John Daniel Dailey

In this dependency and neglect case, the father appealed a jury adjudication finding his six-year-old daughter dependent and neglected based on allegations of sexual abuse, contending that the jury findings did not support the adjudication under the statute and that permitting the child to testify via closed-circuit television violated his confrontation rights and due process. The Colorado Court of Appeals affirmed the adjudication, concluding that the closed-circuit procedure properly protected the child from trauma while allowing the father real-time communication with counsel for cross-examination. The court further held that the jury instructions and verdict form using past tense were appropriate to assess the child's status at the time of the petition filing, as the present tense would risk confusing the jury about conditions in foster care, and that the findings satisfied the definitions in section 19-3-102(1)(b) and (c), C.R.S. 2010; issues concerning the treatment plan were not reviewable because the father had not appealed the dispositional order.

family lawprocedure

Randy Kailey, serving a sentence for aggravated incest, filed a motion seeking either appointment of a special prosecutor under C.R.S. § 16-5-209 or an arrest warrant under C.R.S. § 16-3-108 to pursue charges against DMB for alleged sexual assaults on his daughters and granddaughter. The district court denied the motion without a hearing, finding that Kailey had not overcome the presumption that the district attorney's non-prosecution decision was proper by showing it was arbitrary and capricious. The Colorado Court of Appeals affirmed, holding that district attorneys possess broad executive discretion in charging decisions that courts may override only upon clear and convincing evidence of arbitrariness, and that private citizens lack authority to demand arrest warrants. The court reasoned that investigative and charging functions belong to law enforcement and prosecutors, not individuals, and that Kailey's submissions did not meet the statutory threshold for judicial intervention.

criminal lawprocedure

In this case, Rebecca Jackson sued American Family Mutual Insurance Company for breach of contract, alleging the insurer failed to offer her the option to purchase extended personal injury protection (PIP) coverage required by Colorado law at the time of her 2002 car accident. A jury awarded her damages on the contract claim, but the trial court granted judgment notwithstanding the verdict based on the statute of limitations. The appellate court affirmed, holding that a prior class action (Hicks) did not preclude the insurer from raising the limitations defense because that case was limited to policy reformation and expressly excluded individual damage claims. The court reasoned there was no identity of claims between the reformation-only class proceeding and Jackson's separate damages action, so the limitations period was not tolled by the earlier suit and had expired.

business & regulatoryprocedure

This case concerns whether services performed by a truck driver for SZL, Inc. under a short-term lease agreement constituted covered employment under the Colorado Employment Security Act, thereby requiring SZL to pay unemployment taxes on those services. The Industrial Claim Appeals Office and hearing officer determined that the driver was an employee rather than an independent contractor, and the court affirmed that ruling. The core reasoning focused on section 8-70-115(1)(b), which presumes employment unless the putative employer proves both that the worker is free from control and direction and is customarily engaged in an independent trade or business related to the services; SZL failed to establish the second condition because the driver did not provide similar services to others during the engagement. The court also rejected challenges based on the parties' contract, preemption under federal law, and transcript irregularities.

labor & employmenttaxesbusiness & regulatory

This case involves a post-divorce dispute between Gail Nguyen (formerly Davis) and Jeffrey Davis over modification of child support, along with requests to hold the husband in contempt and for attorney fees. The trial court modified child support and denied the contempt and fee requests. The appeals court affirmed in part and reversed in part, holding that an amended version of Colorado's child support statute allowing deductions for after-born children could not be applied retroactively to obligations accruing before its January 1, 2008 effective date, but could apply prospectively thereafter because child support is a continuing obligation. The court found no error in the trial court's handling of contempt or attorney fees, including its consideration of the wife's overall economic circumstances from gifts by her new spouse, and remanded for recalculation of pre-2008 support amounts.

family law

The case was an attorney fees dispute in which client Cathy Berra sued her former law firm, Springer and Steinberg, P.C., seeking a refund of part of a 30% contingent fee the firm had received after collecting on a preexisting $500,000 judgment plus interest. The trial court found the fee unreasonable and excessive under Colo. RPC 1.5 factors because the recovery resulted largely from fortuitous events rather than substantial effort by the firm and the risk of non-recovery was not substantial, then calculated a reasonable fee via quantum meruit analysis and ordered a refund of approximately $185,750. The appellate court affirmed, holding that the contingent fee agreement was unenforceable to the extent the charged fee was unreasonable and that the trial court had properly determined the reasonable value of the firm's services.

procedurebusiness & regulatory

This case is a post-dissolution child support modification proceeding between Amy Connerton and Sean Nevin. The trial court modified the father's support obligation, imputed income to the mother as voluntarily unemployed based on her pursuit of a nursing degree, and denied her request for attorney fees. The mother appealed, contending that the trial court erred in deeming her educational goal unreasonable and in denying fees. The appellate court affirmed the denial of attorney fees but reversed the voluntary unemployment determination, holding that the court failed to assess whether the mother pursued the degree in good faith or whether it unreasonably reduced support for the children under section 14-10-115(5)(b)(III)(C), and remanded for further findings and recalculation if needed.

