Alan M. Loeb

The case involved an appeal by William S. Lyons Jr. and William S. Lyons III from a district court order dismissing their bad faith breach of insurance contract claim against the Colorado Special Districts Property and Liability Pool and County Technical Services, Inc. (CTSI). The Pool had sought a declaratory judgment that it had no duty to defend or indemnify the Lyonses (who served on the board of a metropolitan district) in an underlying lawsuit brought by banks over bond sales, after initially agreeing to defend subject to a reservation of rights; the Lyonses responded with counterclaims including bad faith. The Colorado Court of Appeals affirmed the dismissal under C.R.C.P. 12(b)(1), holding that the Colorado Governmental Immunity Act (CGIA) barred the claim. The court reasoned that bad faith breach of insurance is an independent tort subject to the CGIA, that both the Pool and CTSI qualify as public entities entitled to immunity, and that the Lyonses had not provided the required statutory notice or shown any waiver of immunity. The court remanded solely for a determination of attorney fees due to CTSI.

torts & liabilityprocedure

This case involved a workers' compensation claim filed by Charlotte Zolman after she suffered a lower back injury while employed as a personal companion. Pinnacol Assurance, the employer's insurer, admitted liability for certain benefits based on initial medical evaluations but later denied additional post-MMI care and other claims following opinions from authorized treating physicians and a division-sponsored independent medical exam that found Zolman had reached maximum medical improvement. After an administrative law judge ruled against Zolman's requests for a change of physician, post-MMI benefits, and permanent total disability, she sued Pinnacol for insurance bad faith; the district court granted summary judgment to Pinnacol. On appeal, the court affirmed, holding that Pinnacol reasonably relied on the consistent medical opinions of multiple physicians and the ALJ's order, with no triable evidence of bias or unreasonable conduct in claims handling. The court also upheld denial of Zolman's motion for reconsideration, as new evidence would not have altered the outcome.

labor & employmentbusiness & regulatorytorts & liability

In People v. Hicks, the defendant appealed the denial of his motion to dismiss charges of aggravated sexual assault stemming from a 1992 attack, arguing that the ten-year statute of limitations in effect at the time had expired before charges were filed in 2006 and 2007. The court affirmed the district court's order, holding that a 2001 statutory amendment eliminating the limitations period for sexual assaults where the defendant's identity is determined by DNA and the offense was reported within ten years applies here. The assaults occurred after July 1, 1991, met the statutory criteria, and the prosecution was not yet time-barred when the amendment took effect in 2001. The court reasoned that applying the extended period did not violate the Ex Post Facto Clause because the original limitations period had not expired prior to the change in law.

criminal lawprocedure

Saturn Systems, a debt collection agency, sued its former independent contractor sales agent, Delbert Militare, for misappropriation of trade secrets and breach of contract after terminating their agreement. Militare had been given access to Saturn's confidential client database and website containing debtor notes and account details; shortly after joining a competitor, he accessed fifteen client accounts and solicited one of Saturn's clients in violation of the agreement's confidentiality and nonsolicitation provisions. Following a bench trial, the court entered judgment for Saturn, awarding $525 in damages for investigation costs plus attorney fees and costs under the contract. The appellate court affirmed, holding that the evidence supported findings of breach and that the claimed damages were recoverable as a direct result of the violation. The court also granted Saturn's request for appellate attorney fees and remanded for determination of the amount.

business & regulatorytorts & liability

The case involved the prosecution appealing the dismissal of refiled domestic violence charges against Quincy Yarnell Walker, after the original charges were dismissed without prejudice when the victim failed to appear for trial. The Colorado Court of Appeals reversed the trial court's order dismissing the refiled charges, holding that it violated the speedy trial statute. The court reasoned that dismissal without prejudice resets the statutory six-month speedy trial period upon refiling of identical charges, unless the defendant affirmatively proves the prosecution dismissed and refiled to circumvent the speedy trial deadline, which was not shown here. The defendant had not objected to the without-prejudice dismissal and thus bore the risk of refiling.

