's denial of his motion for new trial and order awarding attorney's fees. However, within 10 days of that order, husband filed an objection to the award of attorney fees which, although not specifically so denominated, constituted a C.R.C.P. 52(b) motion that tolled the time for filing a notice of appeal. C.A.R. 4(a). Therefore, since the notice of appeal was filed 15 days after the court amended its order, the appeal is timely. See Acme Delivery Service, Inc. v. Samsonite Corp., 663 P.2d 621 (Colo. announced 1983). See also Valenzuela v. Mercy Hospital, 34 Colo.App. 5, 521 P.2d 1287 (1974).\\nII.\\nThe husband contends that both children were emancipated, and thus, no further child support was warranted, or, alternatively, he asserts that circumstances had not rendered the agreement unconscionable. His contentions are without merit.\\nWhether a child is emancipated is a matter of law for the court to determine based upon the relevant circumstances. In re Marriage of Robinson, 629 P.2d 1069 (Colo.1981). A child who is living away from home and working part-time is un-emancipated where, as the record established here, he is attending school and remains dependent on his parents for financial support. See Robinson, supra.\\nAs to modification of the support order, though the evidence here may be insufficient to show unconscionability, such a showing is not required. Because the parties were divorced prior to the effective date of the Uniform Dissolution of Marriage Act, \\u00a7 14^10-101 et seq., C.R.S.1973, the prior statute governs, and the court is empowered to modify a child support award \\\"as changing circumstances may require.\\\" Section 46-1-5(4), G.R.S.1963. Here, the evidence established that the child's needs had increased when he entered an out-of-state trade school, while the husband's financial resources remained substantial. We conclude that the evidence was sufficient to show a change in circumstances permitting modification. Bradshaw v. Bradshaw, 626 P.2d 752 (Colo.App.1981). Cf. In re Marriage of Berry, 660 P.2d 512, 513 (Colo.App.1983).\\nIII.\\nThe husband contends that the court erred in finding that the settlement agreement granted the wife a life tenancy in the house for $150 a month. We disagree.\\nHusband argues that because the document was silent on the length of the tenancy, a reasonable result must be inferred. However, the agreement provides that the husband is to \\\"make said premises available to wife\\\" if \\\"she elects to continue in possession.\\\" Therefore, the lease was terminable only by the tenant, creating a leasehold estate in the wife for so long as she makes the $150 monthly rental payments. Collins v. Shanahan, 34 Colo.App. 82, 523 P.2d 999 (1974), rev'd on other grounds, 189 Colo. 169, 539 P.2d 1261 (1975). See Dormer v. Walker, 101 Colo. 20, 69 P.2d 1049 (1937).\\nIV.\\nHusband further contends that the evidence does not support the trial court's order to pay wife $2,556.35 for the children's medical and dental expenses and $1,200 outstanding clothing allowance. As to the medical and dental expenses the record reflects, without dispute, that $401 was expended by the wife for herself and that husband is not obligated for this amount. The evidence also is undisputed that husband had paid $950 of the $1,500 clothing allowance which the wife claimed and not the $300 with which the trial court credited him. The order must be corrected to reflect these errors.\\nHusband argues that excess child support payments of approximately $4,000 should be credited against the medical and dental expenses and clothing allowance. However, he cannot claim as a credit against this obligation sums voluntarily paid in excess of his support obligation. See Dorsey v. Dorsey, 28 Colo.App. 63, 470 P.2d 581 (1970).\\nV.\\nFinally, husband contends that the court's award of attorney's fees to the wife is erroneous. The court awarded fees to the wife based on the provision of the separation agreement which states that \\\"each party agrees to indemnify the other for a failure to comply with the terms of the agreement.\\\" An award of attorney's fees in subsequent litigation to enforce a separation agreement is within the trial court's discretion. We perceive no abuse of that discretion here. Lay v. Lay, 162 Colo. 43, 425 P.2d 704 (1967). However, we decline to award fees on appeal pursuant to C.A.R. 38.\\nThe order of the trial court is modified to reduce husband's obligation for medical and dental expenses to $2,155.34 and for clothing expenses to $550, and as so modified, it is affirmed.\\nBERMAN and KELLY, JJ., concur.\"}"

colorado/10432241.json

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+"{\"id\": \"10432241\", \"name\": \"Anthony J. DIDAMO and Alice L. Didamo, Plaintiffs-Appellees and Cross-Appellants, v. TYROL SPORT ARMS COMPANY, Defendant-Appellant and Cross-Appellee\", \"name_abbreviation\": \"Didamo v. Tyrol Sport Arms Co.\", \"decision_date\": \"1984-02-16\", \"docket_number\": \"No. 82CA1117\", \"first_page\": \"1328\", \"last_page\": \"1330\", \"citations\": \"680 P.2d 1328\", \"volume\": \"680\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T23:12:19.945133+00:00\", \"provenance\": \"CAP\", \"judges\": \"PIERCE and SMITH, JJ., concur.\", \"parties\": \"Anthony J. DIDAMO and Alice L. Didamo, Plaintiffs-Appellees and Cross-Appellants, v. TYROL SPORT ARMS COMPANY, Defendant-Appellant and Cross-Appellee.\", \"head_matter\": \"Anthony J. DIDAMO and Alice L. Didamo, Plaintiffs-Appellees and Cross-Appellants, v. TYROL SPORT ARMS COMPANY, Defendant-Appellant and Cross-Appellee.\\nNo. 82CA1117.\\nColorado Court of Appeals, Div. I.\\nFeb. 16, 1984.\\nRehearing Denied March 8, 1984.\\nDavid C. Vigil, Denver, for plaintiffs-ap-pellees and cross-appellants.\\nPeter D. Van Soest, Denver, for defendant-appellant and cross-appellee.\", \"word_count\": \"1101\", \"char_count\": \"6730\", \"text\": \"TURSI, Judge.\\nDefendant, Tyrol Sport Arms Company, appeals the adverse judgment rendered in the trial court on the unlawful detention action brought by plaintiffs, Anthony J. and Alice L. Didamo. Plaintiffs filed a cross-appeal, contending that the trial court erred in failing to award costs of litigation, interest on their restitution award, attorney's fees incurred in litigation, and post-judgment rental in the amount of $5,000 per month. We affirm in part, and reverse in part.\\nThe property which is the subject of the unlawful detention action is held in tenancy in common. Plaintiffs own a 45% interest in the property, while co-tenants Jack D. McCreery and Leon E. Greenwald own 45% and 10% interests respectively. Defendant is a corporation whose shares are owned by the co-tenants in the same proportion as their ownership interest in the property. McCreery and Greenwald are employees of defendant; plaintiffs are not.\\nDefendant entered into a lease on June 1, 1972, to conduct shooting range operations on the subject property. Pour days prior to the expiration of the lease term, plaintiffs served on defendant a formal notice to quit the premises. The trial court awarded possession to the plaintiffs to the extent of their interest in the property, and ordered a writ of restitution to issue within 48 hours after the date of entry of the judgment. The trial court's award of damages to the plaintiffs include (1) a proportionate share of the rental due under the lease, (2) a proportionate share of the rental value from date of expiration of the lease until entry of judgment, and (3) the same proportionate share from date of judgment until defendant vacates the premises. However, the trial court order is silent as to an award of interest.\\nI\\nAs a preliminary matter, we reject plaintiffs' contention that defendant's appeal should be dismissed as the statutorily required undertakings were not timely filed pursuant to \\u00a7 13-40-117 and 13-40-120, C.R.S., and the trial court was without authority to so extend the statutory filing period. We disagree.\\nIn forcible entry and detainer proceedings, the Colorado Rules of Civil Procedure apply unless expressly provided otherwise. See \\u00a7 13-40-119, C.R.S. Here, the trial court had extended the time in which the undertakings were to be filed. C.R.C.P. 6(b). Thus, the undertakings were properly filed within the extended period granted by the trial court.\\nII\\nOn appeal, defendant contends that a co-tenant is without authority to maintain an action for possession of real property without the consent of all co-tenants.\\nOur rule on whether a co-tenant may bring an action to recover real property is succinctly stated in Carlson v. McNeill, 114 Colo. 78, 162 P.2d 226 (1945):\\n\\\" '[I]n an action to recover real property, one tenant in common may recover possession of the entire tract as against all persons except his co-tenants_' The right to sue for damages, as well as for possession, by a tenant in common would seem to be proper.\\\"\\nThis rule is in accord with the weight of authority. 4 G. Thompson, Real Property \\u00a7 1816 and 1819 (1979 Repl.Vol.). Thus, plaintiffs were proper parties to maintain this action as defendant is a legal entity, separate from the co-owners of the subject property.\\nIII\\nDefendant also contends that the notice furnished by plaintiffs was defective as it was untimely, and it failed to join the co-tenants of the subject property as co-lessors. We disagree.\\nThe lease involved is for a term certain. It contained an initial term of two years, with an option for an eight year extension. As such, a notice to quit is not required. Section 13-40-107(4), C.R.S.\\nDefendant's reliance on Hix v. Roy, 139 Colo. 457, 340 P.2d 438 (1959) is misplaced. The Hix decision held that where a co-lessor fails to join the other co-lessors, he is entitled to judgment only to the extent of his interest in the subject property. Here, the judgment for possession and damages was expressly limited to the extent of plaintiffs' interest in the subject property.\\nIV\\nContrary to plaintiffs' contentions, the trial court properly declined to award attorney's fees based upon the unlawful detention action as such an award would be a denial of equal protection. More v. Johnson, 193 Colo. 489, 568 P.2d 437 (1977). Furthermore, under the facts of this case, the trial court did not err in refusing to assess attorney's fees pursuant to \\u00a7 13-17-101, C.R.S. (1983 Cum.Supp.).\\nV\\nCiting Strauss v. Boatright, 160 Colo. 581, 418 P.2d 878 (1966), plaintiffs also contend that they were entitled to post-judgment damages in the amount of 45% of $5,000 per month, which they contend accurately represents the reasonable rental value of the subject property, as opposed to the $2,000 per month figure utilized by the trial court pursuant to the expired lease. Here, however, plaintiffs put forth no evidence as to the reasonable rental value of the subject property. Thus, we find no error on the part of the trial court in using the rental payment in the lease as the basis for determining the reasonable rental value of the subject property in its assessment of post-judgment damages. See Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979).\\nVI\\nWe disagree with plaintiffs' contention that the trial court erred in denying their costs of suit. The awarding of costs is within the sound discretion of the trial court. C.R.C.P. 54(d). The trial court expressly ordered the parties to bear their own costs. We find no abuse of discretion. Rossmiller v. Romero, 625 P.2d 1029 (Colo.1981).\\nVII\\nWe agree, however, with plaintiffs' contention that a prevailing party is entitled to interest on the judgment recovered. Section 5-12-102(4), C.R.S. (1983 Cum. Supp.) authorizes interest on judgments from the date of entry until satisfaction, at a rate of eight percent per annum.\\nThe trial court did not address interest. Thus, we are unable to discern whether the trial court's silence was a denial of prejudgment interest, or was also a denial of statutory interest on the judgment as entered.\\nDefendant's remaining contentions are without merit.\\nThe cause is remanded with directions to award post-judgment interest and for a ruling by the trial court on prejudgment interest. -In all other respects, the judgment of the trial court is affirmed.\\nPIERCE and SMITH, JJ., concur.\"}"

colorado/10432325.json

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+"{\"id\": \"10432325\", \"name\": \"The PEOPLE of the State of Colorado, ex rel. Dennis E. FAULK, District Attorney In and For the Eleventh Judicial District, Petitioner, v. The DISTRICT COURT OF the ELEVENTH JUDICIAL DISTRICT OF COLORADO and the Honorable Paul J. Keohane, One of the Judges Thereof, Respondents\", \"name_abbreviation\": \"People ex rel. Faulk v. District Court of the Eleventh Judicial District of Colorado\", \"decision_date\": \"1983-08-22\", \"docket_number\": \"No. 83SA231\", \"first_page\": \"1384\", \"last_page\": \"1391\", \"citations\": \"667 P.2d 1384\", \"volume\": \"667\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-11T00:05:31.848370+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The PEOPLE of the State of Colorado, ex rel. Dennis E. FAULK, District Attorney In and For the Eleventh Judicial District, Petitioner, v. The DISTRICT COURT OF the ELEVENTH JUDICIAL DISTRICT OF COLORADO and the Honorable Paul J. Keohane, One of the Judges Thereof, Respondents.\", \"head_matter\": \"The PEOPLE of the State of Colorado, ex rel. Dennis E. FAULK, District Attorney In and For the Eleventh Judicial District, Petitioner, v. The DISTRICT COURT OF the ELEVENTH JUDICIAL DISTRICT OF COLORADO and the Honorable Paul J. Keohane, One of the Judges Thereof, Respondents.\\nNo. 83SA231.\\nSupreme Court of Colorado, En Banc.\\nAug. 22, 1983.\\nDennis E. Faulk, Dist. Atty., Canon City, pro se.\\nSteven B. Rich, Deputy Dist. Atty., Fair-play, for petitioner.\\nPaul J. Keohane, District Judge, pro se.\\nDavid F. Vela, Colorado State Public Defender, Kenneth M. Plotz, Philip L. Dubois, Deputy State Public Defenders, Salida, Leonard Campbell, Marla K. Thoe, Mont-rose, for respondents.\", \"word_count\": \"3838\", \"char_count\": \"23179\", \"text\": \"QUINN, Justice.\\nIn this original proceeding the People seek an order requiring the respondent court to sequester a jury in a first degree murder trial and another order prohibiting the court from admitting into evidence at trial the deposition testimony of a defense witness. We issued a rule to show cause and now make the rule absolute.\\nI.\\nA brief review of this case is necessary in order to place the issues in proper focus. Mary Williams, the defendant in the pending trial, is charged with first degree murder after deliberation, committed against her late husband, Clint Williams, on January 27, 1981, in Chaffee County, Colorado. The indictment was originally returned in the District Court of Chaffee County, but venue was later changed to Fremont County, where the matter is now awaiting trial. Before the change of venue, the District Court of Chaffee County granted the defendant's motion to take the deposition of a witness, John C. Howlett, who was in poor health. Mr. Howlett's deposition was not taken in the presence of the court, but instead was taken in the defense attorney's office at Buena Vista, Colorado, with the district attorney present.\\nOn May 26, 1988, after venue had been changed to the District Court of Fremont County, the case came up for hearing in that court on two matters. The court first considered the defendant's motion to admit into evidence the deposition of Mr. Howlett at the upcoming trial scheduled for June 6, 1983. The respondent court ruled that because the judge was not present at the deposition, the deposition would not be admitted. The defendant then requested permission to retake the deposition of Mr. Howlett in the presence of a judge and presented testimony from Mr. Howlett's physician, Dr. Michael L. Dennington, relating to the witness's physical condition. Dr. Dennington testified that Mr. Howlett's larynx had been surgically removed three years previously due to laryngeal carcinoma. Mr. Howlett used a voice box to communicate and, according to Dr. Dennington, would experience some stress in testifying since he also had emphysema. The doctor, however, could not state that Mr. Howlett was presently suffering from cancer. It was also the doctor's view that Mr. How-lett, although experiencing intermittent good and bad days, might well be able to testify at the upcoming trial, but had planned a vacation to Alaska and would be greatly inconvenienced if he would be required to forego his vacation at this time. At the conclusion of the hearing the court ruled that no showing had been made of the witness's present inability to testify at trial. The court, however, granted the defendant's motion to take Mr. Howlett's deposition in court on the following day.\\nOn May 27, 1983, Mr. Howlett was deposed in the presence of the court. Although Mr. Howlett's wife was sworn in as an interpreter for the purpose of translating any testimony that might not be readily understandable, Mr. Howlett was able to effectively communicate during a rather lengthy deposition and there was practically no need for the services of an interpreter. Mr. Howlett's testimony related basically to his acquaintance with the victim and to three conversations which he had with the victim approximately three months prior to the homicide. On two separate occasions he spoke to the victim on a road outside Buena Vista.. The victim, who appeared frightened on both occasions, told Mr. Howlett that he had received threatening phone calls at his home from some man whose voice he was unable to recognize. A few days after his second conversation with the victim, Mr. Howlett again encountered him on the road in a highly emotional state. The victim on this occasion told Mr. How-lett that as he was driving to work some man in a truck had tried to run him off the road. At the conclusion of the deposition the court ruled that it would be admitted at trial because, in the court's view, there was a significant probability that Mr. Howlett would be unable to testify at trial due to his various ailments.\\nAfter ruling on the deposition, the court addressed the motion for a sequestered jury. The district attorney, although not intending to qualify the jury for the death penalty, concurred in the defendant's request for sequestration and advised the court that Colorado case law mandated a sequestered jury in a first degree murder trial. The respondent court, however, being of the opinion that sequestration was unnecessary unless the jury was death-qualified, ruled that the jury would not be sequestered. The district attorney thereafter commenced an original proceeding in this court.\\nII.\\nWe first consider the respondent court's refusal to sequester the jury. Crim.P. 24(f) provides that the sequestration of the jury in noncapital cases shall only be upon express order of court for good cause shown, but in capital cases \\\"jurors shall remain in the bailiff's custody during all recesses from the time the jury is selected until discharged by the court.\\\" The issue before us, therefore, is whether the trial of a first degree murder charge is a capital case for purposes of Crim.P. 24(f), even though the district attorney does not intend to qualify the jury for consideration of the death penalty or to seek the imposition of the death penalty in the event of a conviction.\\nIn Tribe v. District Court, 197 Colo. 433, 593 P.2d 1369 (1979), we considered the meaning of a \\\"capital case\\\" for purposes of jury sequestration under Crim.P. 24(f). In that case Tribe was charged with first degree murder and moved to sequester the jury. The trial court denied the request because the death penalty could not at that time have been constitutionally imposed in the event of a conviction. Tribe then sought prohibitory relief in this court. Drawing on the analogous authority of People ex rel. Dunbar v. District Court, 179 Colo. 304, 500 P.2d 358 (1972) (per curiam), which held that a first degree murder charge is a capital offense for purposes of bail even though, under the state of the law existing at that time, the death penalty could not be constitutionally imposed, and People v. Haines, 37 Colo.App. 302, 549 P.2d 786 (1976), which similarly held that a first degree murder case, regardless of the constitutional status of capital punishment, was a capital case for purposes of the number of peremptory challenges available to an accused, this court in a unanimous opinion held that \\\"Crim.P. 24(f) continues to require sequestration of jurors in a first-degree murder case unless the requirement is waived by the accused.\\\" 197 Colo. at 435, 593 P.2d at 1371. Our decision in Tribe is controlling on the issue raised here. A capital case for purposes of jury sequestration under Crim.P. 24(f) includes those offenses which by reason of their gravity have been classified as class 1 felonies and by statute carry the most serious penalty authorized by law, life imprisonment or death. Murder in the first degree is such an offense. Sections 18-3-102(3), C.R.S.1973 (1978 Repl. Yol. 8) and 18-1-105(1), C.R.S.1973 (1982 Supp.).\\nNotwithstanding the clear holding of Tribe, the respondent court argues that any error in not sequestering the jury would be harmless unless the defendant could demonstrate prejudice from the non-sequestration. The short answer to this argument is that it is not the function of a trial court in passing upon the sequestration motion to indulge in a speculative forecast about the harmless character of any error in denying what is in all respects a meritorious motion. The obligation of the court was to apply the pertinent decisional law in resolving the motion before it, and that decisional law mandated that the motion be granted under the circumstances of this ease.\\nThe respondent court also argues that an order of sequestration will result in excluding from the jury large segments of the community except the unemployed, the retired, homemakers, and those persons whose employment provides them compensation during jury duty. We are unpersuaded by the respondent's claim. The policy of this state, as expressed in the Uniform Jury Selection and Service Act, section 13-71-101, et seq., C.R.S.1973 and 1982 Supp., is that all qualified citizens should be accorded the opportunity to be considered for jury service and that these citizens have an obligation to serve as jurors when summoned for that purpose. Section 13-71-102, C.R.S.1973. In keeping with this policy, no person who is otherwise qualified for jury service is \\\"exempt.\\\" Section 13-71- 111, C.R.S.1973. While the court is authorized to \\\"excuse\\\" a person not disqualified upon a showing of \\\"undue hardship, extreme inconvenience, or public necessity,\\\" the excuse runs only for that period of time deemed necessary by the court, at the conclusion of which the person must reappear for jury service in accordance with the court's direction. Section 13-71-112(2), C.R.S.1973. Jury service being an obligation of citizenship, the court should not excuse a person otherwise qualified for jury service for any reason short of the statutory criteria of \\\"undue hardship, extreme inconvenience, or public necessity\\\" set out in section 13-71-112(2), C.R.S.1973. To the extent that the respondent's argument assumes that it may excuse a person from jury service sua sponte for reasons other than those contained in section 13-71-112(2), C.R.S.1973, we expressly reject it.\\nCrim.P. 24(f) required the respondent court to sequester the jury in this case. The court exceeded its jurisdiction in denying the request for sequestration, which was concurred in by both the defendant and the prosecution.\\nIII.\\nWe turn to the court's ruling on the admissibility of the deposition of Mr. How-left on the basis of his inability to testify at trial because of sickness or infirmity. While our exercise of original jurisdiction is discretionary, review by original proceedings of a pretrial evidentiary ruling of a trial court is the exception rather than the rule. See, e.g., People v. District Court of 2nd Judicial District, 664 P.2d 247 (Colo.1983). There is good reason in this case, however, to review that aspect of the court's ruling which sanctioned the admissibility of the deposition due to the alleged inability of the deponent to testify at trial. Not only does the ruling lack an adequate evidentiary foundation in the record, but more importantly, the issue of admissibility will most likely again be raised at trial. Addressing the issue at this time will provide the respondent court with necessary direction should the matter once more come before it.\\nCrim.P. 15(e)(2) provides that all or part of a deposition, so far as otherwise admissible under the rules of evidence, may be used at trial if \\\"[t]he witness is unable to attend or testify because of sickness or infirmity.\\\" The primary purpose of Rule 15(e) is to safeguard the confrontation rights of the criminally accused by limiting the use of deposition testimony to narrowly defined situations of unavailability. See generally United States v. Wilson, 601 F.2d 95 (3d Cir.1979); United States v. Mann, 590 F.2d 361 (1st Cir.1978); Bresnahan, Jr. v. District Court, 164 Colo. 263, 434 P.2d 419 (1967); 2 (Crim.) C. Wright, Federal Practice and Procedure \\u00a7 241 (2d ed. 1982). This is not to say, however, that the court may dispense with the conditions of admissibility merely because the defense, rather than the prosecution, is the proponent of the deposition testimony. Deposition testimony in lieu of live testimony being the exception rather than the rule in criminal trials, Crim.P. 15(e) should be applied in a manner consistent with the principle that attendance of witnesses at criminal trials is the favored method of presenting testimony. See, e.g., Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); United States v. Wilson, supra.\\nUnavailability within the context of Crim.P. 15(e) is to be determined at the time of trial in light of the circumstances then existing. See, e.g., United States v. Tunnell, 667 F.2d 1182 (5th Cir.1982); United States v. Mann, supra; 2 (Crim.) C. Wright, supra, \\u00a7 245. The mere granting of a pretrial motion to depose a witness accords no presumption of unavailability at the time of trial. United States v. Mann, supra. Crim.P. 15(e)(2) contemplates that before a deposition is admitted into evidence, the proponent of the deposition make some showing, by evidence or stipulation, that the witness's inability to testify at trial is due to sickness or infirmity. Mere inconvenience or passing discomfort, in our view, does not satisfy the unambiguous provisions of the rule. While the trial court is necessarily vested with discretion in resolving such disputed factual issues as a witness's alleged inability to testify at trial, there must exist in the first instance an adequate evidentiary basis for the court's resolution of the disputed issue. The record in this case, however, is markedly deficient in this respect.\\nMr. Howlett's treating physician, during the hearing on May 26, 1983, testified that his patient might well be able to testify at trial, but would be inconvenienced in so doing because he would be required to forego a vacation in Alaska. The respondent court during this hearing expressly referred to the lack of any factual predicate for the use of the deposition at trial. On the very next day, however, after Mr. How-lett had again given his deposition, the court ruled the deposition admissible. Mr. Howlett's deposition testimony about his physical condition was not significantly dissimilar to the testimony of his treating physician on the previous day. Moreover, although Mr. Howlett admittedly experienced some inconvenience and personal difficulty during his deposition, he was able to adequately communicate his responses to the questions propounded to him. There was no showing by the defendant, the proponent of the deposition, that Mr. Howlett would be unable to attend the trial because of an illness or infirmity or that he would likely undergo a significant deterioration in his physical condition during the few days intervening between the date of his last deposition and the scheduled trial date. Indeed, the respondent court conceded in the course of its ruling that it was \\\"stretching\\\" Crim.P. 15(e) in applying it to the facts shown by the evidence.\\nBecause the originally scheduled trial date of June 6,1983, has already passed and this case must be reset for trial, the respondent court again must assess Mr. Howlett's physical condition before ruling on the admissibility of the deposition at trial. Crim.P. 15(e) requires the proponent of the deposition to make a showing that Mr. Howlett's physical condition, at the time of his scheduled trial testimony, is such that he is unable to attend the trial and to testify before the jury. In the absence of such a showing by the proponent of the deposition, the deposition should not be admitted into evidence. If, however, the requisite showing is made, and the court so determines, then the deposition may be admitted into evidence \\\"so far as otherwise admissible under the rules of evidence.\\\" Crim.P. 15(e).\\nThe rule to show cause is made absolute, and the respondent court is ordered to proceed in accordance with the views herein expressed.\\n. Section 18-3-102(l)(a), C.R.S.1973 (1978 Repl.Vol. 8).\\n. We express no opinion on the correctness of the respondent court's ruling in this respect.\\n. The district attorney does not dispute the respondent court's ruling permitting the retaking of Mr. Howlett's deposition in the presence of the court. Crim.P. 15(a) authorizes the court to order a prospective witness's deposition be taken upon motion, supported by an affidavit showing that the witness \\\"may be unable to attend a trial or hearing and that it is necessary to take his deposition to prevent injustice.\\\" The standards for the taking of a deposition under Crim.P. 15(a) are much more general and entrust a correspondingly greater degree of discretion to the trial judge than the standards relating to the admissibility of the deposition at trial under Crim.P. 15(e).\\n. The district attorney objected to Mr. How-lett's deposition testimony on grounds of hearsay and relevancy. The court overruled the objections, although the record is unclear as to whether the court's ruling on the hearsay objection was based upon the excited utterance exception, C.R.E. 803(2), or the state of mind exception, C.R.E. 803(3). As to the relevancy objection, the court at one point stated that the victim's statements were admissible \\\"to show [the victim's] state of mind, which ties into . one of the defenses.\\\" The court, however, did not explain the manner in which the victim's state of mind was at that point a material issue in the case. See generally People v. Madson, 638 P.2d 18 (Colo.1981). Although the district attorney requests that we review the correctness of these evidentiary rulings, we decline to do so. If and when the deposition of Mr. How-lett is offered into evidence at any future trial, the court at that time may request further argument on these questions and resolve them in the context of a more adequate evidentiary record than that present here. If Mr. Howlett is called as a witness at trial, the court similarly will be able to rule on the objections against the backdrop of the trial evidence rather than in the isolated context of the partial record before us.\\n. Section 16-11-103(1), C.R.S.1973 (1978 Repl. Vol. 8), states that the trial court, upon the defendant's conviction of a class 1 felony, shall conduct a separate sentencing hearing to determine whether the defendant should be sentenced to death or life imprisonment on the basis of the jury's findings as to aggravating and mitigating factors. It may be questioned whether the district attorney's decision not to qualify the jury for the death penalty is sufficient by itself to dispense with the penalty hearing authorized by section 16-11-103(1). Although we do not decide the issue here, it would appear that if the penalty hearing on life imprisonment or death is to be dispensed with and life imprisonment imposed as the penalty upon conviction of first degree murder, then prior to the commencement of trial proceedings the district attorney and the defendant should execute a stipulation, approved by the court, that none of the aggravating factors essential to a death sentence exist or that one or more of the mitigating factors exist, thereby rendering life imprisonment the appropriate penalty. See section 16-11-103(4), (5), (5.1) and (6), C.R.S. 1973 (1978 Repl.Vol. 8 and 1982 Supp.).\\n. The respondent court argues that this court's decision in People v. Hines, 194 Colo. 284, 572 P.2d 467 (1977), which involved the number of peremptory challenges available to a defendant in a first degree kidnapping trial, dictates a contrary result. In Tribe, however, we distinguished Hines and put to rest the view that a nonsequestered jury was permissible in a first degree murder case when the defendant did not waive sequestration. We pointed out in Tribe that the statutory definition of kidnapping, as applicable to the Hines case, expressly provided that no person shall suffer the death penalty when the person kidnapped has been liberated alive prior to the conviction of the kidnapper. See section 18-3-301(2), C.R.S.1973 (1978 RepLVol. 8). Because the victim in Hines had been liberated alive before the trial began, we stated in Tribe that \\\"the pertinent statute itself provided that no death penalty could be administered under the facts alleged in the charge.\\\" 197 Colo, at 435, 593 P.2d at 1371. In the instant case, however, the statute on which the charge of first degree murder is predicated contains no such exclusionary provision with respect to the death penalty.\\n. On July 14, 1983, this court amended Crim.P. 24(f), effective January 1, 1984, as follows:\\n\\\"(1) In all cases, in the court's discretion, jurors may be sequestered or permitted to separate during all trial recesses, both before and after the case has been submitted to the jury for deliberation. Cautionary instructions as to their conduct during all recesses shall be given to the jurors by the court.\\n\\\"(2) The jurors shall be in the custody of the bailiff whenever they are deliberating and at any other time as ordered by the court.\\n\\\"(3) If the jurors are permitted to separate during any recess of the court, the court shall order them to return at a day and hour appointed by the court for the purpose of continuing the trial, or for resuming their deliberations if the case has been submitted to the jury-\\\"\\nPrior to the effective date of the amendment, however, the present version of Crim.P. 24(f) and our decisional interpretations of the rule are controlling on the sequestration of juries in first degree murder trials.\\n. In addition to unavailability due to sickness or infirmity, Crim.P. 15(e) provides that the deposition may be admitted if the witness is dead, the proponent has been unable to secure the witness's attendance by subpoena, or the witness is out of state through no action by the proponent and his presence cannot be secured by subpoena or other lawful means. On July 14, 1983, Crim.P. 15(e) was amended, effective January 1, 1984, to provide as follows:\\n\\\"Use. At the trial, or at any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if the deposed witness satisfies the definition of unavailability in C.R.E. 804(a), or the witness gives testimony at the trial or hearing inconsistent with his deposition. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require him to offer all of it which is relevant to the part offered and any party may offer other parts.\\\"\\nUnavailability under C.R.E. 804(a) includes those situations in which the declarant: (1) is exempted by court ruling from testifying on the ground of privilege; (2) refuses to testify despite a court order to do so; (3) testifies to a lack of memory on the subject matter of his statement; (4) is unable to be present or to testify at the hearing due to death or physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent is unable to procure his attendance by process or other reasonable means.\"}"

colorado/10448262.json

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+"{\"id\": \"10448262\", \"name\": \"The PEOPLE of the State of Colorado, Complainant, v. Robert L. McMICHAEL, Respondent\", \"name_abbreviation\": \"People v. McMichael\", \"decision_date\": \"1980-04-21\", \"docket_number\": \"Nos. 79SA447, 79SA485\", \"first_page\": \"633\", \"last_page\": \"634\", \"citations\": \"609 P.2d 633\", \"volume\": \"609\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T21:36:07.459450+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The PEOPLE of the State of Colorado, Complainant, v. Robert L. McMICHAEL, Respondent.\", \"head_matter\": \"The PEOPLE of the State of Colorado, Complainant, v. Robert L. McMICHAEL, Respondent.\\nNos. 79SA447, 79SA485.\\nSupreme Court of Colorado, En Banc.\\nApril 21, 1980.\\nRobert B. Kane, Disciplinary Prosecutor, Ruthanne Nedrud Polidori, Linda Donnelly, Denver, for complainant.\\nRobert L. McMichael, pro se.\", \"word_count\": \"880\", \"char_count\": \"5505\", \"text\": \"LEE, Justice.\\nFor the purposes of this opinion, we have consolidated grievance proceedings Nos. 79SA447 and 79SA485.\\nRespondent Robert L. McMichael was admitted to practice law in Colorado on March 13,1950. He was suspended under C.R.C.P. 259(F) on January 18, 1979. For the reasons herein set forth, the court has concluded that respondent should be disbarred from the further practice of law.\\nNO. 79SA447\\nA formal complaint was filed before the Supreme Court Grievance Committee, alleging that on February 9, 1979, the respondent had been convicted of felony theft in violation of section 18-4\\u2014401, C.R.S. 1973.\\nThe record shows that respondent collected $3,000 on behalf of a client in connection with a sale of the client's real estate. These funds were commingled with respondent's other trust funds, but were unlawfully converted to respondent's own use.\\nRespondent was indicted by the Pueblo County Grand Jury for felony theft, in Criminal Action No. 80466 in the District Court of Pueblo County. Respondent pled guilty, his application for probation was denied, and he was sentenced to an indeterminate term in the Colorado state reformatory, hot to exceed forty months.\\nRespondent admitted the allegations of the formal complaint. He offered in mitigation, in connection with his prayer for leniency, that a portion of the funds were appropriated by the depository bank to apply against indebtedness owed by him to the bank. No evidence in support of this assertion was submitted, other than respondent's own statement.\\nThe grievance committee rejected respondent's plea for leniency and noted that respondent had been three times previously disciplined, twice by public censure and once by a letter of admonition. The committee noted that one of the public censures involved the commingling and misuse of a client's funds. The committee concluded that respondent has demonstrated a flagrant disregard of his professional obligations and recommended that respondent be disbarred. We agree with the recommendation of the grievance committee.\\nNO. 79SA485\\nThe subject matter of this grievance proceeding was heard by a different Hearing Committee of the Supreme Court Grievance Committee than that which heard No. 79SA447. A two-count formal complaint was filed concerning professional misconduct arising out of a bankruptcy proceeding.\\nRespondent had been employed to commence a bankruptcy proceeding. In substance, the complaint alleged in the first count that, although he had been paid, respondent neglected to file the petition for bankruptcy for a period of approximately eight months. As a consequence of this unexplained delay, his client was sued and his wages were attached on several occasions, to his great embarrassment, inconvenience, and expense.\\nThe grievance committee found the allegations of count 1 to be sustained by clear and convincing evidence, and concluded that the unreasonable delay in commencing the bankruptcy proceedings constituted gross neglect in violation of disciplinary rule DR 6-101(A)(3) and in violation of DR 7-101(A)(2) for failure to carry out a contract of employment entered into with his client for professional services.\\nIn count 2, relating to the same bankruptcy matter, the complaint alleged that respondent had counseled his client to testify falsely at the hearing on the bankruptcy petition and that the client did so. Further, it was alleged that respondent gave a false answer to a question asked of him by the bankruptcy judge. The grievance committee found that these allegations were clearly supported by the evidence and that such acts constituted illegal conduct involving moral turpitude in violation of DR 1-102(A)(3); conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of DR 1-102(A)(4); knowingly making a false statement of fact in violation of DR 7-102(A)(5); and engaging in conduct that is prejudicial to the administration of justice in violation of DR 1-102(A)(5).\\nThe grievance committee concluded that, as a result of respondent's misconduct in the bankruptcy matter and in view of his past disciplinary record, he should be disbarred from the further practice of law. We likewise agree that, even apart from the professional misconduct in No. 79SA447, respondent's misconduct in No. 79SA485 could justify disbarment.\\nConduct such as respondent engaged in cannot be excused or condoned, and will not be tolerated by this court. The public is entitled to rely upon the presumed moral and ethical character of those who are licensed to practice law. When, as in this case, an attorney violates the criminal laws of this state (People v. Silvola, 195 Colo. 74, 575 P.2d 413 (1978); People v. Wilson, 176 Colo. 389, 490 P.2d 954 (1971)), or engages in such a grossly negligent and deceitful course of conduct as respondent did in this case, he must be removed from the practice of law for the protection of the public.\\nIt is the judgment of this court that respondent be disbarred from the practice of law in Colorado. Costs incurred in the amount of $663.57 in No. 79SA447 and in the amount of $562.30 in No. 79SA485 shall be paid by the respondent to this court within ninety days from the date hereof.\"}"

colorado/10450789.json

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+"{\"id\": \"10450789\", \"name\": \"Dale R. DENNETT and Mavise J. Dennett, Plaintiffs-Appellants, v. MT. HARVARD DEVELOPMENT CO., Defendant-Appellee\", \"name_abbreviation\": \"Dennett v. Mt. Harvard Development Co.\", \"decision_date\": \"1979-12-13\", \"docket_number\": \"No. 78-875\", \"first_page\": \"699\", \"last_page\": \"701\", \"citations\": \"604 P.2d 699\", \"volume\": \"604\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T19:32:39.271715+00:00\", \"provenance\": \"CAP\", \"judges\": \"COYTE and KELLY, JJ., concur.\", \"parties\": \"Dale R. DENNETT and Mavise J. Dennett, Plaintiffs-Appellants, v. MT. HARVARD DEVELOPMENT CO., Defendant-Appellee.\", \"head_matter\": \"Dale R. DENNETT and Mavise J. Dennett, Plaintiffs-Appellants, v. MT. HARVARD DEVELOPMENT CO., Defendant-Appellee.\\nNo. 78-875.\\nColorado Court of Appeals, Division I.\\nDec. 13, 1979.\\nKenneth A. Baker, Salida, for plaintiffs-appellants.\\nFeldhamer, Plotz & Eskwith, P. C., Carl Feldhamer, Denver, for defendant-appellee.\", \"word_count\": \"1160\", \"char_count\": \"7011\", \"text\": \"SILVERSTEIN, Judge.\\nPlaintiffs, Dennett, sued to quiet title to a 6.9 acre parcel of land. The trial court denied Dennett's claim and granted defendant's request for reformation. Dennett appeals the trial court's determination that the preceding receipt and option contract did not merge into the deed. We affirm.\\nThe property at issue is part of a large parcel of land located east of U.S. Highway 24 and west of the D&RGW railroad right-of-way, north of Buena Vista, Colorado. In November 1971, H. D. Nettles contacted a real estate broker in Buena Vista concerning the purchase of the property. The broker contacted the owner, Dennett, who indicated a willingness to sell all of the property he owned east of the highway and west of the railroad right-of-way for $50,000. Nettles, who resided in Texas, flew to Bue-na Vista and walked the property with the broker and Dennett. At that time, none of them had a legal description of the property. Nettles testified that, during the inspection, the broker told him he would be purchasing \\\"all of the land that Mr. Den-nett owned east of the highway and up to the railroad tracks.\\\" No mention was ever made that Dennett would reserve any portion of the property.\\nOn November 29, 1971, Dennett entered into a receipt and option contract with Nettles which was subject to Dennett's obtaining good title to the property by January 1, 1972. The contract included the following additional provision:\\n\\\"Seller will furnish buyers with an accurate survey of said property boundary lines and that buyers will be able to accept or reject this contract this time, [sic] Buyers will also be furnished with current regulations pertaining to sewerage, water and roads before closing of sale, this also includes specifications for bridge . . . .\\\"\\nAfter the execution of the contract, Den-nett hired Wright Engineering to perform a survey of the property to be sold. The survey was prepared by the use of office calculations based upon previous deed descriptions of adjoining lands. Around December 20, 1971, Dennett gave Nettles' attorney the survey. After Nettles' attorney had inspected and approved the survey and prepared a deed based upon the property description in the survey, Dennett and the broker were flown in by John Burt to Long-view, Texas, to present the documents to Nettles and to help obtain the financing Nettles needed. Nettles approved the documents under the assumption that the legal description accurately described the property. At the trial, Burt testified that, upon leaving the meeting in Longview, \\\"Mr. Dennett made the statement that they had omitted a little piece of ground up there, and he didn't know how much it amounted to, but some of these days he would check it out, it might not be worth anything, but he could sure have a lot of fun with it.\\\"\\nThe property was subsequently conveyed by Dennett to Nettles. Nettles sold the property to third parties approximately nine months later and the third parties transferred the property to Mt. Harvard Development Co. The legal description prepared by Nettles' attorney from Wright's survey was used in all of the subsequent conveyances.\\nDuring 1972, Mt. Harvard built an access road across a portion of the property. Den-nett personally observed the construction and use of the access road through 1975. In 1975, Dennett ordered a new survey of the property and discovered that 6.9 acres, including the land across which the access road was built, were not included in the legal description of the property sold to Nettles. Dennett also had tax receipts showing that he had paid property taxes on the 6.9 acres between 1972 and 1975.\\nDennett subsequently commenced this action to quiet title. Mt. Harvard was the only defendant to answer the complaint. Mt. Harvard alleged a mistake in the survey which resulted in the omission of the property in issue from the deed to defendant's predecessors in title and sought reformation of the deed.\\nFollowing a trial to the court, the court ordered reformation of the recorded deeds to include the 6.9 acre parcel in dispute. In the findings of fact, the court stated that based upon the mistake, there was no .merger of the deed and the preceding contract.\\nDennett's contention oh appeal is that the preceding contract between Den-nett and Nettles merged into the deed and defendant is thereby precluded from claiming any land not described in the deed. While Dennett has correctly stated that merger occurs if the terms of the preceding contract for sale are fulfilled by the delivery of the deed, Westminster v. Skyline Vista Development Co., 163 Colo. 394, 431 P.2d 26 (1967); Glisan v. Smolenske, 153 Colo. 274, 387 P.2d 260 (1963), this principle is not determinative here.\\n\\\"The doctrines of 'merger' or 'estoppel by deed' have never prevented the reformation of a deed in which the words of description or of conveyance fail to describe correctly or to convey the land or interest that was agreed upon.\\\" 3 A. Corbin, Contracts \\u00a7 604 at 631 (1963). See Italian-American Building & Loan Ass'n v. Russo, 132 N.J.Eq. 319, 28 A.2d 196 (1942).\\nThere is sufficient evidence in the record to support the trial court's findings that it was the parties' intention to convey all of Dennett's land lying between the highway and the railroad right-of-way to Nettles and that the mistake of the surveyor caused the omission of the disputed property from the deed, and we are bound by these findings. Heatherridge Management Co. v. Benson, 192 Colo. 190, 558 P.2d 435 (1976).\\nIf the description in the deed does not express the true intent of the parties, reformation is a proper remedy. Segelke v. Kilmer, 145 Colo. 538, 360 P.2d 423 (1961). The error warranting reformation must constitute a mutual mistake of fact, Segelke v. Kilmer, supra, and scriveners' errors are a form of mutual mistake. Gullion v. Plymale, 168 Colo. 245, 450 P.2d 650 (1969); Alexander Dawson, Inc. v. Sage Creek Canyon Co., 37 Colo.App. 339, 546 P.2d 969 (1976).\\nThus, here, reformation of the deed was proper. \\\" 'Where an error of description has been copied in a series of deeds, under circumstances that would entitle each grantee to a reformation as against his vendor, the last grantee will be entitled to a reformation as against the original grant- or.' \\\" Heini v. Bank of Kremmling, 93 Colo. 350, 25 P.2d 1113 (1933). The foregoing rule is applicable where, as here, the rights of innocent parties have not intervened. Stubbs v. Standard Life Ass'n, 125 Colo. 278, 242 P.2d 819 (1952).\\nFor the reasons above stated, the judgment is affirmed. Tscbudy v. Amos C. Sudler & Co., 158 Colo. 421, 407 P.2d 877 (1965).\\nJudgment affirmed.\\nCOYTE and KELLY, JJ., concur.\"}"