family law

This case concerned the scope of a supersedeas bond posted by Pioneer General Insurance Company as surety for defendants Kellum in an underlying dispute with plaintiff Holt Group over unpaid attorney fees. The Colorado Court of Appeals affirmed in part and reversed in part the trial court's order, ruling that the bond covered the original $27,849 judgment plus interest and remained enforceable for the $210,364 attorney fee award pending further appeal, but did not extend to a separate $38,403 supplemental fee award. The court reasoned that the bond's terms secured the judgments and costs within the scope of the original appeal but not additional post-judgment litigation expenses, and that the bond was not discharged because the main fee award had been vacated and remanded rather than fully reversed on appeal.

procedure

In this marriage dissolution case, following a contempt hearing, a magistrate found the husband in contempt and ordered him to pay a portion of the wife's attorney fees. The wife appealed the order directly to the court of appeals 43 days later, relying on language in the magistrate's order directing such an appeal under C.R.M. 7(b). The court dismissed the appeal for lack of jurisdiction, explaining that the order involved proceedings where magistrate authority did not require party consent and thus required initial review by the district court under C.R.M. 7(a) before any appeal to this court could proceed. The court noted that the magistrate's notice was erroneous and suggested the district court consider the unique circumstances if the wife now seeks untimely review there.

family lawprocedure

In this case, defendant Michael David Suttmiller was convicted of theft and ordered in 2001 to pay restitution including the rental value of a stolen asphalt roller during the period it was out of the victim's possession. After his probation was revoked and he began serving a prison sentence, he filed a motion under Crim. P. 35(a) challenging the restitution as illegal because the victim had not actually rented a replacement; the district court reduced the award and later denied his request for a refund of amounts already paid. The court of appeals affirmed the denial of a refund, holding that the original restitution order was authorized by statute as compensation for the victim's loss of use and thus was not illegal, so the defendant had no right to repayment. The court noted that the prosecution had not cross-appealed the reduction of the award, preventing any reinstatement of the higher amount. The decision turned on the interpretation of restitution statutes and rules governing challenges to sentences.

criminal lawprocedure

In People v. Gladney, the defendant was convicted by a Colorado jury of first-degree murder for shooting a customer during a dispute at a crack cocaine operation. Prior to the state trial, he had been convicted in federal court under RICO based in part on the same murder as one of several predicate racketeering acts. The defendant argued that the state prosecution violated double jeopardy protections under the U.S. and Colorado constitutions as codified in section 18-1-303. The court affirmed the conviction, holding that the Colorado statute did not bar the subsequent prosecution because the murder was not an offense within concurrent federal and state jurisdiction under the relevant federal murder statutes and because the RICO conviction required proof of different facts and prevented a substantially different harm than the state murder charge. The court also rejected claims of error regarding admission of res gestae evidence and prosecutorial statements in closing argument.

criminal lawfederal power

In this workers' compensation case, employer Paint Connection Plus and its insurer sought review of an order upholding penalties for filing an invalid final admission of liability (FAL) after a worker fell from a ladder and sustained shoulder injuries. The court affirmed the lower rulings that the FAL was invalid because it omitted required medical reports and worksheets and asserted maximum medical improvement in a manner inconsistent with the rating physician's report regarding a related chronic facet syndrome condition. The decision rested on the statutory and regulatory mandates that an FAL must attach supporting documents, specify positions on post-MMI benefits, reference specific medical reports, and align with the physician's opinions to provide clear notice to claimants. Because the filing violated these rules under the Workers' Compensation Act, penalties were properly imposed as the conduct was not objectively reasonable.

labor & employment

In this personal injury case, plaintiff William O'Quinn sued defendant Leslie Baca for negligence after being struck by her car while crossing the street. Baca made a timely $75,000 settlement offer under Colorado's offer-of-settlement statute, which O'Quinn rejected; the jury later awarded him $54,000 in damages, and after adding prejudgment interest and his costs the final judgment totaled approximately $70,485—below the offer amount. The trial court therefore ordered O'Quinn to pay Baca's costs of $25,721.55 pursuant to the statute. On appeal O'Quinn challenged the constitutionality of the statute on multiple grounds, but the court declined to reach those issues because the record showed they had not been raised or ruled upon in the trial court. The judgment was affirmed.