criminal lawprocedure

The case involved Jeffrey Brosh, who pleaded guilty to sexual assault on a child by one in a position of trust after providing alcohol to a twelve-year-old neighbor and committing sexual acts including oral sex and digital penetration. Brosh appealed the district court's order designating him a sexually violent predator (SVP) under section 18-3-414.5, C.R.S. 2009. The court affirmed the SVP designation, finding that Brosh promoted an existing relationship with the victim primarily for sexual victimization by inviting the child over, requesting a sleepover, providing alcohol on multiple occasions, and escalating the sexual contact. The district court also relied on the Sexual Offender Risk Scale evaluation and evidence of Brosh's alcohol use to conclude he was likely to reoffend under the circumstances specified in the statute.

criminal law

This case involved an insurance coverage dispute in which homeowners Robert and Moira Sachs sought defense from American Family Mutual Insurance Company under their homeowners policy for claims brought by buyers of their former Colorado Springs residence. The buyers alleged breach of contract, fraudulent misrepresentation, and negligent misrepresentation after the basement floor subsided, seeking damages for repairs and emotional distress. The district court granted summary judgment to American Family, finding no duty to defend, and the appellate court affirmed. The court held that the negligent misrepresentation claim fell within the policy's premises owned exclusion, which applied to any act or omission occurring on or in connection with premises owned by the insured but not listed as insured premises, and that the exclusion was not limited to premises liability claims or currently owned properties.

propertytorts & liability

The case involved whether a former stepfather was required to reimburse a county department of human services for foster care costs incurred for his former stepson following a dependency and neglect adjudication. The Colorado Court of Appeals reversed the district court's judgment ordering the stepfather to pay over $40,000, holding that he had no legal obligation as he was neither a natural nor adoptive parent. The court reasoned that applicable statutes limit reimbursement duties to parents, an older statute did not extend to foster care, and post-dissolution support obligations do not apply to former stepparents absent adoption or ongoing custody.

family law

In People v. Portillo, the defendant appealed his convictions for two counts of attempted extreme indifference murder and two counts of menacing, arguing that the trial court violated double jeopardy by bifurcating the original counts and that the menacing convictions should merge with the attempted murder convictions as lesser included offenses, while also claiming insufficient evidence. The Colorado Court of Appeals affirmed the judgment, first presuming the trial court's bifurcation ruling was sound because the defendant failed to include the relevant portion of the record on appeal. The court further held that menacing is not a lesser included offense of attempted extreme indifference murder because it requires proof of knowingly placing another in fear of imminent serious bodily injury, an element not necessary for the greater offense, so the convictions do not merge under double jeopardy principles. Finally, the insufficient evidence claim was rejected because the incomplete transcript required the court to presume the full record supported the jury's verdicts.

criminal lawprocedure

In People v. Vondra, the defendant pleaded guilty to possession with intent to distribute a schedule II controlled substance and later moved under Crim. P. 32(d) to withdraw the plea, alleging ineffective assistance of counsel that rendered the plea unknowing and involuntary; the trial court denied that motion after an evidentiary hearing, and the defendant did not challenge the denial on direct appeal (where he only contested his sentence). He then filed a Crim. P. 35(c) postconviction motion raising essentially the same ineffective-assistance claims. The Court of Appeals affirmed the denial of the 35(c) motion, holding the claims successive under Crim. P. 35(c)(3)(VI) and (VIII) because they could have been raised on direct appeal and because the trial court had already resolved the factual issues in the prior 32(d) proceeding. The court rejected the sentence challenges as previously decided on direct appeal.

criminal lawprocedure

The case involved the appeal of Bobby Collins' convictions for second degree kidnapping, first degree sexual assault, and attempted aggravated robbery stemming from a 1999 incident in Denver where the victim was kidnapped, robbed, and sexually assaulted. DNA evidence from a saliva sample collected in Missouri during an unrelated 2002 robbery investigation was matched to the Colorado crime scene, leading to charges; the defendant moved to suppress the evidence, claiming his consent to the sample was involuntary and limited to the Missouri case. The trial court denied the motion, and a jury convicted the defendant, resulting in consecutive sentences totaling 88 years to life. On appeal, the court affirmed the convictions and sentence, reasoning that the consent was voluntary with no coercion or duress shown, that it was not limited in scope, and that the DNA evidence was admissible; it also upheld the trial court's rulings on jury instructions, closing arguments, and the constitutionality of the Sex Offender Lifetime Supervision Act.