colorado/11239311.json

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+"{\"id\": \"11239311\", \"name\": \"Marqueece FOSTER, a minor, by Dannie FOSTER, his grandmother and next friend; and Lexus C. Foster, a minor, by Brenda Craney, her mother and next friend, Plaintiffs-Appellants, v. Travis B. PHILLIPS, Defendant-Appellee\", \"name_abbreviation\": \"Foster ex rel. Foster v. Phillips\", \"decision_date\": \"1999-09-30\", \"docket_number\": \"No. 98CA0350\", \"first_page\": \"791\", \"last_page\": \"798\", \"citations\": \"6 P.3d 791\", \"volume\": \"6\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T23:20:31.009536+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judge KAPELKE concurs.\", \"parties\": \"Marqueece FOSTER, a minor, by Dannie FOSTER, his grandmother and next friend; and Lexus C. Foster, a minor, by Brenda Craney, her mother and next friend, Plaintiffs-Appellants, v. Travis B. PHILLIPS, Defendant-Appellee.\", \"head_matter\": \"Marqueece FOSTER, a minor, by Dannie FOSTER, his grandmother and next friend; and Lexus C. Foster, a minor, by Brenda Craney, her mother and next friend, Plaintiffs-Appellants, v. Travis B. PHILLIPS, Defendant-Appellee.\\nNo. 98CA0350.\\nColorado Court of Appeals, Div. IV.\\nSept. 30, 1999.\\nRehearing Denied Oct. 28, 1999.\\nCertiorari Granted and Judgment Vacated Aug. 21, 2000.\\nLaw Office of James L. Gillies, P.C., James L. Gillies, Conifer, Colorado; Clark & Stant, P.C., Stephen C. Swain, Virginia Beach, Virginia, for Plaintiffs-Appellants.\\nWalberg, Dagner & Tucker, P.C., Deana R. Dagner, Matthew A. Holmes, Wendelyn K. Walberg, Englewood, Colorado, for Defendant-Appellee.\\nPetition for Writ of Certiorari GRANTED as to reframed issue 2(b)-Whether the court of appeals erred in affirming the award of Defendant's unallocated bill of costs-and the judgment of the Colorado Court of Appeals on the award of the bill of costs is vacated. The case is remanded to the Colorado Court of Appeals for reconsideration in light of Haystack Ranch, LLC v. Fazzio, 997 P.2d 548 (Colo.2000).\", \"word_count\": \"3741\", \"char_count\": \"23301\", \"text\": \"Opinion by\\nJudge BRIGGS.\\nPlaintiffs, Marqueece Foster (son), a minor, by Dannie Foster, his grandmother and next friend, and Lexus C. Foster (daughter), a minor, by Brenda Craney, her mother and next friend, appeal the judgments entered upon jury verdicts on their claims against defendant, Travis B. Phillips, for the wrongful death of their father, Allen Foster, Jr. (decedent). We affirm.\\nDefendant negligently caused an automobile accident resulting in the decedent's death. Defendant was intoxicated at the time of the accident.\\nPlaintiffs sued defendant for economic and noneconomic damages resulting from the wrongful death. Before trial, defendant admitted that his \\\"negligence and negligence per se was the sole and proximate cause of the automobile accident.\\\" The case therefore proceeded to a jury trial to determine the amount of damages owed to plaintiffs.\\nThe jury awarded the son $24,581 in economic damages and $11,166 for noneconomic damages. It awarded the daughter $17,505 in economic damages, but nothing for non-economic damages.\\nPlaintiffs filed a motion for post-trial relief, which included an argument that the verdicts for noneconomic damages were inadequate. The trial court denied the motion, and this appeal followed.\\nI.\\nPlaintiffs first contend that the trial court erred when it refused to allow them to introduce evidence of defendant's excessive blood aleohol level. We find no reversible error.\\nBefore trial, defendant filed a motion in limine seeking to exclude evidence pertaining to the circumstances surrounding the automobile accident, including defendant's blood alcohol content. The trial court entered an order \\\"partially granting\\\" the motion. It ruled that any reference to defendant's blood aleohol content on the day of the accident or to toxicology expert opinions was prohibited.\\nSection 183-21-203(1), C.R.S.1999, describes the damages that a jury may award in a wrongful death action:\\n[Thhe jury may give such damages as they may deem fair and just, with reference to the necessary injury resulting from such death, including damages for noneconomic loss or injury as defined in section 18-21-102.5 and subject to the limitations of this section and including within noneconomic loss or injury damages for grief, loss of companionship, pain and suffering, and emotional stress, to the surviving parties who may be entitled to sue; and also having regard to the mitigating or aggravating cireumstances attending any such wrongful act, neglect, or default. .\\nUntil the statute was amended in 1989, damages recoverable for wrongful death were limited to the pecuniary loss suffered as a result of the death. Moffatt v. Tenney, 17 Colo. 189, 30 P. 348 (1892). The effect of the 1989 amendment was to permit additional recovery for noneconomic damages. See Colo. Sess. Laws 1989, ch. 180, \\u00a7 18-21-208 at 752. '\\nInitially, we reject plaintiffs' argument that the statute permits the jury to consider the aggravating circumstances surrounding defendant's \\\"act\\\" or \\\"neglect.\\\" The supreme court in Moffatt v. Tenney, supra, 17 Colo. at 198, 30 P. at 351 rejected the same contention:\\nSince mitigating cireumstances relating to the act itself do not justify an assessment 'of damages less than compensatory, it is not reasonable to suppose that the aggravating circumstances contemplated by the statute are such as would justify an assessment of damages more than compensatory.... [Wie are constrained to hold that the words 'mitigating or aggravating circumstances attending such wrongful act' . contemplate cireumstances not relating to the wrongful act itself, but such as affect the actual damages suffered by the surviving party entitled to sue, either by way of diminishing or enhancing the same.\\nSee also Mangus v. Miller, 35 Colo.App. 335, 535 P.2d 219 (1975).\\nContrary to plaintiffs' argument, the amendment to the statute in 1989 does not require a different interpretation. Noneco-nomic damages are still compensatory damages. As we read Moffatt, evidence of aggravating factors attendant to a defendant's wrongful conduct remains inadmissible, if not relevant to prove actual compensatory damages.\\nThis does not necessarily mean that evidence of wrongful conduct must always be excluded under the present version of \\u00a7 13-21-203(1). We may assume, without deciding, that in an appropriate case a survivor may now be entitled to present evidence showing that grief and emotional distress were aggravated by knowledge that a loved one was killed by a drunk driver. Neverthe less, plaintiffs at no time made any offer of proof, and nothing in the record indicates, that defendant's intoxication had sufficient meaning to the children, who were very young when their father died, to have in fact aggravated their grief and emotional stress.\\nFurthermore, contrary to plaintiffs' assertion, the trial court's order did not forbid plaintiffs' limited use of the evidence to show that the children suffered aggravated grief and emotional stress by knowledge that defendant had been intoxicated. The order only excluded evidence \\\"regarding the blood alcohol content of the defendant . and toxicology expert opinions.\\\" Plaintiffs do not suggest that such technical evidence would have had any meaning to either child, and plaintiffs made no attempt during trial to introduce evidence for the more limited purpose of showing that noneconomic damages were aggravated because defendant was intoxicated.\\nIn sum, the court's order did not prohibit plaintiffs from presenting evidence for the limited purpose of showing that noneconomic damages were aggravated as a result of the knowledge of either child that defendant was intoxicated; plaintiffs have not directed us to any portion of the record indicating any attempt to introduce evidence for such a limited purpose; and nothing in the record before us indicates that either child in fact suffered increased grief and emotional stress because defendant was intoxicated.\\nFor the first time in oral argument, plaintiffs' counsel argued that a separate order entered earlier by the trial court effectively prohibited any reference to defendant's intoxication, even for the limited purpose of showing aggravation of noneconomic damages. In that order, the trial court denied plaintiffs' motion to supplement the trial management order. Plaintiffs rely on the court's conclusion that \\\"(als damages under \\u00a7 13-21-202 are compensatory only, aggravating circumstances are not relevant.\\\"\\nHowever, the court's earlier ruling was in response to plaintiff's sole argument that the present version of \\u00a7 18-21-208(1) now permitted the jury to consider all aggravating cireumstances surrounding the defendant's wrongful conduct. As already discussed, the court properly rejected such a claim.\\nPlaintiffs' argument that evidence of defendant's intoxication should at least be admitted for the limited purpose of showing aggravation of plaintiffs' noneconomic damages was made only once, in a single sentence. It was in plaintiffs' response to defendant's first motion in limine. As noted, the trial court granted that motion in limine only to the extent of expressly prohibiting technical evidence concerning the level of defendant's blood aleohol level.\\nThe court's orders were each in response to specific motions and arguments. Any confusion as to their combined effect resulted, not from the orders themselves, but from the timing and manner in which plaintiffs raised the argument for limited use of the evidence, as well as from plaintiffs' failure to seek clarification of any confusion.\\nIn the circumstances presented here, we find no reversible error by the trial court and no basis for reversing the judgments entered on the jury's verdicts.\\nIL.\\nPlaintiffs next contend that the trial court erred when it refused to instruct the jury on negligence per se. We do not agree.\\nPlaintiffs tendered a jury instruction that would have informed the jury that defendant had admitted his negligence per se was the sole proximate cause of the decedent's injuries and that \\\"negligence per se\\\" meant defendant had \\\"violated a statute or ordinance, one of the purposes of which was to protect against the type of losses suffered by plaintiffs.\\\"\\nThe trial court refused plaintiffs' instruction. However, during the trial, the court read to the jury a stipulation which stated that defendant's \\\"negligence and negligence per se was the sole, proximate cause of the automobile accident....\\\" The court also instructed the jury that \\\"(tlhe defendant admits that his negligence was the cause of an automobile accident . and that the accident was the cause of the death of [decedent].\\\" Finally, the court instructed the jury that, when the attorneys on both sides agree as to the existence of a fact, or a fact has been admitted, the jury must regard that fact as proved.\\nNegligence per se serves to establish the existence of the defendant's breach of a legally cognizable duty owed to the plaintiff. Largo Corp. v. Crespin, 727 P.2d 1098 (Colo.1986).\\nHere, both defendant's duty and his breach of that duty were established by admission, and the instructions to the jury concerning that admission adequately explained that defendant was liable as a matter of law for the damages suffered by plaintiffs. Hence, we find no error in the instructions given, See Martin v. Minnard, 862 P.2d 1014 (Colo.App.1993)(when the instructions given cover all the points of a case, the refusal to give another instruction on negligence per se, even if it would have correctly stated the law, is not error); see also Graf v. Tracy, 194 Colo. 1, 568 P.2d 467 (1977)(be-cause jury found the defendant was negligent, failure to give instruction on res ipso loquitur did not prejudice the plaintiff).\\nIIL.\\nPlaintiffs next assert the trial court erred in refusing to grant their motion for post-trial relief because the jury's awards of noneconomic damages to son and daughter were both insufficient as a matter of law. We are not persuaded.\\nMere disagreement with the amount of damages awarded is not a sufficient ground to overturn an award of damages which is supported by competent evidence in the record. It is the sole province of the jury to fix fair and just damages. Only upon a showing of arbitrary or capricious jury action, or that the jury was swayed by passion or prejudice, should an appellate court overturn a jury verdict. Lee's Mobile Wash v. Campbell, 853 P.2d 1140 (Colo.1993); see also Martinez v. Shapland, 833 P.2d 837 (Colo.App.1992)(a jury's verdict will not be set aside on the basis of inadequacy unless, in view of the evidence, it can be said with certainty that the verdict is grossly and manifestly inadequate, or unless the amount of the verdict is so small as to demonstrate that the jury did not consider all the relevant evidence).\\nBased on the record before us, we cannot say that the jury's award to the son of $11,166 for noneconomic damages reflects that the jury neglected to consider the evidence or that it acted arbitrarily. From the evidence presented, the jury could have reasonably found that the contact between the decedent and his son had been limited and that, while the son may have been emotionally affected by the death of his father, the impact was neither severe nor protracted. We therefore find no basis for setting it aside.\\nThe jury's award to the daughter of zero dollars for noneconomic damages is more troublesome. On the one hand, absent a complete lack of contact, it is difficult to imagine that a child can suffer no grief, loss of companionship, pain and suffering, or emotional stress, with the loss of a parent.\\nOn the other hand, it was undisputed that the daughter was less than four years old at the time of the accident; her contact with the decedent had been even more limited than that of the son; and the decedent had failed to fulfill a promise to the daughter's mother to put aside money for the child's future needs. Further, the only testimony concerning the decedent's relationship with the daughter, as well as the impact of the loss on her, was provided by the mother. Defense counsel engaged in an extensive cross-examination of the mother to impeach that testimony.\\nIn the cireumstances presented here, the jury could reasonably have discounted the mother's testimony and found that the child's grief had been minimal. It could further have reasonably determined that, in terms of loss of companionship, the evidence was insufficient to sustain an inference that the decedent would have maintained meaningful contact with the daughter.\\nIn Lee's Mobile Wash v. Campbell, supra, the supreme court upheld an award of zero noneconomic damages to a motorist injured in a car accident, even though it was stipulated that the motorist had met the threshold in medical expenses and the jury had found both causation and injury. The court relied in partt on the principle that a reviewing court should reconcile a jury verdict with the evidence if at all possible. It concluded that the jury could reasonably have found that, while the motorist suffered injuries sufficient to have required medical attention, the injuries were \\\"de minimis.\\\"\\nWe must therefore uphold the jury's verdict unless we can conclude that the daughter's noneconomic damages were necessarily more than \\\"de minimis.\\\" Because we cannot do so in light of the record before us, we find no error in the trial court's denial of plaintiffs post-trial motion. See Lee's Mobile Wash v. Campbell, supra; cf. Patison v. Campbell, 337 S.W.2d 72 (Mo.1960)(upholding award of zero damages in wrongful death action as equivalent to award of nominal damages supported by the evidence); but cf. Martinez v. Shapland, supra.\\nIV.\\nPlaintiffs' final contention is that the trial court erred when it awarded defendant costs, pursuant to \\u00a7 13-17-2022, C.R.S.1991, without a sufficient basis in fact or law and without any findings of fact. In the cireum-stances presented here, we disagree.\\nIf a party contests the factual basis for an award of costs and timely requests a hearing, the trial court must hold a hearing. See In re Marriage of Aldrich, 945 P.2d 1370 (Colo.1997); Pedlow v. Stamp, 776 P.2d 382 (Colo.1989). However, a district court is under no obligation to conduct a hearing sua sponte, and a party who fails to make a timely request waives the right to a hearing on the factual basis for the award. See In re Marriage of Aldrich, supra; Schmidt Construction Co. v. Becker-Johnson Corp., 817 P.2d 625 (Colo.App.1991).\\nLikewise, the trial court must make sufficient findings so that, when considered together with the record, this court can determine the basis for an award of costs. Van Steenhouse v. Jacor Broadcasting of Colorado, Inc., 935 P.2d 49 (Colo.App.1996); rev'd on other grounds, 958 P.2d 464 (1998). However, while it is the better practice to make express findings, they may be implicit in a court's ruling. See In re Life Insurance Trust Agreement of Seeman, 841 P.2d 403 (Colo.App.1992). When the ruling, in the context of the record, is sufficient to determine its basis, and the record is sufficient to support the award, a failure to make express findings does not require reversal. See City & County of Denver v. Ameritrust Co. National Association, 832 P.2d 1054 (Colo.App.1992); In re Marriage of Bernardoni, 731 P.2d 146 (Colo.App.1986).\\nHere, a review of the record indicates that the court was provided detailed motions and supporting documentation regarding costs. Plaintiffs did not request a hearing to challenge defendant's factual assertions or to present additional evidence.\\nImplicit in the trial court's order is the determination that all costs submitted by defendant were necessary and reasonable. Thus, we are not presented with any unexplained reduction in any cost. In these circumstances, and in light of the detailed nature of the submissions tendered to the court, as well as plaintiffs' failure to request a hearing, we find no reversible error in the court's award of costs.\\nWe recognize that defendant's settlement offers, which provided the basis for the award of costs under \\u00a7 18-17-202, were made at different times to the two plaintiffs. As a result, some costs could be awarded against one plaintiff but not the other. Despite that, the trial court allocated the costs equally between plaintiffs. However, because this specific issue has not been raised on appeal, we do not address it.\\nWe reject plaintiffs' separate complaint that the award of expert witness fees was unfair because the witness, an accident reconstruction expert, testified in defendant's criminal trial, but not the civil trial. While the witness did not testify in the civil trial, the court was authorized in awarding fees to consider the time spent in preparing for the civil trial, together with expenses for travel, food, and lodging. See American Water Development, Inc. v. City of Alamosa, 874 P.2d 352 (Colo.1994); see also Cherry Creek School District # 5 v. Voelker, 859 P.2d 805 (Colo.1993).\\nFurthermore, in addition to not requesting a hearing, plaintiffs presented no evidence to the trial court indicating that the expert's time was related solely to the criminal case. On appeal, plaintiffs have directed us to no authority supporting the proposition that, when services performed by an expert are beneficial to related criminal and civil cases, the court must nevertheless apportion an award of costs for the expert's fees in the civil case. See C.AR. 28: Mauldin v. Lowery, 127 Colo. 234, 255 P.2d 976 (1953); In re Marriage of Miller, 888 P.2d 317 (Colo.App.1994), rev'd on other grounds 915 P.2d 1314 (Colo.1996)(appellate court will not consider legal proposition that is presented without supporting argument or authority).\\nWe therefore find no reversible error in the trial court's award of costs.\\nJudgments affirmed.\\nJudge KAPELKE concurs.\\nJudge RULAND coneurs in part and dissents in part.\"}"

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+"{\"id\": \"11475759\", \"name\": \"In the Matter of the ESTATE OF Mary Beverly ELLIOTT; a/k/a Beverly Elliott, a/k/a Mary Elliott, Deceased\", \"name_abbreviation\": \"In re the Estate of Elliott\", \"decision_date\": \"2000-02-14\", \"docket_number\": \"No. 99SA306\", \"first_page\": \"474\", \"last_page\": \"482\", \"citations\": \"993 P.2d 474\", \"volume\": \"993\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-11T01:01:09.722967+00:00\", \"provenance\": \"CAP\", \"judges\": \"Justice SCOTT does not participate.\", \"parties\": \"In the Matter of the ESTATE OF Mary Beverly ELLIOTT; a/k/a Beverly Elliott, a/k/a Mary Elliott, Deceased.\", \"head_matter\": \"In the Matter of the ESTATE OF Mary Beverly ELLIOTT; a/k/a Beverly Elliott, a/k/a Mary Elliott, Deceased.\\nNo. 99SA306.\\nSupreme Court of Colorado, En Banc.\\nFeb. 14, 2000.\\nRen\\u00e9e V. Cooper, Denver, Colorado Attorney, for Petitioner, Darlene Lee Robinson.\\nHanna M. Warren, Englewood, Colorado, Attorney for successor, Personal Representative, Phillip Gene Elliott.\", \"word_count\": \"5581\", \"char_count\": \"33071\", \"text\": \"Justice RICE\\ndelivered the Opinion of the Court.\\nWe issued a rule to show cause pursuant to C.A.R. 21 in this case to determine whether the probate court abused its discretion when it held Petitioner Darlene Lee Robinson in contempt and ordered her incarcerated indefinitely. We now hold that the probate court abused its discretion when it ordered Petitioner to be incarcerated indefinitely in a remedial contempt proceeding without complying with Colorado Rule of Civil Procedure 107. We direct the probate court judge to disqualify herself to allow for the substitution of another judge to adjudicate contempt proceedings in accordance with this opinion.\\nI. Facts and Procedural History\\nOn August 23, 1997, Mary Beverly Elliott (decedent) died leaving two surviving adult children, Phillip Gene Elliott (Elliott) and Darlene Lee Robinson (Robinson). On February 9, 1998, the Denver Probate Court issued an Order of Intestacy, Determination of Heirs, and Formal Appointment of Personal Representative. The probate court found that the decedent died intestate and left two heirs, Elliott and Robinson, who each would receive fifty percent of the decedent's estate. The court appointed Robinson as Personal Representative. The estate consisted of personal property, including some furniture, two automobiles, dishes, and jewelry; a bank account containing several thousand dollars; and the decedent's house, located in Denver, Colorado.\\nAccording to Elliott, he and Robinson disagreed about the action to be taken regarding the decedent's home, where Elliott had resided prior to the death of the decedent. On July 31, 1998, Robinson sold the house for $134,900. After paying closing costs, attorney fees, a real estate fee, and a debt owed to Sears, Robinson received a check at the closing for $102,409.62. Robinson deposited the check in her personal bank account.\\nOn August 14, 1998, Elliott filed a Petition for Supervised Administration. On December 15, 1998, Elliott filed a Motion for Removal of Personal Representative.\\nThe probate court scheduled a hearing for February 8, 1999, but Robinson did not appear. At the hearing, the court appointed Elliott as successor personal representative. In addition, the probate court issued orders for Robinson to turn over to Elliott all property and assets belonging to the estate of the decedent and to file an accounting of all of the estate assets.\\nOn February 23, 1999, Elliott filed a verified motion for citation of contempt of court, pursuant to C.R.C.P. 107, requesting that the court issue an order to show cause why remedial and punitive sanctions for contempt should not be imposed against Robinson for failure to comply with the court's February 8 order.\\nOn February 26, 1999, the court issued a citation for contempt of court pursuant to C.R.C.P. 107, directing Robinson to appear on April 14, 1999, and show cause why she should not be punished for failing to comply with the court's February 8 order. The citation was personally served upon Robinson.\\nOn April 14,1999, Robinson again failed to appear for a hearing before the court. On May 14,1999, the probate court ordered that a bench warrant be issued for the arrest of Robinson due to her failure to appear. On May 17, 1999, Robinson was arrested and placed in Denver county jail.\\nOn May 25, 1999, Robinson, still in custody, was brought before the probate court for a hearing on the contempt citation. Robinson was not represented by counsel nor was counsel appointed for her. Elliott was present with an attorney, Hanna Warren. The court began the hearing by stating:\\nMrs. Robinson, you are here today because the estate of [the decedent] has not been administered properly. And it's my belief that you may have stolen property from that estate, and we are going to recover the property_ Ms. Warren is going to take some testimony from you to see if we can locate the estate of [the decedent].\\\"\\nWarren attempted to begin questioning Robinson by handing her some documents relating to the estate. Robinson stated that she did not understand what Warren was handing her, and that her brother, Elliott, had \\\"taken things.\\\" The court responded, \\\"You are in an awful lot of trouble with me. And you are going to be in an awful lot of trouble with the District Attorney's office if we don't get this matter straightened up.\\\" Robinson indicated that she would cooperate.\\nWarren proceeded to ask Robinson a number of questions regarding the location of the money from the sale of the decedent's house. Robinson answered the questions asked of her, but frequently she responded that she did not know the answer or could not remember. When the court asked Robinson about a check for $72,000 made out to herself and her daughter, she replied, \\\"I am not answering on that because it won't make sense the way you are saying it. I will get upset and nothing will be solved because my brother's [sic] stole a whole bunch of things.... Take me and lock me up because I don't want to go through this.\\\" The court replied, \\\"That's what you want to do with the rest of your life is spend it in jail?\\\" Robinson responded, referring to the $72,000, \\\"It's gone. You do what you have to do. I cannot help it.\\\" The court responded, \\\"Mrs. Robinson, it isn't my desire to see you spend the rest of your life in jail.\\\" When asked about the remainder of the assets, Robinson stated, \\\"I kept it. Then I kept all of it - all of it. And it's gone. So you do what you have to do, Judge, because I can't help it.\\\"\\nThe court ascertained from Robinson's testimony that she spent $25,000 on a condominium and gave most of the remaining money to her two adult children and other people. Robinson stated that she had no bank accounts, certificates of deposit, savings accounts, stocks or bonds, cash, annuities, or other income. The court then stated to Robinson, \\\"You understand that $102,000 belongs to the estate and needs to be restored to the estate,\\\" to which she replied, \\\"Well, how \\u2014 I don't know how to get it.\\\"\\nThe judge informed Robinson that she was going to remand her to the custody of the Sheriff until she delivered the $102,000.00. The following dialogue took place:\\nRobinson: That will be never. So you might as well say forever because you can't - you are a judge. You have power. You are not God, and you can't make something appear that I don't have, so.\\nCourt: Well, perhaps you ought to talk to some of the people you gave the money to.\\nRobinson: I'm not. It's gone. It's gone.\\nCourt: Well, Mrs. Robinson, at the moment you have possession of a hundred and two thousand dollars -\\nRobinson: I don't either.\\nCourt: \\u2014 that belongs - listen to me.\\nRobinson: It's gone.\\nCourt: Shut up.\\nRobinson: It's gone.\\nCourt: I have told you to be quiet. Now shut up. I have been working on this estate for two years. And at the moment, a hundred and two thousand dollars is missing. We are going to get this money back in this estate. I don't care whether you have to call everybody that you gave money to. I suggest you take up a collection; because until you free yourself from the contempt, you are going to spend every night in jail until I get that money back. Do you understand me?\\nRobinson: Well, I will stay in jail then.\\nCourt: All right. Fine. That's your decision, Mrs. Robinson.\\nRobinson: Okay. They had hostages in Kuwait. They might as well have one here. You can't make me have something I don't have. It's gone.\\nThe judge then adjourned court and had Robinson taken into custody by the Sheriff and imprisoned.\\nFollowing the contempt hearing, the probate judge prepared a letter to the office of the district attorney, recommending criminal prosecution of Robinson.\\nOn June 4, 1999, Robinson, through recently retained counsel, filed a request for her immediate release, asserting that she had complied with the February 8 order which directed her to provide an accounting and turn over the assets of the estate to Elliott.\\nOn June 29, 1999, the court held a hearing to rule on Robinson's request for release. At the hearing, Robinson's counsel stated that she had filed an accounting of personal property and money received from the sale of the house. Counsel argued that Robinson was in compliance or was attempting to comply with the February 8 order, stating that Robinson was not in possession of the $102,000. The probate court queried counsel regarding whether the condominium was being sold, and counsel responded that the condominium was not on the market at that time because title had been transferred to Robinson's daughter subsequent to Robinson's arrest and incarceration on May 17, and that Robinson could not have visitors in order to arrange the sale of the condominium. In response to the court's question about what had been done to \\\"generate the $102,000\\\" owed to the estate, counsel stated that \\\"there is an accounting. And she is willing to sell the property to pay.\\\" Counsel continued, \\\"Ms. Robinson is not in possession of that money at this time, almost a year and a half later. We did . file an accounting to show the Court where the money went and in the motion stated that she would be willing to sell the house. [Robinson] doesn't believe at any time she's ever said that sh\\u00e9 had a hundred and two thousand in her possession. . And if [her family] had the money, they'd be more than willing to turn it over to the Court to secure her release.\\\" When the court stated in response that \\\"it was presented here in the Court that at the time of the closing on the house, a hundred and two thousand dollars was delivered to the estate,\\\" counsel responded, \\\"That's correct, [but][r]ightly or wrongly, [Robinson] does not have the money at this time and is willing to sell the condo. The accounting for the money, it specifically says where large sums of the money went, as well as some of the property that was listed.\\\" The court replied:\\nI have advised her before that if I had stolen a hundred and two thousand dollars and had given some of it to friends or family members or spent it on cars or clothes or houses, I would make some effort to demonstrate to the Court that I was trying to get some of that money back by holding some sales.\\nCounsel responded that there was not much that could be done while Robinson was being incarcerated; that Robinson had attempted to make an accounting, including a filing of bank statements from August 1998 through March 1999 and a listing of assets of personal property; and that she was trying to raise the $102,000 in order to secure her release from jail. Counsel stated that Robinson did not have the ability to comply with the court order, but that she was attempting to do so by arranging to sell the condominium and by making an accounting.\\nThe probate court then questioned whether money had been sought from Robinson's son and daughter, referring to a possible garnishment of their wages and stating that Robinson's daughter may be an accomplice to a crime. The court questioned counsel regarding how much she was being paid, and counsel responded that she was not being paid because Robinson had no funds. The court then stated: \\\"I have to tell you, . I don't find [Robinson's] testimony credible. I think she could easily get her hands on this money and that she has not. She has chosen not to do it out of spite toward her brother, and that is the basis of the Court order of contempt.\\\" The court then suggested ways in which Robinson could remedy the situation, such as reselling automobiles and clothes, and seeking wage garnishment orders against her son and daughter.\\nOn June 30, 1999, the probate court entered an order denying Robinson's request for relief, finding that \\\"Robinson and her children, particularly her daughter, have the capacity to restore to the estate account substantially all of the funds that were improperly taken by Darlene Robinson.\\\" She ordered that Robinson remain in the custody of the Sheriff and directed that she have no visitors except her attorney, no telephone use except to communicate with her attorney, and no television.\\nOn August 30, 1999, Robinson filed a Petition for Relief in the Nature of a Writ of Prohibition pursuant to C.A.R. 21 and a Request to Stay Execution and for the Immediate Release of Robinson pending resolution of the petition. Robinson alleged that the probate court abused its discretion when it imprisoned her. Robinson argued that she was not advised of her rights, was not appointed counsel, and no sworn testimony was taken on the matter. In addition, Robinson asserted that the probate court erred when it imprisoned her on contempt grounds because she had no present ability to comply with the court's order to purge herself of the assets from the estate, citing to People v. Lockhart, 699 P.2d 1332, 1336-37 (Colo.1985).\\nOn August 31, 1999, this court issued an order and rule to show cause pursuant to C.A.R. 21, granting Robinson's request to stay execution and request for her immediate release and directing the probate court and Phillip G. Elliott to answer in writing why the relief requested should not be granted.\\nOn September 9, 1999, the probate court answered the order and rule to show cause, stating that it held Robinson in contempt and ordered her imprisoned pursuant to section 15-12-723, 5 C.R.S. (1999). Elliott also filed a response to the order and rule to show cause, stating that Robinson could comply with the contempt order by recovering from her children the money she gave to them and by selling her condominium.\\nII. Order of Contempt\\nContempt proceedings are conducted under C.R.C.P. 107. Rule 107 distinguishes between two types of contempt, direct and indirect, and two types of sanctions, punitive and remedial. In the present case, the contempt proceedings were initiated pursuant to C.R.C.P. 107, based on alleged behavior by Robinson that occurred outside of the presence of the court; accordingly, such proceedings are guided by indirect contempt procedures. See C.R.C.P. 107(a)(3).\\nA finding of contempt is within the discretion of the trial court and will not be reversed absent an abuse of discretion. See Tipton v. City of Lakewood, 198 Colo. 18, 21, 595 P.2d 689, 691 (1979); In re Marriage of Roberts, 757 P.2d 1108, 1110 (Colo.App.1988). However, a judge's power of contempt must be used with caution and self-restraint to protect the rights of litigants and the administration of justice, not to protect his or her own dignity. See Thrap v. People, 192 Colo. 341, 343-44, 558 P.2d 576, 577-78 (1977).\\nThe probate court imposed remedial sanctions in an effort to compel Robinson to comply with the court's order that she purge herself of the assets belonging to the Elliott estate. The imposition of remedial sanctions is regulated by C.R.C.P. 107(d)(2), which reads:\\nIn a contempt proceeding where remedial sanctions may be imposed, the court shall hear and consider the evidence for and against the person charged and it may find the person in contempt and order sanctions. The court shall enter an order in wilting or on the record describing the means by which the person may purge the contempt and the sanctions that will be in effect until the contempt is purged. In all eases of indirect contempt where remedial sanctions are sought, the nature of the sanctions and remedies that may be imposed shall be described in the motion or citation.... If the contempt consists of the failure to perform an act in the power of the person to perform and the court finds the person Jias the present ability to perform the act so ordered, the person may be fined or imprisoned until its performance.\\nId. (emphasis added).\\nCase law has emphasized the requirement that when remedial sanctions are imposed, the court must make findings of fact regarding the actions constituting the contempt and the present duty and ability to perform the acts required to purge oneself of contempt. See In re Interest of Murley, 124 Colo. 581, 583, 239 P.2d 706, 708 (1951) (where parent unable to make support payment, no contempt occurred); In re Marriage of Zebedee, 778 P.2d 694, 697 (Colo.App.1988) (holding that \\\"[b]efore a contempt order can enter under C.R.C.P. 107(c), the court must find that the contemnor had the ability to comply with its order\\\"); In re Marriage of Crowley, 663 P.2d 267, 268 (Colo.App.1983) (holding that contempt proceeding must be dismissed where there is no refusal to perform ordered act because there is no present ability to do so). The burden of proving a present inability to perform rests with the contemnor. See In re Marriage of Lamutt, 881 P.2d 445, 447 (Colo.App.1994) (holding that husband has burden of proving inability to pay child support once wife proves husband's failure to make payments).\\nA. No Evidence of Present Ability to Pay\\nRobinson contends that the probate court abused its discretion when it found her in contempt because: (1) she complied with the court order inasmuch as it was in her power to do so; and (2) it was not within her ability to comply any further with the order, namely, to return the missing $102,000 to the personal administrator, because she did not have the money.\\nWe review whether the trial court's findings concerning Robinson's ability to return the assets of the estate to Elliott, and thus purge herself of contempt, were clearly erroneous. Colorado Rule of Civil Procedure 52 provides in relevant part: \\\"In all actions tried upon the facts without a jury . [findings of fact shall not be set aside unless clearly erroneous_\\\" C.R.C.P. 52.\\nThe May 26 probate court order finding Robinson in contempt stated, \\\"The Court FINDS that Darlene Robinson has the ability to comply with the Court's Order by recovery of the assets and restoration of the estate as ordered by the Court.\\\" There is no evidence in the record, however, to support this finding. Particularly, statements made by Robinson and the probate court during the two hearings clearly indicate that Robinson had no present ability to comply with the contempt order.\\nEven though her testimony at the May 25 hearing was at times unfocused and emotional, Robinson repeatedly told the court that she was not in possession of the estate money. In addition, her answers to the questions asked by Elliott's attorney sufficiently explained how she disposed of the money from the estate. Robinson declared a number of times that she had virtually no assets left from the estate, other than the condominium that she purchased for herself and a storage locker of personal property from the decedent's house. The court appeared to accept this testimony as true, because the court itself made several remarks that indicated it believed Robinson both had spent the money from the estate and had given the remainder away to her children and friends. The court, for instance, stated, \\\"perhaps you ought to talk to some of the people you gave the money to,\\\" and \\\"I don't care whether you have to call everybody that you gave money to. I suggest you take up a collection; because until you free yourself from the contempt, you are going to spend every night in jail until I get that money back.\\\" Despite the court's acknowledgment that Robinson was no longer in possession of the money belonging to the Elliott estate, the court ordered her jailed until she restored the missing $102,000.\\nOn June 18,1999, Robinson's attorney filed an accounting, detailing how Robinson expended the estate assets, and a request for a hearing regarding her compliance with the February 8 order. Robinson stated in the accounting that she does not have any large sums of money at her disposal and that she supports herself through social security disability payments.\\nIn response to Robinson's request for release and filing of an accounting, a second hearing was held on June 29, 1999. Robinson's counsel stated that Robinson had taken substantial steps toward purging herself of contempt by filing an accounting of the personal property in her possession and the money received from the sale of the decedent's house. She also noted that Robinson was willing to sell her condominium, but that she had been unable to do so because the property was in her daughter's name. The court again acknowledged through its comments that it did not believe that Robinson was in possession of the estate money. The court said, \\\"I have advised [Robinson] before that if I had stolen a hundred and two thousand dollars and had given some of it to friends or family members or spent it on cars or clothes or houses, I would make some effort to demonstrate to the Court that I was trying to get some of that money back by holding some sales.\\\" These statements by the probate court acknowledging that Robinson had spent or given away the majority of the estate, in addition to Robinson's own testimony that she did not have the funds, lead us to conclude that the probate court was aware that Robinson was not in possession of the estate funds and therefore did not have the present ability to return the missing assets. Thus, based on our review of the record, we conclude that the probate court's findings that Robinson had a present ability to turn over the assets of the Elliott estate are clearly erroneous and we reject them. See C.R.C.P. 52; Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d 1095, 1104 (Colo.1998); Arapahoe County Bd. of Equalization v. Podoll, 935 P.2d 14, 18 (Colo.1997) (\\\"Ordinarily, we will defer to the district court's findings of fact unless they are clearly erroneous and not supported by the record.\\\").\\nB. Ability to Purge Must Lie With Contemnor\\nBoth the probate court and Elliott focus a great deal on the fact that Robinson could request money from her children or seek judgments garnishing their wages. For example, the court stated in its June 30 order denying Robinson's request for release, \\\"The Court FINDS that Darlene Robinson and her children, particularly her daughter, have the capacity to restore to the estate account substantially all of the funds_\\\" (Emphasis added.) While this may be true, it does not establish in any way that Robinson had a present ability to turn over the estate assets. A past or future ability to comply are not sufficient grounds for a remedial contempt order. See McVay v. Johnson, 727 P.2d 416, 418 (Colo.App.1986) (holding that the trial court erred in issuing a remedial contempt order after finding husband had past but no present ability to pay); People v. Razatos, 699 P.2d 970, 976 (Colo.1985) (holding that the record did not support remedial contempt order because it did not establish defendant had the ability to pay the ordered restitution at the time of the hearing).\\nC. Section 15-12-723 Is Inapplicable\\nAlthough the contempt order was issued pursuant to C.R.C.P. 107, the probate court alleged in its answer to the order and rule to show cause that it held Robinson in contempt pursuant to section 15-12-723. Section 15-12-723 states that upon a written complaint that assets have been concealed or embezzled from an estate the probate court may\\ncite such suspected person to appear before it and may examine him on oath upon the matter of such complaint. If the person cited refuses to appear and submit to such examination or to answer such interrogatories as may be put to him touching the matter of such complaint, the court may, by warrant for the purpose, commit him to the county jail until he complies with the order of the court.\\nId. This statute authorizes a court to jail an individual for failing to appear before the court or failing to answer interrogatories regarding a complaint. However, the court did not issue the order to show cause pursuant to section 15-12-723; rather, by its own order, the probate court clearly stated that the purpose of the contempt order was to compel Robinson to turn over the assets of the Elliott estate, a remedy governed by Colorado Rule of Civil Procedure 107, not by section 15-12-723. In fact, section 15-12-723 does not provide for remedial sanctions of the type ordered by the probate court. Accordingly, the contempt order and remedial sanctions imposed by the probate court must comply with C.R.C.P. 107.\\nThus, we hold that the probate court abused its discretion when it found that Robinson had the present ability to turn over the assets of the Elliott estate and ordered remedial sanctions pursuant to C.R.C.P. 107.\\nIII. Substitution of Probate Court Judge\\nIt is incumbent upon the courts to \\\"meticulously avoid any appearance of partiality, not merely to secure the confidence of the litigants immediately involved, but 'to retain public respect and secure willing and ready obedience to their judgments.' \\\" People v. District Court, 192 Colo. 503, 507-08, 560 P.2d 828, 831-32 (1977) (quoting Nordloh v. Packard, 45 Colo. 515, 521, 101 P. 787, 790 (1909)). If an appearance of partiality exists, it is incumbent upon a judge to disqualify herself from the proceedings. See generally C.R.C.P. 97; C.J.C. Canon 3. When a judge becomes \\\"embroiled in a running controversy\\\" with an individual being held in contempt, it becomes necessary for that judge to recuse herself and permit another judge to adjudicate the issue of contempt. Taylor v. Hayes, 418 U.S. 488, 501-02, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974). Whether a judge evidences a lack of impartiality is a question of law; accordingly, our review is de novo. Cf. Wilkerson v. District Court, 925 P.2d 1373, 1376 (Colo.1996) (stating that trial judge's decision regarding legal sufficiency of motion for recusal is a question of law, subject to de novo review); see In re Marriage of Murray, 128 Wis.2d 458, 383 N.W.2d 904, 907 (App.1986).\\nHere, we look at the transcripts of the two hearings held before the probate court to conclude that the probate judge adjudicating the contempt proceeding against Robinson prejudged Robinson's guilt and allowed \\\"marked personal feelings\\\" toward Robinson to affect her judgment in the proceedings. Taylor, 418 U.S. at 503, 94 S.Ct. 2697; see also SEC v. Simpson, 885 F.2d 390 (7th Cir.1989) (holding disqualification warranted where a party's allegedly unruly conduct provoked the judge to become personally embroiled). At the beginning of the May 25 hearing, the judge stated to Robinson, \\\"[I]t's my belief that you may have stolen property from that estate, and we are going to recover that property.\\\" Then, a short time into in the hearing, the judge told Robinson, lcYou are in an awful lot of trouble with me. And you are going to be in an awful lot of trouble with the District Attorney's office if we don't get this matter straightened up.\\\" These statements, voiced by the probate judge early in the contempt hearing, indicate that she prejudged Robinson's guilt before considering evidence presented by both sides. See Murray, 383 N.W.2d at 907.\\nThe transcript of the May 25 healing also indicates that, in addition to having prejudged the ease, the probate judge became personally involved in the dispute, telling Robinson twice to \\\"shut up\\\" and stating:\\nI have been working on this estate for two years . [and][w]e are going to get this money back.... I don't care whether you have to call everybody that you gave money to.... [UJntil you free yourself from contempt, you are going to spend every night in jail until I get that money back.\\nThe record of the June 29 hearing also indicates that the probate judge had become personally embroiled in the controversy. For example, the probate judge stated to Robinson's new attorney that \\\"I have advised [Robinson] before that if I had stolen a hundred and two thousand dollars and had given it to friends or family or spent it . I would make some effort to demonstrate . that I was trying to get some of that money back,\\\" and \\\"I think she could easily get her hands on this money and that she has not. She has chosen not to do it out of spite toward her brother, and that is the basis of the Court order of contempt.\\\"\\nSubstitution is proper in this case not only on the grounds that the probate judge appeared personally involved in the controversy and had prejudged the case, but also because the judge referred the case to the district attorney for potential criminal prosecution. As a result of this action, the judge may become a witness in any criminal prosecution undertaken by the district attorney, raising concerns over a potential conflict of interest.\\nBecause the record in this case has raised an appearance of possible bias and prejudgment on the part of the probate judge, we hold that another judge be substituted to conduct contempt proceedings on remand.\\nIV. Conclusion\\nIt is the duty of a trial court to enforce its own orders; however, in doing so, a trial court must follow procedures established by statute and rule. The failure to do so is an abuse of discretion. Accordingly, we hold that the probate court abused its discretion when it ordered Petitioner to be incarcerated indefinitely in a remedial contempt proceeding without complying with C.R.C.P. 107. In particular, we find that the probate court's finding that Robinson possessed the present ability to purge herself of contempt to be clearly erroneous and not supported by the record. We direct the probate court judge to disqualify herself to allow for the substitution of another judge to adjudicate contempt proceedings in accordance with this opinion.\\nJustice SCOTT does not participate.\\n. Although the probate court did not explicitly state that it was applying remedial sanctions, rather than punitive sanctions, we conclude that the sanctions were remedial because \\\"[a] contempt order in which punishment is conditioned upon future performance of a duty is remedial in nature.\\\" In re Marriage of Zebedee, 778 P.2d 694, 698 (Colo.App.1988). In order for a court to impose punitive sanctions, the court must advise the contemnor of certain rights, such as a right to counsel and a right to have the contempt proceeding heard by another judge. In addition, the court must malee express findings that the contemnor's conduct was offensive to the authority and dignity of the court and must order imprisonment for a definite period. See Lobb v. Hodges, 641 P.2d 310 (Colo.App.1982). The probate court did not follow these requisite measures for punitive contempt sanctions \\u2014 it did not appoint counsel to Robinson, inform her of her right to have the proceeding heard by another judge, make express findings that Robinson's conduct was offensive to the court, or order incarceration for a definite period of time.\\n. In a remedial contempt action, an individual's purported bad faith or self-induced inability to pay does not alter the factual determination that the individual does not maintain a present ability to pay. See Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 782 n. 7 (9th Cir.1983) (Under the federal equivalent of Colorado's remedial contempt, it is clear that inability to pay is a complete defense to the charge even if the inability is self-induced.). This is because absent a finding that the individual has the present ability to perform, the basis for the contempt order \\u2014 the court's lawful attempt to compel an action \\u2014 is without foundation. Cf. United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983) (\\\"Where compliance is impossible, neither the moving party nor the court has any reason to proceed with the civil contempt action.\\\").\\n. We note that Robinson did not have the benefit of an attorney at this hearing to aid her in ensuring that all questions were fully and adequately answered. Despite her lack of counsel, however, Robinson did sufficiently explain the disposition of the estate assets.\\n. The record indicates that Robinson turned over control of the storage locker, which contained the personal property of the decedent's estate, to Elliott in April 1999.\\n.Robinson's ability to purge herself of contempt was made even more difficult by the fact that she was not allowed visitors prior to the June 29 hearing due to her confinement in the medical ward for various medical problems. After the June 29 hearing, the probate court forbade by order any visits or telephone calls from anyone other than her attorney.\\n. Issues regarding judgments against Robinson or her family members and wage garnishment orders are not the within the purview of the contempt hearing; rather, they are issues more appropriately addressed in a separate civil or criminal action against Robinson.\\n. See Murray, 383 N.W.2d at 907 (ordering substitution of judge where trial judge stated at the outset of a contempt hearing that the defendant was \\\"going to be in a state of confinement in about 10 minutes\\\" and made other remarks evi-(fencing a predisposition to find the defendant in contempt).\"}"