torts & liabilityprocedure

The case concerned whether the Upper Black Squirrel Creek Ground Water Management District had authority to adopt Rules 17, 18, and 19 that imposed stricter limits on groundwater withdrawals from alluvial and Denver Basin wells than those authorized in permits issued by the Colorado Ground Water Commission. The Metro Districts, which operated wells under Commission permits, challenged the rules before the Commission, which upheld them as consistent with the Management District's statutory powers to regulate production and conserve aquifer water under sections such as 37-90-130 and 37-90-131. The district court affirmed the Commission's decision, and the court of appeals likewise affirmed, holding that the Management District possessed independent authority to set withdrawal limits after permits are issued in order to address ongoing aquifer depletion.

environmentbusiness & regulatory

The case involved Matthew Christopher O'Neal, convicted after a jury trial of possession of a weapon by a previous offender under Colorado law, based on police finding a semi-automatic pistol in his car following a shoplifting call; he had a prior juvenile adjudication that would have been a felony if committed by an adult. The pistol was inoperable due to missing parts and damage, and the defendant argued his belief in its inoperability and lack of intent to restore it should preclude conviction. The trial court rejected defense instructions on intent and instructed the jury that a firearm includes any handgun capable or intended to be capable of discharging bullets. The appellate court affirmed, holding that under sections 18-12-108(8) and 18-1-901(8)(h), a pistol qualifies as a per se firearm regardless of condition or anyone's intent regarding operability, as the statutory intent language modifies only the catchall category of other instruments or devices.

criminal lawguns

The case involved defendant Paul Misenhelter, who pleaded guilty to aggravated incest and negligent child abuse under a plea agreement that capped the child abuse sentence at 25 years. Following an initial sentence that was vacated on appeal for violating Apprendi and Blakely, the trial court on remand resentenced him to 25 years in prison for negligent child abuse, relying on aggravating factors drawn from the elements of the incest conviction, such as the victim being his biological daughter under age 21, along with other facts like repeated conduct. The court of appeals affirmed, ruling that the trial court followed the remand by making independent findings compliant with Blakely and that the simultaneous conviction for aggravated incest could serve as a Blakely-exempt basis for an aggravated sentence. The core reasoning was that the defendant's guilty plea and waiver of jury rights on the incest count, combined with precedents allowing use of convictions as aggravating factors, satisfied constitutional requirements without needing additional jury findings.

criminal lawprocedure

In People v. Villarreal, defendant Henrietta Villarreal appealed the denial of her postconviction claims under Crim. P. 35(c) alleging ineffective assistance of trial counsel for failing to request or object to jury instructions on the elements of attempted first degree murder, voluntary intoxication as a defense, heat of passion provocation for first degree assault, and jury unanimity on the objective of second degree burglary. The same jury instruction issues had been raised and rejected under plain error review on her direct appeal. The court affirmed the denial of relief, holding that counsel's decisions regarding jury instructions were strategic choices within the attorney's discretion rather than personal rights of the defendant, that defendant failed to show professional incompetence or prejudice under Strickland, and that the prior plain error analysis was equivalent to the prejudice inquiry for ineffective assistance. The underlying convictions stemmed from a violent nighttime attack on a victim in her apartment, where the defendant was identified as the perpetrator despite her misidentification and alibi defenses.

criminal lawprocedure

In People v. Phillips, the defendant was convicted by a jury of first-degree felony murder, attempted first-degree murder, first-degree assault, felony menacing, child abuse, burglary, and attempted robbery stemming from two separate shooting incidents on July 5 and July 8, 2005, involving his brother-in-law and two other victims. The trial court imposed a life sentence without parole plus an additional 100 years. On appeal, the court affirmed all convictions, holding that the evidence was sufficient to support the felony murder conviction because the defendant's intent to commit the underlying felonies of robbery or burglary could be inferred from the circumstances of the continuous transaction, even without direct proof of intent prior to the killing. The court also concluded that the trial judge did not abuse its discretion in denying challenges for cause to two jurors, as their statements indicated they could set aside any biases and apply the law impartially, including the presumption of innocence.

criminal lawprocedure

The case involved Kyle Lee Jamison, who was convicted by a jury of theft of property valued between $500 and $15,000 after items similar to those reported stolen were found in his van. The court decided to vacate the judgment and sentence for the theft conviction because the evidence was insufficient to prove the value of the stolen items beyond a reasonable doubt. The core reasoning was that no competent evidence, such as market value at the time of the theft, was presented by the prosecution, relying instead on speculative or outdated information, leading to remand for entry of judgment on the lesser included misdemeanor theft offense.

criminal lawprocedure

The case involved Vernest Jones appealing the trial court's decision to vacate its earlier order that had granted his postconviction motion challenging his classification as a sex offender by the Department of Corrections. The court affirmed the trial court's ruling, holding that it lacked jurisdiction to review the classification because such challenges must be brought as a civil action under C.R.C.P. 106(a)(4) within thirty days of the agency's decision, which Jones did not do. The core reasoning was that after sentencing, the executive branch handles classification and parole conditions, and Crim. P. 35(c) is not the proper vehicle for contesting the sex offender rating or resulting parole restrictions.

criminal lawprocedure