colorado/11705795.json

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+"{\"id\": \"11705795\", \"name\": \"Diane SINGLETON, Petitioner, v. KENYA CORPORATION, the Colorado Compensation Insurance Authority, and the Industrial Claim Appeals Office of the State of Colorado, Respondents\", \"name_abbreviation\": \"Singleton v. Kenya Corp.\", \"decision_date\": \"1998-05-14\", \"docket_number\": \"No. 97CA1291\", \"first_page\": \"571\", \"last_page\": \"575\", \"citations\": \"961 P.2d 571\", \"volume\": \"961\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T22:07:33.819830+00:00\", \"provenance\": \"CAP\", \"judges\": \"TAUBMAN and TURSP, JJ., concur.\", \"parties\": \"Diane SINGLETON, Petitioner, v. KENYA CORPORATION, the Colorado Compensation Insurance Authority, and the Industrial Claim Appeals Office of the State of Colorado, Respondents.\", \"head_matter\": \"Diane SINGLETON, Petitioner, v. KENYA CORPORATION, the Colorado Compensation Insurance Authority, and the Industrial Claim Appeals Office of the State of Colorado, Respondents.\\nNo. 97CA1291.\\nColorado Court of Appeals, Div. A.\\nMay 14, 1998.\\nRehearing Denied June 25, 1998.\\nWilliam E. Myrick & Associates, William E. Myrick, David Hollar, Denver, Colorado, for Petitioner.\\nCurt Kriksciun, Colorado Compensation Insurance Authority, Denver, Colorado, for Respondents Kenya Corporation and the Colorado Compensation Insurance Authority.\\nNo Appearance for Respondent the Industrial Claim Appeals Office.\", \"word_count\": \"1943\", \"char_count\": \"12318\", \"text\": \"Opinion by\\nJudge PIERCE\\nIn this workers' compensation proceeding, Diane Singleton (claimant), the widow of de cedent, John Singleton, se\\u00e9ks review of the final order of the Industrial Claim Appeals Office (Panel) denying her claim for death benefits. We set aside the order and remand for additional proceedings.\\nDecedent sustained an admitted industrial injury on August 6, 1994, when he received extensive burns to his body and other injuries to his upper extremities. He died from unrelated causes prior to reaching maximum medical improvement (MMI) for his compen-sable injuries.\\nAt a hearing on claimant's request for death benefits, she produced evidence that, if decedent had survived, he would have sustained a permanent and total disability with a whole-person impairment rating of 36%. The Administrative Law Judge (ALJ) denied the claim for death benefits on the basis that there had been no determination prior to decedent's death that he was entitled to permanent disability benefits.\\nOn review, the Panel disagreed that an adjudication or determination of permanent disability was a prerequisite to an award of death benefits. However, the Panel affirmed the ALJ's denial of benefits, holding that decedent must h\\u00e1ve reached MMI prior to his death.\\nIn this appeal, claimant contends that the Panel erred in finding that she was not entitled to receive death benefits because decedent died before reaching MMI. We agree.\\nSection 8-42-116(1), C.R.S.1997, governs the payment of benefits when an injured worker dies of causes unrelated to an industrial injury. It provides:\\nIf death occurs to an injured employee, other than as a proximate result of any injury, before disability indemnity ceases and the deceased leaves persons wholly dependent upon the deceased for support, death benefits shall be as follows:\\n(a) Where the injury proximately caused permanent total disability, the death benefit shall consist of the unpaid and unac-crued portion of the permanent total disability benefit which the employee would have received had the employee lived until receiving compensation at the employee's regular rate for a period of six years,\\n(b) Where the injury proximately caused permanent partial disability, the death benefit shall consist of the unpaid and unaccrued portion of the permanent partial disability benefit which the employee would have received had he lived, (emphasis supplied)\\nIn addition to the foregoing death benefits, a dependent also is entitled to \\\"any accrued and unpaid portion\\\" of the compensation or benefits up to the time of the employee's death. Section 8-41-503(2), C.R.S.1997.\\nThe term \\\"accrued,\\\" as used in \\u00a7 8-41-503(2), means \\\"to come into existence as an enforceable claim: vest as a right.\\\" Estate of Huey v. J.C. Trucking, Inc., 837 P.2d 1218, 1221 (Colo.1992).\\nIn Estate of Huey, the supreme court determined that benefits \\\"accrued\\\" under \\u00a7 8-41-503(2) when the compensable injury occurred. Accordingly, it found that the dependents of a worker who had died of unrelated causes were entitled to recover benefits even though there had been no formal adjudication of the worker's permanent disability claim prior to his death. The court recognized that it was overruling prior decisions in which it had held that an adjudication of permanent disability during the worker's life was necessary to establish a claim on behalf of the worker's dependents. Nevertheless, it reasoned that predicating the claim for death benefits upon a formal determination would punish the dependents for \\\"the vagaries of the workers' compensation adjudication process\\\" and would result in a windfall to the employer. Estate of Huey v. J.C. Trucking, Inc., supra, 837 P.2d at 1221.\\nIn Nunnally v. Wal-Mart Stores, 943 P.2d 26 (Colo.App.1996), a division of this court addressed the right of an employee's dependents to permanent disability benefits under \\u00a7 8-41-503, C.R.S.1997, when the employee dies of related causes prior to reaching MMI. Relying upon the definition of \\\"accrued\\\" quoted in Estate of Huey, the Nunnally court determined that there were no \\\"accrued and unpaid\\\" benefits because perma nent disability benefits do not come into existence as an enforceable claim or vest as a right until MMI is reached.\\nAlthough we find these decisions instructive, we are here concerned with the claimant's right to recover \\\"unaccrued\\\" benefits under \\u00a7 8-42-116. We, therefore, find it necessary to resort to the standard rules of statutory construction.\\nA court's primary task in construing a statute is to give effect to the intent of the General Assembly by looking first at the language of the statute. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App.1997). This requires that the statute be construed as a whole to give consistent and harmonious effect to all of its parts. See Ward v. Ward, 928 P.2d 739 (Colo.App.1996). When the plain language of a statute is clear and unambiguous, the statute should be applied as written. Rios v. Mireles, 937 P.2d 840 (Colo.App.1996).\\nWe also must be guided by the presumption that the General Assembly intends a statute to have a just and reasonable result. Section 2-4-201(l)(c), C.R.S.1997; Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo.1991).\\nIn construing \\u00a7 8-42-116, the Panel noted the use of the past tense in the phrase, \\\"proximately caused,\\\" and interpreted it to mean that the industrial injury must have resulted in some form of permanent disability at the time of the employee's death or no death benefit would be payable. The Panel further observed that permanent disability cannot legally vest or exist until MMI because it is only when an employee has reached MMI that the existence or degree of medical impairment can be fully ascertained.\\nThe Panel also rejected claimant's assertion that the term \\\"unaccrued\\\" necessarily refers to permanent disability benefits which have not vested. Instead, the Panel determined that the reference to \\\"unaccrued\\\" benefits concerned those permanent disability benefits which the deceased would have received had he lived, but which were not yet payable at the time of death.\\nWe disagree with the Panel that the phrase \\\"proximately caused\\\" in both \\u00a7 8-42-116(l)(a) and (b), C.R.S.1997, means that the right to benefits under that statute exists only if the deceased worker attained MMI before death.\\nMMI, which occurs when the employee's condition stabilizes, provides the optimal point at which the permanency of a disability can be discerned and the extent of any resulting impairment can be measured. See Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo.1995). But, while MMI serves to demarcate when a disability becomes permanent, the employee may actually sustain the disability if injury occurs. Consequently, we conclude that the phrase, \\\"proximately caused,\\\" simply refers to the nexus between the work-related injury and the employee's claimed disability.\\nThe causative relationship between the injury and the disability must be established prior to MMI for an injured worker to obtain temporary disability compensation and medical benefits. See \\u00a7 8-41-301(l)(c), C.R.S.1997 (requiring that injury or death be proximately caused by occupational accident or disease as a condition of recovery); \\u00a7 8-42-101(l)(a), C.R.S.1997 (requiring that the employer provide any medical treatment that is necessitated by the disability); \\u00a7 8^42-103(l)(a), C.R.S.1997 (providing for the payment of disability indemnity for work-related disabilities lasting more than three days). Thus, we find no correlation between the requirement that a causative relationship exist and that MMI be reached before benefits may be obtained under \\u00a7 8^42-116.\\nIn our view, the key to the meaning of \\u00a7 8-42-116 lies in the statute's use of the word \\\"unaccrued.\\\"\\nThe prefix \\\"un\\\" means \\\"not\\\" or connotes \\\"the opposite of.\\\" Webster's Third New International Dictionary 2481 (1968). The term \\\"unaeerued\\\" is specifically defined as having \\\"not become due.\\\" Black's Law Dictionary 1693 (rev. 6th ed.1990). Because it is arguable that a worker's benefits accrue at the time of injury, see Estate of Huey v. J.C. Trucking, Inc., supra, we must acknowledge that bestowing opposite meanings on the terms \\\"accrued\\\" and \\\"after unaccrued,\\\" as they have been used in \\u00a7 8r41-503(2) and 8-42-116 respectively, would lead to an absurd result, i.e., \\\"unaccrued\\\" would refer to those benefits due a claimant prior to a work-related injury. Hence, we must conclude that the terms incorporate qualitatively different meanings.\\nConstruing the two statutes harmoniously, as we must, we view the use of the term \\\"unaeerued\\\" in \\u00a7 8-42-116 as an indication that the General Assembly did not intend to restrict the benefits available under that statute to those in which the worker already had a vested right at the time of death. Regardless of whether the right to benefits vests at the time of injury or at some later point, the use of \\\"unaccrued\\\" in \\u00a7 8-42-116 signals a broader scope of recovery than is provided for in \\u00a7 8-41-503(2).\\nEssentially then, for purposes of \\u00a7 8-42-116, we equate the term \\\"unaccrued benefits\\\" to \\\"unvested benefits,\\\" and, based upon this construction, we discern no perceptible distinction between the definition of \\\"unae-erued\\\" urged by claimant and that adopted by the Panel. Both definitions encompass only those benefits which the injured worker may have been entitled to had his death not precluded him from establishing such entitlement. Thus, while \\u00a7 8-42-116 predicates the recovery of benefits upon proof that an industrial injury caused the deceased employee to suffer a permanent disability, the statute does not foreclose such posthumous proof when the employee dies of unrelated causes before reaching MMI.\\nWe recognize that posthumous proof of permanent disability is difficult when the employee dies before stabilization. However, our interpretation of \\u00a7 8-42-116 accords with the practice recommended when death cuts off the healing period before a determination of permanent disability has been made. As stated in a leading treatise: \\\"The proper procedure is to make the best possible medical estimate of the probable residual disability that would have remained if the employee had lived to complete his healing period.\\\" 4 Larson's Workers' Compensation Law \\u00a7 58.45 (1997). See also Robinson v. Newberg, 849 S.W.2d 532 (Ky.1993); Ralph v. Sears Roebuck & Co., 102 Md.App. 387, 649 A.2d 1179 (1994), aff'd, 340 Md. 304, 666 A.2d 1239 (1995); Christenson v. Aslesen's Wholesale Food, 345 N.W.2d 769 (Minn.1984); Wilhite v. Liberty Veneer Co., 47 N.C.App. 434, 267 S.E.2d 566 (1980), rev'd in part on other grounds, 303 N.C. 281, 278 S.E.2d 234 (1981); but see Adzima v. UAC/Norden Division, 177 Conn. 107, 411 A.2d 924 (1979)(dependent ineligible for death benefits because of failure to prove that the decedent reached maximum improvement before his death); County of Spotsylvania v. Hart, 218 Va. 565, 238 S.E.2d 813 (1977)(no benefits for loss of use of a scheduled body member were available when the decedent died before reaching MMI).\\nFurther, Estate of Huey, supra, directly criticized the rationale which led the court in Borquez v. John Burbank Trucking, 164 Colo. 217, 433 P.2d 767 (1967), to hold that a deceased employee must have previously received an award of permanent disability benefits for the dependents of that worker to be eligible for unrelated death benefits. Consequently, we do not consider Borquez to be dispositive.\\nThe order is set aside and the cause is remanded for further proceedings.\\nTAUBMAN and TURSP, JJ., concur.\\nSitting by assignment of the Chief Justice under provisions of the Colo. Const, art. VI, Sec. 5(3), and \\u00a7 24-51-1105, C.R.S.1997.\"}"

colorado/11718361.json

@@ -0,0 +1 @@
+"{\"id\": \"11718361\", \"name\": \"James R. TISING, Charles Sutton, and Jack L. Lowe, Complainants-Appellants, v. The STATE PERSONNEL BOARD OF the STATE OF COLORADO, Appellee, and University of Southern Colorado, Respondent-Appellee\", \"name_abbreviation\": \"Tising v. State Personnel Board of State of Colorado\", \"decision_date\": \"1991-06-06\", \"docket_number\": \"No. 90CA506\", \"first_page\": \"1011\", \"last_page\": \"1014\", \"citations\": \"825 P.2d 1011\", \"volume\": \"825\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T18:59:07.157757+00:00\", \"provenance\": \"CAP\", \"judges\": \"JONES, J., and Justice HODGES , concur.\", \"parties\": \"James R. TISING, Charles Sutton, and Jack L. Lowe, Complainants-Appellants, v. The STATE PERSONNEL BOARD OF the STATE OF COLORADO, Appellee, and University of Southern Colorado, Respondent-Appellee.\", \"head_matter\": \"James R. TISING, Charles Sutton, and Jack L. Lowe, Complainants-Appellants, v. The STATE PERSONNEL BOARD OF the STATE OF COLORADO, Appellee, and University of Southern Colorado, Respondent-Appellee.\\nNo. 90CA506.\\nColorado Court of Appeals, Div. II.\\nJune 6, 1991.\\nRehearing Denied Aug. 1, 1991.\\nRehearing Denied (Respondent-Appellee) Oct. 24, 1991.\\nCertiorari Denied March 16, 1992.\\nJoe T. Ulibarri, Pueblo, for complainants-appellants.\\nDuane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Lee R. Combs, Sp. Asst. Atty. Gen., Denver, for respondent-appellee University of Southern Colorado.\\nSitting by assignment of the Chief Justice under provisions of the Colo. Const, art. VI, Sec. 5(3), and \\u00a7 24-51-1105, C.R.S. (1988 Repl.Vol. 10B).\", \"word_count\": \"1339\", \"char_count\": \"8520\", \"text\": \"Opinion by\\nJudge RULAND.\\nComplainants, three former certified state employees of the University of Southern Colorado (USC), seek review of a decision by the Colorado State Personnel Board approving termination of their employment. We affirm in part and reverse in part.\\nThis appeal results from a protracted series of hearings and appeals originating in 1985 when the complainants were terminated in connection with a reorganization of the USC police department. As part of the reorganization, USC contracted with a private firm to provide campus security guards.\\nIn the initial review of the Board's decision, this court held that complainants were afforded adequate procedural due process in conjunction with the reorganization, but the case was remanded to the Board for a determination of whether the requirements of \\u00a7 24-50-128(3), C.R.S. (1988 Repl.Vol. 10B) were violated by the security firm's contract with USC. University of Southern Colorado v. State Personnel Board, 759 P.2d 865 (Colo.App.1988).\\nFollowing the remand, the Board affirmed a hearing officer's findings of fact and conclusions of law determining that the former public safety administrator, James R. Tising, lacked legal standing to challenge the personal services contract between USC and the private security firm. The hearing officer also concluded that the contract did not create an employer-employee relationship in violation of \\u00a7 24-50-128(3) and that, therefore, the appeal by two former public safety officers, Charles Sutton and Jack L. Lowe, lacked merit.\\nWhile this appeal was pending, our supreme court announced Colorado Ass'n of Public Employees v. Department of Highways, 809 P.2d 988 (Colo.1991), in which the court addressed the validity of personal service contracts under \\u00a7 24-50-128, C.R.S. (1988 Repl.Vol. 10B). We ordered and have considered additional briefs from the parties regarding the applicability of that case here. However, we must first address USC's contention relative to the standing of the complainants to pursue their claims.\\nI.\\nStanding is a jurisdictional issue which can be raised at any time during the pendency of an action, including an appeal. See Claimants in re Multi-District Litigation v. A.H. Robins Co., 681 P.2d 540 (Colo.App.1984). USC contends that the complainants all lack legal standing to pursue any claim under \\u00a7 24-50-128(3). We agree with the hearing officer's resolution of this issue.\\nAs pertinent here, standing involves a two-part test: (1) whether the complainants sustained an injury in fact; and (2) whether the injury was to a legal interest protected by the statute. See Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977).\\nSection 24-50-128(3) prevents the state from entering into contracts for personal services which create employer-employee relationships for longer than six months if the duties are classified and are commonly and historically performed by employees in regular positions under the state personnel system. The legislative history pertinent to enactment of \\u00a7 24-50-128 indicates that the purpose of the section was to eliminate the practice of cronyism within the state personnel system. See Colorado Ass'n of Public Employees v. Department of Highways, supra; see generally R. Vaughn, Principles of Civil Service Law \\u00a7 1.2 (1976).\\nHere, as a result of USC's reorganization and the contract with the private security firm, Tising suffered a substantial pay reduction and Lowe and Sutton lost their positions. Therefore, contrary to USC's contention, an injury in fact has been established.\\nWe agree, however, with the hearing officer's conclusion that Tising has not established any injury to a legal interest protected by the statute. This is because his position as public safety administrator was to be eliminated as part of the reorganization and regardless of whether a private security firm was engaged. Conversely, the private security officers do not perform any functions of that former position. Moreover, to the extent that Tising previously performed the duties of a public safety officer because the security force was understaffed, he continues to perform those duties as the result of exercising his \\\"bumping\\\" rights in order to secure one of the current safety officer positions.\\nUnlike Tising, however, the record establishes an injury to the legal interests of Lowe and Sutton which are protected by the statute. The private security officers perform a substantial part of the services previously furnished by these complainants as public safety officers. And, contrary to USC's contention, we conclude that it is unnecessary for complainants to establish that the private security guards perform all of the services previously undertaken by complainants. See People ex rel. Kelly v. Milliken, 74 Colo. 456, 223 P. 40 (1923).\\nWe also reject USC's argument that Bennett v. Board of Trustees, 782 P.2d 1214 (Colo.App.1989) requires us to hold that Lowe and Sutton lack legal standing. In Bennett, the statute at issue addressed academic freedom for the faculty by granting it a voice in choosing courses and texts. This court concluded that termination of faculty positions was not the evil addressed by the statute and that, therefore, terminated instructors had no standing to rely upon this statute for reinstatement. Here, however, one of the primary functions of \\u00a7 24-50-128(3) is to prevent the unwarranted termination of classified state employees and their subsequent replacement with contract workers. See Colorado Ass'n of Public Employees v. Department of Highways, supra.\\nII.\\nThe sole remaining issue is whether the holding in Colorado Ass'n of Public Employees v. Department of Highways, supra, requires reversal of the Board's decision dismissing the claims of Lowe and Sutton. We conclude that it does.\\nIn that case our supreme court held that private vendor contracts entered into by the Department of Highways were invalid under Colo. Const, art. XII, \\u00a7 13 through 15, and under \\u00a7 24-50-128. The basis for the decision was that no statutes or regulations had been adopted to establish standards governing such contracts. The same deficiency exists here.\\nContrary to USC's contention, we conclude that Lowe and Sutton are entitled to rely upon that decision. As confirmed in the pre-hearing delineation of issues for decision by the hearing officer, the Board had already announced its decision upholding the validity of private vendor contracts. Hence, it was unnecessary for Lowe and Sutton to reargue that issue at the administrative level. And, that issue was, in effect, presented by Lowe and Sutton in the initial brief filed in this court.\\nFinally, we do not view the opinion in Colorado Ass'n of Public Employees v. Department of Highways, supra, as announcing a new rule of law which requires us to conduct an analysis of whether the rule should be applied retroactively. See Marinez v. Industrial Commission, 746 P.2d 552 (Colo.1987). Instead, that opinion is consistent with prior holdings of the court relative to the civil service system. See Colorado Ass'n of Public Employees v. Regents, 804 P.2d 138 (Colo.1990); Colorado Ass'n of Public Employees v. Lamm, 677 P.2d 1350 (Colo.1984). See also Rocky Mountain Power Co. v. Colorado River Water Conservation District, 646 P.2d 383 (Colo.1982) (a new rule of law is not created if a decision reaffirms the holdings of prior decisions).\\nThat part of the order determining that Tising lacks legal standing to challenge his dismissal is affirmed. That part of the order dismissing the appeals by Lowe and Sutton is reversed, and the cause is remanded to the Board for determination of the appropriate remedy to be awarded to them.\\nJONES, J., and Justice HODGES , concur.\"}"

colorado/11958720.json

@@ -0,0 +1 @@
+"{\"id\": \"11958720\", \"name\": \"Lucy S. DIKEOU, Petitioner, v. John P. DIKEOU, Respondent\", \"name_abbreviation\": \"Dikeou v. Dikeou\", \"decision_date\": \"1996-12-09\", \"docket_number\": \"No. 95SC699\", \"first_page\": \"1286\", \"last_page\": \"1297\", \"citations\": \"928 P.2d 1286\", \"volume\": \"928\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T17:02:18.816812+00:00\", \"provenance\": \"CAP\", \"judges\": \"VOLLACK, C.J., dissents, and LOHR, J., joins in the dissent.\", \"parties\": \"Lucy S. DIKEOU, Petitioner, v. John P. DIKEOU, Respondent.\", \"head_matter\": \"Lucy S. DIKEOU, Petitioner, v. John P. DIKEOU, Respondent.\\nNo. 95SC699.\\nSupreme Court of Colorado, En Banc.\\nDec. 9, 1996.\\nRehearing Denied Jan. 13, 1997.\\nMcKenna & Cuneo, L.L.P., Daniel S. Hoffman, Scott S. Evans, Denver, for Petitioner.\\nLance P. Vanzant, Denver, for Respondent.\", \"word_count\": \"7306\", \"char_count\": \"44261\", \"text\": \"Justice M\\u00dcLLARKEY\\ndelivered the Opinion of the Court.\\nWe granted certiorari to review the court of appeals' decision to Dikeou v. Dikeou, 916 P.2d 601 (Colo.App.1995). The court of appeals held that late charges of a set dollar amount per day which were provided to a contract for a nonconsumer loan secured by a promissory note were impermissible penalties that are unenforceable under Colorado law. Because we now conclude that the late charges in this case are properly characterized as \\\"default interest\\\" and are reasonable as analyzed under the nonconsumer loan usury statute at section 5-12-103, 2 C.R.S. (1992), we reverse.\\nI.\\nOn December 30, 1987, respondent, Lucy Dikeou (creditor), and petitioner, John Dikeou (debtor), entered into a noneonsumer loan agreement to which the creditor lent $900,000 to the debtor and the debtor signed a promissory note payable to the creditor in that amount. Pursuant to this promissory note, the debtor agreed to pay interest of $9,750 per month (13% per annum of the principal) with the entire $900,000 principal due and payable to a balloon payment on or before August 30, 1988. In addition, the terms of the promissory note provided for late payment charges to the amount of $700 per day on payments more than one day late and a $50,000 penalty should the debtor fail to pay certain costs of insurance and appraisals respecting real estate that secured the note.\\nApproximately one year later, on December 23,1988, the parties modified the original promissory note. The terms of the modified note extended the maturity date to December 30, 1989 and permitted the debtor to request a further extension to August 30, 1990. The modified note also provided that the terms and conditions of the original note that were not specifically modified were to remain in full force and effect. Therefore, the monthly interest payment remained $9,750 and the daily late charge of $700 continued.\\nThe debtor subsequently failed to make numerous interest payments and failed to pay the full principal amount by the modified date of maturity, August 30, 1990. Then, in October 1990, the debtor made a payment sufficient to pay all accrued interest and late charges, as well as to reduce the principal balance to $472,764.45. After paying down the principal, the debtor continued making interest payments of $5,121.61 per month (13% per annum of reduced principal) but did not reduce the principal or pay the late charges still accruing because of the debtor's continuing failure to repay the principal.\\nOn August 15,1991, the creditor demanded payment of both the note in full and the late charges calculated at a rate of $413.33 per day from November 1, 1990. The creditor then filed a complaint to Denver District Court, alleging that the debtor had defaulted on the modified note. Following a bench trial, the trial court entered judgment in favor of the creditor to an amount of $472,-764.45 for the principal amount due on the modified note plus attorney fees and costs, with interest from the date of judgment at a rate of 8%. The trial court refused to enforce the daily late charge provision based on its conclusion that the late charges bore \\\"no relationship . to any possible damage\\\" that the creditor might have suffered due to the debtor's failure to repay the note according to its terms. The trial court also refused to enforc\\u00e9 the $50,000 penalty.\\nThe creditor appealed the trial court's decision on enforcement of the late charge provision and the penalty. The court of appeals affirmed the trial court's decision and concluded that it was \\\"unnecessary to determine whether the late charges [were] usurious and in violation of \\u00a7 5-12-103 since they are penalties that are unenforceable under the standards set forth in Perino v. Jarvis, 135 Colo. 393, 312 P.2d 108 (1957).\\\" Dikeou, 916 P.2d at 603.\\nII.\\nThe creditor argues that the court of appeals erred in applying Perino because it reversed the appropriate order of analysis. According to the creditor, before concluding that the late charges were impermissible penalties, the court of appeals first should have determined whether the charges were interest. We agree.\\nIn Perino, this court considered whether a real estate broker was entitled to keep a $1000 deposit paid by the prospective buyer in connection with a failed attempt to purchase a beer business in Arizona. Perino, 135 Colo, at 394, 312 P.2d at 108. Although the oral agreement between the parties did not include any provision or understanding for the retention of the $1000 as liquidated damages, this court analyzed the broker's claim under the essential elements of a contract for the retention of a sum paid as liquidated damages. Id. at 396, 312 P.2d at 108-09. The essential elements were: (1) that the anticipated damages are uncertain in amount or difficult to prove; (2) that the parties intend to liquidate the damages in advance; and (3) that the amount stated is a reasonable one and not greatly disproportionate to the presumable loss or injury. Id. at 396, 312 P.2d at 109. The Perino court concluded that, even assuming that the parties contended there was an agreement to liquidate damages, the necessary elements of such a contract were lacking. Id. at 397, 312 P.2d at 109.\\nThe case before us bears no similarity to Perino. Here, the parties were engaged in a nonconsumer loan for $900,000. The debtor contracted to repay the loan with interest and to pay certain late charges if he failed to make timely payments, which he clearly failed to do. The Perino transaction was not a written nonconsumer loan, but rather an oral buy/sell agreement which failed to specify the disposition of the buyer's $1000 deposit in the event that the sale was not consummated. Under such circumstances, there could be no contention that the deposit was a form of interest or could be recalculated as a form of interest. There was no principal amount loaned and apparently the broker attempted to justify his retention of the deposit by asserting that the money was a form of liquidated damages.\\nHere, we agree with the creditor that the question is whether these late charges constitute \\\"interest\\\" as defined by section 5-12-103(2) and, if so, whether the late charges, when combined with the other interest charged in the loan, violate the usury law. See Debtor-Creditor Law \\u00b6 16.04[A][6][e] (Theodore Eisenberg ed., 1992)(legality of late payment charges turns on whether it constitutes interest charge under state usury law). In enacting the usury statute, the legislature determined that interest rates of up to 45% are reasonable and not usurious. See \\u00a7 5-12-103(2), 2 C.R.S. (1992). Therefore, if the late charges in this case are determined to be interest and the total interest charged does not exceed 45%, then the late charges are reasonable as a matter of law and may be enforced.\\nIII.\\nWe now must determine whether the late charges in this case are interest as defined by section 5-12-108(2), which states:\\nThe term \\\"interest\\\" as used in this section means the sum of all charges payable directly or indirectly by a debtor and imposed directly or indirectly by a lender as an incident to or as a condition of the extension of credit to the debtor, whether paid or payable by the debtor, the lender, or any other person on behalf of the debtor to the lender or to a third party.\\n\\u00a7 5-12-103(2), 2 C.R.S. (1992). Section 5-12-103 also provides that interest \\\"charges\\\" are not usurious as long as the sum of all charges does not exceed 45%. \\u00a7 5-12-103(1), 2 C.R.S. (1992). The statute does not specifically refer to late or default charges in the definition. Although we have not previously considered whether late charges are interest under this section of the usury statute, we have dealt with a similar issue in the context of federal banking law.\\nIn Copeland, v. MBNA America Bank, NA., 907 P.2d 87 (Colo.1995), cert. denied, \\u2014 U.S. \\u2014, 116 S.Ct. 2496, 135 L.Ed.2d 189 (1996), we considered whether late charges were interest under section 85 of the National Banking Act (NBA). Unlike the Colorado usury statute at section 5-12-103, section 85 of the NBA does not provide a definition for \\\"interest.\\\" Id. at 90. In Copeland, a Colorado credit card customer initiated a class action alleging, in part, that late charges were not interest under the NBA because late charges are penalties. Id. We disagreed and concluded, based on prior eases interpreting the NBA, that late payment fees were included in the definition of \\\"interest\\\" at the time the NBA was enacted. Id. at 92. Therefore, we necessarily rejected the customer's contention that interest should be defined narrowly to include only periodic percentage interest rates. See id. at 90.\\nLikewise, in Stoorman v. Greenwood Trust Co., 908 P.2d 133 (Colo.1995), cert. denied, \\u2014 U.S. \\u2014, 116 S.Ct. 2498, 135 L.Ed.2d 190 (1996), we considered whether late charges were interest under section 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDA). Congress incorporated the language of section 85 of the NBA into section 521 of the DIDA. Id. at 135. Concluding that similar language should be interpreted in the same manner, this court held that the rationale of Copeland was equally persuasive as applied to the DIDA. Id. Therefore, we concluded that late charges are interest under section 521 of the DIDA Id, at 136.\\nIn Greenwood Trust Co. v. Massachusetts, 971 F.2d 818 (1st Cir.1992), cert. denied, 506 U.S. 1052, 113 S.Ct. 974, 122 L.Ed.2d 129 (1993), the First Circuit Court of Appeals also considered whether late charges were interest under the DIDA. In its analysis, the Greenwood court reviewed the historical definition of \\\"interest\\\" and noted that the plain meaning of \\\"interest\\\" is not necessarily restricted to numerical percentage rates. Id. at 824. Citing both reference works and federal opinions, the court concluded that a \\\"late fee is sufficiently related to the use and forbearance of money or damages for its detention that it can appropriately be classified as interest.\\\" Id. at 825. The Greenwood decision was cited as supporting authority in both Copeland and Stoorman.\\nMost recently, the United States Supreme Court held in Smiley v. Citibank (South Dakota), N.A., \\u2014 U.S. \\u2014, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996), that credit card late charges are interest under the NBA. In Smiley, a credit card holder alleged that the late charges assessed against her were impermissible penalties. Id. at -, 116 S.Ct. at 1732. The Supreme Court concluded that it should necessarily defer to the reasonable interpretation of the agency charged with regulating the Act. Id. at-, 116 S.Ct. at 1736. With respect to the NBA, the Comptroller of Currency (Comptroller) had promulgated a regulation interpreting late charges as interest. Id. at-, 116 S.Ct. at 1733; 61 Fed.Reg. 4869 (Feb. 9, 1996) (to be codified at 12 C.F.R. \\u00a7 7.4001(a)).\\nThe credit card customer in Smiley argued that the late fees were not interest because they did not vary based on the amount of the payment owed or the length of the delay. Smiley, \\u2014 U.S. at-, 116 S.Ct. at 1736. In determining whether the Comptroller's interpretation was a reasonable one, the Supreme Court considered the historical treatment of late charges as interest. First, the Court noted that most legal dictionaries contemporaneous with the enactment of the NBA did not place such a limitation on the definition of interest. Id. at-, 116 S.Ct. at 1735. Second, in response to the customer's argument that a charge must be time- and rate-based to be interest, the Court noted that \\\"[a]ny flat charge may . readily be converted to a percentage rate.... And there is no apparent reason why home-state-approved percentage charges should be permissible but home-state-approved flat charges unlawful.\\\" Id. at \\u2014, 116 S.Ct. at 1736 (citations omitted). In accord with our decision in Copeland, the Supreme Court concluded that the Comptroller's definition of interest was reasonable and was therefore entitled to deference. Smiley, \\u2014 U.S. at -, 116 S.Ct. at 1736.\\nWhile these cases construing federal statutes are not controlling in the present case, the mode of analysis, which defined late charges by considering the traditional meaning and use of the term \\\"interest,\\\" is persuasive. Consistent with that analysis, we agree that whether a charge is expressed as a flat fee or a percentage rate does not determine whether a charge is interest. As expressed in both Greenwood and Smiley, as long as the charge can be converted into a percentage rate, it correctly can be categorized as interest.\\nApplying this analysis to the specific language of section 5-12-103(2), we conclude that the late charges involved in this case properly should be categorized as interest. The usury statute permits parties to stipulate to the payment of charges \\\"as an incident to or as a condition of the extension of credit\\\" as long as the \\\"sum of all charges\\\" does not exceed 45%. \\u00a7 5-12-103(1) & (2), 2 C.R.S. (1992). By using the phrase \\\"sum of all charges\\\" the legislature contemplated that the parties may provide for more than just a single percentage-based charge. In this ease, the debtor agreed to the specific late charges both initially and again when the note was modified; the late charge provision was an express term of the promissory note. The late charge was a condition of extending credit after the initial default. It served to promote timely payments and to compensate ' the creditor for the increased risk and expense of lending money she incurred when extending credit to a debtor who already had failed to make timely payments. The parties agreed that the interest rate of the loan was 13% of the principal if the payments were made on time but if one or more payments were not made on time, a late charge was added which effectively increased the overall interest rate. In essence, the late charges were a \\\"default interest\\\" charge for the debt- or's failure to pay off the note according to its terms.\\nColorado has traditionally recognized that parties have the right to stipulate to a higher default interest rate when a loan is not paid off according to its terms. In McKay v. Belknap Savings Bank, 27 Colo. 50, 59 P. 745 (1899), this court was asked to determine whether parties can agree to an increased interest rate contingent upon nonpayment of either principal or interest when due. In McKay, the parties had agreed to an initial interest rate of 6% which would increase to 12% upon default. Id. at 51, 59 P. at 746. The usury statute, in effect at that time allowed parties to stipulate to \\\"the payment of a greater or higher rate of interest than eight per cent per annum.\\\" Id. at 54, 59 P. at 747 (quoting Section 2253, Mills' Ann. St.). The McKay court held that the statute allowed the parties to stipulate to a higher rate contingent upon default, stating, \\\"the parties to this note unquestionably had the right to stipulate that a larger rate should be paid upon the failure to pay a smaller one when due.\\\" Id.\\nMore recently, the United States Bankruptcy Court for the District of Colorado held that a loan default rate of 24% was not unreasonable or usurious under Colorado law. In In re Wood Family Interests, Ltd., 135 B.R. 407 (Bankr.D.Colo.1989), a creditor objected to a debtor's planned bankruptcy reorganization and argued that the 24% default interest rate to which the parties had agreed was enforceable. Id. at 409. The bankruptcy court agreed and, citing McKay and section 5-12-103, stated that the 24% rate was \\\"within reason and . not usurious in Colorado.\\\" Id.\\nWhen these decisions are considered in conjunction with the statutory language of the current usury statute, it is clear that default interest is enforceable as interest on a nonconsumer loan under Colorado law. In this case, the parties entered into a contingency agreement as part of the loan to impose additional charges upon a late payment of either interest or principal. Because the numerical late charges are easily convertible to a percentage of the unpaid balance of the loan, and the late charges were a condition of the credit being extended, we find that the charges are interest under the usury statute section 5-12-103.\\nThe debtor, however, contends that Concord Realty Co. v. Continental Funding Corp., 776 P.2d 1114 (Colo.1989), requires a different analysis and result. In Concord, we reversed a finding of fraud in a complicated nonconsumer loan involving two promissory notes secured by a wrap-around deed of trust. The finding of fraud was based in part on expert testimony that the effective interest rate of the loan was 46%. We held that the expert's testimony was incompetent to establish the effective interest rate because it improperly characterized certain charges as interest when the items should have been treated as principal. Id. at 1121-23.\\nThe Concord opinion noted that the definition of \\\"interest\\\" in the nonconsumer usury statute at section 5-12-103(2) is in part the same as the definition of \\\"loan finance charge\\\" for consumer loans at section 5-3-109(1), which is part of the Colorado version of the Uniform Consumer Credit Code (U.C.C.C.). Concord, 776 P.2d at 1120. For ease of comparison, we repeat the language of the usury statute section 5-12-103 which defines \\\"interest\\\" as\\nthe sum of all charges payable directly or indirectly by a debtor and imposed directly or indirectly by a lender as an incident to or as a condition of the extension of credit to the debtor, whether paid or payable by the debtor, the lender, or any other person on behalf of the debtor to the lender or to a third party.\\n\\u00a7 5-12-103(2), 2 C.R.S. (1992). Using in part the same language in its definition of \\\"loan finance charge,\\\" the U.C.C.C. section 5-3-109 provides:\\n\\\"Loan finance charge\\\" means the sum of all charges payable directly or indirectly by a debtor and imposed directly or indirectly by a lender as an incident to or as a condition of the extension of credit to the debtor, whether paid or payable by the debtor, the lender, or any other person on behalf of the debtor to the lender or to a third party, including any of the following types of charges which are applicable: Interest or any amount payable under a point, discount, or other system of charges, however denominated, premium, or other charge for any guarantee or insurance protecting the lender against the debtor's default or other credit loss; and charges incurred for investigating the collateral or credit-worthiness of the debtor or for commissions or brokerage of obtaining the credit. The term does not include charges as a result of default, additional charges (section 5-3-202), delinquency charges (section 5-3-203), or deferral charges (section 5-3-204).\\n\\u00a7 5-3-109(1), 2 C.R.S. (1992). In Concord, we looked to the specific examples of loan\\nfinance charges in the U.C.C.C. statute as a guide to determine whether the disputed charges came within the nonconsumer loan definition of \\\"interest.\\\" On this basis, we concluded that origination fees were included in the nonconsumer definition of \\\"interest,\\\" and that closing costs in a real estate transaction, such as appraisal fees, inspection fees, credit reports and legal fees, were better characterized as principal. Concord, 776 P.2d at 1120-22; see also \\u00a7 5-3-202(3), 2 C.R.S. (1992) (describing \\\"additional charges\\\"); \\u00a7 5-3-107(3)(c)(II) (including \\\"additional charges\\\" as \\\"principal\\\").\\nThe debtor argues that we should utilize the same reasoning here. Because the consumer loan definition of \\\"loan finance charge\\\" specifically excludes \\\"charges as a result of default,\\\" the debtor contends that the analysis applied in Concord requires that default charges are necessarily excluded from interest in the nonconsumer loan context. We disagree.\\nConcord did not discuss late charges and made only a passing reference to the default of the loan at issue resulting in \\\"the accrual of additional interest.\\\" Concord, 776 P.2d at 1120. Moreover, Concord was decided before Copeland, Stoorman, and the related eases and did not have the benefit of the historical definition of interest discussed in those cases. Concord is not dispositive and the question is whether its reasoning should be extended to cover the case now before us. For reasons discussed below, we decline to so extend Concord.\\nThe Concord decision discussed the distinction between interest and principal under the usury statute section 5-12-103(2). In determining what constituted interest, we used the examples in the U.C.C.C. because of the similarity of the definition of \\\"interest\\\" and \\\"loan finance charge.\\\" We included the additional charges in principal because the U.C.C.C. draws that distinction. The present case, however, requires us to distinguish between interest and a penalty, and the U.C.C.C. provides no useful guidance in making that distinction.\\nThe fact that the legislature specifically excluded default charges from the U.C.C.C. definition of \\\"loan finance charge\\\" does not persuade us that the legislature intended to exclude late charges from the usury definition of \\\"interest,\\\" i.e., charges imposed \\\"as an incident to or as a condition of the extension of credit.\\\" \\u00a7 5-12-103(2), 2 C.R.S. (1992). On the contrary, we find that the legislature excepted late charges from the general definition of \\\"loan finance charge\\\" for the purpose of providing specially tailored provisions for such charges in the context of consumer loans. In contrast, the legislature did not except default or delinquency charges from the usury definition of \\\"interest\\\" or enact special late charge provisions in the nonconsumer loan context. This distinction in the two statutory schemes indicates that the legislature intended to regulate default charges under the general usury interest provision found at section 5-12-103. As previously noted, this conclusion is consis tent with Colorado ease law enforcing reasonable default interest charges. See McKay, 27 Colo, at 54-55, 59 P. at 747; see also Capek v. Monahan, 117 Colo. 131, 184 P.2d 501, 502 (Colo.1947); In re Wood, 135 B.R. at 409.\\nThe construction urged by the debtor fails to recognize the different purposes served by the two statutes. One of the express purposes of the U.C.C.C. is to \\\"protect consumer buyers, lessees, and borrowers against unfair practices by some suppliers of consumer credit.\\\" \\u00a7 5-1-102, 2 C.R.S. (1992). The statute is designed to protect a typically unsophisticated borrower from a generally sophisticated lender. Therefore, the U.C.C.C. expressly limits the types of charges and rates that can be imposed on a borrower by a lender. See \\u00a7 5-3-101 to -603, 2 C.R.S. (1992). The usury statute, on the other hand, applies to extensions of credit not already covered by articles 1 through 9. The usury statute sets a presumptive ceiling of 45% and applies only to noneonsumer loans. \\u00a7 5-12-103, 2 C.R.S. (1992).\\nThe debtor here was not in a position analogous to an unsophisticated borrower. Rather, the parties in this ease were on relatively equal footing in terms of financial acumen and we give effect to the fact that the parties agreed to these late charges both initially and after the note was modified. Moreover, the distinct differences between the consumer loan and noneonsumer loan settings convince us that there is no policy benefit in applying the protections of the U.C.C.C. to the usury statute section 5-12-103 with respect to late charges. Thus, we refuse to do so.\\nIn light of Colorado case law and the broad statutory definition of \\\"interest\\\" in the usury statute section 5-12-103, we hold that the late charges in this case are properly categorized as interest. Unlike the definition of \\\"loan finance charge\\\" for consumer loans, the nonconsumer usury statute does not exclude late charges from its definition of \\\"interest.\\\" Further, the fixed late charge in this case is easily convertible to a percentage of the unpaid balance. The late charge in this case is essentially default interest and the effective rate of .the charge must be analyzed to determine if it is usurious.\\nIV.\\nHaving concluded that the fixed late charges in this case are essentially default interest and are statutorily included in the definition of \\\"interest\\\" under the usury statute section 5-12-103(2), we now must determine whether the applied rate was usurious. The debtor contends that treating the late charges in this case as default interest is contrary to the computation provision of the usury statute. The debtor points out that the usury statute requires that the terms of the loan be analyzed from its inception to determine if the rate is usurious. The debt- or argues that since it can not be determined at the inception of the loan whether the total interest rate is less than the 45% maximum rate of the usury statute, the late charges must be analyzed as penalties.\\nWith respect to rate computation, the usury statute specifically states:\\nThe rate of interest shall be deemed to be excessive of the limit under this section only if it could have been determined at .the time of the stipulation by mathematical computation that such rate would exceed an annual rate of forty-five percent when the rate of interest was calculated on the unpaid balances of the debt on the assumption that the debt is to be paid according to its terms and mil not be paid before the end of the agreed term.\\n\\u00a7 5-12-103(1), 2 C.R.S. (1992). Relying again on Concord, the debtor contends that since default interest or late charges are applied only if a loan is not paid off according to its terms, it is impossible to determine if the charges are unenforceable under the statute. We disagree.\\nThe rate computation provision must be understood in context. Prior to 1972, the nonconsumer usury statute simply stated that parties could stipulate to an interest rate higher than 6%.1963 C.R.S. \\u00a7 73-12-3. In 1972, the legislature amended the criminal code by adding a new article entitled \\\"Offenses in the MaMng, Financing, or Collection of Loans.\\\" See Ch. 50, sec. 3, \\u00a7 40-15-101 to -108, 1972 Colo. S.ess. Laws 286, 288-291. As part of that Act, the legislature statutorily defined the crime of engaging in criminal usury and provided that a person was guilty of criminal usury if he or she \\\"knowingly charges, takes, or receives any money or other property as a loan finance charge where the charge exceeds an annual percentage rate of 45 percent.\\\" \\u00a7 40-15-104, 17 C.R.S. (1973). Under the same statute, it was an affirmative defense to the crime of criminal usury if:\\n[A]t the time of making said loan finance charge it could not have been determined by a mathematical computation that the annual percentage rate would exceed an annual percentage rate of forty-five percent;\\n[or]\\n[T]he loan finance charge was not in excess of an annual percentage rate of forty-five percent when the rate of the finance charge was calculated on the unpaid balance of the debt on the assumption that the debt is to be paid according to its terms and is not paid before the end of the agreed term.\\n\\u00a7 40-15-104(2)(a) & (b), 17 C.R.S. (1973).\\nThe same act also amended the usury statute now codified at section 5-12-103. See Ch. 50, sec. 6, \\u00a7 73-12-103, 1972 Colo. Sess. Laws 286, 292 (now codified at \\u00a7 5-12-103, 2 C.R.S. (1992)). In order to be consistent with the criminal code, the legislature applied the same 45% ceiling to the usury statute applicable in this case. It also added the above quoted affirmative defense mens rea language to the computation provision of the usury statute without changing the definition of \\\"interest.\\\" Interpreted literally, the computation provision would require a finding that default interest can never be usurious because the effective rate of interest cannot be computed at the loan's inception. Surely it cannot have been the legislature's intent to so limit the usury statute.\\nThe rules of statutory construction require us to give effect to each and every word enacted by the legislature unless to do so would cause an absurd result. Conte v. Meyer, 882 P.2d 962, 965 (Colo.1994); Snyder Oil Co. v. Embree, 862 P.2d 259, 262 (Colo.1993). This is one of those rare eases when we can not apply the statutory language as written for default interest. We reach this conclusion for two reasons. First, as discussed above, Colorado case law indicates that reasonable default interest is legal and enforceable. See Capek v. Monahan, 117 Colo. 131, 184 P.2d 501, 502 (Colo.1947); McKay, 27 Colo, at 54-55, 59 P. at 747; In re Wood, 135 B.R. at 409: These cases concerned the reasonableness of a default rate of interest and were based on the usury statutes in effect at that time. More importantly, these cases accepted that penalties were unenforceable, but concluded that the rates involved were reasonable and therefore not penalties under Colorado law. McKay, 27 Colo, at 54-55, 59 P. at 747; In re Wood, 135 B.R. at 409-10; but see Browne v. Steck, 2 Colo. 70, 78 (1873)(effeetive interest rate of 120% is a penalty because it does not bear a reasonable relationship with the value of money). A literal reading of the computation provision would leave us with no legislative guidance to determine when a default interest rate was reasonable.\\nSecond, when an effective interest rate is retrospectively computed after all forms of interest charges have been assessed, and the rate is determined to be under 45%, it stands to reason that the creditor did not intend to collect a higher rate of interest at the loan's inception. Since the legislature's intent was to avoid imposing criminal liability on a creditor who lacked intent to charge interest at a rate higher than 45%, the fact that such a rate was not charged shows that the loan was not usurious and the creditor's original intent is irrelevant. Only if the effective interest rate actually exceeded- 45% would the question arise whether the creditor intended to commit usury.\\nClearly, the legislature has concluded that, absent specific statutory provisions to the contrary, an applied rate of interest that is under 45% is reasonable. We are not persuaded that the analysis should be changed simply because the interest rate only approaches the 45% ceiling in the event of a late payment. Therefore, we hold that for noneonsumer loans a default interest rate is also reasonable and enforceable so long as the applied per annum rate, when added to the initial rate charged on the outstanding principal, is less than 45% of the unpaid principal balance at the time of the default.\\nIn this case, the parties agreed to impose additional charges upon a late payment of either interest or principal. Although, the parties agreed that the daily charge was $700 per day, the creditor seeks an applied rate of only $413.83 per day. These late charges easily are convertible to a percentage of the unpaid balance of the loan. At the time of the default the unpaid balance of the loan was $472,764.45. Therefore, the default interest rate is 31.9% which, when added to the initial rate of 13%, results in an effective rate of 44.9%. Because that rate is not usurious under section 5-12-103, it is a reasonable and enforceable rate of interest.\\nV.\\nAccordingly, we reverse the judgment of the court of appeals and return the case to the court of appeals with directions to remand the case to the trial court for further proceedings consistent with this opinion.\\nVOLLACK, C.J., dissents, and LOHR, J., joins in the dissent.\\nSCOTT, J., does not participate.\\n. We granted certiorari on the following issue: Whether the court of appeals erroneously determined that late payment charges provided for in connection with a nonconsumer credit arrangement constitute unenforceable penalties rather than \\\"interest\\\" as defined by \\u00a7 5-12-103(2), 2 C.R.S. (1992).\\n. The court of appeals affirmed the trial court's decision with respect to the late charges and the $50,000 penalty, but reversed with respect to the proper post-judgment interest rate. The creditor now seeks review of the court of appeals' holding concerning the daily late charges. Neither party has challenged the court of appeals' conclusions concerning the $50,000 or the post-judgment interest rate. Therefore, we do not address these issues here. Both parties have, however, argued for an award of attorney fees. Since their arguments rely on contract interpretation and equitable considerations, we find that the resolution of this issue is best left to the discretion of the trial court on remand.\\n. In the consumer loan context, an example of those special provisions is found at \\u00a7 5-3-203, 2 C.R.S. (1992), which provides the enforceable rates and the procedures necessary for a consumer loan creditor to collect a \\\"delinquency charge.\\\"\\n. Section 5-1-101, 2 C.R.S. (1992), specifically states that the U.C.C.C. comprises only articles 1 through 9 of title 5. While article 12 is certainly related to the U.C.C.C., in the sense that it applies to credit transactions, it is clearly a separate piece of legislation applicable only to non-consumer transactions. In fact, the current version of the U.C.C.C., including \\u00a7 5-3-109, was enacted in 1971. Ch. 207, sec. 1, \\u00a7 73-1-101 to -6-402, 1971 Colo. Sess. Laws 770, 770-850.\\nIn contrast, the 45% ceiling on interest in the nonconsumer loan context was enacted in 1972. Ch. 50, sec. 6, \\u00a7 73-12-103, 1972 Colo. Sess. Laws 286, 292. Thus, when the legislature amended the usury law in 1972, it had before it the U.C.C.C. which it adopted in 1971. In general, an exception not expressly made by the legislature should not be read into a statute by the courts. Karoly v. Industrial Comm'n of Colo., 65 Colo. 239, 245, 176 P. 284, 286 (1918). Accordingly, if the General Assembly intended to exclude late charges from interest in \\u00a7 5-12-103 it could have specifically done so. See City & County of Denver v. Rinker, 148 Colo. 441, 446, 366 P.2d 548, 550 (1961)(\\\"[T]here is a presumption that all laws are passed with the knowledge of those already existing.\\\"). We will not read in an exception that the General Assembly chose not to include.\\n. The debtor contended at oral argument that the test for the enforceability of a late charge penalty is whether the charge is reasonable in light of the intentions of the parties. The debtor argued that applying commercial lending rates would be an appropriate measure of what is reasonable. We are not persuaded that determining the reasonableness of a penalty is any different from determining the reasonableness of interest. Further, applying commercial lending rates to this non-consumer loan defeats the apparent legislative purpose of allowing parties to contract for an interest rate up to 45% under the usury statute.\"}"

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+"{\"id\": \"11959531\", \"name\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. George VALDEZ, Defendant-Appellant\", \"name_abbreviation\": \"People v. Valdez\", \"decision_date\": \"1996-11-29\", \"docket_number\": \"No. 95CA0043\", \"first_page\": \"1387\", \"last_page\": \"1394\", \"citations\": \"928 P.2d 1387\", \"volume\": \"928\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T17:02:18.816812+00:00\", \"provenance\": \"CAP\", \"judges\": \"CRISWELL, J., concurs.\", \"parties\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. George VALDEZ, Defendant-Appellant.\", \"head_matter\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. George VALDEZ, Defendant-Appellant.\\nNo. 95CA0043.\\nColorado Court of Appeals, Div. I.\\nNov. 29, 1996.\\nGale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Terrence A. Gillespie, First Assistant Attorney General, Denver, for Plaintiff-Appellee.\\nLaw Offices of J.E. Losavio, Jr., J.E. Losa-vio, Jr., Margaret L. Herdeck, Michael L. Garcia, Pueblo, for Defendant-Appellant.\", \"word_count\": \"3203\", \"char_count\": \"19585\", \"text\": \"Opinion by\\nJudge METZGER.\\nPursuant to a plea bargain, defendant, George Valdez, entered a plea of nolo conten-dere to one count of electioneering. He appeals the judgment of conviction and sentence. We affirm the former, vacate the latter, and remand the cause for a new sentencing hearing.\\nIn 1992, an election challenge to absentee voters brought by a citizens group in Costilla County resulted in an order requiring names to be stricken from the voting lists. The citizens group later requested that the Attorney General begin a criminal investigation into what they termed the \\\"tradition\\\" of voting fraud in Costilla county.\\nA state grand jury had already been im-panelled, pursuant to \\u00a7 13-73-101 to 13-73-108, C.R.S. (1987 RepLVol. 6A). Its stated task was to investigate various crimes, including medicaid and insurance fraud and taxation violations. This resulted from a petition to convene a state grand jury filed by the Attorney General in the Denver District Court in June 1993, alleging that all such investigations had been ordered by executive order of the Governor of Colorado. The Attorney General, on October 29, 1993, obtained permission from the chief judge of the Denver District Court to allow this state grand jury to investigate the allegations of election fraud and other crimes in Costilla County and elsewhere.\\nOn January 21, 1994, the state grand jury returned an indictment charging defendant with voting by giving false information regarding residence; aiding and abetting fraud in absentee voting; voter intimidation; and attempted voter intimidation. Defendant's daughter was also indicted on other charges.\\nOn December 27, 1994, the prosecutor and the defendant signed a \\\"settlement agreement\\\" pursuant to which defendant, on January 6,1995, entered a nolo contendere plea to an added count charging electioneering, a misdemeanor. In exchange, the original charges in the indictment against him and his daughter were dismissed. The trial court accepted the plea, entered judgment, and, by agreement of the parties, proceeded immediately to conduct a sentencing hearing.\\nAt the hearing, the court heard testimony from the probation officer who had prepared the pre-sentence report and from two citizens. Defendant requested a continuance, which was denied. The defendant then moved to withdraw his plea, but that motion was denied also.\\nThe court then sentenced defendant to 90 days in the Costilla County jail, imposed a $1,000 fine, and assessed court costs. Defendant was also ordered to pay $1,500 in restitution to the citizens group to defray its costs in pursuing the election challenge which had resulted in the grand jury investigation.\\nI.\\nDefendant first contends the chief judge of the Denver District Court exceeded her jurisdiction in ordering a state grand jury, already impaneled, to consider matters presented in relation to violations of the election laws in Costilla County. The basis of defendant's argument is that \\u00a7 24-31-101, C.R.S. (1988 Repl.Vol. 10A) limits the powers of the Attorney General such that he or she can only respond to an executive order by the Governor before petitioning for impanelment of the state grand jury. Thus, he contends, the absence of such an executive order here resulted in the grand jury and the supervising court having no jurisdiction. We do not agree.\\nSection 13-73-101, as then in effect before its 1996 amendment, governed the impaneling of state grand jurors. It provided:\\nWhen the attorney general deems it to be in the public interest to convene a grand jury which has jurisdiction extending beyond the boundaries of any single county, he may petition the chief judge of any district court for an order in accordance with the provisions of this article. Said chief judge may, for good cause shown, order the impaneling of a state grand jury which shall have statewide jurisdiction. In making his determination as to the need for impaneling a state grand jury, the judge shall require a showing that the matter cannot be effectively handled by a . 'county grand jury.'\\nThat statute expressly gives the Attorney General the power to petition the chief judge of the district court for the impanelment of the state grand jury when the Attorney General deems it to be in the public interest to convene a grand jury which has jurisdiction extending beyond the boundaries of any single county.\\nIn People v. Cerrone, 867 P.2d 143 (Colo.App.1993), aff'd, Cerrone v. People, 900 P.2d 45 (Colo.1995), a division of this court held that impaneling a state grand jury was proper when the chief judge of the district court found that the Attorney General, by her petition, had made a showing of good cause, that the matter could not be handled effectively by a county grand jury, and that it was in the public interest to convene a state grand jury. The Cerrone court relied on the specific statutory language of \\u00a7 13-73-101 for its conclusion.\\nThe cases relied on by defendant, People ex rel. Tooley v. District Court, 190 Colo. 486, 549 P.2d 774 (1976), and People ex rel. Witcher v. District Court, 190 Colo. 483, 549 P.2d 778 (1976), do not persuade us that a contrary result should obtain. In both cases, the supreme court held that the Attorney General must commence state grand jury proceedings if required to do so by the Governor. However, those cases do not stand for the proposition that the Attorney General may not also petition a chief judge of a judicial district to impanel a state grand jury, and that he or she may not prosecute certain cases arising out of indictments issuing from such grand juries.\\nHere, the Attorney General petitioned the chief judge of the Denver District Court to impanel a state grand jury only after she was requested by the citizens group to investigate allegations of election fraud. Under such circumstances, a failure of the Attorney General to act would have been in violation of the General Assembly's purpose .to use the \\\"law enforcement tool\\\" of the state grand jury to investigate crimes respecting election fraud.\\nThus, contrary to the assertions of the defendant, the district court, the Attorney General, and the state grand jury did not operate outside of their statutorily granted jurisdiction.\\nII.\\nDefendant next contends that the district court erred in allowing the state grand jury to return an indictment against him for violations alleged to have occurred in Costilla County. He further asserts that the district court erred in fixing venue originally in El Paso County. We disagree.\\nA.\\nWe first note that the indictment alleges criminal conduct in places other than just Costilla County. The indictment alleges that criminal conduct occurred in Orange County, California, and the Colorado counties of Crowley, El Paso, Denver, and Boulder.\\nUnder these circumstances, the chief judge of the Denver District Court did not err in concluding that the investigation \\\"cannot be effectively handled by a county or judicial district grand jury.\\\" See People v. Cerrone, supra. Thus, the state grand jury, being properly impaneled, had jurisdiction. to return its indictment.\\nWe note also that, because defendant has not alleged that the indictment is technically insufficient or unsound in form or substance, and we find no such insufficiency, the state grand jury properly exercised jurisdiction here. See \\u00a7 16-5-201, C.R.S. (1986 RepLVol. 8A); People v. Thimmes, 643 P.2d 780 (Colo.App.1982); People v. Westendorf, 37 Colo. App. 111, 542 P.2d 1300 (1975).\\nB.\\nWe also reject defendant's contention that it was error to fix venue in this matter originally in El Paso County.\\nJurisdiction of the court refers to the inherent power to inquire into a matter and to act thereon. Klancher v. Anderson, 113 Colo. 478, 158 P.2d 923 (1945). We have determined that the state grand jury was properly impaneled by a district court with jurisdiction.\\nVenue, on the other hand, refers to the locale or district in which a court with jurisdiction may hear and decide the case. See U.M. v. District Court, 631 P.2d 165 (Colo.1981).\\nSection 13-73-107, C.R.S. (1987 Repl.Vol. 6A), as pertinent here before being amended in 1996, stated:\\nAny indictment by a state grand jury shall be returned to the chief judge without any designation of venue. Thereupon, the judge shall, by order, designate the county of venue for the purpose of trial....\\nPursuant to the statute, the chief judge of the Denver District Court designated El Paso County as the county of venue. Because the indictment alleged that certain criminal conduct of the defendant had occurred in El Paso County, this was not improper. See \\u00a7 18-1-202(1), C.R.S. (1986 RepLVol. 8B); Crim. P. 18(a)(1).\\nThus, while venue was later changed to Costilla County, on defendant's motion, for the convenience of parties and witnesses, see \\u00a7 16-6-101, et seq., C.R.S. (1986 RepLVol. 8A); Crim. P. 21(a), the court did not err in initially fixing venue in El Paso County pursuant to \\u00a7 13-73-107. See People v. Rice, 40 Colo.App. 357, 579 P.2d 647 (1978).\\nIII.\\nDefendant next contends that the trial court violated the provisions of Crim. P. 6.8 by allowing the indictment to be amended to a'dd the count of electioneering, \\u00a7 1-13-' 714, C.R.S. (1996 Cum.Supp.). Thus, he argues, his plea should be vacated because the court had no jurisdiction to accept it. We reject this argument for two reasons.\\nFirst, we conclude that the invited error doctrine precludes defendant's asser tions. That doctrine provides that, when the court acquiesces in a course of conduct urged by the defendant, he is estopped on appeal from raising as error that conduct or its result. People v. Zapata, 779 P.2d 1807 (Colo.1989). Such was the case here.\\nOn December 27, 1994, defendant entered into a negotiated plea agreement. He agreed to plead nolo contendere to an added charge of electioneering in exchange for dismissal of all other charges in the indictment against him and his daughter. Defendant, who was represented by counsel at all times, signed a written plea agreement and ratified that agreement in a Crim. P. 11 providency hearing.\\nUnder these circumstances, we conclude that defendant must abide by the consequences of his actions. See People v. Akers, 746 P.2d 1381 (Colo.App.1987). As stated by the supreme court in People v. Bernard, 656 P.2d 695, 697 (Colo.1983), if the defendant \\\"ever had a serious objection to the . plea, this fact should have been made known long before he used the plea as a tool for avoiding a more serious conviction.\\\"\\nSecond, we conclude that defendant has waived any violation of Crim. P. 6.8 by entering into the plea agreement. The rationale of People v. Skinner, 825 P.2d 1045 (Colo.App.1991) is instructive. There, a division of this court analyzed the similarities and differences between lesser included offenses and lesser non-included offenses. It concluded that a defendant may ask a trial court to instruct the jury on a lesser non-included offense if it arises from the same facts leading to the original charge and contains at least one element not contained in the charged offense.\\nHere, defendant agreed to enter a plea of nolo contendere to the added charge of electioneering. That offense is not a lesser included offense of any of the original charges in the indictment. However, because it arises from the same facts and contains at least one element that is not in the charged offenses, it is a lesser non-included offense.\\nIt would be anomalous indeed to force a defendant to trial in order to exercise his right to have a lesser non-included offense be considered by prohibiting him from entering into a plea agreement in order to reach the. same result. Therefore, under the unique circumstances here, we see no error in the trial court's action allowing the amendment.\\nIV.\\nDefendant also maintains that the trial court abused its discretion when it refused to allow him to withdraw his plea. Again, we disagree.\\nA defendant may not as a matter of right have his plea of guilty or nolo contende-re withdrawn or changed; instead, such a determination rests in the discretion of the trial court. People v. Chippewa, 751 P.2d 607 (Colo.1988).\\nDefendant must show that fair and just reasons warrant the withdrawal of his guilty plea and that a denial of his motion would subvert justice. People v. Gutierrez, 622 P.2d 547 (Colo.1981). A claim of innocence is not, by itself, reason to allow a defendant to withdraw his plea. People v. Weed, 830 P.2d 1095 (Colo.App.1991).\\nDefendant's reason for seeking to withdraw his plea was his dissatisfaction with the tone and content of the sentencing hearing. Therefore, because he failed to establish that his plea was involuntary, or that justice would be subverted by a denial of his motion, the trial court's ruling will not be disturbed on appeal. People v. Chippewa, supra.\\nV.\\nHowever, as the People concede, we agree with defendant that the trial court erred in denying his motion for a continuance of the sentencing hearing.\\nBefore sentencing, a defendant is entitled to adequate notice of the claimed amount of damages and the amount of restitution which the court is asked to impose. And, at the sentencing hearing the defendant must be given the opportunity to controvert the victim's claimed monetary damages. People v. Johnson, 780 P.2d 504 (Colo.1989).\\nThe parties were aware that the court would proceed to sentencing immediately following the entry of defendant's plea. However, there is no evidence that the defendant was given adequate notice of the claim for restitution. Thus, he was not prepared to challenge either the amount of restitution proposed or the determination of the parties to whom it might be owed.\\nAccordingly, we conclude the trial court abused its discretion in denying defendant's motion for continuance.\\nIn light of this disposition we need not address defendant's remaining contentions.\\nThe judgment of conviction is affirmed. The sentence is vacated and the cause is remanded for resentencing.\\nCRISWELL, J., concurs.\\nJONES, J., concurs in part and dissents in part.\"}"

colorado/11981204.json

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+"{\"id\": \"11981204\", \"name\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Douglas Michael BIRDSONG, Defendant-Appellant\", \"name_abbreviation\": \"People v. Birdsong\", \"decision_date\": \"1996-09-26\", \"docket_number\": \"No. 96CA0157\", \"first_page\": \"877\", \"last_page\": \"880\", \"citations\": \"937 P.2d 877\", \"volume\": \"937\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T23:43:47.514331+00:00\", \"provenance\": \"CAP\", \"judges\": \"NEY and MARQUEZ, JJ., concur.\", \"parties\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Douglas Michael BIRDSONG, Defendant-Appellant.\", \"head_matter\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Douglas Michael BIRDSONG, Defendant-Appellant.\\nNo. 96CA0157.\\nColorado Court of Appeals, Div. II.\\nSept. 26, 1996.\\nRehearing Denied Nov. 14, 1996.\\nCertiorari Granted June 9, 1997.\\nGale A. Norton, Attorney General, Stephen K. Erkenbrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor Gener al, John J. Krause, Assistant Attorney General, Denver, for Plaintiff-Appellee.\\nMichael T. Kossen, Highlands Ranch, for Defendant-Appellant.\", \"word_count\": \"1780\", \"char_count\": \"11626\", \"text\": \"Opinion by\\nJustice QUINN.\\nDefendant, Douglas Birdsong, appeals the trial court's order revoking his sentence to probation. We reverse and remand.\\nDefendant was originally charged with one count of sexual assault on a child, one count of sexual assault on a child by one in a position of trust, and one count of aggravated incest. The charges were based on allegations that defendant had molested his five-year-old daughter by inappropriately touching her vaginal area.\\nPursuant to a written plea agreement, defendant entered a plea of guilty to one misdemeanor count of third degree sexual assault in accordance with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (defendant may constitutionally enter a plea of guilty pursuant to a plea agreement without actually admitting factual guilt if defendant knowingly acknowledges that prosecution's evidence is sufficient such that conviction at trial is likely). At the providency hearing, defendant admitted touching his daughter's genital area, but denied having done so for purposes of sexual gratification.\\nThe plea agreement contained a stipulated probationary sentence of four years with \\\"offense specific therapy.\\\" At the providency hearing, the parties agreed that an offense specific evaluation and treatment as recommended by the evaluator were encompassed with that condition. The court accepted the plea agreement and imposed sentence in accordance with the parties' stipulation.\\nSix months later, defendant's probation officer filed a probation complaint alleging that defendant had violated the terms and conditions of his probationary sentence by not having successfully completed the \\\"denial treatment program.\\\" Specifically, the complaint alleged that, although defendant had enrolled in a sex offender treatment program as ordered by the probation department and had attended 55 sessions of a denial treatment group, he was still \\\"in denial\\\" and unsuitable for the next phase of the treatment program.\\nAt the probation revocation hearing, the director of defendant's sexual offender treatment program testified that defendant had not successfully completed the four-phase treatment program because he was still unwilling to admit that the incidents involving his daughter were sexually motivated. Defendant called his former attorney as a witness to testify concerning discussions of defendant's plea negotiations. The attorney testified that he and the deputy district attorney agreed that defendant would continue participating in the denial group therapy program, and that if defendant admitted anything requiring further treatment, he would continue in therapy. The attorney also testified that, in his opinion, the terms of defendant's probation were inconsistent with the terms of the plea agreement because the plea agreement did not contemplate that defendant would be obligated to \\\"enter, enroll [in], and successfully complete a sex offender specific treatment program\\\" as specified in the probationary terms.\\nThe trial court found that the prosecution had established a violation of probation by a preponderance of the evidence. Relying on the transcript of the providency hearing, the court found that successful completion of an offense specific treatment program was a condition of defendant's probation. In addition, the court reasoned that any contrary interpretation of the probationary terms would have effectively allowed defendant to terminate his therapeutic treatment by means of his unwillingness to cooperate. On the basis of these findings, the court revoked defendant's probation and sentenced him to two years imprisonment in the county jail with work release. This appeal followed.\\nDefendant's single claim on appeal is that, because he entered an Alford plea, the trial court erred in revoking his probation based on his refusal to admit guilt in the sex offender treatment program. We agree.\\nProbation is a privilege, not a right. People v. Ickler, 877 P.2d 863 (Colo.1994). If a probationer violates any condition of probation, the order of probation may be revoked. Sections 16-11-205 & 16-11-206, C.R.S. (1986 RepLVol. 8A); see also People v. Ickler, supra. In a revocation proceeding, the prosecution has the burden of establishing by a preponderance of the evidence that the defendant violated a valid condition of probation. Section 16-11-206(3), C.R.S. (1986 Repl.Vol. 8A); see also People v. Trujillo, 189 Colo. 206, 539 P.2d 1234 (1975).\\nAs an initial matter, we reject defendant's argument that because the treatment counselors recommended terminating him from the program at the end of the denial group therapy sessions, such recommendation implicitly constituted an acknowledgment that no further treatment was required. On the contrary, the program director's testimony at the probation revocation hearing makes abundantly clear that the program counselors considered defendant in need of further treatment, though not amenable to it because of his refusal to admit culpability.\\nThe remaining question, therefore, is whether defendant's unsuccessful therapeutic termination caused by a refusal to admit guilt can constitute a probation violation in light of his Alford plea and stipulated probationary sentence requiring successful completion of the sex offender treatment. We conclude that it cannot.\\nBoth parties rely upon People v. Ickler, supra, to support their respective positions. In Ickler, the defendant pled guilty to a sexual assault charge and was ordered to complete a sex offender treatment program as a condition of a probationary sentence. Although the availability of special treatment programs for those in denial was discussed at sentencing, the defendant's plea of guilty was not an Alford plea. Thereafter, a probation complaint was filed alleging that defendant had failed to comply with the terms of his probation because he had failed to cooperate with the sexual offender treatment program. In part, the complaint was based on defendant's refusal to admit guilt for the offense.\\nIn rejecting Ickler's claim that admission of guilt was not an explicit condition of his probationary terms, our supreme court held that \\\"Ickler admitted his commission of the offense by entering a plea of guilty to the charged offense.\\\" People v. Ickler, supra, 877 P.2d at 867. In further support of its decision upholding the revocation of probation, the court pointed out that \\\"Ickler's lack of cooperation was not limited to his refusal to admit commission of the sexual assault\\\" but included his failure to keep appointments. People v. Ickler, supra, 877 P.2d at 867.\\nUnder the unique circumstances of the present case, we conclude that Ickler is inap-posite. The Ickler court's explanation that defendant's guilty plea constituted an admission of guilt does not pertain to the situation here in which defendant's plea of guilty was accompanied by a protestation of factual innocence pursuant to Alford. Moreover, the court in Ickler emphasized that it was the defendant's non-cooperation, and not solely his refusal to admit guilt, which formed the basis for the revocation.\\nOur research of other jurisdictions has disclosed only one appellate decision analyzing the precise question of whether a defendant who enters an Alford plea to a sex offense can have his probation revoked solely for refusing to admit guilt in court-ordered sex offender treatment. In People v. Walters, 164 Misc.2d 986, 627 N.Y.S.2d 289 (Cty.Ct.1995), the court reversed an order revoking the defendant's probation for failure to admit his guilt in sex offender treatment. The defendant in that case was originally charged with a felony sex offense but entered an Alford plea of guilty to a misdemeanor sex abuse charge. The defendant attended court-ordered sex offender treatment until he was terminated for persisting in his denial of guilt. Noting that at the time he entered his plea the defendant had not been advised that he would be required to admit guilt in order to successfully complete the sex offender treatment program, the Walters court reasoned that the acceptance of defendant's Alford plea was \\\"directly inconsistent\\\" with a finding that his refusal to admit guilt in counseling constituted a probation violation. People v. Walters, supra, 627 N.Y.S.2d at 291. We agree with the reasoning of Walters.\\nHere, defendant tendered his Alford plea and denied his culpability, but agreed to successfully complete the sex offender treatment program. However, as in Walters, there is no evidence in the record indicating that defendant was informed that admitting guilt was a necessary prerequisite to such successful completion. In the instant case, it was the trial court's obligation to advise the defendant of that requirement before the court accepted the Alford plea.\\nThere is an obvious incompatibility between, on the one hand, a plea which denies the culpable mental element of a sexual offense and, on the other, a concurrent sentencing stipulation to undergo, as part of a sentence to probation, a treatment program which requires an admission of guilt as a condition of its successful completion. Such a plea cannot be characterized as knowing and voluntary unless the defendant is provided with information necessary to assess his ability to comply with the terms and conditions of the probationary sentence.\\nA trial court is not obligated to accept a defendant's Alford plea. North Carolina v. Alford, supra (fn. 11). Nor is a trial court obligated to accept the parties' plea agreement. See Grim. P. 11(f)(5). However, before a court decides to accept an Alford plea that is conditioned on a stipulated treatment program requiring an admission of guilt as part of a probationary sentence, the court must find that the defendant understands that the successful completion of the program will require him to admit the very guilt which he presently is denying and that the failure to successfully complete the program can result in the revocation of his probation.\\nHence, this case must be remanded for further proceedings. Upon remand, the trial court may consider several options, including but not limited to the following: permit defendant to withdraw the Alford plea and reinstate the charges; permit defendant to continue on probation after the court determines that defendant understands and agrees to the successful completion of the denial treatment program and further understands and agrees to the requirement that successful completion will require him to admit his guilt as to all the elements of third degree sexual assault; permit defendant to continue on probation and eliminate defendant's successful completion of the denial treatment program as a condition of probation; any other disposition consistent with the views herein expressed.\\nThe trial court's order revoking probation is reversed and the cause is remanded for further proceedings consistent with the views herein expressed.\\nNEY and MARQUEZ, JJ., concur.\\nSitting by assignment of the Chief Justice under provisions of the Colo. Const, art. VI, Sec. 5(3), and \\u00a7 24-51-1105, C.R.S. (1996 Cum.Supp.)\"}"

colorado/12042186.json

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+"{\"id\": \"12042186\", \"name\": \"John T. IVY, Complainant-Appellant, v. STATE OF COLORADO-STATE PERSONNEL BOARD and Department of Administration, Division of Accounts & Control, Respondents-Appellees\", \"name_abbreviation\": \"Ivy v. State\", \"decision_date\": \"1993-08-26\", \"docket_number\": \"No. 92CA1544\", \"first_page\": \"602\", \"last_page\": \"606\", \"citations\": \"860 P.2d 602\", \"volume\": \"860\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T19:53:51.132679+00:00\", \"provenance\": \"CAP\", \"judges\": \"PLANK and RULAND, JJ., concur.\", \"parties\": \"John T. IVY, Complainant-Appellant, v. STATE OF COLORADO\\u2014STATE PERSONNEL BOARD and Department of Administration, Division of Accounts & Control, Respondents-Appellees.\", \"head_matter\": \"John T. IVY, Complainant-Appellant, v. STATE OF COLORADO\\u2014STATE PERSONNEL BOARD and Department of Administration, Division of Accounts & Control, Respondents-Appellees.\\nNo. 92CA1544.\\nColorado Court of Appeals, Div. IV.\\nAug. 26, 1993.\\nAs Modified on Denial of Rehearing Sept. 30, 1993.\\nDouglas G. McKinnon, Littleton, for complainant-appellant.\\nNo appearance for the State Personnel Bd.\\nGale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., and Joseph Haughain, Asst. Atty. Gen., Denver, for respondent-appellee Dept, of Admin., Div. of Accounts & Control.\", \"word_count\": \"1991\", \"char_count\": \"12576\", \"text\": \"Opinion by\\nJudge CRISWELL.\\nJohn T. Ivy, a state employee, appeals from an order of the State Personnel Board that denied his request for a hearing upon the grievance he filed pursuant to \\u00a7 24-50-123, C.R.S. (1988 Repl. Vol. 10B) and rules R10-2-1, et seq., 4 Code Colo. Reg. 801-1, of the Board's rules. We reverse and remand with directions to grant a hearing to the employee upon his grievance.\\nSection 24-50-123 requires the Board to adopt a \\\"grievance procedure\\\" for state employees to provide for a review of \\\"all grievances,\\\" except those involving disciplinary actions under \\u00a7 24-50-125, C.R.S. (1988 Repl. Vol. 10B), which are subject to separate administrative procedures.\\nThe system adopted by the Board pursuant to this statute is set forth in Chapter 10 of the Board's rules. These rules provide that a \\\"formal grievance\\\" may be asserted by any employee who is \\\"aggrieved by any action [of the appointing authority or other supervisors] not otherwise appealable.\\\" R10-2-1, 4 Colo. Reg. 801-1. Such a grievance may relate to working facilities or conditions or agency policies, rules, or regulations.\\nHowever, any complaint that an employee may have regarding the manner in which his or her position has been classified \\u2014 a \\\"classification\\\" dispute \\u2014 is subject to a separate statutory review procedure under \\u00a7 24-50-104(3), C.R.S. (1988 Repl. Vol. 10B), and, thus, is not subject to the grievance procedure. Likewise, the Board's rule specifically exempts from such procedures any dispute relating to overtime pay. R10-2-1, 4 Code Colo. Reg. 801-1.\\nThe Board's rules provide that, if the employee does not receive satisfaction after discussing the grievance with the immediate supervisor, it must be reduced to written form and processed through a four-step procedure. That procedure involves discussions with increasingly higher supervisors including, at the last step, discussions with the appointing authority or that authority's delegate. R10-2-3, 4 Code Colo. Reg. 801-1. If the employee still remains unsatisfied, an appeal may be filed with the Board and the employee may request a hearing. R10-2-3, 4 Code Colo. Reg. 801-1.\\nSuch request is referred to a designated hearing officer for a preliminary review to determine \\\"whether valid issues exist which merit a full hearing.\\\" The hearing officer may request the parties to provide information on \\\"information sheets,\\\" and after considering the written grievance and such information as the parties have provided, the hearing officer is to make a written recommendation to the Board. R10-4-2(A), 4 Code Colo. Reg. 801-1.\\nThe parties agree that any appeal from a Board's decision upon a requested hearing is reviewable by this court pursuant to the State Administrative Procedure Act, \\u00a7 24-4-106, C.R.S. (1988 Repl. Vol. 10A). That statute is specific in requiring \\\"all pleadings, applications, evidence, exhibits, and other papers presented to or considered by the agency\\\" to be included as a part of the record presented to the reviewing court. Section 24-4-106(6), C.R.S. (1988 Repl. Vol. 10A).\\nHowever, all that has been certified to this court by the Board's executive director here is: (1) the hearing officer's written recommendations, (2) the reporter's transcript of the Board's discussion and vote upon that recommendation, and (3) the written order of the Board denying the requested hearing. The record before us does not contain the employee's grievance nor any of the evidentiary submissions made to the hearing officer.\\nWhile the Board has requested to supplement the record with those documents, the employee has asserted that the Board did not consider them in reviewing the hearing officer's recommendation, there is no indication in the reporter's transcript of the Board's discussion that they were considered, and the submissions made by the Board to us do not contain any explicit assertion that the Board did review them.\\nUnder these circumstances, we will presume that the materials presented to the hearing officer support the preliminary findings made by her. See Slater v. Van Schaack & Co., 162 Colo. 201, 425 P.2d 302 (1967).\\nAfter reviewing what she termed \\\"offers of proof\\\" by the employee, the hearing officer made detailed preliminary findings. She found that the employee, after serving some six years in one position, was thereafter involuntarily transferred to a series of temporary assignments. While the employee voiced his disagreement with these transfers to his various supervisors, he did not file a formal grievance to protest them. He claims that there were two reasons that he did not initiate such a protest at that time.\\nFirst, he asserts that he was repeatedly assured by the executive director of the department from which he was transferred that his assignments would be structured in such a way that his salary would not be reduced. Second, he asserts that he was also repeatedly advised by numerous supervisors and other state officials, including the state personnel director, that he did not at that point have any right of recourse within the personnel system.\\nIn contrast to these specific claims, the hearing officer found that the department's position regarding the existence of such promises and advice was \\\"less than clear.\\\"\\nAfter the General Assembly lifted a wage freeze on positions in the classified service, a desk audit was performed on the position that the employee then occupied. Based to some extent upon the fact that the occupant of that position was called upon to supervise fewer employees than the occupant of the employee's original position, that position was down-graded in its classification. As a result, the employee's salary suffered a substantial reduction from the level of salary he enjoyed prior to his original transfer. He alleged that this wage reduction constituted a violation of the express representations and promises made to him by his department's executive director. Therefore, the employee, allegedly acting upon the advice of the department's personnel director, filed two grievances \\u2014 one against his original appointing authority and one against the appointing authority of the position which he was then filling.\\nBased upon the foregoing allegations, which the hearing officer found to have support in the written exhibits submitted to her, the hearing officer concluded that \\\"given the language of the written griev- anee,\\\" the employee's complaint was not a \\\"classification\\\" dispute\\u2014his complaint was not that the position he was filling had been improperly classified; his complaint was that his former department's executive director had failed to take steps to fulfill the express promises relating to his wage level that had been made to him.\\nThe hearing officer concluded, therefore, that a hearing should be conducted and that the determination of the question of the nature of the relief that might be granted should await receipt of all the evi-d\\u00e9nce respecting the employee's grievance.\\nThe Board rejected the hearing officer's recommendation and denied the employee a hearing upon his grievance. In doing so, it gave no reasons for its actions in its formal order. In addition, it made no determination whether the grievance presented \\\"valid issues\\\" that merited a hearing under R10-4-2(A), 4 Code Colb. Reg. 801-1, or whether the circumstances justified a hearing under R10-4-1, 4 Code Colo. Reg. 801-1.\\nBecause the Board failed to adopt any findings or conclusions or to give any reasons for its action, it would normally be impossible for this court to engage in any meaningful review of its order, and an order of remand by this court would be appropriate. See Lawless v. Bach, 176 Colo. 165, 489 P.2d 316 (1971).\\nHere, however, while the Board as a whole did not adopt any reason for its action, the administrative record reflects that some of the members of the Board individually stated reasons for their votes. Under these circumstances, therefore, we will consider whether any of the individual reasons stated for denying an evidentiary hearing is legally sufficient to justify the Board members' collective action.\\nAt no point in the Board's discussion did any member suggest that the AU's recommendation was not supported by the materials submitted to her. Rather, the reasons given for the Board's action were that: (1) the issues involved a classification dispute that was subject to other review proceedings, (2) the employee could be granted no relief even if his allegations were established, and (3) if the employee's grievance here were sustained, it would open a \\\"Pandora's box\\\" of complaints by other employees.\\nNone of these considerations justifies the Board's order of denial.\\nFirst, as the hearing officer concluded, the employee's grievance does not give rise to any \\\"classification\\\" dispute. He does not assert that the position he now occupies has been improperly evaluated so that the position itself should be upgraded. Rather, his grievance asserts that the executive director of his former department gave specific assurances to him at the time of his transfer that he would not suffer a pay reduction as a result of that transfer. He seeks to obtain relief only for himself for the breach of that promise.\\nFurther, the Board committed error in concluding, before receiving a complete exposition of the history of this dispute or giving full consideration to the parties' views, that a state employee who asserts that he or she has been deceived both by the executive director of his department and by several other state officials, including the state personnel director, can obtain no relief for such deceptions. The hearing officer properly recognized that, until a full evidentiary hearing upon the underlying dispute has been held and a determination is made whether the employee's factual allegations are true, it would be premature to consider the question of the nature of the relief that should be granted.\\nFinally, we do not understand what was meant by some Board members' reference to a \\\"Pandora's box\\\" of employee grievances, and nothing in the record before us serves to illuminate this meaning. It is, in any event, irrelevant that other employees may also possess similar grievances, if those grievances are valid. Indeed, if the employee here proves that he was deceived by high-ranking state supervisors, public policy would be served, not frustrated, by encouraging other employees, similarly deceived, to come forward so that the public and the General Assembly might be made aware of such practices. If, on the other hand, the employee does not prove his serious allegations, and consequently does not obtain any relief, such failure could serve as no encouragement for any other employee to assert a similar meritless grievance.\\nNone of our conclusions stated here should be deemed to be an acceptance of the employee's allegations. On the contrary, we recognize that such allegations may ultimately be determined to be wholly without merit. Because the hearing officer found, based upon the information submitted to her, that the employee's allegations were facially supported, however, we conclude that the Board acted arbitrarily and capriciously within the meaning of \\u00a7 24-4-106(7), C.R.S. (1988 Repl. Vol. 10A) in refusing to hold an evidentiary hearing upon those allegations.\\nFinally, in reaching this conclusion, we have considered the other reasons advanced before this court by the Board's counsel to uphold the Board's order. We conclude that counsel's contentions are unpersuasive, however, because: (1) they were not the reasons advanced by any Board member for the decision and (2) a proper determination of such contentions would require factual determinations that could only be made after the evidentiary hearing requested is held.\\nThe order of the Board is reversed, and the cause is remanded to it with directions to order a full evidentiary hearing upon the employee's grievance.\\nPLANK and RULAND, JJ., concur.\"}"

colorado/12254221.json

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+"{\"id\": \"12254221\", \"name\": \"In the Matter of the Petition of C.A.O., Petitioner-Appellee, FOR the ADOPTION OF G.M.R., Child, and Concerning M.T.R.-B., Sr., Respondent-Appellant\", \"name_abbreviation\": \"In re C.A.O.\", \"decision_date\": \"2008-07-10\", \"docket_number\": \"No. 07CA1033\", \"first_page\": \"508\", \"last_page\": \"512\", \"citations\": \"192 P.3d 508\", \"volume\": \"192\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-11T02:00:13.276031+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Judge DAVIDSON and Judge RULAND concur.\", \"parties\": \"In the Matter of the Petition of C.A.O., Petitioner-Appellee, FOR the ADOPTION OF G.M.R., Child, and Concerning M.T.R.-B., Sr., Respondent-Appellant.\", \"head_matter\": \"In the Matter of the Petition of C.A.O., Petitioner-Appellee, FOR the ADOPTION OF G.M.R., Child, and Concerning M.T.R.-B., Sr., Respondent-Appellant.\\nNo. 07CA1033.\\nColorado Court of Appeals, Div. II.\\nJuly 10, 2008.\\nMark A. Dedrickson, P.C., Mark A. De-drickson, Denver, Colorado, for Petitioner, Appellee.\\nM.T.R.-B., Sr., pro se.\", \"word_count\": \"1963\", \"char_count\": \"12482\", \"text\": \"Opinion by\\nJustice ROVIRA.\\nM.T.R.-B., Sr. (father) appeals from the decree permitting C.A.O. (stepfather) to adopt his daughter, G.M.R. (child). We remand for further proceedings.\\nFather's paternity was established by his admission in March 1999, when he was ordered to pay monthly child support to L.R.L.-O. (mother) and the parties stipulated to unspecified parenting time. Father asserts that his child support obligation was later reduced. He was confined from June to October 2004 in the Douglas County jail and remains incarcerated since his arrest in April and sentence in September 2005. He is now in the North Fork Correctional Facility, a private correctional facility in Sayre, Oklahoma.\\nIn August 2006, stepfather filed a petition for adoption of the child, alleging that father failed without cause to provide reasonable support and abandoned the child for a period of one year or more. Father was personally served and objected to the petition.\\nIn his first motion to continue the hearing, father requested the appointment of counsel, arguing that he was incarcerated and could not afford an attorney. The trial court denied the request, stating that it had \\\"no authority to appoint counsel in these proceedings.\\\"\\nAfter the hearing, which father participated in by telephone due to his out-of-state incarceration, the trial court determined that father failed to provide reasonable support for the child and had abandoned the child for at least one year, and adoption was in the child's best interest. The court then granted the petition to terminate and adopt.\\nI.\\nInitially, we address and reject father's contention that the district court lacked subject matter jurisdiction to hear and rule upon the petition for stepparent adoption. See In re Marriage of Pritchett, 80 P.3d 918, 920 (Colo.App.2003) (subject matter jurisdiction may not be waived and can be raised at any stage in the proceedings); see also People in Interest of D.P., 181 P.3d 403, 406 (Colo.App.2008). Both juvenile and district courts have exclusive original jurisdiction in adoption proceedings. In re Petition of R.G.B., 98 P.3d 958, 960 (Colo.App.2004).\\nIL.\\nThe petition for adoption was correctly brought under section C.R.S.2007. Therefore, father's contention that the trial court erred in terminating his relationship even though mother had no intention of relinquishing her own parental rights is misplaced. See E.R.S. v. O.D.A., 779 P.2d 844, 847 (Colo.1989) (stepparent adoption proceeding necessarily includes the termination of the parental rights of the noncustodial parent).\\nIIL\\nFather contends that because he was indigent the trial court's denial of his request for the appointment of counsel and an expert witness violated his constitutional right to due process. We conclude that the trial court did not apply the proper analysis concerning the appointment of counsel and remand for reconsideration of this issue.\\nA. Right to Counsel\\nAn indigent parent's right to appointed counsel in termination proceedings resulting from an adjudication of dependency and neglect is secured by statute and not constitutional mandate. C.S. v. People, 838 P.3d 627, 636 (Colo.2004); In re Marriage of Hartley, 886 P.2d 665, 674 n. 16 (Colo.1994) (the constitutional right to assistance of counsel is limited to adult proceedings which are criminal in nature and equivalent juvenile cases).\\nThere is no explicit right to counsel in a stepparent adoption proceeding. See \\u00a7 19-1-105(2), 19-5-203(1)(d)(ID), CRS. 2007. Thus, while parental termination proceedings following a dependency and neglect adjudication implicate a parent's fundamental liberty interests, the constitution does not require the appointment of counsel in every case. Instead, there is a presumption that there is no right to counsel in the absence of at least a potential deprivation of physical liberty. C.S., 83 P.3d at 636.\\nIn determining whether an indigent parent has the right to appointed counsel in a termination proceeding resulting from a dependency and neglect adjudication, \\\"a court is to consider: whether (1) the parent's interest is an extremely important one; (2) the State shares with the parent an interest in a correct decision, has a relatively weak peeu-niary interest, and, in some but not all cases, has a possibly stronger interest in informal procedures; and (8) the complexity of the proceeding and the incapacity of the uncoun-selled parent could be, but would not always be, great enough to make the risk of an erroncous deprivation of the parent's rights insupportably high.\\\" Id. at 636-37 (quoting Lassiter v. Dep't. of Soc. Servs., 452 U.S. 18, 31, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981).\\nDue process requires the appointment of counsel in termination proceedings initiated by the state only where the parent's interests are at their strongest, the state's interests are at their weakest, and the risks of error are at their peak. C.S., 83 P.3d at 637; People in Interest of M.G., 128 P.3d 332, 334 (Colo.App.2005) (no due process right to counsel where state sought only to award custody of the child to other individuals).\\nOther states have considered the analysis adopted in C.S. and applied the Lassiter factors to determine if an indigent parent is entitled to the appointment of counsel in an adoption proceeding between private individuals. See generally Patricia C. Kussmann, Right of Indigent Parent to Appointed Counsel in Proceeding for Involuntary Termination of Parental Rights, 92 A.L.R.5th 379 (2001). We agree that the C.S. factors should be considered to resolve father's due process argument in a stepparent adoption proceeding.\\nTermination of parental rights affects the parent's fundamental liberty interest. C.S., 83 P.3d at 636; L.L. v. People, 10 P.3d 1271, 1275-76 (Colo.2000) (\\\"the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court\\\") (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), a case where permanent legal guardianship of the children previously adjudicated abused and neglected was vested in children's foster parents); People in Interest of J.C.S., 169 P.3d 240, 245 (Colo.App.2007) (dependency and neglect proceeding). Thus, a parent's interest in opposing termination resulting from a stepparent adoption is an important one.\\nSecond, adoption is a creature of statute. In re T.K.J., 931 P.2d 488, 491 (Colo.App.1996). Therefore, although the state is not a party to stepparent adoption proceedings, it is an integral part of the process because only the state can officially decree termination of the parental relationship.\\nStates have reached differing conclusions concerning the risk of an erroneous deprivation of the parent's rights. Compare K.L.J., 813 P.2d at 280-81 (although the legal issues in a given case may not be complex, a parent without counsel will be at a decided and frequently decisive disadvantage) and Jay, 150 Cal.App.3d at 264-65, 197 Cal.Rptr. 672 (while the legal concepts involved in a stepparent adoption may be simple to an attorney, they may not be to an indigent parent, whose need for counsel is compelling, and appointment of counsel furthers the state's interest in making the fact finding process more accurate), with In re D.D.D., 961 So.2d 1216, 1221 (La.Ct.App.2007) (parent's interests in stepparent adoption proceeding, while compelling, were not outweighed by state's interest to promote permanent placement of children into suitable homes and to conclude child-custody litigation in a timely manner; risk of erroneous decision was not great).\\nThe decision whether due process calls for the appointment of counsel for indigent parents in stepparent adoption proceedings must be answered in the first instance by the trial court, subject to appellate review. Lassiter, 452 U.S. at 32, 101 S.Ct. 2153; K.A.S., 499 N.W.2d at 562-63; cf. C.S., 83 P.3d at 637 (reviewing record to agree with trial court that mother was not entitled to a third court-appointed attorney in dependency and neglect proceeding).\\nHere, the trial court concluded it had \\\"no authority\\\" to appoint counsel in a stepparent adoption proceeding without specifically considering C.S. or applying the Lassiter factors to determine whether the presumption that due process did not require counsel was overcome.\\nAccordingly, we conclude that the case must be remanded to the trial court to reconsider father's request for the appointment of counsel after application of the factors discussed above.\\nB. Right to Expert\\nBecause the record does not show that father requested the appointment of an expert in the trial court, we need not address that issue. See People in Interest of V.W., 958 P.2d 1132, 1134 (Colo.App.1998).\\nIV.\\nBecause after considering the appropriate factors, the trial court may on remand determine that father is not entitled to court-appointed counsel, we address the following additional allegations of error.\\nA. Continuance\\nFather contends that the trial court's refusal to continue the hearing violated his right to due process. We disagree.\\nA motion for continuance is addressed to the sound discretion of the trial court, and its ruling will not be disturbed on appeal absent a clear abuse of that discretion. C.S., 83 P.3d at 638; People in Interest of A.J., 143 P.3d 1143, 1150 (Colo.App.2006). In ruling on the motion, the court should balance the need for orderly and expeditious administration of justice against the facts underlying the motion, while considering the child's need for permanency. See A.J., 143 P.3d at 1150.\\nProcedural due process requires notice and an opportunity to be heard. People in Interest of D.G., 733 P.2d 1199, 1202 (Colo.1987); In re J.D.K., 37 P.3d 541, 548 (Colo.App.2001). Stepparent adoption proceedings are required to take place \\\"as soon as possible.\\\" \\u00a7 19-5-210(2), C.R.S.2007.\\nHere, although father's first request for a continuance was denied, the final hearing was not held until after the period of time father requested had passed. Father's see-ond request sought an indefinite continuance based on his incarceration, lack of access to Colorado statutes, need \\\"for preparation because of the complex and sensitive nature of this case,\\\" and to obtain representation and an expert witness. Both were denied, the first based on the findings that a continuance was not in the child's best interests, the case was not complex, and father's lack of access to Colorado statutes did not necessitate a continuance.\\nWithout a transcript of the proceeding, which father attended by telephone, we must presume that he exercised his right to present and cross-examine witnesses. Father's numerous recitations to the Children's Code also negate the assertion that he was denied access to Colorado law. See Moody v. Corsentino, 843 P.2d 1355, 1377 (Colo.1993).\\nAccordingly, we conclude that father was not denied due process, and the trial court did not abuse its discretion in denying his motions to continue.\\nB. Sufficiency of the Evidence\\nBecause no transeript was provided on appeal, we presume it would contain clear and convincing evidence to support the findings that (1) father failed without cause to provide reasonable child support for a period of one year or more, (2) abandoned the child for a period of one year or more, and (8) termination of the parent-child legal relationship was in the child's best interests. See People in Interest of D.C., 851 P.2d 291, 293 (Colo.App.1993).\\nv.\\nPetitioner requests attorney fees pursuant to C.A.R. 38(d). We conclude that father's appeal is not frivolous. See In re Taylor, 134 P.3d 579, 584 (Colo.App.2006).\\nThe case is remanded for the trial court to reconsider father's request for the appointment of counsel and, if granted, further proceedings on the petition. If the request for appointment of counsel is denied, the judgment is affirmed, subject to father's right to appeal that determination.\\nChief Judge DAVIDSON and Judge RULAND concur.\\nSitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, \\u00a7 5(3), and \\u00a7 24-51-1105, C.R.$.2007.\"}"

colorado/12565061.json

@@ -0,0 +1 @@
+"{\"id\": \"12565061\", \"name\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joshua Elliot WINGFIELD, Defendant-Appellant.\", \"name_abbreviation\": \"People v. Wingfield\", \"decision_date\": \"2014-12-31\", \"docket_number\": \"Court of Appeals No. 12CA1287\", \"first_page\": \"869\", \"last_page\": \"878\", \"citations\": \"411 P.3d 869\", \"volume\": \"411\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Colorado Court of Appeals, Div. I\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee,\\nv.\\nJoshua Elliot WINGFIELD, Defendant-Appellant.\", \"head_matter\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee,\\nv.\\nJoshua Elliot WINGFIELD, Defendant-Appellant.\\nCourt of Appeals No. 12CA1287\\nColorado Court of Appeals, Div. I.\\nAnnounced December 31, 2014\\nJohn W. Suthers, Attorney General, Patricia R. Van Horn, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.\\nMartinez Law, LLC, Esteban A. Martinez, Longmont, Colorado, for Defendant-Appellant.\", \"word_count\": \"4692\", \"char_count\": \"28973\", \"text\": \"Opinion by JUDGE TAUBMAN\\n\\u00b6 1 Defendant, Joshua Elliot Wingfield, appeals the judgment of conviction entered on a jury verdict finding him guilty of first degree possession of contraband, dangerous instrument. We affirm.\\nI. Background\\n\\u00b6 2 Wingfield shared a cell with two other inmates at the Arapahoe County Jail. Deputies received a report of a possible escape attempt. Through an intercom, they heard \\\"scraping\\\" and \\\"banging\\\" sounds coming from the cell. As one deputy approached the cell, other deputies monitoring the intercom heard Wingfield say: \\\"Fuck, cops. Flush it. Flush it.\\\" When deputies entered the cell, they discovered a trench had been dug around the perimeter of the window. They further found a crutch that had a flattened end, metal bars, a portion of a metal drain or grate, and a shank.\\n\\u00b6 3 Wingfield was charged with first degree possession of contraband, attempted escape with a pending felony, conspiracy to commit escape, and three habitual criminal counts. The court ultimately granted Wingfield's motion for judgment of acquittal on the escape counts because the prosecution had not presented any evidence that Wingfield was in custody for a felony offense.\\nA. Competency Hearing\\n\\u00b6 4 At a July 16, 2007 hearing, the prosecutor informed the court that a doctor at the jail had recommended that Wingfield undergo a psychiatric evaluation at the state hospital. The court made a preliminary finding of incompetency and set a competency review hearing.\\n\\u00b6 5 That hearing was held on October 11, 2007, but Wingfield was unable to attend because he was being held in the Pueblo County Jail on assault charges. Defense counsel waived Wingfield's appearance, and the court found Wingfield competent to proceed.\\n\\u00b6 6 Wingfield subsequently requested a second competency hearing on January 9, March 12, and April 23, 2008, on April 27 and April 29, 2009. The trial court denied Wingfield's request for a second competency hearing on each occasion. At a hearing on February 11, 2011, Wingfield moved for a new trial based on his alleged incompetence throughout trial, and the trial court denied that motion.\\nB. Choice of Evils\\n\\u00b6 7 On March 12, 2009, Wingfield informed the prosecution that he wished to pursue a choice of evils defense. According to Wingfield, he was placed in a cell with two inmates, Matthew McGary and Brandon Hoyt, who had already started to effectuate an escape from the prison by knocking off chunks of concrete around their cell's window. McGary and Hoyt informed Wingfield that they were members of a white supremacist gang. McGary allegedly told Wingfield that if he did \\\"anything to stop [the breakout], that he was a dead man. That he would be labeled a snitch and they would kill him.\\\"\\n\\u00b6 8 After this threat, Wingfield allegedly began pursuing alternatives to going along with the escape, filing several inmate request forms with the Arapahoe County sheriffs, requesting his removal from the cell. In the filings, Wingfield did not specify his reasons for seeking removal. Only when Wingfield's requests were denied did he decide to go along with his cellmates' escape plan.\\n\\u00b6 9 The prosecution subsequently filed a motion in limine in which it argued that defense counsel had not submitted a factual basis supporting the choice of evils defense and, therefore, the court should not allow Wingfield to pursue it.\\n\\u00b6 10 The trial court granted the prosecution's motion, finding that, although Wingfield faced an imminent threat, he could have reached a point of safety by telling jailers at any time what was going on and requesting to be removed from his cell.\\n\\u00b6 11 Wingfield was convicted of possession of contraband. The court adjudicated him a habitual offender and he was sentenced to eighteen years in the custody of the Department of Corrections.\\nII. Waiver of Presence at Competency Hearing\\n\\u00b6 12 Wingfield contends that the trial court erred when it allowed defense counsel to waive his presence at the competency hearing. We discern no reversible error.\\nA. Standard of Review\\n\\u00b6 13 Whether a trial court violated a defendant's right to be present is a constitutional question that is reviewed de novo. People v. Price, 240 P.3d 557, 560 (Colo. App. 2010).\\n\\u00b6 14 Wingfield contends that his claim should be reviewed under the constitutional harmless error standard. See Luu v. People, 841 P.2d 271, 274-75 (Colo. 1992). Constitutional harmless error requires the reversal of a defendant's conviction that occurred as a result of the trial court's error unless the reviewing court finds the error harmless beyond a reasonable doubt. Blecha v. People, 962 P.2d 931, 942 (Colo. 1998).\\n\\u00b6 15 The People disagree, arguing that the plain error standard applies to unpreserved constitutional claims. See People v. Miller, 113 P.3d 743, 748 (Colo. 2005).\\n\\u00b6 16 Although we note that Wingfield's absence from the competency hearing made it impossible for him to object to defense counsel's waiver of his right to presence, we need not resolve this issue because we conclude that the trial court did not violate Wingfield's constitutional rights.\\nB. Applicable Law\\n\\u00b6 17 A defendant has a right to be present at every critical stage of a criminal trial. People v. Ragusa, 220 P.3d 1002, 1009 (Colo. App. 2009). Although no Colorado appellate court has addressed the issue, every federal court of appeals to address the issue, as well as various state courts, has held that competency hearings are such \\\"critical stages\\\" for the purposes of the Sixth Amendment right to counsel. United States v. Ross, 703 F.3d 856, 874 (6th Cir. 2012) ; Raymond v. Weber, 552 F.3d 680, 684 (8th Cir. 2009) ; United States v. Collins, 430 F.3d 1260, 1264 (10th Cir. 2005) ; Appel v. Horn, 250 F.3d 203, 215 (3d Cir. 2001) ; United States v. Klat, 156 F.3d 1258, 1262 (D.C. Cir. 1998) ; United States v. Barfield, 969 F.2d 1554, 1556 (4th Cir. 1992) ; Sturgis v. Goldsmith, 796 F.2d 1103, 1109 (9th Cir. 1986) ; State v. Giles, No. CA-977, 1991 WL 271698, at *3 (Ohio Ct. App. Nov. 18, 1991) (unpublished opinion) (\\\"A competency hearing is a critical stage of the proceedings.\\\"); State v. Heddrick, Nos. 57420-5-I, 57469-8-I, 2007 WL 2411354 (Wash. Ct. App. Aug. 27, 2007) (unpublished opinion); see also Ronald A. Parsons, Jr., Being There: Constructive Denial of Counsel at a Competency Hearing as Structural Error under the Sixth Amendment, 56 S.D.L.Rev. 238, 242 (2011) (\\\"[E]very federal court of appeals [to address whether a competency hearing is a critical stage] has answered it affirmatively.\\\"). We join these courts in holding that a competency hearing is a critical stage of a criminal prosecution.\\n\\u00b6 18 However, the right to presence at critical stages is not absolute. Due process only requires a defendant's presence \\\" 'to the extent that a fair and just hearing would be thwarted by his [or her] absence.' \\\" Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 108, 54 S.Ct. 330, 78 L.Ed. 674 (1934) ). Due process does not require the defendant's presence when his or her presence would be useless. Luu, 841 P.2d at 273-75.\\n\\u00b6 19 Further, the right to presence may be waived. In such instances, the trial court is responsible for ensuring that the defendant's waiver is voluntary, knowing, and intelligent. See Taylor v. Illinois, 484 U.S. 400, 417-18 & n.24, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) ; Price, 240 P.3d at 560. However, defense counsel cannot waive a defendant's right to presence at critical stages of criminal proceedings. People v. Curtis, 681 P.2d 504, 511 (Colo. 1984).\\nC. Analysis\\n\\u00b6 20 Here, the trial court improperly allowed Wingfield's defense counsel to waive his right to presence at the October 11, 2007, competency hearing. The trial court made no efforts to ensure that Wingfield knew of his right to be present at the competency hearing and voluntarily waived it. See Price, 240 P.3d at 560 (\\\"The trial court is responsible for ensuring that the defendant's waiver of the right to be present at trial is voluntary, knowing, and intelligent.\\\").\\n\\u00b6 21 However, although we conclude that competency hearings are critical stages of criminal proceedings, Wingfield has failed to show how his presence would have been useful to his defense. See Luu 841 P.2d at 275 (\\\"[T]he privilege of presence is not guaranteed 'when presence would be useless, or the benefit but a shadow.' \\\" (quoting Stincer, 482 U.S. at 745, 107 S.Ct. 2658 ).\\n\\u00b6 22 A defendant is competent to stand trial or be sentenced if he or she is capable of understanding the nature and course of the proceedings against him or her, participating and assisting in the defense, and cooperating with defense counsel. People v. Corichi, 18 P.3d 807, 810 (Colo. App. 2000).\\n\\u00b6 23 Wingfield asserts that, had he been present, his words and conduct would have demonstrated his incompetence. However, in Wingfield's subsequent court appearances, the trial court had ample opportunity to observe Wingfield and concluded that although he often rambled, he understood the court proceedings and was not incompetent.\\n\\u00b6 24 Wingfield further argues that he could have assisted his counsel at the competency hearing. However, Wingfield himself argues that he was incompetent to proceed to trial, casting doubt on any useful role he could have played at the competency hearing and lessening the importance of his presence at that hearing. Further, Wingfield does not explain how he could have assisted his attorney at the competency hearing.\\n\\u00b6 25 Therefore, the trial court did not violate Wingfield's constitutional rights by holding the competency hearing in his absence.\\nIII. Denial of Second Competency Evaluation and Hearing\\n\\u00b6 26 Wingfield contends that the trial court denied his right to due process and abused its discretion by denying his request for a second competency evaluation on six occasions. He further asserts that the trial court erred by not following the statutory procedures of section 16-8-110(2)(a), C.R.S. 2007, including not notifying him of a date by which to request a hearing for a second competency evaluation. Ch. 44, sec. 1, \\u00a7 39-8-110, 1972 Colo. Sess. Laws 229. We discern no reversible error.\\nA. Standard of Review\\n\\u00b6 27 We review a trial court's decision not to permit a second competency hearing for an abuse of discretion. People v. Morino, 743 P.2d 49, 52 (Colo. App. 1987). Whether a court fails to follow appropriate competency procedures presents a question of law subject to de novo review. Id.\\n\\u00b6 28 We recognize that in People v. Matthews, 662 P.2d 1108, 1111 (Colo. App. 1983), a division of this court applied constitutional harmless error review to a trial court's violation of the same competency procedures at issue in Wingfield's trial. However, Matthews was decided prior to the supreme court's decision in People v. Miller . In Miller , the Court remedied the \\\"conflict . concerning the appropriate standard of review for unobjected-to constitutional errors,\\\" holding that \\\"constitutional harmless error analysis is reserved for those cases in which the defendant preserved his claim . by raising a contemporaneous objection.\\\" 113 P.3d at 748-49.\\n\\u00b6 29 Wingfield did not object to the trial court's statutory procedural errors, therefore we review for plain error. Hagos v. People, 2012 CO 63, \\u00b6 14, 288 P.3d 116, 120.\\n\\u00b6 30 Plain error addresses error that is both \\\"obvious and substantial.\\\" People v. Stewart, 55 P.3d 107, 120 (Colo. 2002) (internal quotation marks omitted). We have recognized as plain error those errors that \\\"so undermined the fundamental fairness of the proceeding as to cast serious doubt on the reliability of the judgment.\\\" People v. Sepulveda, 65 P.3d 1002, 1006 (Colo. 2003).\\n\\u00b6 31 To the extent that Wingfield claims the denial of a second competency examination denied him due process, we review for constitutional harmless error. A constitutional error may be characterized as harmless only when the reviewing court determines that the error was harmless beyond a reasonable doubt, that is, that there is no reasonable possibility that the error might have contributed to the conviction. Hagos, 288 P.3d at 119.\\nB. Applicable Law\\n\\u00b6 32 Due process prohibits the trial of an incompetent defendant. Dusky v. United States, 362 U.S. 402, 403, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) ; Bloom v. People, 185 P.3d 797, 808 (Colo. 2008), superseded by statute as stated in People in Interest of W.P ., 2013 CO 11, 295 P.3d 514. A defendant is incompetent if the defendant is suffering from a mental disease or defect which renders him or her incapable of understanding the nature and course of the proceedings against him or her or of participating or assisting in the defense or cooperating with defense counsel. Bloom, 185 P.3d at 808 ; see also Dusky, 362 U.S. at 402, 80 S.Ct. 788 (The test for competence is whether defendant \\\"has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.\\\"). If a \\\"sufficient doubt\\\" of competency has been raised, a trial court's failure to make a competency determination violates a defendant's right to due process. People v. Kilgore, 992 P.2d 661, 663 (Colo. App. 1999). Similarly, a defendant's right to due process is violated if a trial court does not accord the accused an adequate hearing concerning his or her competency. Corichi, 18 P.3d at 810.\\n\\u00b6 33 Both parties agree that the current statutory procedures for competency hearings set forth in sections 16-8.5-101 to - 118, C.R.S. 2014, do not apply in this case. Rather, we apply repealed section 16-8-110(2)(a), C.R.S. 2007. Ch. 44, sec. 1, \\u00a7 39-8-110, 1972 Colo. Sess. Laws 229.\\n\\u00b6 34 That law required a court to suspend any criminal proceeding whenever a question of a defendant's competency to proceed was raised. 1972 Colo. Sess. Laws at 229; Morino, 743 P.2d at 51. The court was then required to make a preliminary finding that the defendant was or was not competent to proceed. 1972 Colo. Sess. Laws at 229. It was also required to immediately notify the parties of the time within which to request a hearing upon such finding. Id . Upon timely written request of either party, the court was required to hold a competency hearing and could \\\"commit the defendant for a competency examination prior to the hearing if adequate psychiatric information [was] not already available.\\\" Id . at 230. If neither party requested a hearing in writing, the preliminary finding became a final determination. Id . Nevertheless, there was an initial presumption of competency, and a defendant was not entitled to a competency examination or hearing merely by making a demand for one, particularly if that demand was made after the proceeding had commenced. People v. Seigler , 832 P.2d 980, 982 (Colo. App. 1991), superseded by statute as stated in People v. Garcia , 28 P.3d 340 (Colo.2001).\\n\\u00b6 35 To sufficiently \\\"raise a question\\\" of competency, the party requesting a competency examination had to give the court \\\"reason to believe that the defendant [was] incompetent.\\\" Morino, 743 P.2d at 51. It was only when a defendant's representations to the court, either alone or in conjunction with other evidence, raised a \\\"bona fide doubt\\\" of the defendant's competence that a court was required to address the issue. Id . ; Kilgore, 992 P.2d at 663.\\n\\u00b6 36 Because the trial court had ample opportunity to observe a defendant's actions and general demeanor, it had substantial discretion in determining whether a legitimate issue respecting his or her competency had been raised. Kilgore, 992 P.2d at 663-64.\\n\\u00b6 37 Once the trial court had a \\\"bona fide doubt\\\" of the defendant's competency, Morino, 743 P.2d at 51 (internal quotation marks omitted), it had the discretion to order a competency examination or other investigation if it believed that the information before it was insufficient to make a preliminary finding of competency, 1972 Colo. Sess. Laws at 229.\\n\\u00b6 38 Finally, the parties assume that former section 16-8-110(2)(a)'s procedures applied equally to requests for second competency examinations and hearings, and we will do the same.\\nC. Analysis\\n\\u00b6 39 Wingfield's contentions here involve claims of three separate errors. First, Wingfield claims that the trial court erred by not suspending the proceedings and making a preliminary determination of competency on each occasion when he requested a second competency examination. Second, Wingfield asserts that the trial court erred by not notifying the parties of a time within which to request a hearing based on its preliminary determination of competency and by not holding such a hearing. Finally, Wingfield asserts that the trial court abused its discretion and denied his right to due process by finding him competent to proceed and denying him a second competency examination.\\n1. Preliminary Determination of Competency\\n\\u00b6 40 On January 9 and March 12, 2008, after Wingfield moved for a second competency evaluation, the trial court did not suspend the proceedings and make a preliminary determination of his competency. Even assuming that Wingfield's behavior on those occasions raised a \\\"bona fide doubt\\\" of his competency in the trial court, we nevertheless conclude that any error in not suspending the proceedings and making a preliminary determination of competency was not plain.\\n\\u00b6 41 Wingfield has not shown that the absence of a preliminary finding of competency on January 9 and March 12, 2008, resulted in his conviction. On the three subsequent occasions where the court properly issued preliminary rulings on Wingfield's competency, it found Wingfield competent to proceed. By the date of those later rulings, the trial court had had more time to observe Wingfield's in-court behavior, yet still denied his request for a second competency hearing.\\n\\u00b6 42 Therefore, we conclude that, even if we assume the trial court erred in not making a preliminary finding of competency on these two occasions, those errors were not plain, since they did not cast doubt on the reliability of the judgment of conviction.\\n2. Notification of Time to Request Hearing\\n\\u00b6 43 On all five occasions, the trial court did not notify the parties of a time within which to request a competency hearing. Thus, we conclude that the trial court did not follow the procedures set forth in former sections 16-8-110 and - 111 in this respect. Nevertheless, we again conclude that the trial court's statutory procedural error did not constitute plain error.\\n\\u00b6 44 Wingfield has not shown that the trial court's error in not notifying the parties of a time within which to request a hearing upon its preliminary findings of competency cast serious doubt on the reliability of his conviction. Even if the court had notified Wingfield of the time within which to request a hearing on its preliminary findings, and he had requested such a hearing, Wingfield has not demonstrated that he had raised a \\\"bona fide doubt\\\" about his competence such that the trial court would have either ordered a second competency examination or held a competency hearing. See Morino, 743 P.2d at 51 (internal quotation marks omitted).\\n\\u00b6 45 On the first three occasions that the trial court denied Wingfield's request for a second competency examination, January 9, March 12, and April 23, 2008, Wingfield did not support his request with evidence of his incompetence. The only medical evidence considered on these dates was the initial competency examination from September 2007 finding him capable of understanding reality and competent to proceed. Wingfield has not shown what evidence he would have introduced during a second competency hearing that was not already considered by the court and that would have led the trial court to find him incompetent.\\n\\u00b6 46 Throughout trial, Wingfield referenced the opinions of various psychiatrists who questioned his mental state. For example, at the March 12, 2008 hearing, Wingfield told the court that a psychiatrist at the detention facility where he was detained had diagnosed him as suicidal and recommended he undergo a second competency assessment. Although he had ample opportunity, Wingfield never obtained an affidavit from these psychiatrists and never made an offer of proof of his incompetency to proceed.\\n\\u00b6 47 Further, although it never held a formal competency hearing, at the April 27, 2009 hearing, the trial court telephone Dr. Mozer, Wingfield's psychiatrist, and allowed the parties to ask him numerous questions regarding Wingfield's mental health status. Dr. Mozer testified that Wingfield understood right from wrong and could avoid doing wrong. Dr. Mozer opined that further testing might be warranted to determine if Wingfield's paranoia precluded him from assisting with his defense, but also indicated that if Wingfield took his prescribed medications, it could help control his paranoia and allow him to better assist in his defense. Ultimately, Dr. Mozer did not offer an opinion on whether Wingfield was competent to stand trial and did not conclude he was incompetent to stand trial under the Bloom standards discussed above.\\n\\u00b6 48 Immediately following the interview, the trial court denied Wingfield's request for a second competency examination, finding that Wingfield had a rational understanding of the nature \\\"of the charges . and possible consequences.\\\" Wingfield has not shown why a hearing would have resulted in a different finding by the trial court.\\n\\u00b6 49 Therefore, we conclude that while the trial court erred in not setting a date within which to formally request a hearing based on its preliminary findings of competency, any error did not constitute plain error.\\n3. Denial of Second Competency Evaluation\\n\\u00b6 50 Having concluded that the trial court's procedural errors did not constitute plain error, we also conclude that the trial court did not abuse its discretion or violate Wingfield's due process rights when it denied his requests for a second competency examination.\\n\\u00b6 51 Wingfield requested a second competency examination on five occasions throughout trial. On three occasions, April 23, 2008, and April 27 and 29, 2009, the court took Wingfield's request under advisement and issued rulings finding Wingfield competent to proceed, denying his request for a second competency examination.\\n\\u00b6 52 For example, on the third day of trial, Wingfield requested a second competency examination based on Dr. Mozer's telephone testimony stating that Wingfield was suffering from paranoid delusions that were interfering with his medical treatment and his ability to assist in his defense. The trial court denied the motion, stating that based on both its observations of Wingfield at trial and conversations it had had with him, Wingfield could understand the proceedings and his predicament. In so doing, the trial court implicitly made a preliminary finding of Wingfield's competency.\\n\\u00b6 53 Wingfield relies on his general behavior throughout trial and his history of mental illness to argue that the trial court abused its discretion in denying his requests for a second examination. However, that Wingfield was being treated for mental health issues, rambled and made inappropriate comments, and became upset and expressed paranoid thoughts after the court denied his motions, does not demonstrate that he was incapable of understanding the proceedings and assisting counsel. See Jermyn v. Horn, 266 F.3d 257, 293 (3d Cir. 2001) (The defendant's \\\"psychiatric history [and] history of strange behavior . do not necessarily suggest that, because of his mental illness, [the defendant] was incapable of understanding the proceedings and assisting in his defense.\\\"); Bloom, 185 P.3d at 810 (defendant competent despite her \\\"near hysterical\\\" behavior at first court appearance).\\n\\u00b6 54 Finally, although at various times Wingfield referenced the opinions of psychiatrists who questioned his mental state, he never obtained an affidavit from any of these psychiatrists and never made an offer of proof of his incompetence to proceed.\\n\\u00b6 55 Even if we assume that the trial court abused its discretion in denying Wingfield a second competency examination, we conclude that any error was harmless beyond a reasonable doubt. Wingfield's first competency examination found him competent. Further, the trial court had ample opportunity to observe Wingfield's actions and general demeanor throughout trial. It heard testimony from Dr. Mozer indicating that Wingfield could conceivably control his paranoia and assist with his defense by taking his medication. Finally, Wingfield never made an offer of proof about what evidence to establish his incompetence could be presented, as required by Dusky and Bloom, at either a competency hearing or during a second competency examination.\\n\\u00b6 56 Therefore, we conclude that the trial court did not abuse its discretion in denying Wingfield's request for a second competency examination. We similarly conclude that the trial court did not violate Wingfield's right to due process by allowing him to be tried despite his alleged incompetence,' and we further conclude that, even if the court abused its discretion, any error was harmless beyond a reasonable doubt.\\nIV. Denial of Choice of Evils Defense\\n\\u00b6 57 Wingfield contends that the trial court erred when it denied his choice-of-evils defense. As noted, he argues that because his cellmates threatened to kill him if he did not assist in their escape attempt, he was justified in assisting them. We disagree.\\nA. Standard of Review\\n\\u00b6 58 When a defendant challenges a trial court's failure to instruct a jury on the choice-of-evils defense, a reviewing court must determine, as a matter of law, whether the defendant's offer of proof, considered in the light most favorable to the defendant, was substantial and sufficient to support the defense. People v. Al-Yousif, 206 P.3d 824, 831 (Colo. App. 2006).\\n\\u00b6 59 A trial court commits reversible error if it improperly disallows an affirmative defense because it has the effect of impermissibly lowering the prosecution's burden of proof. Vega v. People, 893 P.2d 107, 111 (Colo. 1995) ; People v. Grenier, 200 P.3d 1062, 1074 (Colo. App. 2008).\\nB. Applicable Law\\n\\u00b6 60 Under the choice of evils doctrine, acts that would otherwise be criminal may be justifiable if they were performed out of an immediate necessity to prevent an imminent harm from occurring. \\u00a7 18-1-702(1), C.R.S. 2014. A choice of evils defense requires that the defendant make a sufficient offer of proof, establishing: (1) all other potentially viable and reasonable alternative actions were pursued or shown to be futile; (2) the action taken had a direct causal connection with the harm sought to be prevented and would have abated the harm; and (3) the action taken was an emergency measure pursued to avoid a specific, definite, and imminent injury. Andrews v. People, 800 P.2d 607, 610 (Colo. 1990).\\nC. Analysis\\n\\u00b6 61 Here, the trial court found that, although Wingfield faced an imminent threat, he had viable alternatives to going along with the escape. Specifically, the trial court found that he could have reached a point of safety by telling jailers at any time what was going on and by requesting to be removed from his cell.\\n\\u00b6 62 We conclude the trial court did not err in making this determination.\\nV. Conclusion\\n\\u00b6 63 The judgment is affirmed.\\nJUDGE TERRY and JUDGE RICHMAN concur.\\nWingfield asserts that he requested a second competency hearing on six occasions throughout the proceedings. However, as noted, our review of the record shows that Wingfield requested a second competency hearing on only five occasions. At the February 11, 2011, hearing, Wingfield did not request a second competency hearing; rather he moved for a new trial based on his alleged incompetence throughout the trial.\\nAs discussed below, the parties agree that the former statutory procedures apply to Wingfield's case. Although Wingfield argues on appeal that he was denied the right to a second competency evaluation, the applicable statute referred only to a competency \\\"examination.\\\" Accordingly, we will construe Wingfield's contention as a right to a competency examination under the applicable statute.\\nThe current statute, section 16-8.5-103(3) -(5), C.R.S.2014, provides for requesting a second evaluation, but the former statute did not contain any express provision for a second evaluation or examination. See Ch. 44, sec. 1, \\u00a7 39-8-110, -111, 1972 Colo. Sess. Laws 229.\"}"

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+"{\"id\": \"12572591\", \"name\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Devon Paul Garrett BURNETT, Defendant-Appellee.\", \"name_abbreviation\": \"People v. Burnett\", \"decision_date\": \"2019-01-14\", \"docket_number\": \"Supreme Court Case No. 2018SA180\", \"first_page\": \"617\", \"last_page\": \"627\", \"citations\": \"432 P.3d 617\", \"volume\": \"432\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-27T21:04:10.850908+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"En Banc\", \"parties\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellant,\\nv.\\nDevon Paul Garrett BURNETT, Defendant-Appellee.\", \"head_matter\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellant,\\nv.\\nDevon Paul Garrett BURNETT, Defendant-Appellee.\\nSupreme Court Case No. 2018SA180\\nSupreme Court of Colorado.\\nJanuary 14, 2019\\nAttorneys for Plaintiff-Appellant: Daniel H. May, District Attorney, Fourth Judicial District, Andrew Lower, Deputy District Attorney, Doyle Baker, Senior Deputy District Attorney, Colorado Springs, Colorado.\\nAttorneys for Defendant-Appellee: Megan A. Ring, Public Defender, Max E. Shapiro, Deputy Public Defender, Colorado Springs, Colorado.\\nEn Banc\", \"word_count\": \"6006\", \"char_count\": \"37477\", \"text\": \"JUSTICE HOOD delivered the Opinion of the Court.\\n\\u00b61 While driving down a highway, a Colorado State Patrol (CSP) trooper observed another driver flash her turn signal twice over a distance of less than 200 feet and then change lanes. Apparently believing he'd just witnessed an illegal lane change, the trooper stopped the car in which there was a passenger-the defendant, Devon Burnett.\\n\\u00b62 A subsequent search of the car revealed a handgun, drug paraphernalia, and suspected methamphetamine. As a result, Burnett was charged with multiple offenses, including possession with intent to manufacture or distribute a controlled substance and possession of a weapon by a previous offender.\\n\\u00b63 Burnett filed a motion to suppress the evidence found during the search that flowed from the stop for the allegedly illegal lane change. He argued that the statute governing turning movements and required signals, section 42-4-903(2), C.R.S. (2018), doesn't require a person to signal for a minimum distance before changing lanes; therefore, the trooper did not have reasonable suspicion to stop the car. The trial court agreed and suppressed the fruits of the search.\\n\\u00b64 The People filed this interlocutory appeal, contending in part that the trooper at worst made an objectively reasonable mistake of law when he concluded that changing lanes on the highway without signaling for 200 feet violated section 42-4-903(2). Consequently, the People argue that the trooper had reasonable suspicion to stop the car.\\n\\u00b65 We conclude that the trooper's construction of section 42-4-903(2) was objectively unreasonable. The plain language of the statute clearly distinguishes between turns and lane changes, and the statute does not require a driver to signal continuously for any set distance before changing lanes on a highway-it only requires that a driver use a signal before changing lanes. Therefore, we affirm the trial court's suppression order.\\nI. Facts and Procedural History\\n\\u00b66 Burnett was a passenger in a black sedan traveling along Highway 21 in El Paso County. Trooper Stephen Wall watched as the driver engaged the sedan's turn signal, allowed it to flash twice for less than 200 feet, and then changed lanes. Trooper Wall stopped the sedan.\\n\\u00b67 As the sedan pulled over, Trooper Wall noticed the passenger moving around in a manner that suggested he could be \\\"attempt[ing] to conceal contraband or produce a weapon.\\\" Concerned for his safety, Trooper Wall radioed for cover. When Trooper Wall approached the car, he noticed that Burnett looked unusually nervous. This seemed strange to Trooper Wall, considering Burnett was only the passenger and not the subject of the stop. In addition to asking for the driver's identification, Trooper Wall asked Burnett to show the trooper his identification. Burnett complied.\\n\\u00b68 After dispatch advised Trooper Wall that Burnett was subject to a restraining order that prohibited Burnett from possessing weapons, another trooper observed a handgun magazine on the passenger side of the car. Law enforcement personnel then searched the entire passenger compartment. The troopers found a handgun underneath Burnett's seat, along with a substance believed to be methamphetamine, drug paraphernalia, baggies, and a scale. CSP arrested Burnett, who was later charged with multiple offenses, including possession with intent to manufacture or distribute a controlled substance and possession of a weapon by a previous offender.\\n\\u00b69 Burnett moved to suppress all evidence resulting from the stop, claiming Trooper Wall had no reasonable suspicion to believe a traffic violation had occurred under section 42-4-903(2). The trial court granted the motion to suppress, concluding that section 42-4-903(2) does not require a car to signal continuously for 200 feet before changing lanes on a highway-\\\"that only applies to turning right or left.\\\"\\n\\u00b610 The People filed a motion to reconsider the suppression order, arguing that the trooper made a reasonable mistake of law because section 42-4-903(2) can be read as applying to lane changes. They contended that under Heien v. North Carolina , - U.S. -, 135 S. Ct. 530, 190 L.Ed.2d 475 (2014), this objectively reasonable mistake of law provided reasonable suspicion for the traffic stop. The trial court denied the motion to reconsider, without explicitly addressing the reasonable mistake of law argument under Heien .\\n\\u00b611 The People filed this interlocutory appeal.\\nII. Analysis\\n\\u00b612 We first review relevant Fourth Amendment principles, including precedent from the U.S. Supreme Court stating that an objectively reasonable mistake of law can support a finding that there was reasonable suspicion to justify an investigatory stop. We then address section 42-4-903 and determine that its plain language only requires that a driver signal before changing lanes-it does not require a driver to signal continuously for any set distance before changing lanes. Because the text of the statute is clear, we conclude that the trooper's construction of section 42-4-903 was not objectively reasonable.\\nA. Standard of Review\\n\\u00b613 A trial court's order suppressing evidence presents a mixed question of law and fact. People v. Chavez-Barragan , 2016 CO 16, \\u00b6 9, 365 P.3d 981, 983. \\\"We accept the trial court's findings of historic fact if those findings are supported by competent evidence, but we assess the legal significance of the facts de novo.\\\" Id. We also review \\\"[r]elated issues of statutory construction . de novo.\\\" Id.\\nB. The Fourth Amendment and Mistakes of Law\\n\\u00b614 The Fourth Amendment to the U.S. Constitution protects individuals against unreasonable searches and seizures.\\nU.S. Const. amend. IV. \\\"A traffic stop for a suspected violation of law is a 'seizure' of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment.\\\" Heien , 135 S. Ct. at 536. As relevant here, a brief, investigatory traffic stop is constitutional \\\"when the officer has a reasonable, articulable suspicion that criminal activity 'has occurred, is taking place, or is about to take place.' \\\" Chavez-Barragan , \\u00b6 10, 365 P.3d at 983 (quoting People v. Ingram , 984 P.2d 597, 603 (Colo. 1999) ). An officer may thus stop a vehicle if the officer has a reasonable suspicion that the driver has committed a traffic violation.\\n\\u00b615 Reasonable suspicion may exist even if an officer is mistaken about a critical fact or about the proper interpretation of a statute. However, \\\"[t]he Fourth Amendment tolerates only reasonable mistakes, and those mistakes-whether of fact or of law-must be objectively reasonable.\\\" Heien , 135 S. Ct. at 539.\\n\\u00b616 In Heien , the Supreme Court held that an officer's mistaken interpretation of a traffic law was reasonable and, thus, could still justify a stop under the Fourth Amendment. Id. at 534. At issue was a North Carolina statute that required drivers to have at least one working brake light. Id. at 535. The officer pulled a vehicle over for failing to have two working brake lights because he incorrectly believed that was what the statute required. Id. at 534. Because the language of the statute was unclear and had not been previously interpreted by North Carolina's appellate courts, the U.S. Supreme Court determined that the officer's mistaken interpretation was reasonable and could provide reasonable suspicion to justify the stop under the Fourth Amendment. Id. at 540. In reaching this conclusion, the Court noted \\\"[t]o be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them 'fair leeway for enforcing the law in the community's protection.' \\\" Id. at 536 (quoting Brinegar v. United States , 338 U.S. 160, 176, 69 S. Ct. 1302, 93 L.Ed. 1879 (1949) ); see also Casillas v. People , 2018 CO 78M, \\u00b6 44-45, 427 P.3d 804, 815 (Samour, J., dissenting) (discussing the rationale behind the Heien majority's holding). Heien thus held that a mistaken interpretation of the law can still support a finding of reasonable suspicion if the mistake is objectively reasonable. Heien , 135 S. Ct. at 539. As a corollary of this holding, courts should not consider the \\\"subjective understanding of the particular officer involved.\\\" Id.\\n\\u00b617 With these Fourth Amendment principles in mind, we now examine what section 42-4-903 requires.\\nC. Section 42-4-903\\n\\u00b618 Trooper Wall stopped the car in which Burnett was a passenger, on the belief that a failure to signal continuously for 200 feet before changing lanes on Highway 21 constituted a violation of section 42-4-903(2).\\n\\u00b619 The relevant provisions of section 42-4-903 require a driver to signal continuously for 200 feet when intending to turn on any highway where the posted speed limit is more than forty miles per hour, but it also distinguishes between turns and lane changes. In relevant part, the statute provides:\\n(2) A signal of intention to turn right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning in urban or metropolitan areas and shall be given continuously for at least two hundred feet on all four-lane highways and other highways where the prima facie or posted speed limit is more than forty miles per hour. .\\n.\\n(4) The signals provided for in section 42-4-608(2) shall be used to indicate an intention to turn, change lanes, or start from a parked position and shall not be flashed on one side only on a parked or disabled vehicle or flashed as a courtesy or \\\"do pass\\\" signal to operators of other vehicles approaching from the rear.\\n\\u00a7 42-4-903.\\n\\u00b620 We employ common tools of statutory interpretation to aid in our understanding of this statute. \\\"In construing a statute, we seek to give effect to the General Assembly's intent by according words and phrases their plain and ordinary meanings.\\\" People v. Stellabotte , 2018 CO 66, \\u00b6 32, 421 P.3d 174, 180 (quoting State Farm Mut. Auto. Ins. Co. v. Fisher , 2018 CO 39, \\u00b6 12, 418 P.3d 501, 504 ). We therefore look to the text of the statute first and, if it is clear, \\\"we apply the plain and ordinary meaning of the provision.\\\" Perfect Place, LLC v. Semler , 2018 CO 74, \\u00b6 40, 426 P.3d 325, 332. A statute must also be considered \\\"as a whole, construing each provision consistently and in harmony with the overall statutory design.\\\" Id. (quoting Whitaker v. People , 48 P.3d 555, 558 (Colo. 2002) ). We may not construe a statute in a manner that would render any words or phrases superfluous. People v. Rediger , 2018 CO 32, \\u00b6 22, 416 P.3d 893, 899.\\n\\u00b621 The plain language of the statute treats \\\"turning right or left\\\" differently from \\\"changing lanes.\\\" Subsection (2) outlines the requirements for a driver turning right or left, while subsection (4) delineates when a turn signal must be used to, among other things, turn or change lanes. By referring to both lane changes and turns in subsection (4), the legislature made clear that the term \\\"turn\\\" in subsection (2) does not encompass the act of changing lanes. \\\"[T]he use of different terms signals an intent on the part of the General Assembly to afford those terms different meanings.\\\" Id. (quoting Robinson v. Colo. State Lottery Div. , 179 P.3d 998, 1010 (Colo. 2008) ). To interpret the statute otherwise would render language in subsection (4) superfluous-if a \\\"turn\\\" includes a \\\"lane change,\\\" then there would have been no need to state specifically in subsection (4) that a signal must be used when changing lanes. Accordingly, the provision that Trooper Wall believed the driver of the black sedan violated, subsection (2), does not apply to lane changes. Because subsection (2) does not apply to lane changes, and because there was no violation of subsection (4) since the driver signaled twice before changing lanes, Trooper Wall did not witness a traffic violation before stopping the car in which Burnett was a passenger.\\n\\u00b622 So, it was a mistake of law for Trooper Wall to interpret section 42-4-903 as he did. We now consider whether this mistake of law was nevertheless objectively reasonable.\\nD. The Mistake of Law Was Objectively Unreasonable\\n\\u00b623 The People argue that section 42-4-903(2) can reasonably be construed as Trooper Wall apparently construed it. We disagree. Because section 42-4-903(2) is unambiguous, we conclude that Trooper Wall's mistake of law was not objectively reasonable.\\n\\u00b624 The statute requires vehicles to signal continuously for at least 200 feet before turning right or left on a highway. There is no ambiguity as to whether a turn includes a lane change because subsection (4) specifically lists lane changes as distinct from turns. Thus, there is no need to consider whether a lane change is a type of turning movement encompassed in the definition of \\\"turn\\\" as the People suggest. Regardless of whether \\\"turn\\\" is defined broadly enough to include lane changes, the statutory scheme treats turns and lane changes differently. Consequently, Trooper Wall's interpretation was not objectively reasonable under the plain language of the statute.\\n\\u00b625 Though this is the first time section 42-4-903 has been interpreted by one of our appellate courts, the lack of such precedent does not transform Trooper Wall's interpretation into an objectively reasonable reading of the provision. While it is more likely that a mistake of law may be reasonable if there is no precedent contrary to an officer's reading of a statute, lack of precedent alone cannot rehabilitate a statutory interpretation that is unwarranted by the plain language and structure of the statute. See United States v. Stanbridge , 813 F.3d 1032, 1037 (7th Cir. 2016) (\\\" Heien does not support the proposition that a police officer acts in an objectively reasonable manner by misinterpreting an unambiguous statute.\\\").\\n\\u00b626 The People offer United States v. Rubio-Sepulveda , 237 F. Supp. 3d 1116 (D. Colo. 2017), appeal docketed , No. 18-1055 (10th Cir. Feb. 13, 2018), as support for their argument that \\\"the scope of subsection (2) remains unsettled until resolved by the appellate courts of this state.\\\" In Rubio-Sepulveda , law enforcement stopped the defendant's car for failing to signal continuously for a set distance before changing lanes. Id. at 1122. Though the federal district court ultimately deemed the stop valid for another reason, in a footnote the court discusses reasonable mistake of law. Concluding that the officer erred because section 42-4-903\\\"does not plainly contemplate a failure to signal for [a required distance] before changing lanes,\\\" id. at 1122 n.4, the federal district court found this mistake reasonable because there was no precedent interpreting the statute, and the Department of Revenue's driver handbook contained the same incorrect interpretation. Id. But this footnoted analysis misses the mark-as previously noted, an appellate court need not explicitly define the parameters of a clear and unambiguous statute. And here, that is what we have. Thus, the People's reliance on Rubio-Sepulveda is misplaced.\\n\\u00b627 For two reasons, we are also unpersuaded by the presence of an erroneous interpretation of section 42-4-903(2) in the Department of Revenue's driver handbook stating that a turn signal is required for at least 200 feet prior to changing lanes. First, there is no evidence in the record that Trooper Wall reviewed or relied on the Department's interpretation. And even if Trooper Wall had read the handbook, it would be irrelevant to our analysis because it would relate to the trooper's subjective understanding of the section and therefore couldn't justify the seizure. Heien , 135 S. Ct. at 539. Second, the handbook expressly states that \\\"[i]t is not a book of laws and should not be used as a basis for any legal claims or actions. It is a book of information only and does not supersede Colorado Revised Statutes.\\\" Div. of Motor Vehicles, Colo. Dep't of Revenue, DR-2337, Colorado Driver Handbook 4 (2017). The handbook also refers readers back to Title 42, which does not require vehicles to signal continuously for either 100 or 200 feet before simply making a lane change.\\n\\u00b628 Because Trooper Wall's interpretation of section 42-4-903 runs counter to the plain text of the statute, we conclude that his interpretation was not objectively reasonable and cannot support a finding of reasonable suspicion to justify the traffic stop at issue here.\\nIII. Conclusion\\n\\u00b629 We conclude that Trooper Wall's construction of section 42-4-903(2) was not an objectively reasonable mistake of law. It is plain from the text of the statute that a driver is not required to signal continuously for any set distance before changing lanes on a highway. The statute only requires that a driver use a signal before changing lanes. Therefore, we affirm the trial court's suppression order.\\nJUSTICE BOATRIGHT dissents, and CHIEF JUSTICE COATS joins in the dissent.\\nThese facts are drawn from undisputed testimony and the trial court's findings made at the suppression hearing.\\nThe People raised the Heien argument for the first time in their motion to reconsider. Burnett responded to the argument, first urging the court to apply a plain error standard to review the Heien argument and, alternatively, arguing that if the court reached the merits of the People's argument, Trooper Wall's mistake was not reasonable. Although the trial court did not explicitly address Heien when denying the motion to reconsider, it did address the merits of the People's argument. Accordingly, we too reach the merits of the underlying motion to suppress.\\nArticle II, Section 7 of the Colorado Constitution provides similar protections. Burnett encourages us to reject the reasonable-mistake-of-law doctrine by holding that Article II, Section 7 affords greater protection than the Fourth Amendment in this area. But, Burnett made no argument below clearly invoking the Colorado Constitution. And the trial court did not explicitly ground its suppression ruling on state constitutional law. Accordingly, \\\"[i]n the absence of a clear statement that a suppression ruling is grounded on state as opposed to federal constitutional law, we will presume that a court relied on federal law in reaching its decision.\\\" People v. McKinstrey , 852 P.2d 467, 469 (Colo. 1993).\\nIn concurrence, Justice Kagan embraced the majority's framework and elaborated that an officer's ignorance of the law or lack of training are irrelevant, as is \\\"an officer's reliance on 'an incorrect memo or training program from the police department.' \\\" Id. at 541 (Kagan, J., concurring) (quoting North Carolina v. Heien , 366 N.C. 271, 737 S.E.2d 351, 360 (2012) (Hudson, J., dissenting)). The law at issue must also be \\\" 'so doubtful in construction' that a reasonable judge could agree with the officer's view.\\\" Id. (quoting The Friendship , 9 F. Cas. 825, 826 (C.C.D. Mass. 1812) (No. 5,125) ). So, as Justice Kagan explained: \\\"If the statute is genuinely ambiguous, such that overturning the officer's judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not.\\\" Id.\\nPerhaps in an effort to make the Heien majority's general pronouncements more workable, some courts have looked to Justice Kagan's concurrence in Heien for guidance. See, e.g. , State v. Sutherland , 231 N.J. 429, 176 A.3d 775, 782-83 (2018) (describing Justice Kagan's concurrence as containing \\\"several important caveats\\\" and collecting cases that \\\"either followed or acknowledged [her] narrow interpretation of an objectively reasonable mistake of law\\\"); State v. Hurley , 198 Vt. 552, 117 A.3d 433, 441 (2015) (discussing how \\\"Justice Kagan emphasized that the bar is high\\\" when determining whether a mistake is reasonable); State v. Houghton , 364 Wis.2d 234, 868 N.W.2d 143, 158 (2015) (citing Justice Kagan's explanation of an objectively reasonable mistake of law).\\nWe need not decide whether to join those courts that have relied upon Justice Kagan's concurrence in order to effectuate the majority's holding in Heien . While her thoughts might prove instructive in another case, they are not necessary for us to resolve the case before us today.\\nSection 42-4-608(2), C.R.S. (2018), requires that motor vehicles that exceed specified measurements \\\"be equipped with . signal lamps\\\" and that those signal lamps be used on highways to give required signals.\\nBecause the parties have not addressed what remedy should follow if the stop was invalid, we are not confronted with the question of whether the proper remedy was exclusion of evidence. In cases such as this, there are potentially two issues: (1) whether law enforcement violated the Fourth Amendment; and, (2) if so, whether the remedy should be exclusion. Heien , 135 S. Ct. at 539 ; Casillas , \\u00b6 29-30, 427 P.3d at 812 (majority opinion). In the notice of interlocutory appeal, the People framed the issue as follows: \\\"Did the district court err in concluding that [the] trooper who stopped the car in which [the] defendant was riding made the stop without reasonable suspicion that a traffic infraction had occurred?\\\" And in their briefs, both parties limited their arguments to whether there was a Fourth Amendment violation. Neither party briefed application of the exclusionary rule. Because \\\"we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present,\\\" Greenlaw v. United States , 554 U.S. 237, 243, 128 S. Ct. 2559, 171 L.Ed.2d 399 (2008), we decline to address whether the exclusionary rule should apply in this instance. In the absence of any argument to the contrary, exclusion remains the remedy here.\"}"

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+"{\"id\": \"12576578\", \"name\": \"ORACLE CORPORATION and subsidiaries, Plaintiff-Appellee and Cross-Appellant, v. DEPARTMENT OF REVENUE of the State of Colorado; and Barbara Brohl, in her official capacity as Executive Director of the Department of Revenue of the State of Colorado, Defendants-Appellants and Cross-Appellees.\", \"name_abbreviation\": \"Oracle Corp. v. Dep't of Revenue of State\", \"decision_date\": \"2017-11-30\", \"docket_number\": \"Court of Appeals No. 16CA1316\", \"first_page\": \"947\", \"last_page\": \"961\", \"citations\": \"442 P.3d 947\", \"volume\": \"442\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Colorado Court of Appeals, Division III\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-27T21:04:26.223838+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"ORACLE CORPORATION and subsidiaries, Plaintiff-Appellee and Cross-Appellant,\\nv.\\nDEPARTMENT OF REVENUE of the State of Colorado; and Barbara Brohl, in her official capacity as Executive Director of the Department of Revenue of the State of Colorado, Defendants-Appellants and Cross-Appellees.\", \"head_matter\": \"ORACLE CORPORATION and subsidiaries, Plaintiff-Appellee and Cross-Appellant,\\nv.\\nDEPARTMENT OF REVENUE of the State of Colorado; and Barbara Brohl, in her official capacity as Executive Director of the Department of Revenue of the State of Colorado, Defendants-Appellants and Cross-Appellees.\\nCourt of Appeals No. 16CA1316\\nColorado Court of Appeals, Division III.\\nAnnounced November 30, 2017\\nSilverstein & Pomerantz, LLP, Neil I. Pomerantz, Mark E. Medina, Michelle Bush, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.\\nCynthia H. Coffman, Attorney General, Terence C. Gill, First Assistant Attorney General, Noah C. Patterson, Senior Assistant Attorney General, Russel D. Johnson, Assistant Attorney General, Denver, Colorado, for Defendants-Appellants and Cross-Appellees.\", \"word_count\": \"8007\", \"char_count\": \"49974\", \"text\": \"Opinion by JUDGE WEBB\\n\\u00b6 1 In this tax dispute, defendants, the Department of Revenue of the State of Colorado (Department) and Barbara Brohl, in her official capacity as the Executive Director of the Department (Director), appeal the district court's summary judgment in favor of plaintiff, Oracle Corporation (Oracle). The district court held that Oracle could not be required to include Oracle Japan Holding, Inc. (OJH), a wholly owned domestic subsidiary holding company, in its Colorado combined corporate income tax returns for the tax years 2000 to 2005, because OJH was not includable under section 39-22-303(12)(c), C.R.S. 2017. The court also rejected the Department's assertion that it could require Oracle to include OJH or otherwise tax a portion of OJH's income under section 39-22-303(6), allegedly to prevent tax abuse. In so holding, however, the court rejected Oracle's alternative argument that OJH was not includable under section 39-22-303(11)(a). Oracle cross-appeals this portion of the summary judgment order. Neither party disputes preservation of any issue nor argues that summary judgment was improper because of a disputed issue of material fact.\\n\\u00b6 2 We affirm the summary judgment against defendants and on that basis dismiss the cross-appeal as moot.\\nI. Background and Procedural History\\n\\u00b6 3 Oracle, a Delaware corporation headquartered in California, is the parent of a worldwide group of affiliated corporations.\\nOracle Corporation Japan (Oracle Japan), formed in 1985, is a foreign subsidiary operating exclusively within Japan. OJH, formed in 1991, holds stock in Oracle Japan. In the tax year ending (TYE) May 31, 2000, OJH sold 8.7 million shares of Oracle Japan stock on the Tokyo Stock Exchange for a gain of $6.4 billion (OJH Gain).\\n\\u00b6 4 Following an audit of Oracle's Colorado income tax returns for TYEs May 31, 2000, through May 31, 2005, the Department issued an assessment that Oracle owed Colorado income tax on the OJH Gain. Oracle protested this assessment. The Director issued a corrected final determination upholding the assessment. Oracle timely commenced this action challenging it.\\nII. Overview of Colorado Corporate Income Tax Law\\n\\u00b6 5 A \\\"C corporation\\\" is \\\"any organization taxed as a corporation for federal income tax purposes.\\\" \\u00a7 39-22-103(2.5), C.R.S. 2017. Large businesses often function through multiple, related C corporations, interconnected in complex ways, operating to various degrees inside Colorado, in other states, and sometimes in foreign countries.\\n\\u00b6 6 A state's taxing power is constitutionally limited to the income of a corporation, or a group of affiliated corporations, that is attributable to activities within the state. Allied-Signal, Inc. v. Dir., Div. of Taxation , 504 U.S. 768, 777, 112 S.Ct. 2251, 119 L.Ed.2d 533 (1992). In other words, states may tax a unitary business based on an apportioned share of the multistate activities carried on in the taxing state. Id. at 778, 112 S.Ct. 2251. Colorado taxes the income of a C corporation from tangible or intangible property located or having a situs in this state, as well as the income from any activities carried on in this state, regardless of whether such activities are also part of interstate or even foreign commerce. \\u00a7 39-22-301(1)(d)(II), C.R.S. 2017.\\n\\u00b6 7 To calculate the taxable income of affiliated C corporations attributable to Colorado, the Department applies the \\\"unitary apportionment\\\" accounting method, which has been upheld by both the Supreme Court and Colorado Supreme Court. As explained in Hewlett-Packard Co. v. Department of Revenue , 749 P.2d 400, 401 (Colo. 1988) :\\nThe . unitary apportionment [method] is based on a recognition that an integrated business may operate through several separately incorporated entities. In such case, transactions between corporations under common control may lack economic substance; therefore, it is necessary to consider the corporate group as a whole. This method combines the income of all related business entities which are engaged in the same integrated or unitary business to arrive at a net income base. A percentage of this net income base is then apportioned to the relevant taxing jurisdiction according to a formula which measures the contribution of the business activities within the taxing jurisdiction (e.g., Colorado) to the profit of the entire unitary business. This percentage of the net income base, rather than the entire net income base, is then taxed by the state.\\n\\u00b6 8 Section 39-22-303 contains rules for determining which related C corporations the Director may require be included in a \\\"combined report\\\" for the purpose of income taxation. Three subsections are relevant.\\n\\u2022 Section 39-22-303(8) provides that the Director shall not require a corporation \\\"which conducts business outside the United States\\\" to be included in a combined report \\\"if eighty percent or more of the C corporation's property or payroll, as determined by factoring pursuant to section 24-60-1301, C.R.S., is assigned to locations outside the United States.\\\"\\n\\u2022 Section 39-22-303(11)(a) allows the Director to require, and the taxpayer to file, a combined report for an affiliated group of C corporations, but only to the extent that members of the affiliated group satisfy at least three of six factors.\\n\\u2022 Section 39-22-303(12)(c) clarifies that for purposes of subsection 303(11), an \\\"affiliated group\\\" of an includible C corporation is \\\"any C corporation which has more than twenty percent of the C corporation's property and payroll as determined by factoring pursuant to section 24-60-1301, C.R.S., assigned to locations inside the United States.\\\"\\n\\u00b6 9 Apart from these combined reporting rules, section 39-22-303(6) provides:\\nIn the case of two or more C corporations, whether domestic or foreign, owned or controlled directly or indirectly by the same interests, the executive director may, to avoid abuse, on a fair and impartial basis, distribute or allocate the gross income and deductions between or among such C corporations in order to clearly reflect income.\\nIII. The District Court's Summary Judgment Order\\n\\u00b6 10 The parties filed cross-motions for summary judgment. In a thorough and well-reasoned order, the district court articulated three principal rulings.\\n\\u2022 The parties agree that Oracle and OJH met the common officers test in section 39-22-303(11)(a)(VI) for tax years 1998-2000. They dispute whether OJH satisfies the substantial use of intellectual property test in subsection 303(11)(a)(IV) and the common directors and officers test in subsection 303(11)(a)(V). The court concluded that OJH substantially used Oracle's trademarked name, although not in connection with the sale of goods and services. It further concluded that the common directors and officers test was met as to one director of OHJ who also held an officer title at Oracle, even though he had never been appointed an officer by Oracle's board, as its bylaws required.\\n\\u2022 Although section 39-22-303(12)(c) allows a C corporation that has less than twenty percent of its property and payroll inside the United States to be excluded from a parent corporation's combined tax return, it does not address a holding company such as OJH, which has no property or payroll of its own, inside or outside the United States. But according to Department of Revenue Regulation 39-22-303.12(c), 1 Code Colo. Regs. 201-2, \\\"[s]ince corporations that have no property or payroll factors of their own cannot have twenty percent or more of their factors assigned to locations in the United States, such corporations, by definition, cannot be included in a combined report.\\\" While the statute may be ambiguous, in the court's view, \\\"Regulation 12(c) is directly applicable to the facts of this case.\\\" The court concludes, \\\"OJH is not an includable C corporation under [sub]section 303(12)(c), and the Department erred when it required the inclusion of OJH in Oracle's Colorado combined return.\\\"\\n\\u2022 Section 39-22-303(6) did not provide the Department with an alternative method of allocating income apart from the combination of affiliated corporations required by subsections (11)(a) and 12(c).\\n\\u00b6 11 For these reasons, the court entered summary judgment in favor of Oracle.\\nIV. Appellate Review and Statutory Interpretation\\n\\u00b6 12 An appellate court reviews a district court's summary judgment de novo. Medved v. State , 2016 COA 157, \\u00b6 12, 411 P.3d 206. \\\"Summary judgment is a drastic remedy and, therefore, is only appropriate where there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law.\\\" Id. ; see C.R.C.P. 56(c).\\n\\u00b6 13 Statutory interpretation is also a question of law subject to de novo review. Colo. Dep't of Revenue v. Creager Mercantile Co., Inc. , 2017 CO 41M, \\u00b6 16, 395 P.3d 741. Familiar standards inform that process.\\n\\u00b6 14 \\\"When construing a statute, we must ascertain and give effect to the intent of the General Assembly. To determine legislative intent, we look first to the plain language of the statute. When the statutory language is clear and unambiguous, 'we look no further and apply the words as written,' \\\" without resorting to legislative history or further rules of statutory construction. Id. (citations omitted); see also Smith v. Exec. Custom Homes, Inc. , 230 P.3d 1186, 1189 (Colo. 2010). As part of de novo review, a court may consider and even defer to an agency's interpretation of the statute, although it is not bound by the agency's interpretation. BP Am. Prod. Co. v. Colo. Dep't of Revenue , 2016 CO 23, \\u00b6 15, 369 P.3d 281. But in interpreting Part 3 of Article 22, the Director's administrative interpretations \\\"shall be given no greater weight than the interpretation of the taxpayer . unless such administrative interpretation or construction is set forth in rules and regulations promulgated by the executive director.\\\" \\u00a7 39-22-310, C.R.S. 2017. As well, \\\"[d]eference is not warranted where the agency's interpretation is contrary to the statute's plain language.\\\" BP Am. Prod. Co. , \\u00b6 15.\\n\\u00b6 15 Generally, a court resolves all doubts regarding the language in a tax statute in favor of the taxpayer. Id. at \\u00b6 16. Deductions and exemptions are not allowed, however, unless they are clearly provided for in the statute. Id.\\nV. OJH Is Not an Includible C Corporation Under the Test in Section 39-22-303(12)(c)\\n\\u00b6 16 The Department contends the district court erred when it held that OJH was not an includible C corporation under section 39-22-303(12)(c), but it does not assert that this section is ambiguous. We agree with the district court's conclusion, but do not share the court's view that the statute is ambiguous.\\n\\u00b6 17 Applying the plain language of section 39-22-303(12) involves the following steps.\\n\\u2022 To begin, the Director's power under subsection 303(11) to require a combined report applies only to \\\"an affiliated group of C corporations.\\\"\\n\\u2022 Subsection 303(12)(a) limits the phrase \\\"affiliate group,\\\" as used in subsections 303(10) and (11), to \\\"includable C corporations\\\" having certain characteristics.\\n\\u2022 And as relevant here, subsection 303(12)(c) defines \\\"includable C Corporations\\\" as any corporation that has \\\"more than twenty percent of the C Corporation's property and payroll\\\" assigned to locations inside the United States.\\nTherefore, because OJH is not an includable C corporation, it cannot be a member of an affiliated group, and in turn falls outside of the Director's power to require its inclusion in a combined report.\\n\\u00b6 18 Even so, this application of subsection 303(12)(c) must survive two challenges.\\n\\u00b6 19 First, as the district court recognized, subsection 303(12) does not address whether a corporation like OJH-a holding company that has no tangible property or payroll of its own, anywhere-must be included in or may be excluded from a combined report. If this silence renders the subsection ambiguous, then interpretation must begin with deciding whether it is a tax imposition or a tax exemption statute and also consider legislative history.\\n\\u00b6 20 Second, everyone agrees that OJH is a domestic corporation which does not \\\"conduct[ ] business outside the United States,\\\" the phrase that limits the Director's power to require inclusion in a combined report under subsection 303(8). According to the Department, because the following subsections also concern the scope of combined reports, they should be read in pari materia as applying only to C corporations that conduct business outside the United States.\\n\\u00b6 21 Neither challenge requires a different result.\\n\\u00b6 22 Beginning with ambiguity, \\\"[a] statute is ambiguous when its meaning is uncertain because of 'silence' in the statutory language.\\\" People v. Mosley , 397 P.3d 1122, 1126 (Colo. App. 2011), aff'd , 2017 CO 20, 392 P.3d 1198. But not always. \\\"If, however, a statute can be construed and applied as written, the [General Assembly's] silence on collateral matters is not this court's concern.\\\" In re 2000-2001 Dist. Grand Jury , 97 P.3d 921, 924 (Colo. 2004). Indeed, because \\\"a statute's silence on a particular issue easily could be used to manufacture ambiguity where none exists in practically any case involving statutory construction,\\\" judicial restraint may be prudent. Robbins v. People , 107 P.3d 384, 393 (Colo. 2005) (Rice, J., dissenting).\\n\\u00b6 23 The lack of reference in section 39-22-303(12)(c) to holding companies that lack property and employees does not create an ambiguity with respect to its reach. Rather, the test for inclusion remains unambiguous: twenty percent or more of the C corporation's property and payroll must be assigned to locations inside the United States. Because twenty percent of zero is zero, a corporation without property or payroll meets this test. See Kauntz v. HCA-Healthone, LLC , 174 P.3d 813, 819 (Colo. App. 2007) (\\\"While we can envision how the statute could have more explicitly prohibited patient claims, it is nevertheless clear as to its intended scope, and thus is not ambiguous.\\\").\\n\\u00b6 24 The Department's own regulation 39-22-303.12(c), in effect since 1994, supports this conclusion. It reads:\\nCorporations without property and payroll factors.\\nC.R.S. 39-22-303(12)(c) provides that only those corporations whose property and payroll factors are assigned twenty percent or more to locations inside the United States may be included in a combined report. Since corporations that have no property or payroll factors of their own cannot have twenty percent or more of their factors assigned to locations in the United States, such corporations, by definition, cannot be included in a combined report.\\nDep't of Revenue Reg. 39-22-303.12(c), 1 Code Colo. Regs. 201-2 (emphasis added). To the extent that this regulation filled a statutory gap,\\n[i]f [the General Assembly] has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.\\nWine & Spirits Wholesalers of Colo., Inc. v. Colo. Dep't of Revenue, Liquor Enf't Div. , 919 P.2d 894, 897 (Colo. App. 1996) (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ).\\n\\u00b6 25 Despite this plain language, the Department argues that the regulation was intended to apply only to foreign sales corporations (FSCs), which are foreign subsidiaries of American corporations with a physical presence in a foreign country but not necessarily any foreign property or payroll. However, the regulation does not refer to FSCs. Nor does the statute.\\n\\u00b6 26 When the meaning of a statute is disputed, the agency's own interpretation carries great weight, unless it is inconsistent with the regulation itself. Cendant Corp. v. Dep't of Revenue , 226 P.3d 1102, 1109 (Colo. App. 2009). Because regulation 39-22-303(12)(c) does not mention FSCs, the regulation is consistent with the statute.\\n\\u00b6 27 Department of Revenue Bulletin 92-10, 1992 WL 532154, on which the Department relies, does not support the FSC limitation. True, the bulletin stated in relevant part:\\nIn those situations where a corporation has no property or payroll of its own (e.g., Foreign Sales Corporations ), but which functions through the use of the personnel services and/or property of an includable corporation, it is the Department's position that such corporations are not to be included in a combined report.\\n(Emphasis added.) But \\\"e.g.\\\" means \\\"for example.\\\" Hatfield v. Bd. of Supervisors, 235 So.3d 18, 29, 2017 WL 3452426, at *10 (Miss. 2017). So, the reference to FSCs is not restrictive.\\n\\u00b6 28 And the Department's reliance on 1990 testimony from one its representatives also falls short. When asked what would happen if the General Assembly did not extend the then-existing regulation, the Department's spokesperson responded: \\\"It would necessitate an amount, a great amount, I would say, of time and effort on behalf of the, all the corporations that have these Foreign Sales Corporations, to amend their returns.\\\" Hearing on Various Regulations Before the Comm. on Legal Servs., 57th Gen. Assembly, 2d Reg. Sess. (Nov. 1990) (statement of Ron Granner).\\n\\u00b6 29 But in 1990, the Office of Legislative Legal Services (OLLS) reviewed earlier Department of Revenue regulations interpreting section 39-22-303(8) and (12)(c). Those regulations provided that corporations without property and payroll of their own were to be considered includible in combined returns. In a memorandum to the General Assembly's Committee on Legal Services, the OLLS wrote that these regulations conflicted with the definition of \\\"includible corporations\\\" set forth in section 39-22-303(12)(c), and thus impermissibly modified the statutory language. The General Assembly followed the OLLS recommendation and voted against extending these regulations, which allowed them to expire in June 1991.\\n\\u00b6 30 Undaunted, the Department further argues that despite the parties' agreement OJH has no property or payroll of its own, OJH must have used Oracle's property to perform its corporate functions. Thus, according to the Department, OJH would meet the 80/20 test for inclusion in subsection 303(12)(c) because by using Oracle's property, it is deemed to have only domestic property and payroll. But the district court concluded that \\\"the Department has made an insufficient showing on this issue\\\" because \\\"OJH's theoretical use of Oracle's property does not create a disputed issue of fact with respect to the 80/20 calculation.\\\" The Department does not cite to anything in the record supporting such actual use, other than de minimus activity covered by the master services agreement. And according to Bulletin 92-10, 1992 WL 532154, a corporation \\\"which functions through the use of personnel services and/or property of an includable corporation . [is] not to be included in a combined report.\\\"\\n\\u00b6 31 In sum, we apply subsection 303(12)(c) as did the district court, but based on its plain language.\\n\\u00b6 32 Turning to the phrase \\\"conduct[ ] business outside the United States\\\" in subsection 303(8), that phrase does not appear in any following subsection. Nor does the Department identify any regulation saying that it impliedly limits subsection 303(10), 303(11), or, as most relevant, subsection 303(12). And at oral argument, the Department agreed that the legislative history does not explain the absence of this phrase from these three subsections.\\n\\u00b6 33 Instead, the Department points to descriptions of so-called water's edge corporations-those that have some domestic but primarily foreign operations-as well as references to construing the subsections of section 39-22-303 similarly in the legislative history. But \\\"[w]here the statutory language is clear and unambiguous, we do not resort to legislative history or further rules of statutory construction.\\\" Smith , 230 P.3d at 1189. And we have already concluded that subsection 303(12)(c) is unambiguous.\\n\\u00b6 34 Of course, \\\"[i]f a statute potentially conflicts with another statute, a court must attempt to harmonize them to effectuate their purposes.\\\" People v. Hampton , 876 P.2d 1236, 1240 (Colo. 1994). But declining the Department's invitation to read \\\"conducts business outside the United States\\\" from subsection 303(8) into the following subsections does not create disharmony. Rather, subsection 303(8) prohibits the Director from requiring combined reporting of water's edge C corporations that have eighty percent or more foreign activities, measured by property and payroll. Subsection 303(11) allows the Director to require combined reporting of C\\ncorporations-regardless of the situs of their activities-that meet specific criteria. And subsection 303(12)(c) limits that power to C corporations having more than twenty percent domestic activities, again measured by property and payroll.\\n\\u00b6 35 \\\"The primary task in statutory interpretation is to determine and effectuate legislative intent by construing the statute as a whole.\\\" Burnett v. State Dep't of Nat. Res. , 2015 CO 19, \\u00b6 12, 346 P.3d 1005. Reading these provisions together, we see that\\n\\u2022 subsection 303(8) immunizes water's edge C corporations that fail the 80/20 test for inclusion from mandatory combined reporting; and\\n\\u2022 subsection 303(12)(c) exposes all C corporations to combined reporting-in the Director's discretion under subsection 303(11)-that fail the 80/20 test.\\nThus, the provisions do not conflict because a water's edge C corporation would be treated the same under subsection 303(8) as it would be under subsection 303(12)(c).\\n\\u00b6 36 Also, a court should \\\"strive to avoid statutory interpretations that render certain words or provisions superfluous or ineffective.\\\" Kinder Morgan CO2 Co., L.P. v. Montezuma Cty. Bd. of Comm'rs , 2017 CO 72, \\u00b6 24, 396 P.3d 657. Were we to read \\\"conducts business outside the United States\\\" into subsection 303(12)(c), then its limitation on the Director's power under subsection 303(11) would merely repeat the prohibition in subsection 303(8). A C corporation that has \\\"eighty percent or more\\\" foreign property and payroll, per subsection 303(8), cannot have more than twenty percent domestic property and payroll, per subsection 303(12)(c). Stated differently, the outcome would be the same, because one test is merely the reciprocal of the other.\\n\\u00b6 37 Still, the question could be asked why the General Assembly would have restated the 80/20 test in subsection 303(12)(c), when C corporations that have only domestic operations will always be included, and thereby be subject to combined reporting under subsection 303(11), unless as here they have no property or payroll. But even if a plain language interpretation \\\"may create an unintended result, the [General Assembly] or the people must determine the remedy, and we are not a board of editors with power to rewrite statutes or the constitution to improve them.\\\" McGihon v. Cave , 2016 COA 78, \\u00b6 11, 410 P.3d 647.\\n\\u00b6 38 In the end, we leave \\\"conducts business outside the United States\\\" where the General Assembly put it, in only subsection 303(8).\\n\\u00b6 39 Finally, the Department's assertion that excluding OJH from mandatory combined reporting creates an absurd result misses the mark in two ways.\\n\\u00b6 40 First, the Department does not cite authority, nor have we found any in Colorado, defining absurd. In the statutory context, it has been defined narrowly as \\\"an interpretation that would lead to an unconscionable result, esp[ecially] one that . the drafters could not have intended and probably never considered.\\\" Black's Law Dictionary 10 (9th ed. 2009). In turn, unconscionable is defined as \\\"affronting the sense of justice, decency, or reasonableness.\\\" Id. at 1664. See also Evans Withycombe, Inc. v. W. Innovations Inc. , 215 Ariz. 237, 159 P.3d 547, 550 (Ariz. Ct. App. 2006) (\\\"An absurd result is one 'so irrational, unnatural, or inconvenient that it cannot be supposed to have been within the intention of persons with ordinary intelligence and discretion.' \\\") (citation omitted).\\n\\u00b6 41 Unsurprisingly, to preserve the separation of powers, courts must approach rejecting a statute's plain language to avoid creating an absurd result very cautiously. See, e.g. , Barrow v. City of Detroit Election Comm'n , 301 Mich.App. 404, 836 N.W.2d 498, 506 (2013) (\\\"Our Supreme Court, however, has commented that the absurd results 'rule' of construction typically is merely 'an invitation to judicial lawmaking.' \\\") (citation omitted); Alejos v. State , 433 S.W.3d 112, 121 (Tex. App. 2014) (\\\"[T]he 'absurd results' concept is not an open invitation for courts to second-guess legislative policy decisions in the guise of 'construing' statutes, but a check against blindly narrow and out-of-context readings of statutory language that the [General Assembly] could not possibly have meant.\\\"). See also 2A Norman J. Singer, Statutes and Statutory Construction \\u00a7 46:07, at 199 (6th ed. 2000) (\\\"[T]he absurd results doctrine should be used sparingly because it entails the risk that the judiciary will displace legislative policy on the basis of speculation that the [General Assembly] could not have meant what it unmistakably said.\\\") (footnote omitted).\\n\\u00b6 42 The Department does not cite to any evidence supporting its speculation that other corporate taxpayers could reduce or avoid combined reporting by creating a chain of domestic holding companies. And in any event, the mere possibility that other taxpayers could seek to benefit from a plain language interpretation of section 38-22-303(12)(c) does not cross the high absurdity threshold. After all, taxation involves an ongoing cat and mouse game of taxpayers finding loopholes and the legislature closing them. See, e.g. , United States v. Carlton , 512 U.S. 26, 34, 114 S.Ct. 2018, 129 L.Ed.2d 22 (1994) (examining legislative history of tax statute to conclude that Congress intended to pass subsequent retroactive statute to close loophole in previous statute).\\n\\u00b6 43 Second, according to the Department's answer-reply brief, \\\"[a] ruling in Oracle's favor would open the door for all corporate taxpayers with domestic holding companies in their corporate structure to seek this beneficial tax treatment not intended by the General Assembly.\\\" But therein lies the problem. Since at least the inception of this case in 2015, the Department has been aware of Oracle's litigation position concerning section 38-22-303(12)(a). During the ensuing two years, it could have sought a legislative fix to the parade of horribles that it posits. At oral argument, the Department conceded that it has not yet done so.\\n\\u00b6 44 For these reasons, we agree with the district court that section 39-22-303(12)(c) did not allow the Director to require that Oracle include OJH in its Colorado combined tax return.\\nVI. Section 39-22-303(6) Does Not Provide the Department with an Alternative Basis for Taxation of OJH's Income\\n\\u00b6 45 The Department next contends the district court erred when it ruled, as a matter of law, that section 39-22-303(6) could not be applied as an alternative basis for including income of OJH in Oracle's tax return. It also contends the economic substance doctrine should guide the application of section 39-22-303(6). We reject the first contention and therefore do not reach the second contention.\\n\\u00b6 46 Section 39-22-303(6), quoted in full above, authorizes the Department to allocate income and deductions among corporations that are owned or controlled by the same interests, \\\"to avoid abuse, on a fair and impartial basis,\\\" so as \\\"to clearly reflect income.\\\"\\n\\u00b6 47 The district court held that section 39-22-303(6) could be applied to allocate income among affiliated corporations only if those corporations were otherwise includible under section 39-22-303(12)(c). It relied on the Department's regulation 39-22-303.6, which states:\\nEven though subsection 39-22-303(6), C.R.S. has been superseded by subsection 39-22-303(11), C.R.S., as a vehicle for requiring combined reporting for affiliated C corporations, subsection 39-22-303(6) is still available for use by the Department of Revenue or by the taxpayer for determining Colorado taxable income by use of methodology such as that contained in section 482 of the Internal Revenue Code in applying \\\"arm's length pricing\\\" procedures.\\nDep't of Revenue Reg. 39-22-303.6, 1 Code Colo. Regs. 201-2. The court explained, \\\"Allowing the Department to use 303(6) in this manner would give the Department broad authority beyond that delegated in the state's combined reporting statutory scheme outlined in sections 303(8) through 303(12), and largely would render these sections superfluous.\\\"\\n\\u00b6 48 In addition, the court found that the purpose of the statute is to address \\\"abuse leading to tax avoidance.\\\" Then it concluded that the record did not \\\"indicate that Oracle's formation of OJH was an attempt to avoid paying state income taxes on the sale of Oracle Japan stock.\\\" Instead, \\\"OJH was formed pursuant to the terms of a loan secured by Oracle from Nippon Steel, an unaffiliated Japanese entity. Since its formation in 1991, OJH held stock in Oracle Japan before selling a portion of its shares in 2000 and realizing the gain at issue here.\\\" Thus, \\\"there is no evidence of abuse to warrant the Department transferring OJH's income to Oracle.\\\"\\n\\u00b6 49 We agree with the district court, both legally and factually.\\n\\u00b6 50 Legally, the Department's reliance on section 39-22-303(6) is flawed in at least five respects.\\n\\u00b6 51 First, \\\"[u]pon enacting regulations, an agency is bound by them.\\\" Rags Over the Ark. River, Inc. v. Colo. Parks & Wildlife Bd. , 2015 COA 11M, \\u00b6 25, 360 P.3d 186 (collecting cases). And as the district court noted, according to the Department's regulation 39-22-303.6, \\\"subsection 39-22-303(6), C.R.S. has been superseded by subsection 39-22-303(11).\\\"\\n\\u00b6 52 Second, while deference to the reasonable interpretations of the administrative agencies \\\"is not warranted when the agency's interpretation is contrary to the plain meaning of the statute,\\\" Ybarra v. Greenberg & Sada, P.C. , 2016 COA 116, \\u00b6 28, - P.3d - (cert. granted Feb. 27, 2017), we discern no such conflict. After all, the Department could still seek to apply section 39-22-303(6), except as to income of affiliated C corporations that are not includable in a combined report.\\n\\u00b6 53 Third, despite our conclusion that OJH is not an includable C corporation based on the test in section 39-22-303(12)(c), under the guise of avoiding \\\"abuse\\\" the Department could impose the same tax as would have resulted from requiring Oracle to include OJH's income in a combined report. But such action would violate the principle that \\\"the law may not be used to permit one to accomplish indirectly what he may not achieve directly.\\\" Salle v. Howe , 793 P.2d 628, 631 (Colo. App. 1990). Although our appellate courts have not applied this principle in the context of statutory interpretation, other jurisdictions have done so. See, e.g. , Spectrum Emergency Care, Inc. v. St. Joseph's Hosp. & Health Ctr. , 479 N.W.2d 848, 852 (N.D. 1992) (\\\"Statutes should not be interpreted to allow persons to do indirectly something that the statute directly prohibits.\\\").\\n\\u00b6 54 Fourth, when interpreting statutes, \\\"[s]pecific provisions control over general provisions.\\\" Bd. of Cty. Comm'rs v. Hygiene Fire Prot. Dist. , 221 P.3d 1063, 1066 (Colo. 2009) ; see also \\u00a7 2-4-205, C.R.S. 2017. Sections 39-33-303(11) and (12) provide specific criteria for combined reporting. In contrast, section 39-22-303(6) contains only a general and undefined criterion: \\\"to avoid abuse.\\\"\\n\\u00b6 55 Fifth, \\\"when interpreting more than one statute, we will favor a construction that avoids potential conflict between the relevant provisions.\\\" People v. Smith , 971 P.2d 1056, 1058 (Colo. 1999). Applying section 39-33-303(6) to trump section 39-33-303(11) and (12), in the Department's unfettered discretion, would create a conflict, as this case shows. In contrast, limiting section 39-33-303(6) to pricing procedures for certain intercompany transactions of the type \\\"contained in section 482 of the Internal Revenue Code\\\" would not. See 26 C.F.R. \\u00a7 1.482-1(a) (2015).\\n\\u00b6 56 Despite all this, the Department's opening brief asserts that our interpretation of section 39-22-303(12)(c), unless subject to discretionary enforcement action under section 39-22-303(6), may \\\"encourage companies to avoid tax by inserting a holding company between the Colorado taxpayer and any otherwise includable operating subsidiaries.\\\" But this assertion begs the primary question raised in this case because it urges us to disregard the test for \\\"includable\\\" in section 39-22-303(12)(c). \\\"[W]e are not empowered to ignore the plain meaning of statutory language.\\\" Matter of Title, Ballot Title & Submission Clause , 961 P.2d 1077, 1089 (Colo. 1998).\\n\\u00b6 57 Factually, the Department fares no better.\\n\\u00b6 58 Recall, section 39-22-303(6) does not define \\\"abuse.\\\" Nor does the Department cite any case doing so in the taxation context.\\n\\u00b6 59 \\\"Courts may refer to dictionary definitions to determine the plain and ordinary meaning of undefined statutory terms.\\\"\\nPeople v. Serra , 2015 COA 130, \\u00b6 52, 361 P.3d 1122. One definition of \\\"abuse\\\" is \\\"to depart from legal or reasonable use.\\\" Black's Law Dictionary 10 (8th ed. 2004). Definitions of this word in Webster's Third New International Dictionary , p.8 (2002) include:\\n\\u2022 \\\"a corrupt practice or custom\\\";\\n\\u2022 \\\"improper\\\" or incorrect use; or\\n\\u2022 \\\"a deceitful act.\\\"\\n\\u00b6 60 On the one hand, the record supports the district court's analysis that Oracle formed OJH for a reasonable business purpose, at the behest of an independent third party. On the other hand, the Department does not cite any evidence of corruption, impropriety, or deceit in Oracle's use of OJH. The Department's assertions that \\\"Oracle treats Oracle Japan as a direct subsidiary,\\\" OJH \\\"is merely a vehicle for Oracle's ownership of Oracle Japan,\\\" and a loan of the OJH Gain to another Oracle subsidiary \\\"has been outstanding for over 15 years with no interest or principal paid\\\" do not show corruption, impropriety, or deceit.\\n\\u00b6 61 Even so, the Department challenges the district court's reference to \\\"abuse leading to tax avoidance\\\" on the basis that its discretionary power to reallocate income under the statute goes beyond circumstances involving \\\"tax avoidance.\\\" True, the evolution of section 39-22-303(6) supports this broader view.\\n\\u00b6 62 Under the predecessor statute,\\nIn case of two or more businesses, whether or not incorporated, and whether or not organized in Colorado, owned or controlled directly or indirectly by the same interests the State Treasurer may distribute or allocate the gross income and deductions between or among such businesses or may require returns on a consolidated basis if deemed necessary in order to prevent evasion of taxes and clearly reflect the income.\\nCh. 175, sec. 18, 1937 Colo. Sess. Laws 719 (emphasis added). In 1979, the statute was amended to omit the phrase \\\"to prevent evasion of taxes.\\\" Ch. 373, sec. 34, \\u00a7 39-22-303, 1979 Colo. Sess. Laws 1445. This change occurred before the General Assembly added section 39-22-303(8) - (12). Ch. 309, sec. 1, \\u00a7 39-22-303, 1985 Colo. Sess. Laws 1273-76.\\n\\u00b6 63 Given this change, while tax evasion may still be a sufficient basis for the Department to exercise its discretion under section 39-22-303(6), tax evasion is not a necessary condition for the Department to do so. In this way, our analysis departs from that of the district court. But this departure only returns to the plain and ordinary meaning of abuse. \\\"We give statutory words and phrases their plain and ordinary meanings, and avoid forced, subtle, or strained constructions when the language is simple and the meaning clear.\\\" Subsequent Injury Fund v. Indus. Claim Appeals Office , 131 P.3d 1224, 1226 (Colo. App. 2006). And as indicated, the Department failed to present evidence creating a disputed issue of material fact that Oracle created or used OJH in a manner consistent with that plain and ordinary meaning.\\n\\u00b6 64 Instead, the Department's opening brief urges that this case evinces abuse based on \\\"[t]he improper use of the domestic unitary approach,\\\" which in its answer-reply brief morphs into \\\"an abuse of the General Assembly's intended operation of Section 303-namely, as the statute enforcing a domestic unitary combined reporting system in Colorado.\\\" But the Department does not explain, nor can we discern, how failure to treat OJH in a manner that would conform to the General Assembly's intent constitutes abuse by Oracle. Were the General Assembly free to define abuse, then as Humpty Dumpty said, \\\"it means just what I choose it to mean-neither more nor less.\\\" Lewis Carroll, Through the Looking Glass (1871).\\n\\u00b6 65 The Department's position becomes even more perplexing given its concession that \\\"Colorado limits its taxation of unitary businesses by exempting predominantly foreign corporations.\\\" In other words, had Colorado required combined reporting of all unitary corporate income, any failure to do so might constitute abuse. But because Colorado chose to exempt corporations that do not have twenty percent domestic property and payroll, the failure to report income of such a corporation cannot constitute abuse.\\n\\u00b6 66 In sum, we agree with the district court that the Department cannot rely on section 39-22-303(6). We leave for another day whether in a proper case the economic substance doctrine informs the application of section 39-22-303(6).\\nCROSS-APPEAL\\nVII. Whether OJH Satisfied Three of the Six Factors Required for Combination Under Section 39-22-303(11) Is Moot\\n\\u00b6 67 Oracle contends the district court erred when it held that OJH satisfied three factors as required under section 39-22-303(11) for determining whether affiliated corporations constitute a unitary business. Oracle does not dispute that one test is satisfied: Oracle and OJH meet the common officers test in section 39-33-303(11)(a)(VI) for tax years 1998-2000. But Oracle does challenge the district's court's holding that OJH satisfies the substantial use of intellectual property test in section 39-22-303(11)(a)(IV) and the common directors and officers test in section 39-22-303(11)(a)(V).\\n\\u00b6 68 Be that as it may, we have concluded that under section 39-22-303(12)(c), the Director cannot require Oracle to include OJH in a unitary or consolidated return. So, even were we to further conclude that the district court incorrectly resolved either or both disputed factors under section 39-22-303(11), Oracle would not be entitled to any additional relief. Thus, Oracle's cross-appeal is moot, a point that Oracle conceded at oral argument. See Trinidad Sch. Dist. No. 1 v. Lopez , 963 P.2d 1095, 1102 (Colo. 1998) (\\\"An issue becomes moot when the relief granted by the court would not have a practical effect upon an existing controversy.\\\").\\nVIII. Conclusion\\n\\u00b6 69 The district court's judgment in favor of Oracle is affirmed.\\nJUDGE LICHTENSTEIN concurs.\\nJUDGE BERGER dissents.\\nAlthough \\\"combined report\\\" does not have a statutory definition, it appears to be synonymous with a consolidated return. \\u00a7 39-22-655(3), C.R.S. 2017.\\nThese factors address characteristics such as functional integration, centralization of management, and economies of scale, which have been recognized as bases for requiring combined reporting. See Container Corp. v. Franchise Tax Bd. , 463 U.S. 159, 178-79, 103 S.Ct. 2933, 77 L.Ed.2d 545 (1983).\\nThe Department argues that section 39-22-303(8) -(12), C.R.S. 2017, should be construed as creating a tax exemption, which would place the burden on Oracle to clearly establish the right to any claimed exemption for OJH. Oracle responds that because these statutes do not create exemptions, but rather involve tax imposition, they must be construed in its favor as the taxpayer. As our plain language review concludes that the statutes are unambiguous, we need not decide whether they create an exemption.\"}"

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+"{\"id\": \"12576860\", \"name\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Nicholas Javier ZAPATA, Defendant-Appellant.\", \"name_abbreviation\": \"People v. Zapata\", \"decision_date\": \"2016-05-19\", \"docket_number\": \"Court of Appeals No. 13CA2155\", \"first_page\": \"78\", \"last_page\": \"85\", \"citations\": \"443 P.3d 78\", \"volume\": \"443\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Colorado Court of Appeals, Division III\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee,\\nv.\\nNicholas Javier ZAPATA, Defendant-Appellant.\", \"head_matter\": \"The PEOPLE of the State of Colorado, Plaintiff-Appellee,\\nv.\\nNicholas Javier ZAPATA, Defendant-Appellant.\\nCourt of Appeals No. 13CA2155\\nColorado Court of Appeals, Division III.\\nAnnounced May 19, 2016\\nAs Modified on Denial of Rehearing June 16, 2016\\nCynthia H. Coffman, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee\\nDouglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant\", \"word_count\": \"3507\", \"char_count\": \"22162\", \"text\": \"Opinion by JUDGE J. JONES\\n\\u00b6 1 Defendant, Nicholas Javier Zapata, appeals the judgment of conviction entered on jury verdicts finding him guilty of attempted second degree murder and first degree assault. We affirm.\\nI. Background\\n\\u00b6 2 Defendant's ex-girlfriend told him that she had been sexually harassed by the owner of the convenience store where she worked in Littleton. She also told defendant that the store owner had touched her crotch, buttocks, and breasts. However, she did not tell defendant everything that had happened because she \\\"was worried about any actions that [defendant] would take.\\\" Nevertheless, defendant was \\\"mad\\\" and \\\"upset\\\" about what she had told him.\\n\\u00b6 3 One evening, defendant sent her text messages telling her, \\\"Don't be there.\\\" Approximately thirty minutes later, defendant and Jose Murillo walked into the convenience store. Defendant and Mr. Murillo had known each other for six months. The evidence indicated that defendant and Mr. Murillo had taken the light rail together from downtown Denver to Littleton, and then they walked together from the light rail station to the convenience store.\\n\\u00b6 4 Mr. Murillo quickly walked behind the counter and stabbed the store owner's son with a knife. The prosecution's theory was that defendant and Mr. Murillo mistakenly believed that the person behind the counter was the store owner who had sexually harassed and assaulted defendant's ex-girlfriend.\\n\\u00b6 5 A struggle ensued between Mr. Murillo and the store owner's son. Defendant, who was the only other person in the store, watched the struggle from the other side of the counter. On the high-quality surveillance video, someone can be heard saying, \\\"Get him, get him, get him good.\\\" When the store owner's son began hitting Mr. Murillo in the head with a hammer, Mr. Murillo said, \\\"[H]elp me.\\\" Defendant quickly left the store and fled. Mr. Murillo suffered permanent brain damage from the fight.\\n\\u00b6 6 The People charged defendant with conspiracy to commit first degree murder, attempted first degree murder, and first degree assault. The People charged Mr. Murillo in a separate case.\\n\\u00b6 7 Mr. Murillo pleaded guilty in his case and testified at defendant's trial. He testified that because of his brain damage, he did not remember the convenience store attack. But he also testified that he had known defendant for six months before the attack; the convenience store surveillance video showed him and defendant; they were not there to rob the store; and he was testifying because defendant had left him at the store to die.\\n\\u00b6 8 The defense theory at trial, and what defendant told detectives during pretrial interviews, was that defendant went to the convenience store hoping to see his ex-girlfriend, and that he did not know that Mr. Murillo was going to attack the person behind the counter. The defense also emphasized that Mr. Murillo regularly used heroin at that time.\\n\\u00b6 9 The jury found defendant guilty of attempted second degree murder and first degree assault.\\n\\u00b6 10 On appeal, defendant contends that the district court erred by (1) not requiring the prosecution to disclose statements Mr. Murillo allegedly made during competency evaluations in his separate case; and (2) admitting evidence, as res gestae, of defendant's prior controlling and threatening behavior toward his ex-girlfriend, her new boyfriend, and her mother.\\nII. Competency Report\\n\\u00b6 11 We first address defendant's contention that the district court erred by not requiring the prosecution to disclose statements Mr. Murillo allegedly made during competency evaluations in his separate case. Defendant alternatively argues that the district court erred by failing to review the competency evaluations in camera before making its decision.\\nA. Further Background\\n\\u00b6 12 In the case against Mr. Murillo, Mr. Murillo's counsel raised the issue of Mr. Murillo's competency, and two competency evaluations were completed.\\n\\u00b6 13 In this case, at a pretrial hearing, defendant's counsel requested that the prosecution produce any statements Mr. Murillo may have made during a competency evaluation about the underlying facts of the case. The court said that defendant was entitled to exculpatory and inculpatory information, but not any findings about medical issues. The prosecutor said that the People would be willing to produce the competency evaluation with redactions, but that \\\"essentially what he says is he doesn't remember anything about the incident.\\\"\\n\\u00b6 14 Later, Mr. Murillo withdrew his claim of incompetency in his case.\\n\\u00b6 15 At a subsequent hearing in this case, defendant's counsel told the court that the prosecution had still not produced the competency evaluations. Defendant's counsel also told the court that Mr. Murillo had made a proffer in his case making statements about his involvement in this case. Another hearing was set for Mr. Murillo's counsel to be present.\\n\\u00b6 16 At that hearing (held on the same day that Mr. Murillo entered a guilty plea in his case), defendant's counsel argued that the competency evaluations must be produced pursuant to section 16-8.5-104, C.R.S.2015; Crim. P. 16 ; and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Mr. Murillo's counsel objected, arguing that Mr. Murillo had not waived his \\\"privilege\\\" as it related to defendant's case, and that Mr. Murillo had already withdrawn his incompetency claim in his case. The prosecutor agreed with Mr. Murillo's counsel that the competency evaluations should not be discoverable and added, \\\"Your Honor, I can tell the Court as an officer of the court there is, I think, maybe two lines about the actual incident in this competency evaluation, and there is nothing in the competency evaluation that is not in the proffer that we've already discovered anyway.\\\"\\n\\u00b6 17 The court denied defendant's request for production of the competency evaluations, explaining,\\nFirst of all, the statute does not anticipate a codefendant in a separate case having access to this report. Second, I just took a plea from [Mr. Murillo] in which he indicated he was competent.... And he previously has withdrawn any defense he had that he was not competent as a result [of] . what happened to him during the incident.... I'm going to find this is not Brady material.\\n\\u00b6 18 Defense counsel then requested that the court conduct an in camera review of the competency evaluations to determine whether Mr. Murillo had made any inconsistent statements that might implicate defendant's confrontation rights. The court also denied that request, explaining,\\nThis statute was enacted because people have a right to privilege to things they say to a physician or a psychologist or psychiatrist; therefore, there needs to be a law to waive. And that's the privilege. And it's inviolate. I think there's case law that says it's inviolate. There would then have to be a statute which would require the waiver of that inviolate right for certain purposes, and they're set out. Those purposes are for a plea agreement or for trial, and they're available to the defense, to the prosecution. And I don't see anything here that would add . any other person who may find this information important. It just isn't here. So I'm denying your request based on the plain reading of the statute.\\n\\u00b6 19 Defendant's counsel later filed a motion for reconsideration, to which he attached Mr. Murillo's proffer in the other case. Defendant's counsel also brought up the issue again on the first day of trial. The court again denied the request.\\nB. Standards of Review\\n\\u00b6 20 We review for an abuse of discretion a district court's resolution of discovery issues, including whether to conduct an in camera review of documents sought in discovery. See People v. Herrera, 2012 COA 13, \\u00b6 10, 272 P.3d 1158. A court abuses its discretion only when its ruling is manifestly arbitrary, unreasonable, or unfair, or when it misapplies the law. Id. at \\u00b6 11.\\n\\u00b6 21 We review de novo issues of statutory interpretation. Hunsaker v. People, 2015 CO 46, \\u00b6 11, 351 P.3d 388. We also review de novo the application of the psychologist-patient privilege. See People v. Kailey, 2014 CO 50, \\u00b6 12, 333 P.3d 89.\\nC. Analysis\\n\\u00b6 22 Defendant's contentions implicate the proper interpretation of section 16-8.5-104 -relating to the waiver of privilege surrounding a competency evaluation-and section 16-8.5-108, C.R.S.2015-relating to the admissibility of evidence obtained during a competency evaluation.\\n\\u00b6 23 Section 16-8.5-104, entitled \\\"Waiver of privilege,\\\" provides that when a defendant raises the issue of his competency, \\\"any claim by the defendant to confidentiality or privilege is deemed waived, and the district attorney, the defense attorney, and the court are granted access\\\" to the competency evaluation reports. \\u00a7 16-8.5-104(1). It also provides that \\\"[s]tatements made by the defendant in the course of any evaluation shall be protected as provided in section 16-8.5-108.\\\" \\u00a7 16-8.5-104(6).\\n\\u00b6 24 Section 16-8.5-108, in turn, entitled \\\"Evidence,\\\" discusses the limited circumstances of admissibility of \\\"evidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a competency evaluation.\\\" \\u00a7 16-8.5-108(1)(a) ; see also \\u00a7 16-8.5-108(1)(b), (1)(c), (2).\\n\\u00b6 25 Defendant's arguments on appeal concerning these provisions fall into three categories: first, that Mr. Murillo did not have a valid privilege protecting these communications; second, even if he did, he waived any such privilege; and third, any such privilege must give way to defendant's right to discovery under Crim. P. 16 and his constitutional rights to confrontation and due process.\\n\\u00b6 26 In terms of defendant's argument that Mr. Murillo did not have a valid psychologist-patient privilege concerning the communications at issue, we note that defendant did not raise that argument in his opening brief; instead, he did so for the first time in his reply brief. We ordinarily will not consider such an argument. See People v. Czemerynski, 786 P.2d 1100, 1107 (Colo.1990) (issues not raised in an appellant's opening brief will normally not be considered on appeal).\\n\\u00b6 27 Regardless, we reject the argument. Defendant argues that the statutory reference to \\\"confidentiality or privilege\\\" does not necessarily refer specifically to the psychologist-patient privilege. But under the statute, competency evaluations can only be conducted by a licensed physician who is a psychiatrist or psychologist, both of whom are subject to the psychologist-patient privilege. See \\u00a7 16-8.5-101(2), C.R.S.2015; see also \\u00a7 16-8.5-101(1), (5), (14) ; \\u00a7 13-90-107(1)(g), C.R.S.2015. Further, the supreme court has made clear that the \\\"confidentiality or privilege\\\" referred to in the former version of section 16-8-103.6 (which at that time included the \\\"confidentiality or privilege\\\" surrounding competency evaluations) is indeed the psychologist-patient privilege. See Hendricks v. People, 10 P.3d 1231, 1242 (Colo.2000) (section 16-8-103.6 involves the waiver of the \\\"physician-patient privilege\\\"); People v. Ullery, 984 P.2d 586, 589-90 (Colo.1999) (section 16-8-103.6 pertains to the \\\"physician/psychologist-patient privileges\\\") (citation omitted); see also People v. Steen, 2014 CO 9, \\u00b6 9, 318 P.3d 487 (\\\"We will read and consider the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all its parts.\\\"); People v. Cunefare, 102 P.3d 302, 306 (Colo.2004) (\\\"Because the language of [another] statute is substantially similar to the language we interpret in this case, we hold that the same principles apply here.\\\").\\n\\u00b6 28 We also disagree with defendant's argument that Mr. Murillo waived his psychologist-patient privilege concerning the statements he made during the competency evaluations for purposes of defendant's case. The plain language of section 16-8.5-104 indicates that such otherwise privileged communications would only be discoverable in Mr. Murillo's case, not defendant's case. See, e.g., \\u00a7 16-8.5-104(1) (after a defendant raises the issue of his competency to proceed, the privilege is waived and the competency report shall be disclosed to \\\"the district attorney, the defense attorney, and the court\\\"); \\u00a7 16-8.5-104(2) (\\\"either party or the court\\\" can request the information); \\u00a7 16-8.5-104(4) (the court may order additional information be provided to \\\"either party to the case\\\"); see also Gray v. Dist. Court, 884 P.2d 286, 292-93 (Colo.1994) (discussing waiver of psychologist-patient privilege where a defendant tenders his mental condition as an issue in a criminal case).\\n\\u00b6 29 Further, the plain language of section 16-8.5-108 indicates that any such communications would be admissible only in Mr. Murillo's case, not in defendant's case. Again, significantly, section 16-8.5-104(6) provides that \\\"[s]tatements made by the defendant in the course of [a competency evaluation] shall be protected as provided in section 16-8.5-108.\\\" Section 16-8.5-108 details the limited circumstances in which such statements are admissible and not \\\"protected.\\\" The provisions in section 16-8.5-108 would only apply to the case brought against Mr. Murillo, not the case brought against defendant. See, e.g., \\u00a7 16-8.5-108(1)(a) (such evidence may be admissible at trial to rebut evidence introduced by the defendant of the defendant's mental condition to show incapacity of the defendant to form a culpable mental state); \\u00a7 16-8.5-108(1)(c) (if a defendant testifies on his or her own behalf, such evidence may be used to impeach or rebut the defendant's testimony). Section 16-8.5-108(1)(c) clearly does not apply to defendant's attempts to impeach Mr. Murillo's testimony at defendant's trial.\\n\\u00b6 30 Finally, we are unpersuaded by defendant's argument that his rights to disclosure under Crim. P. 16 and his constitutional rights to confrontation and due process trump Mr. Murillo's claim of privilege. Where the psychologist-patient privilege protects a witness's statements, and where the privilege has not been waived, a defendant is (at least generally) not entitled to discovery or an in camera review of the privileged statements. See, e.g., People v. Wittrein, 221 P.3d 1076, 1083 (Colo.2009) ; People v. Sisneros, 55 P.3d 797, 800 (Colo.2002) ; Dill v. People, 927 P.2d 1315, 1322-25 (Colo.1996) ; People v. Dist. Court, 719 P.2d 722, 726-27 (Colo.1986). To the extent that rule is not absolute, defendant made no particularized showing that the statements Mr. Murillo allegedly made during the competency evaluations somehow exculpated defendant, or were inconsistent with the information in Mr. Murillo's proffer. See Wittrein, 221 P.3d at 1088 (Martinez, J., concurring in judgment only) (\\\"[W]ithout eliminating the possibility that there may be times when the due process clause requires that the trial court conduct an in camera review of privileged records to determine whether they contain information that must be disclosed to the defense, in the absence of a particularized showing that the records contain exculpatory information not otherwise available to the defendant, in camera review is not required.\\\").\\n\\u00b6 31 The district court did not err in ruling that the psychologist-patient privilege applied to statements Mr. Murillo made during his competency evaluations, and that Mr. Murillo did not waive his privilege under section 16-8.5-104 for purposes of discovery in defendant's case. Further, the district court did not abuse its discretion in denying the requested discovery and in declining to review the competency reports in camera.\\nIII. Res Gestae\\n\\u00b6 32 Defendant also contends that the district court erred by admitting evidence, as res gestae, of his prior controlling and threatening behavior toward his ex-girlfriend, her new boyfriend, and her mother. We need not decide whether the court erred, however, because any error in admitting the evidence was harmless.\\nA. Further Background\\n\\u00b6 33 Before trial, the prosecution filed a notice of intent to introduce prior acts of defendant as res gestae evidence, or in the alternative as CRE 404(b) evidence. The notice and its attachments, as well as the prosecutor's argument at a hearing, reflected that the prosecution sought to admit evidence of defendant's jealous, controlling, and obsessive behaviors toward the ex-girlfriend. The evidence included text messages that defendant had sent to the ex-girlfriend a week before the convenience store attack, in which he threatened her, her new boyfriend, and her mother. The prosecutor later told the district court that the prosecution also intended to introduce evidence that defendant and his ex-girlfriend had gotten into physical fights within the six months before the convenience store attack.\\n\\u00b6 34 Over defense counsel's objections, the district court ruled that the evidence would be admissible as res gestae.\\n\\u00b6 35 At trial, the ex-girlfriend testified that she had ended her relationship with defendant because of his controlling behavior. He needed to know where she was at all times. They would argue and physically fight when she talked to other men. When she ended the relationship, he began threatening her, her new boyfriend, and her mother. The text messages containing such threats, which defendant sent her the week before the convenience store attack, were admitted at trial.\\n\\u00b6 36 The prosecutor also discussed that evidence during closing argument, and told the jury, \\\"[Y]ou know . his anger, his possessiveness, his controlling.... Prior to the [attack at the convenience store] you know how he reacts to and what he thinks about people who are messing with [his ex-girlfriend]. And what he would like to do to them.\\\"\\nB. Standards of Review\\n\\u00b6 37 We review a district court's ruling admitting evidence as res gestae for an abuse of discretion. People v. Reed, 2013 COA 113, \\u00b6 31, 338 P.3d 364.\\n\\u00b6 38 When, as here, a defendant has preserved an objection to the admission of evidence, we review for harmless error. See Yusem v. People, 210 P.3d 458, 469 (Colo.2009) ; Reed, \\u00b6 32. (We disagree with defendant's suggestion that we should review for constitutional harmless error. See Yusem, 210 P.3d at 469 & n. 16 ; Reed, \\u00b6 32.)\\nThe proper inquiry in determining a harmless error question is not whether there was sufficient evidence to support the verdict without the improperly admitted evidence, but, rather, whether the error substantially influenced the verdict or affected the fairness of the trial proceedings. If a reviewing court can say with fair assurance that, in light of the entire record of the trial, the error did not substantially influence the verdict or impair the fairness of the trial, the error may properly be deemed harmless.\\nYusem , 210 P.3d at 469 (quoting People v. Gaffney , 769 P.2d 1081, 1088 (Colo.1989) ). \\\"Put differently, [a defendant] is entitled to reversal if there is 'a reasonable probability that the error contributed to [his] conviction.' \\\" Id. (quoting in part People v. Garcia, 28 P.3d 340, 344 (Colo.2001) ).\\nC. Analysis\\n\\u00b6 39 We need not resolve the question whether the district court abused its discretion in admitting the aforementioned evidence as res gestae because any such error was harmless. Defendant did not dispute that he walked into the convenience store with Mr. Murillo and watched the attack from the other side of the counter. The case turned on whether the jury believed the prosecution's theory that defendant had enlisted Mr. Murillo to attack the store owner, or instead believed defendant's theory that he was a mere bystander who witnessed the attack.\\n\\u00b6 40 On the one hand, the evidence supporting the prosecution's theory was compelling: defendant learned of the store owner's sexual harassment of and assaults on his ex-girlfriend; defendant was angry and upset about it; defendant texted his ex-girlfriend thirty minutes before the attack telling her, \\\"Don't be there\\\"; during the attack, Mr. Murillo said, \\\"[H]elp me\\\"; and the evidence strongly indicates that it was defendant who said during the attack, \\\"Get him, get him, get him good.\\\"\\n\\u00b6 41 On the other hand, the defense theory was weak, given that defendant had traveled with Mr. Murillo from downtown Denver to Littleton and that they had then walked to the convenience store together; Mr. Murillo had never been to Littleton before and did not know anyone who worked at the convenience store; and no evidence indicated that Mr. Murillo had some other motivation to attack the store clerk.\\n\\u00b6 42 In sum, although the evidence of defendant's prior controlling and threatening behavior may have impugned his character to a degree, we conclude that any error in admitting that evidence did not substantially influence the verdict or impair the fairness of the trial. See Yusem, 210 P.3d at 469.\\nIV. Conclusion\\n\\u00b6 43 The judgment is affirmed.\\nJUDGE WEBB and JUDGE BOORAS concur.\\nBefore 2008, section 16-8-103.6, C.R.S.2015, pertained to the waiver of \\\"confidentiality or privilege\\\" surrounding mental health evaluations to determine either competency or insanity. In 2008, the General Assembly relocated the provisions concerning waiver of privilege surrounding competency evaluations to section 16-8.5-104, C.R.S.2015. See Ch. 389, secs. 2 & 3, \\u00a7 16-8-103.6, 16-8.5-104, 2008 Colo. Sess. Laws 1841-42, 1850-51; see also People in Interest of W.P., 2013 CO 11, \\u00b6 15, 295 P.3d 514 (discussing statutory amendment). The current version of section 16-8.5-104 contains the same reference to \\\"confidentiality or privilege,\\\" and we hold that it also refers to the psychologist-patient privilege, just as the former version of 16-8-103.6 did.\"}"

colorado/191683.json

@@ -0,0 +1 @@
+"{\"id\": \"191683\", \"name\": \"Barker, Trustee, v. Hamilton\", \"name_abbreviation\": \"Barker v. Hamilton\", \"decision_date\": \"1877-04\", \"docket_number\": \"\", \"first_page\": \"291\", \"last_page\": \"293\", \"citations\": \"3 Colo. 291\", \"volume\": \"3\", \"reporter\": \"Colorado Reports\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T21:25:23.031241+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Barker, Trustee, v. Hamilton.\", \"head_matter\": \"Barker, Trustee, v. Hamilton.\\nAn infant is incapable of an admission which will af\\u00a3 ect her own rights, much less can her admissions be used against a third party who assumes to stand as her trustee. The admission of such evidence in a trial to the court, where the exception reserved to the finding is sufficient, may be reviewed on error.\\nError to Probate Gourt of Arapahoe County.\\nThis was an action of replevin brought by Barker, the plaintiff in error, as trustee of Hattie Mix, an infant, against Hamilton, the defendant in error. - The declaration was in the cepit and detinet pleas; non cepit, non detinet, property in defendant, and property in a third party. Upon the trial in the probate court, without a jury, the court found \\u201cthat the property was not in the plaintiff,\\u201d awarded a writ of retorno habendo, and gave judgment for costs against the plaintiff. Exception was taken and the plaintiff sued out this writ of error.\\nThe witness, Bentis, testified on behalf of the defendant, among other matters, that Mrs. Mix, the mother of the beneficiary, claimed the goods and exercised control over them, whether with the knowledge of the beneficiary, the witness could not say, and that Mrs. Mix delivered to the witness, at the time of the removal, certain of the goods in controversy, and that \\u201cHattie was there, and did not interpose any objection.\\u201d\\nObjection and exceptions were duly made and taken to this testimony.\\nMr. Sam. P. Rose, for plaintiff in error.\\nMr. Y. I). Markiiam, and Messrs. Miller, Beck & Clough, for defendants in error.\", \"word_count\": \"428\", \"char_count\": \"2499\", \"text\": \"Wells, J.\\nThe court below permitted the defendant, for the purpose of impeaching the trust asserted by the plaintiff, to give in evidence the admissions of the infant beneficiary, implied from her conduct. In this there was certainly error. The infant was incapable of an admission which should affect her own rights ; much less can her admissions be used against a third person, who assumes to stand as her trustee.\\nThis error is reviewable here, even though we should hold the exception, which the plaintiff reserved to the finding, insufficient to take the case out of the doctrine of Phelps v. Spruance, 1 Col. 414, and even if we examine the whole record \\u2022\\u2014 as for this purpose, according to the case of Patton v. The Coen & Ten Broeke Co., we may do, it is impossible to say with confidence that the testimony so improperly received has not affected the result.\\nJudgment reversed with costs, and cause remanded for a new trial.\\nReversed.\"}"

colorado/1941910.json

@@ -0,0 +1 @@
+"{\"id\": \"1941910\", \"name\": \"Dixon et al. v. Githens et al.\", \"name_abbreviation\": \"Dixon v. Githens\", \"decision_date\": \"1954-12-27\", \"docket_number\": \"No. 17,332\", \"first_page\": \"582\", \"last_page\": \"582\", \"citations\": \"130 Colo. 582\", \"volume\": \"130\", \"reporter\": \"Colorado Reports\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T21:54:51.850100+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Dixon et al. v. Githens et al.\", \"head_matter\": \"No. 17,332.\\nDixon et al. v. Githens et al.\\n(278 P. [2d] 581)\\nDecided December 27, 1954.\\nRehearing denied January 24, 1955.\\nMr. Fancher Sarchet, Mr. John J. Tobin, for plaintiffs in error.\\nMessrs. Kelly & Clayton, Messrs. Riffenburg & Harden, for defendants in error.\", \"word_count\": \"65\", \"char_count\": \"410\", \"text\": \"Per Curiam.\\nJudgment affirmed en banc- without written opinion. Mr. Chief Justice Stone did not participate in the consideration of this case.\"}"

colorado/2360551.json

@@ -0,0 +1 @@
+"{\"id\": \"2360551\", \"name\": \"De Cunto, Barra & Company v. Johnson\", \"name_abbreviation\": \"De Cunto, Barra & Co. v. Johnson\", \"decision_date\": \"1902-09\", \"docket_number\": \"No. 2221\", \"first_page\": \"220\", \"last_page\": \"222\", \"citations\": \"18 Colo. App. 220\", \"volume\": \"18\", \"reporter\": \"Colorado Court of Appeals Reports\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T19:26:50.625713+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"De Cunto, Barra & Company v. Johnson.\", \"head_matter\": \"[No. 2221.]\\nDe Cunto, Barra & Company v. Johnson.\\n1. Mortgages \\u2014 Foreclosure\\u2014Parties.\\nWhere the grantor in a deed of trust has disposed of all his interest in the premises covered hy the deed of trust, he is not a necessary party to an action to foreclose such deed of trust where no personal judgment is sought against him.\\n2. Mortgages \\u2014 Foreclosure\\u2014Sheriff's Deed \\u2014 Order of Court Approving Sale.\\nA sheriff\\u2019s deed made in pursuance of the certificate of sale on the foreclosure of a mortgage is not void because no order of court approving the sale was made prior to the execution of the deed.\\nAppeal from the District Court of Arapahoe County.\\nMessrs. Ward & Ward, for appellants.\\nMr. Henry Howard, Jr., for appellee.\", \"word_count\": \"742\", \"char_count\": \"4434\", \"text\": \"Gunter, J.\\nAction upon warranty of title in bill of sale. Trial to the court. Judgment for plaintiff. Defendant appeals.\\nJune 27, 1896\\\", The Metzner Liquor Company was in possession of a lot, a part of the public domain, and owned the frame building situate thereon. To secure an indebtedness to The Milwaukee Brewery Company it gave a trust deed on its possessory interest in the lot and upon the building. August 31, 1896, The Metzner Liquor Company gave a chattel mortgage upon the frame building to secure an indebtedness to appellants. Being unable to meet this indebtedness the mortgagor delivered possession of the building so mortgaged to appellants, who by bill- of sale containing warranty of title sold the same to appellee.\\nThe Milwaukee Brewery Company instituted an action to foreclose the above trust deed, and to have its interests in the building covered thereby declared superior to the interest of appellants, and to the interest of appellee therein. Appellants and appellee were made parties to this action, and appeared therein. A decree was entered ordering sale of the property covered by the trust deed and adjudging the lien of The Milwaukee Brewery Company thereon superior to the chattel mortgage to appellants and the bill of sale to appellee. A sale was made by the sheriff under the decree so rendered, a certificate of sale issued, and later, in pursuance thereof, a sheriff's deed. The holder of such deed took possession of the building embraced therein. Johnson, the purchaser under the bill of sale having thus lost the property covered thereby, brought the present \\u00e1ction to recover damages for a breach of the warranty of title contained therein. As stated he had judgment below.\\nAppellants contend that this apparently righteous judgment should be set aside; they contend that the above decree foreclosing the trust deed and adjudging the lien thereof superior to the interest of appellants acquired under the chattel mortgage, and the interest of appellee acquired under the bill of sale, was void because the grantor in the trust deed was not made defendant to such foreclosure proceeding. The Metzner Liquor Company, the trustor in the trust deed foreclosed, had parted with all interest held by it in the property covered by the trust deed by a sale of such property to appellants. It was not sought in the foreclosure proceeding to recover a personal judgment against The Metzner Liquor Company, the relief sought was to sell the property covered by the trust deed, and apply the proceeds of such sale iipon the indebtedness secured thereby, and to have the lien evidenced by such trust deed declared superior to the claims of appellants, and the claim of appellee. The Metzner Liquor Company had no interest in the proceeding, the only parties interested therein other than plaintiff were the defendants, the present appellants, and appellee. They had the opportunity by being made defendants to such proceeding to contest the validity of plaintiff's lien under the alleged trust deed, and its alleged superiority to their respective claims.\\nWe can see no reason why The Metzner- Liquor Company was a necessary party to such proceeding.\\nIt is further contended, that the property covered by the trust deed was not the same property as that advertised for sale, and was not the same property as that contained in the bill of sale. By parol testimony it appears that it was.\\nIt was further contended that the sheriff's deed made- in pursuance of the certificate of sale was void because an order of court approving the sale was not made previous to the execution of this deed. This, under our statute was not necessary.\\n-The judgment below should be affirmed.\\nAffirmed.\"}"

colorado/2362818.json

@@ -0,0 +1 @@
+"{\"id\": \"2362818\", \"name\": \"Whelen v. Whelen\", \"name_abbreviation\": \"Whelen v. Whelen\", \"decision_date\": \"1896-04\", \"docket_number\": \"\", \"first_page\": \"196\", \"last_page\": \"199\", \"citations\": \"8 Colo. App. 196\", \"volume\": \"8\", \"reporter\": \"Colorado Court of Appeals Reports\", \"court\": \"Colorado Court of Appeals\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T22:59:40.222752+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Whelen v. Whelen.\", \"head_matter\": \"Whelen v. Whelen.\\nPractice \\u2014 Application por Alimony.\\nJudgment for alimony pendente lite upon a written motion and verified complaint stating a good cause of action will not be disturbed because not founded upon petition when no question as to the regularity of the proceedings was raised in apt time in the trial court.\\nAppeal from the District Court of JSl Paso County.\\nMessrs. Galligan, Deasy & Higgins, for appellant.\\nNo appearance for appellee.\", \"word_count\": \"1360\", \"char_count\": \"7858\", \"text\": \"Bissell, J.,\\ndelivered the opinion of the court.\\nThis divorce suit was begun in January, 1895, by Mrs. Whelen to obtain a legal separation from her husband William, and the payment of alimony for the support of herself and. her children. Yery little more of the case need be stated than will suffice to explain the proceedings and sustain the judgment.\\nThe parties intermarried in 1876 in Illinois, and lived together as husband and wife until about a year before the commencement of the suit. If the allegations of the complaint were sustained by proof, Mrs. Whelen was entitled to a divorce. She charged acts and conduct which under the law and the statute would justify a judicial separation. It is wholly unnecessary to set out the nature of the charges, or the character of the case made by the complaint, because so far as the present proceeding is concerned, the plaintiff's case was admitted. No answer was put in. A demurrer was interposed and the application for temporary alimony was based on these two pleadings. It is therefore enough to say the complaint stated a good cause of action. The only other things which need be adverted to are the allegations respecting the property of the defendant and the transfers which he had made of his assets, and the affidavits which he filed in opposition to the application. The complaint was verified by the oath of the plaintiff. She filed a written motion based on it and asked alimony pendente lite for the support of herself and children, and counsel fees for the prosecution of the suit. The matter came on for a hearing on this motion and the complaint and demurrer, and the defendant's affidavits, which tended to show that Mrs. Whelen possessed some property in Pueblo of a value which was stated. The application was not otherwise resisted. The matter was heard, and the court adjudged Mrs. Whelen entitled to alimony in the sum of $25.00 a mouth, commencing from a fixed date, and $50.00 for attorney's fees, payable on a date named. Up to this time no objections whatever had been put in to the form of the application, or the procedure which was adopted by the plaintiff. On the announcement of the court's conclusion, the defendant's counsel requested leave to make specific objections, and among them stated that the complaint was not supported by affidavits.\\nAccording to the complaint, Whelen owned a verjr considerable property, real and personal, which was alleged to be of the value of $30,000. Part of it was charged to be in cash, and distributed in various banks outside of Colorado Springs, where the parties lived, and the balance in real estate in that town and shares in certain mining companies. The plaintiff alleged that Whelen had conveyed his property to one Phelan, for the purpose of concealing it from the plaintiff and to defeat the recovery of any alimony which might be awarded. We are only concerned with this matter in so far as relates to the defendant's admissions of his wife's charges about the property and the transfer. As has already been stated, he put in no answer, but filed an affidavit resisting the motion. It is peculiar. In fact it presents no matter which should be operative to defeat the application, or which, tends to explain or contradict or do away with any of the charges made by the complaint. Its substance is really found in the statements respecting Mrs. Whelen's ownership of a house and lot in Pueblo, its actual and its renting value. When it comes to the question of property, Whelen only says that he is out of employment, and that he is not the owner of any property, real or personal, nor was he at the time the suit was begun \\\"on which he could realize any money whatever.\\\" He says he has no cash in bank and had none when the suit was begun, but he believes he has good defense. He denies having any shares in mining companies. This statement makes it exceedingly plain that what the plaintiff charges respecting Whelen's property and his financial situation must be substantially true, or that he is in no position to controvert it. He neither states that he is worth nothing, nor that he is not worth the sum the plaintiff avers, nor does he deny the transfer of his property to Phelan, for the purpose of defrauding the plaintiff out of her alimony, nor does he deny that he has money, although he alleges that he has no money in banks in Colorado Springs or elsewhere. This evasive denial is wholly consistent with the theory that he may have had a very considerable amount of money so placed as perhaps not to be available, but which was in reality a part of his estate.\\nThere is urged on the appeal but one proposition, on which counsel apparently rely to reverse this judgment. This is substantially that the proceedings were irregular, because the plaintiff filed no petition supported by affidavits. This contention is based on a general expression found in Daniels v. Daniels, 9 Colo. 133. We concede the general practice to be according to appellant's contention. In most cases of this description the applicant files a petition, wherein is stated the facts entitling hei to this kind of relief, the financial condition of the defendant and whatever other matters seem appropriate to the proceeding. The petition is rested on the complaint and any affidavits which may be filed, and the counter affidavits which may be put in. The matter is then heard and determined. The statement in Daniels v. Daniels simply refers to this general practice, but there is no question in that case about the regularity of the proceedings. It did not turn on the failure of the plaintiff to proceed according to the general rule prevalent in courts having jurisdiction in this class of cases, but stated what the procedure had been. This we do not controvert. The only question is whether a failure to adopt this method when a judgment for temporary alimony has been entered will operate to reverse the judgment. Under circumstances like the present, we do not so conclude. A motion was prepared which may be taken as a petition, however informal and defective it may be. The complaint was verified by the oath of the plaintiff, and it, with the motion, may be taken to be the equivalent of a verified petition, coupled with an affidavit. In the present case there was no attack on the proceedings because of the irregularity of their methods. If the defendant desired to compel the plaintiff to file a petition supported by affidavits, he should have promptly and in the trial court insisted on this procedure and on his objection. The case very closely resembles a proceeding where the bill is taken pro confesso. In cases of that sort the present practice would be taken as entirely regular. How far we should go in this direction if the specific question had been raised it is unimportant to decide. Many reputable authorities hold the application can be made by motion based on a verified bill and supported by other proofs, if other proofs be necessary. Bishop on Marriage & Divorce, vol. 2, chap. 32.\\nWe are not disposed to lay down any rule in respect to the matter, because the case does not require it. A case for alimony was regularly made out by the verified complaint, and there was nothing in the affidavits filed in opposition which should lead the court to a different conclusion, or which call on us to disturb the judgment.\\nIt will accordingly be affirmed.\\nAffirmed.\"}"

colorado/2365405.json

@@ -0,0 +1 @@
+"{\"id\": \"2365405\", \"name\": \"The People of the City of Lakewood By and on behalf of the People of the State of Colorado v. Guido O. Haase and Diamond Re-Serv-al, Inc.\", \"name_abbreviation\": \"People v. Haase\", \"decision_date\": \"1979-06-11\", \"docket_number\": \"No. C-1673\", \"first_page\": \"47\", \"last_page\": \"51\", \"citations\": \"198 Colo. 47\", \"volume\": \"198\", \"reporter\": \"Colorado Reports\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T17:09:24.452801+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The People of the City of Lakewood By and on behalf of the People of the State of Colorado v. Guido O. Haase and Diamond Re-Serv-al, Inc.\", \"head_matter\": \"No. C-1673\\nThe People of the City of Lakewood By and on behalf of the People of the State of Colorado v. Guido O. Haase and Diamond Re-Serv-al, Inc.\\n(596 P.2d 392)\\nDecided June 11, 1979.\\nGorsuch, Kirgis, Campbell, Walker & Grover, William H. McEwan, Robert E. Warren, Jr., Gary S. Cohen, for petitioner.\\nRobinson & Scheurer, P.C., Richard J. Scheurer, for respondents.\\nEn Banc.\", \"word_count\": \"1384\", \"char_count\": \"8338\", \"text\": \"MR. JUSTICE GROVES\\ndelivered the opinion of the Court.\\nThe respondents were acting as agents of the Bear Creek Water and Sanitation District (\\\"District\\\"). They were charged in a Lakewood municipal court with working in a public street of the City of Lakewood without first obtaining a permit. That court found that, in light of the statutory powers granted the District, the City had no authority to require the District to obtain a permit to effect a street cut to repair the District's water lines; and it granted a motion to dismiss at the conclusion of the evidence. The district court affirmed the municipal court. We granted certiorari and now reverse.\\nThe District was organized under section 32-4-101, et seq., C.R.S. 1973, and engaged in the delivery of domestic water. It had laid its mains and lines in and was serving the area here involved. Thereafter the City annexed this area. In April 1976 it was apparent from the surface at 2591 South Garland that there was water leakage either in the District's main or the property owner's service line. The District's main was about 4 1/2 feet below the surface of the street. The District instructed the respondents to make an excavation at the point of the connection of the service line with the main to determine the location of the leak. The respondents applied to the City for a street cut permit. This was not issued, apparently for the reason that it should have been made in the name of the respondents rather than the District. The respondents proceeded to make the excavation.\\nSections 12.03.020(b) and 12.04.030 of the Lakewood Municipal Code provide:\\n\\\"This chapter shall be liberally construed, so as to effect the intention hereof to protect and preserve the public ways of the city for the uses thereof, and for the protection of the people of the city and of all the persons using or relying upon the public ways of the city.\\n\\\"It is unlawful for any person to make, construct, reconstruct, or alter any opening, excavation, tunnel, sidewalk, curb, gutter, driveway, street, or to perform any other work of any kind within the public way which will result in physical alteration thereof, unless such person shall have first obtained a permit for the performance of such work, and unless such work shall be performed in conformity with the terms and provisions of this chapter and of the permit or permits issued hereunder, except as hereinafter specifically provided.\\\"\\nThe ordinances further provide that all such work shall be performed in conformity with the requirements of the City's engineering regulations and specifications and design standards. Section 12.04.170.\\nThe statutory delegation of police power in the respect here involved is in section 31-15-702(l)(a)(II), C.R.S. 1973 (1977 Repl. Vol. 12): \\\"The governing body of each municipality has the power . to regulate the openings therein for the laying-out of gas or water mains and pipes . . . .\\\" At this juncture we hold that this delegation of police power by implication includes the regulation of openings for the purpose of repair of mains and pipes.\\nThe District relies upon the following statutory delegation of power to it:\\n\\\"To construct and maintain works and establish and maintain facilities across or along any public street or highway . . . but the board of county commissioners of any county in which any public streets or highways are situated which are to be cut into or excavated in the construction or maintenance of any such facilities has authority to make such rules as it deems necessary in regard to any such excavations and may require the payment of such reasonable fees against the district as may be fixed by it to insure proper restoration of such streets or highways . . . .\\\" Section 32-4-113(l)(k)(I), C.R.S. 1973.\\nThis court has ruled on this issue in Sheridan v. Valley Sanitation District, 137 Colo. 315, 324 P.2d 1038 (1958). There the district sought to condemn rights-of-way through and across public streets in the Town of Sheridan for the purpose of constructing and maintaining a sewer line. Sheridan attempted to extract excessive concessions from the district under a statute which then provided that there could not be operation of sewage facilities unless the municipality approved the location thereof. We held that the statute did not give the city the right to veto the project. It was ruled:\\n\\\"A reasonable construction of the section of the statute in question is that the municipality may require reasonable, safe and healthful construction methods and can withhold its consent unless given assurance that injury to users of its streets will not result . . . .\\\"\\nIn Glendale v. City & County of Denver, 137 Colo. 188, 322 P.2d 1053 (1958), this court held that a constitutional grant of eminent domain power to Denver allowed it to work in the streets of Glendale in order to lay pipe line, and concluded with the following caveat:\\n\\\"What we have said is not to be understood as holding that Denver can with impunity and without regard to local ordinances of a traversed municipality, construct its sewer lines in its streets irrespective of water lines, water works, sewer or wells in line of or in the vicinity of the proposed construction. Denver in its brief concedes that 'at the point where the public health and safety become involved, the municipality traversed could withhold its consent unless proper, safe and healthful construction methods were followed. To that extent and when construction becomes a fact, we concede that the Defendant in Error herein may be bound and may be required to comply with reasonable construction standards lawfully established by the Plaintiff in Error.' \\\"\\nThe District contends that certain changes in statute negate the authoritativeness of Sheridan and Glendale. Not so. The answer remains the same: as between the proprietary powers given to the District and the police power to protect its citizens and streets given to the City, the police power prevails. National Food Stores, Inc. v. North Washington Street Water and Sanitation District, 163 Colo. 178, 429 P.2d 283 (1967).\\nBoth the municipal court and the district court made much of the fact that the District had its lines in place prior to the area becoming part of the City. We note that the respondents hardly argued this point. The two courts are in error. The City's delegated police power is applicable to a water and sanitation district whether or not the district existed before the city. Morrison v. Town of Lafayette, 67 Colo. 220, 184 P. 301 (1919).\\nThere is no issue here concerning the reasonableness of the City's ordinance or its enforcement thereof. We rule that the City, acting reasonably, has the right to require a street cut permit of the District or those acting in its behalf.\\nThe municipal court also granted a motion to dismiss as to a charge that respondents violated the City's ordinance requiring notice of emergency work about to be commenced. Section 12.04.180, Lakewood Municipal Code. The municipal court predicated its action upon its finding that the City had constructive notice that there would be emergency repair by reason of the application of a permit made by the respondents in the name of the District. While for the reasons already given, the last mentioned ordinance is applicable to the District, we see no need to review the matter of constructive notice and, therefore, do not interfere with the municipal court's judgment in this respect.\\nThe judgment is reversed and the cause returned to the district court for remand to the municipal court with directions to overrule the motion to dismiss relating to ordinance 12.04.030 and to proceed from that point.\\nThis disclosed that the leak was in the service line. The property owner had someone else make the repair and replace the surface.\\nWe need not explore whether the City's police power here is inherent, as was discussed in Sheridan v. Valley Sanitation District, supra.\"}"

colorado/2514855.json

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+"{\"id\": \"2514855\", \"name\": \"Freeman et al. v. Hart et al.\", \"name_abbreviation\": \"Freeman v. Hart\", \"decision_date\": \"1916-05-01\", \"docket_number\": \"No. 8526\", \"first_page\": \"455\", \"last_page\": \"469\", \"citations\": \"61 Colo. 455\", \"volume\": \"61\", \"reporter\": \"Colorado Reports\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T19:13:00.025825+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Freeman et al. v. Hart et al.\", \"head_matter\": \"[No. 8526.]\\nFreeman et al. v. Hart et al.\\n1. Wills \\u2014 Bevoeation T>y Subsequent Writing. Only such testamentary writings as Lave for their sole purpose the destruction of a will come within the provisions of Rev. Stat. see. 7072. (465.)\\nThe testator having made a will disposing of his whole estate, added, years afterwards, a codieil, stating in the first clause thereof that he was moved \\u201cto add this instrument to my will by the sudden death\\u201d of a son-in-law. The codicil set forth that the son-in-law was indebted to him in several promissory notes and that \\u2018 \\u2018 all of these notes were for his several heirs. '' The original will had named as executrix the wife of the son-in-law so deceased. The codicil appointed another daughter and a son, and made provision as to all the testator's personal estate differing from that made by the will, but made no disposition of his real property and manifested no purpose to cancel or revoke, in its entirety, the original will. Held that the codicil was not a revocation of the will, but an addition, dictated by the change in circumstances. (461-466.)\\n2. -Attestation \\u2014 Number of Witnesses. A codicil attested by only one witness is without effect. (466.)\\n3. -Inconsistent Codicil, generally speaking a codicil properly executed republishes and gives effect to a former will, and the codicils thereto, however defective in execution, but to this rule is the exception that a subsequent eodieil, repugnant throughout to a former one, has not the effect to revive it. (468.)\\n4. - Codicil \\u2014 Bffeet Of \\u2014 When to he Determined. A codicil duly executed is not to be rejected from probate upon the theory that it is without effeet. It is to be received as part of the testament, and its effect subsequently determined at the proper time and upon full hearing. (469.)\\nError to Weld District Court. Hon. Robert G. Strong, Judge.\\nMr. James W. McCreery and Mr. Donald C. Mc-Creery, for plaintiffs in error.\\nMr. John T. Jacobs, for defendant in error, Henrietta A- Hart.\\nMr. Thomas A. Nixon, Guardian ad litem, pro se.\", \"word_count\": \"4579\", \"char_count\": \"26071\", \"text\": \"Mr. Justice Bailey\\ndelivered the opinion of the court.\\nOn the 4th day of January, 1914, Lewis T. Brownell, late of Greeley, Weld County, Colorado, departed this life, leaving a certain writing purporting to be his last will and testament, dated July 11th, 1905. This instrument was duly executed as required by section 7071, R.' S. 1908. There is no dispute or contest upon this proposition. There were' also found four other writings, all on the same paper with, or firmly attached to, such purported last will and testament, purporting to be codicils to it, as follows: First. A writing dated February 8th, 1907, duly executed; Second. A writing dated November 29th, 1909, informal and incomplete in execution; Third. A writing dated April 6th, 1911, over which this contest is mainly waged; and Fourth. A writing following the attesting clause of the preceding paper, attempting to alter previous dispositions of prop\\u00e9rty, dated September 25th, 1911, but neither signed nor witnessed. All agree that this instrument is not of force.\\nThe proceeding here is in review of a decree of the District Court of Weld County, ordering the admission to probate and record of the instrument referred to dated April 6th, 1911, as a third codicil to the original will. The contest involves a construction and interpretation of several sections of the Wills' act.\\nCross-error is assigned by Henrietta A. Hart upon the refusal of the District Court to also admit the writing dated November 29th, 1909, to probate. But the primary legal question is whether the so-called third codicil should be refused probate because not executed in compliance with the provisions of section 7072, R. S. 1908, relating to revocation of wills.\\nWhen Lewis T. Brownell made and executed his original will he had three living children, a son, George Brownell, a daughter, Henrietta A. Hart, and grandchildren by her, another daughter, Mrs. James M. Freeman, and grandchildren by her. These were his only immediate relatives and descendants. His wife was dead. The will itself is in/the handwriting of the son-in-law of the testator, James M. Freeman. At this time Mr. Brownell's property consisted mainly of a farm, which was afterward sold and converted into cash. The following is a copy of such will:\\n\\\"In the name of God, Amen, I, Lewis T. Brownell, of the city of Greeley and County of Weld, and State of Colo rado, being of sound and disposing mind and memory, and not acting under duress, menace, fraud, or undue influence of any person whatsoever, do make, publish and declare this my last will and testament, hereby revoking former wills and testaments by me at any time heretofore made.\\nFirst: I direct that my body be decently buried, but without unnecessary expense, ostentation or extravagance.\\nSecondly: I direct that my executor hereinafter named, shall as soon as she may have sufficient funds in her hands realized from the sale of any real estate and personal property herein devised and bequeathed, pay all the expenses of my funeral and the expenses of my last sickness, and all my just debts.\\nThirdly: I give and bequeath to my daughter Emma B. Freeman, wife of James M. Freeman, all my personal estate, effects, goods and chattels of whatever kind or nature, owned or possessed by me at time of my death; also in addition thereto I give and devise to my said daughter Emma B. Freeman the full undivided one-third portion of all or any real estate, or the value in money thereof, owned, controlled or possessed by me at the time of my death.\\nFourthly: I give and devise to my daughter Ettie A. Hart, wife of Fremont F. Hart, the full undivided one-third portion of all or any real estate or the value in money thereof, owned, controlled or possessed by me at the time of my death.\\nFifthly: I give and devise to my three granddaughters, Harriett K. Freeman, Emma L. Freeman, and Carrie Brownell, (daughters respectively of Emma B. Freeman and my son George A. Brownell) the full undivided one-third portion of all or any real estate or the value in money thereof, owned, controlled or possessed by me at the time of my death, to share equally each and alike.\\nSixthly: I give and bequeath to my said son George A. Brownell the sum of five hundred dollars in lieu of all interest in any estate personal or real owned by me at time of my death.\\nSeventhly: In event and only in the event of the death before my death, of said Emma B. Freeman or said Etta A. Hart, then in such event and not otherwise, I direct that the portion which the mother would have received if living at the time of my death shall go respectively to the daughter or daughters respectively of the 'mother (said Emma B. Freeman or said Etta A. Hart) so that such granddaughters will receive the full portion which their mother respectively would have received if living at the time of my death.\\nLastly: I hereby nominate and appoint my said daughter Emma B. Freeman the executor of this my last will and testament, and hereby exempt her from giving any bond as such executor, or any security whatever, and I give her full power and authority to sell all or any portion of the real estate, without any order of any court whatever, owned by me at the time of my death, so as to pay off all incumbrances on same, also to enable her to convert same into money and pay the bequests herein made.\\nIn witness whereof I have hereunto set my hand and seal, and published, and declared, in the presence of the witnesses below named, this to be my last will and testament this 11th day of July, A. D. 1905.\\nLewis T. Browneli. (Seal.)\\nOn this day July 11th, A- D. 1905, Lewis T. Brownell in our presence, signed and sealed this instrument, and published and declared the same to be his last will and testament, and we at his request, and in his presence, and in the presence of each other have hereunto subscribed our names as witnesses.\\nWilliam F. Stephens,\\nResiding at 813 17th Street, Greeley, Colo.\\nAmmon N. Weikert,\\nResiding at Room 18 \\u00d3pera House Block, Greeley, Colo.\\nJames M. Freeman,\\nResiding at 1202 7th Ave., Greeley, Colo.\\nF. J. Green,\\nResiding at 1302 9th Street, Greeley Colo.\\\"\\nThe writing of February 8th, 1907, on the same paper with the original will, reads as follows:\\n\\\"I, Lewis T. Brownell, of the City of Greeley, State of Colorado, do make this codicil to my last will in words as follows:\\nWhereas in and by my last will and testament dated July 11th, 1905, I did nominate and appoint my daughter Emma B. Freeman the executor of my last will and testament. Now in the event of the death of said Emma B. Freeman before my death, then in that event I appoint and nominate my son-in-law, James M. Freeman as executor of my last will and testament with the same powers and privileges as given to my daughter, Emma B. Freeman, as executor of my last will and testament, in event of the death of both Emma B\\u00a1. Freeman and James M. Freeman before my death, then in that event I nominate and appoint my daughter, Ettie A. Hart and my Granddaughter Harriett K. Freeman as executors of my last will and testament with like power and privileges as executors given to my daughter Emma B. Freeman. But in event that my daughter Emma B. Freeman be living at time of my death, then she alone is to be my sole executor of my last will and testament.\\nIn witness whereof I have hereunto set my hand and seal this 8th day of February, A. D. 1907.\\nLewis T. Brownell. (Seal.)\\nPublished and declared by the said Lewis T. Brownell to be the codicil to his last will and testament in the presence of us, who have signed the same as witnesses in his presence at his request, and in the presence of each other.\\nF. J. Green,\\nResiding at 1302 9th Street, Greeley Colo.\\nE. E. Baker,\\nKesiding at -508 11th Ave., Greeley, Colo.\\\"\\nThe \\\"writing of November 29th, 1909, in the handwriting of Mr. Brownell and on the same paper as the original will, or on a paper securely attached thereto, reads as follows:\\n\\\" (Codicil) Greeley, Nov. 29th, 1909.\\nIn case of my death all monies in bank, either as time deposit certificates or open account to be immediately turned over to my daughter Henrietta A. Hart and to my son Geo. A. Brownell, my children. Also my interest in the Industrial Building and Loan Association of Denver, Colo., share and share alike. In case either party dies, the whole amount to go to the living one \\u2014 The (10) ten shares to be paid up (equally) every month until maturity amounting to ($4.83) four dollars and 83-100 payable on the 25th day of each month.\\nThe above conditions subject to any expense of my burial or cremation.\\nLewis T. Brownell. (Seal.)\\n1202 7th Ave.\\nWitness:\\nGeorge W. Fisk,\\n710 12th St.\\\"\\nMr. Freeman, the son-in-law, died March 30th, 1911, and Mr. Brownell again in his own handwriting and on the same paper as the original will, added the writing of April 6th, 1911, as follows:\\n\\\" (Codicil) Greeley, April 6th, 1911.\\nThe sudden passing away and death of J. M. Freeman causes me to add this instrument to my will, being of sound mind and in good health and that said Freeman is indebted to me for the following amounts and has in no way secured or protected me or his heirs or assigns, four notes of his making and bearing my endorsement for the amount of thirty-one hundred dollars ($3,100.00) with interest as follows, one note for one thousand dollars ($1,000.00), one of 800 dollars, one of $700, one of. $600, all of said notes bearing interest, all of which are in possession of Greeley National Bank. Also one note for collection, for monies advanced at various times which he has used for his own special use, amt. to $1,160.25, bearing interest payable to me and as no part of principal or interest has been paid to me. All of said notes and the four notes were for his several heirs, children left by the issue of James and Emma Freeman, to come from my estate for their benefit as share of my estate for said grandchildren, and as no provision has been made by said Freeman, these several amounts were in case of my death to be the share due them from my estate after all of my bills have been paid.\\nAnd in consideration of my two children and their issue and to protect them for what may be left of my estate so they may come into possession of the same, I do here appoint my daughter L. and George A. Brownell, my son, my executors of my will, to serve without bond. And all monies, stock or interest of every kind personal to Henrietta A. Hart. L\\nBuilding & Loan, ditch or any and all monies due me or to become due, also all personal effects of every kind and description, the same to be divided between them both to share and share alike, after all my debts have been paid, and all service attending my death shall be strictly confined to my family, my body to be cremated, and the ashes to be deposited by the side of my beloved wife at Lynn Grove Cemetery, without extravagance and as simple as possible.\\nLewis T. Brownell. (Seal.)\\nOn this day April 15, A. D. 1911, Lewis T. Brownell in our presence signed and sealed this instrument and pub lished and declared the same to be his last will and testament, and we at his request, and in the presence of each other, have hereunto subscribed our names as witnesses.\\nWitness:\\nGeo. W. Fisk,\\n710 12th St.\\nJohn A. Crabb,\\n707 12th St.\\\"\\nGeorge, the son, died August 1st, 1911, leaving a wife and two children. On the 25th day of September, 1911, decedent added a memorandum in his own handwriting immediately after the attestation clause of the foregoing, or third, codicil to his will. It is neither signed nor witnessed and is written close around the signatures of the witnesses to that codicil, and is as follows:\\n\\\"Chas. H. Wheeler of Greeley Nat. Bank as executor and without bond. Owing to the death of my son George A. This day have decided to place the sum of five hundred dollars 500 00/100 to his two children Carrie and Helena share & share alike to be paid them at their arriving at 21 years of age the same to be kept at interest until then.\\nSept. 25th, 1911.\\\"\\nAfter the death of Mr. Brownell the aforesaid instruments in writing were found, all written on two double page sheets of foolscap, securely fastened together by pasting. The original will and the several written instruments were presented as one instrument to the County Court of Weld County for probate and record. At the hearing it appeared that the third codicil had been signed by the testator out of the presence of the attesting witnesses, but upon separate requests to them to attest it as his will, decedent acknowledged it to be his will and the signature thereto to be his. In other words, as to the third codicil, the testator did not sign in the presence of the attesting witnesses or either of -them, but did acknowledge to each of them that it was his will and the signature thereto as his. Thereupon counsel for Harriett K. Freeman, one of the grandchildren of the testator, moved the rejection of the third codicil from probate and record, because it was shown not to have been executed in compliance with section 7072, supra, which provides:\\n\\\"No will shall be revoked otherwise than by the subsequent marriage of the testator, or by burning, tearing or obliterating the said will, by the testator himself or in his presence, by his direction and consent, or by some other will or codicil in writing, declaring the same, signed by the testator in the presence of two or more witnesses, and by them attested in his presence, and no words spoken shall revoke or annul any will in writing, executed as aforesaid in due form of law.\\\"\\nThis objection was sustained by the County Court and probate denied, and Mrs. Hart appealed from that judgment to the District Court. In the District Court, on the same evidence, the third codicil was found duly executed and was ordered admitted ,to probate and record, the court holding that it did not fall within the purview of the revoking statute. But the District Court also held that the first and second codicils were superseded by the provisions of the third, and being without function or legal effect, should not be probated. Counsel for Mrs. Hart assigns cross-error upon this ruling, contending that the court should not interpret the wil\\u00ed and codicils for the purpose of determining whether they were superseded or not, or for determining whether they had any purpose or effect, affirming that when such codicils were followed by a third properly executed, the former should have been admitted to probate and record, leaving their purpose and effect for subsequent determination.\\nThe following is the fundamental inquiry m the case: Is the so-called third codicil a revocatory will or codicil in writing under 7072, supra, and does that section control and govern as to the manner of its execution?\\nThe language of section 7072, supra, plainly indicates that only such testamentary instruments as have for their sole purpose the complete destruction or obliteration of a' will fall within its provisions. That such is. the purpose and intent of the statute is manifest from the significant expressions used therein. It provides for the revocation of a will by burning, tearing or obliterating. These terms must mean and refer to the utter annihilation and destruction of a will. Then the statute follows with the further provision that a will may be revoked, that is set aside and annulled in toto, by some other will or codicil in writing declaring the same, that is declaring the total revocation and destruction thereof. Only instruments having such effect and purpose, and such effect and purpose alone, fall within the purview of section 7072, supra. Clearly the third codicil is not such an instrument. It was therefore entitled to probate and record, under the proofs, as having been executed in conformity with section 7071, R. S. 1908. In re Estate of Carey, 56 Colo. 77, 136 Pac. 1175, 51 L. R. A. (N. S. 927) Ann. Cas. 1915B, 951.\\nThe testator wrote this third codicil himself, and he declares in its opening lines, after heading the instrument with the word codicil, as follows: \\\"The sudden passing away and death of J. M. Freeman causes me to add this instrument to my will.\\\" The testator was adding something to, not totally destroying his will. He was attaching to his will something which he wished construed and interpreted with it. There is no indication that the testator had the single desire and purpose to annihilate and wipe out his original will. There is no provision or declaration whatever in the third codicil which shows that there was then present in the testator's mind any such intent. A testamentary instrument whose sole effect is the entire destruction, .made with the manifest intent and purpose to so destroy, is the only one to which our revocation statute properly applies.\\nIt may be that Mr. Brownell died seized and possessed of real estate, and if so the disposition of such property is still probably controlled only by the terms of the original will, and it may well be that there are several of its provisions which, in whole or in part, despite the third codicil, are still in force and effect. A general examination and consideration of the testamentary instruments taken together indicates that this may prove to be the case. The third codicil is not only not a revocation of any kind of the original will, either express or implied, but on the contrary it is nothing more than an addition thereto, induced by changed conditions, through advancements made, after the execution of the will, for the benefit of certain legatees named therein, and by death and transmutation of property. This situation impelled the testator to add to his original will, but such addition is not a revocation of it as contemplated by section 7072, supra. The will has been modified, alterations and changes have been made in it, it has been added to, some of its provisions may be and doubtless are completely nullified, but this does not set it aside and destroy it as a whole.\\nUpon cross-error the ruling of the court below is assailed because it declined to pass the first and second codicils to probate and record, holding them to be throughout inconsistent with and repugnant to the third codicil, and therefore without function or legal effect.\\nIt is to be noted that the purported second codicil was witnessed by only one person, hence was of no force or effect. But it is argued that the proper execution of a subsequent codicil gives life to and republishes the former will and former codicils attached. This, generally speaking, is true, but there is an exception to the rule, based on sound reason, which is that if a prior will or codicil is utterly inconsistent with a subsequent will or codicil, that is inconsistent and repugnant throughout, the former is not revived and republished. In law there never was a time when the second codicil had any legal effect. The proper execution of the third codicil could give no life to the second, because every clause, part and parcel of it was superseded by the provisions of the third codicil. Speaking to this point in 1 Woerner's American Law of Administration, sec. 56, star page 113, this is said:\\n\\\"A codicil will amount to a republication of the will to which it refers, whether it be attached thereto or not; but the intention of the codicil must always determine, and if it appears from the face of the codicil that it was not the intention of the testator to republish, the ordinary presumption derived from the existence of the codicil will be counteracted.\\\"\\nAnd in Hobart v. Hobart, 154 Ill. 610, 30 N. E. 581, 45 Am. St. 151, it is declared:\\n\\\"Objection is made, that the proof introduced was of the codicil only, and not of the will. It was shown that the original will, and the codicil, and attestations, were all written upon the same paper. The codicil refers to the will, and changes it in part only. When the codicil is written on the same paper as the will, or clearly and unmistakably refers to the will so as to preclude all doubt of its identity, proof of the codicil establishes the will without further proof, except such portions thereof as are revoked or altered by the codicil. It follows, that, if the codicil in the case at bar was duly executed and attested, such portions of the original will, as were not changed by it, were thereby reaffirmed.\\\"\\nThe following is also laid down by the authorities as constituting the rule in reference to the matter now under consideration:\\n\\\"A codicil to a will operates as a republication of the 'whole will, so far as it is not revoked or altered by the codicil, and so as to include any alterations made before the date of the codicil.\\\" 40 Cyc., p. 1219.\\nThe theory upon which a subsequent codicil republishes a former will or codicil is that the latter is a reaffirmation and ratification of the provisions of the former instruments. See note to section 56, star page 114, 1 Woerner's American Law of Administration, citing Crosbie v. McDoul, 4 Ves. 616.\\nIt would not only be unreasonable, but absurd to say 'that a later codicil inconsistent with and repugnant to a former purported codicil, not properly executed and constituting no part of a will, ratifies and reaffirms such purported codicil. It is the province and duty of the court at this time to determine whether the provisions of the alleged second codicil are so inconsisent with those of the third as to disentitle 'it to probate. Whitney v. Hanington, 36 Colo. 407.\\nThe so-called second codicil, never having become in fact a part of the will for lack of proper execution, under the authorities, it is clear that'the third codicil, the provisions of which are wholly inconsistent with those of the second, did not republish the latter, Indeed, from the express terms of the third codicil it is clear that the testator did not intend the second to have force and effect.\\nThe first codicil provides only for. succession in executorship, the will itself having named- Emma B. Freeman, daughter of the testator, executor. This codicil was duly executed and was part of the will. It was in full force and effect from its execution and thus entitled to probate, to be finally construed and interpreted in connection with other parts of the testament. This codicil, with the original will prior to the execution of the third codicil, alone constituted the last will of Mr. Brownell. They together made a single properly executed instrument. No particular provision of this instrument can be singled out and denied probate. The original will and the first codicil, go together, and being entitled to probate, must for that purpose stand as an entirety. If that part of the testament described as the first codicil can be separated from the other parts and denied probate, then by the same logic any paragraph in the body of the original will may be withdrawn therefrom and denied probate. This would be so manifestly improper and illogical that the proposition does not deserve further consideration. The first codicil is as much a part of the whole testament as any paragraph included in the original will itself, and while it may be that it has not now any function or legal effect, still that is a matter, if such contention shall be made, to be determined at the proper time and upon full hearing.\\nDecided May 1, A. D. 1916.\\nRehearing denied July 3, A. D. 1916.\\nThe judgment of the trial court is affirmed as to the admission of the original will and the third codicil to probate, and the denial of probate and record to the second codicil. It is reversed as to the denial of probate and record to the first codicil.\\nThe cause is therefore remanded to the District Court, with directions to amend its judgment and decree .by also directing the probate, of the first codicil, and certify its judgment and decree, as amended, to the County Court.\\nJudgment affirmed in part and reversed in part, and cause remanded with directions. Each party shall pay his or her costs in this court. ' -\\nChief Justice Gabbert and Mr. Justice White concur.\"}"

colorado/2527247.json

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+"{\"id\": \"2527247\", \"name\": \"Marks v. Morris\", \"name_abbreviation\": \"Marks v. Morris\", \"decision_date\": \"1913-01\", \"docket_number\": \"No. 7515\", \"first_page\": \"186\", \"last_page\": \"187\", \"citations\": \"54 Colo. 186\", \"volume\": \"54\", \"reporter\": \"Colorado Reports\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T23:49:11.950717+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice Musser and Mr. Justice Scott concur.\", \"parties\": \"Marks v. Morris.\", \"head_matter\": \"[No. 7515.]\\nMarks v. Morris.\\nLimitations \\u2014 Color of Title \\u2014 Payment of Taxes \\u2014 A treasurer\\u2019s deed is not color of title until recorded. One wlio, claiming under a void tax 'deed, would avail of the seven-year limitation prescribed by Rev. Stat., sec. 4090, must show the lapse of the statutory period, not only between the first payment of taxes and the institution of the action of the paramount owner, buv between the record of his deed and the institution of this action.\\nAppeal from Logan District Court. \\u2014 Hon. H. P. Burke, Judge.\\nMessrs. McConley & Hinkley, for appellant.\\nMr. John F. Mail, for appellee.\", \"word_count\": \"404\", \"char_count\": \"2299\", \"text\": \"Mr. Justice Garrigues\\ndelivered the opinion of the court:\\nThis is a code action for the possession of real property. Defendant has a tax deed, void on its face, which he claims vests the legal title in him, under the following statute:\\n\\\"Whenever a person having color of title, made in good faith, to vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land to the extent and according to the purport of his or her paper title.\\\" \\u2014 Sec. 4090, Rev. Stats., 1908.\\nThe tax deed was recorded April 19, 1900; first payment of taxes thereunder, was December 18, 1901; this action was commenced May 16, 1908.\\nThis statute was no defense unless seven years had 'elapsed between the date of the first payment of taxes, and the date of bringing the action. Empire Co. v. Howell, 22 Colo. App. 585; and a tax deed is not color of title until recorded.\\u2014 Sayre v. Sage, 47 Colo. 559.\\nIn a case of this character, where conflicting titles are involved, , before the seven years' statute can operate as a limi tation, there must not only be seven years between the date the suit is brought and the first payment of taxes; but there also must be that length of time between the date of record of a tax deed, and the commencement of the action. In this case, while more than seven years elapsed between the date the deed was recorded and the commencement of the action, less than seven years had expired between the first payment of taxes and the bringing of the suit. The judgment is therefore affirmed. Affirmed.\\nChief Justice Musser and Mr. Justice Scott concur.\"}"

colorado/2541481.json

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+"{\"id\": \"2541481\", \"name\": \"Ford v. Roberts\", \"name_abbreviation\": \"Ford v. Roberts\", \"decision_date\": \"1890-01\", \"docket_number\": \"\", \"first_page\": \"291\", \"last_page\": \"294\", \"citations\": \"14 Colo. 291\", \"volume\": \"14\", \"reporter\": \"Colorado Reports\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T23:40:08.506594+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ford v. Roberts.\", \"head_matter\": \"Ford v. Roberts.\\n1. Estoppel \\u2014 Effect of a Dismissal of a Suit by Stipulation.\\u2014 Wliere plaintiff moved a building for defendant, placing it in position on its new site, elevated on blocks furnished by the plaintiff, on which it was to rest ten days, in which time defendant was to have a permanent foundation placed under it and the blocks released, but failed to comply with his contract, and the plaintiff brought suit for the value of the blocks and for damages for their detention and use, the dismissal of such suit by stipulation of the parties, without a reservation to the plaintiff of the right to sue again, is a bar to another suit for j;he same cause of action.\\n2. Measure oe Damages. \\u2014 If at the expiration of the ten days defendant request the plaintiff to remove his blocks, and their removal be practicable, tho plaintiff\\u2019s damages on the account mentioned would be the expense of removal.\\n3. Same.\\u2014 But if the blocks are not capable of removal without compliance with his contract on part of defendant, the failure so to do amounts to a conversion, and the plaintiff\\u2019s measure of damages is the value of the blocks at the date of the conversion.\\nAppeal from Arapahoe County Court.\\nMessrs. Geo. W. Miller and John A. Perry, for appellant.\\nMessrs. Browne & Putnam, for appellee.\", \"word_count\": \"979\", \"char_count\": \"5443\", \"text\": \"Reed, C.\\nIt appears that the appellant, Ford, made a contract with Roberts, appellee, by which Roberts was to furnish the necessary tools and appliances, move a building, place it in position, furnish the necessary temporary blocking or underpinning, level the building, and allow the blocking to remain ten days, in which time Ford was to have a permanent foundation put in, so as to release the. blocks of Roberts, and allow a removal of them. Such seem to be the facts, so far as ascertainable from the record.\\nThe building was removed, and, as claimed by Roberts, leveled and blocked up, in accordance with the contract. Some controversy arose over the matter, and a suit was commenced by Roberts in the district court. Ford failed to have the foundation put in, and the blocking released, so he could remove it. A bill for $60, the alleged value of the blocking at the time it was put in, in June, 1881, and a bill for $150, for its detention, and the value of its use from the 14th of June to August lJth, was filed in the suit in the district court. The record in this suit does not say what, if any, adjudication was had; and shows that in March, 1883, suit was dismissed by stipulation at the cost of Ford, who paid the costs.\\nThis suit was brought before a justice of the peace, appeal taken to the county court, transcript filed September 13, 1883, tried by the court in January, 1886, and judgment for Roberts for $100 and costs. The suit was brought for the detention and use of the blocking, and was the same as that for which the bill was filed in the district court. What was done in that court cannot be determined from anything in the i'ecord in this case, except a dismissal by agreement. The bill filed in that case became part of it: might have been adjudicated. If that case was settled by the parties without reserving a right to Roberts to again sue, that extinguished the cause of action. The court might have required proof, and, if the facts were found as above, the suit should have been dismissed at the cost of the plaintiff. If the supposed claim was not disposed of by the disposition of the suit in the district court, the case must be reversed for errors upon the trial.\\nIt appears that Ford not only made no objection to Roberts' removing the blocks at the expiration of ten days, but told him to do so.. Proof should have been made in regard to the practicability of the removal by Roberts, and; if practicable, he could have recovered only the expenses incident to. taking the blocks out. If found impracticable, and that they could not be removed without Ford complied with his contract,\\u2014 put in the foundation and released them,\\u2014 the court should have treated it as a conversion by Ford at the expiration of the ten days, and the proper inquiry was as to the value of the blocks at the time of the conversion. This should have been fixed by competent testimony, and could not have exceeded the sum of $60, as fixed by Roberts in his bill. Roberts was under no obligation to take the blocks back when they were released by Ford in September. He elected to do so, however, and did take them; and their value at the time of their recovery by Roberts should have been fixed, and the amount deducted from their value at the time of their conversion. There was no contract of hire, and the measure of damage adopted by the court was erroneous, as may be seen at a glance. Roberts testified that he had replaced them at an expense of $60. If Ford had not seen fit to release them, the time for which Roberts could have recovered for their use would have only been limited by the time they would resist natural decay; and Roberts, under the rule adopted by the court, and according to his evidence of the value of their use to him, could at intervals have recovered from $150 to $1,000 a year for the detention and use of material worth $60.\\nThe judgment should be reversed and cause remanded for further proceedings, in accordance with suggestions herein made.\\nRichmond and Pattison, CO., concur.\\nPer Curiam.\\nFor the reason j stated in the foregoing opinion the judgment is reversed and the cause remanded.\\nReversed.\"}"

colorado/2588798.json

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+"{\"id\": \"2588798\", \"name\": \"Armstrong et al. v. Lower et al.\", \"name_abbreviation\": \"Armstrong v. Lower\", \"decision_date\": \"1883-04\", \"docket_number\": \"\", \"first_page\": \"581\", \"last_page\": \"586\", \"citations\": \"6 Colo. 581\", \"volume\": \"6\", \"reporter\": \"Colorado Reports\", \"court\": \"Colorado Supreme Court\", \"jurisdiction\": \"Colorado\", \"last_updated\": \"2021-08-10T19:56:27.175189+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Armstrong et al. v. Lower et al.\", \"head_matter\": \"Armstrong et al. v. Lower et al.\\n1. Under the federal and state statutes, two kinds of possession of mining ground are recognized: First, when the miner holds by occupancy alone; second, when he holds the full claim by virtue of a compliance with the location statutes. But when one attempts to make a statutory location of a full claim, and fails to comply with the law, all that portion of the location as marked on the surface of which he is not in the actual occupation is open to exploration and relocation by others.\\n2. The position of the vein with reference to the location is a fact upon which some proof must appear. But slight proof, however, will be sufficient to establish prima faaie that the vein extends throughout the claim.\\nAppeal from District Court of Custer County.\\nMessrs. Montgomery and Rising and Mr. John W. Warner, for appellant.\\nMr. Hugh Butler, for appellee.\", \"word_count\": \"1716\", \"char_count\": \"10033\", \"text\": \"Upon a petition for rehearing the following opinion was rendered by\\nHelm, J.\\nThis application has been urged with more than ordinary skill and ability; and we have sought to give the questions presented the careful consideration which the industry of counsel and importance of the case merit.\\nWe recognized in our opinion the right of petitioners to recover, at the former trial of this case, upon proof of prior actual possession of the premises in dispute.\\nUnder the federal and state statutes, two kinds of possession of mining ground are recognized: First, where the miner, by virtue of work and improvements upon a tract of mineral land, and occupancy thereof, holds the same independent of location statutes against one having no better right; secondly, where; after discovering a vein, the miner undertakes to avail himself of the benefits of the location statutes. The law gives him possession of his entire claim as marked upon the surface for the period of ninety days from the date of discovery, provided he post his discovery notice, and, within sixty days next after such date, sink his discovery shaft. Having perfected his location by a full compliance with the requirements of the statutes, his possession of the entire claim remains until he does or omits to do something which in law amounts to an abandonment thereof.\\nBut when he has failed, within the proper time to comply with the location statutes, we do not understand that he can, by virtue of actual possession of one hundred feet of the lode, hold the entire one thousand five hundred feet thereof, as against one who enters after such failure, and acquires rights in the territory before he has perfected his location. By such failure he forfeits all right to any benefit from his partial compliance with the statutes, except as he may he aided thereby in his proof of actual possession; the remaining one thousand four hundred feet of his lode are open to exploration and location as though he had never attempted to perfect a statutory location thereon. To hold otherwise would largely do away with the usefulness of location statutes, for their principal office is to protect him, prior to patent, in the exclusive use and enjoyment of his lode and surface ground to the full extent of his claim.\\nThese views do not conflict with the authorities cited. The learned judge, in Haines v. Equator Mining and Smelting Co. 2 Col. Law Reporter, 64, does not pass upon this question; he expressly distinguishes between the position of a purchaser and that of the locator of a mining claim, and confines his opinion to the former. In English v. Johnson, 17 Cal. 108, the court limit the views expressed to cases where no abandonment results from a failure to comply with the mining rules or location statutes.\\nBut a small part of the alleged Swallow Tail relocation is in dispute in this action. And the only acts of posr session disclosed in the evidence of this disputed territory by petitioners is the erecting of their discovery stake at the \\\" old shaft,\\\" and the posting of a notice stating where the location work was being done. This we held and still hold insufficient to show such actual possession of said territory as would enable them to recover the same in this action. Being unable to recover upon their actual possession, they were remitted to their proof of a valid re location. The construction of their tunnel upon another part of the claim could not avail them unless their relocation was good; if it were valid, they would hold possession of the disputed territory by virtue thereof; if it were not valid, actual possession was required, which they did not have.\\nCounsel for appellees in their original brief quoted from Highland Chief v. Evans, 1 Col. Law Reporter, 211, as follows: \\\"On the public domain of the United States a miner may hold the place in which he may be working against all others having no better right. But when he asserts title to a full claim of fifteen hundred feet in length by three hundred feet in width, he must prove a lode extending throughout the claim. \\\" They italicised the last clause of the quotation, and we certainly understood them as advancing the argument that since the proof did not affirmatively establish the fact that the Verde vein extended to the portion of the Verde claim whereon petitioners had excavated the Swallow Tail discovery tunnel, they were entitled to recover, upon the theory that such territory was vacant and subject to location. And we understand counsel as urging substantially the same proposition upon this petition.\\nWe have discovered no reason for changing the views expressed in our former opinion. Counsel is correct in his statement that the Verde owners are not a party of record, and have nothing to do with this controversy. But a question with reference to the Verde vein was fairly presented under the law, by the evidence and argument. And for the purposes of the decision upon the point under consideration, it was as if the controversy had been between petitioners and the Verde owners. The position of petitioners, who were appellees, was, as we understand it, that appellants should have proven that the Verde vein extends throughout the Verde claim, or at least to the portion thereof whereon was constructed the Swallow Tail discovery tunnel. Appellants asserted that a valid location, of the Verde was established under the pleadings, and that it was' for petitioners to prove that the vein departed from the side line, or terminated at some point distant from the end line thereof. If the vein did so depart or terminate, the portion of the claim beyond such point of departure or termination was open to location by petitioners, and the construction of their discovery tunnel thereon was perfectly proper and legal. The question presented was, should appellants be required to prove in the first instance that the Verde vein extended throughout the claim, or should petitioners be compelled to show a departure or termination thereof at some point short of the ground upon which they did their location work ?\\nWe agreed with appellants, and placed the burden upon petitioners of proving by a preponderance of1 evidence such departure or termination of the Verde veip.\\nIn the discussion of this question in our opinion we declared that where one had discovered a lode, and performed all of the subsequent acts required to constitute a valid location, he is entitled to the presumption that his vein extends throughout, the full length of his claim. Counsel seems to misunderstand the meaning of the language we used. We do not deny that the position of the vein with reference to the location is a fact upon which some proof must appear. It seems to us that upon a critical examination and fair construction, our language will be found not to conflict with this view.\\nProof of the essential acts of location almost necessarily implies some proof as to the position of the lode. We can hardly conceive how one could prove the discovery of his vein, the sinking of his discovery shaft thereto, the erection of his boundary stakes, and the other essential acts of location, without giving evidence of some kind as to the strike of the vein. Such evidence may not affirmatively show its course for more than the distance across the discovery shaft; and though not more than five or six feet of the course be actually determined, yet if the location be made along the vein thus disclosed, projected in either direction, it is prima facie sufficient. We may recognize a presumption that the apex of the vein does extend throughout the location.\\nIt may, perhaps, be more accurate for us to omit the objectionable word \\\"presumption,\\\" and say that the foregoing facts being proven, the jury may infer therefrom, in the absence of contrary proofs, that the vein extends throughout the entire claim. In other words, that these facts are sufficient prima facie to establish the remaining fact as to the position of the vein in all those portions of the location wherein it has not been actually traced. But whether we use the word \\\"presumption,\\\" or the phrase \\\" prima facie proof,\\\" the result, so far as concerns the question under consideration in this case, is precisely the same.\\nThe position of the vein is a fact which in many cases must be proven largely by inference and opinion. If the apex thereof crops out along the surface, its strike may be readily traced; but if it be entirely below the surface, it is extremely difficult, and in some cases impossible, without the expenditure of large sums of money, to definitely determine' its course for a distance of fifteen hundred feet; and when the prospector has determined that course, according to the best information he has been able to obtain in the time allowed, and has expended labor and money in performing all of the acts required to constitute a valid location thereon, we think he is justly entitled prima facie to the protection of the location statutes.\\nThese are the views announced in our former opinion, and we are not yet convinced that they are erroneous. The rehearing will be denied.\\nRehearing denied.\"}"