criminal lawprocedure

The case involved Robert Copley appealing the Arapahoe County Sheriff's refusal to reissue his concealed handgun permit following the dismissal of a misdemeanor trespass charge. The district court affirmed the Sheriff's denial after the Sheriff provided findings on remand, but the appellate court reversed that judgment. The court held that the proceedings deprived Copley of procedural due process because the Sheriff failed to provide a timely written statement of grounds for the denial as required by the concealed handgun statutes, preventing Copley from exercising his rights to supplement the record, request a second review, or seek informed judicial review. The case was remanded to the Sheriff for a new hearing and reconsideration of the reissuance request.

gunsprocedurecriminal law

This case involved defendant Edrien Renard Hancock's appeal of his jury convictions for second degree burglary and criminal mischief. The appellate court reversed the convictions and remanded for a new trial. The court held that the trial court abused its discretion by denying the defendant's challenge for cause to a prospective juror who repeatedly expressed doubt about her willingness or ability to apply the presumption of innocence and hold the prosecution to its burden of proof. The core reasoning was that the juror's statements demonstrated bias or inability to follow the law, with no rehabilitative questioning, counterbalancing information, or credibility findings in the record to support upholding the denial, and the defendant had exhausted his peremptory challenges.

criminal lawprocedure

The case involved the Hiwan Homeowners Association's petition under the Colorado Common Interest Ownership Act to obtain court approval for amending restrictive covenants governing the Hiwan subdivision, which lacked an express amendment mechanism and were set to expire in 2013. Homeowners objected, arguing that the Act did not apply because the subdivision was not a common interest community. The district court denied the petition for lack of sufficient homeowner approval but ruled that Hiwan qualified as a common interest community. On appeal, the court affirmed, holding that the covenants' requirement for mandatory fees to maintain subdivision real estate satisfied the Act's definition of a common interest community, even without common property, based on the statute's plain language, the Uniform Act, and the Restatement (Third) of Property.

property

The case concerned defendant Antonio Moore's jury conviction for theft by receiving items valued at $15,000 or more, stemming from a residential burglary, along with his adjudication as a habitual criminal; the trial court had dismissed related burglary and criminal mischief counts as a sanction for a prosecution discovery violation. The appellate court vacated the class 3 felony conviction for theft by receiving $15,000 or more and remanded for entry of judgment on the lesser class 4 felony of theft by receiving more than $500 but less than $15,000, based on insufficient evidence of the higher value. It affirmed the habitual criminal findings and sentence in other respects. On the prosecution's cross-appeal, the court disapproved the dismissals, concluding that the inadvertent discovery violation did not warrant such a severe sanction when a recess could have cured any prejudice to the defense.

criminal lawprocedure

In this case, a landlord sued a tenant in a forcible entry and detainer action alleging failure to pay rent and other charges under a retail lease and seeking possession along with unpaid rent. The trial court granted the tenant's motion to limit the landlord's damages evidence at trial to the reasonable rental value during the period of unlawful detainer, ruling that past due rent could not be recovered in an FED proceeding. The appellate court reversed, holding that sections 13-40-110(1) and 13-40-115(2) expressly authorize recovery of past due rent in an FED action separate from damages for unlawful detention, and remanded for a new trial on that claim.

propertyprocedure

This case was an insurance coverage dispute in which William Sullivan sought indemnification from Fire Insurance Exchange under his homeowner's policy for a civil judgment against him on claims of assault and battery, extreme and outrageous conduct, and invasion of privacy, stemming from alleged conduct in which he drugged and sexually assaulted the victim. The insurer had initially defended under a reservation of rights but withdrew, then filed this action for a declaratory judgment that it had no duty to defend or indemnify, after which Sullivan filed counterclaims for breach of contract and bad faith. The court affirmed summary judgment for the insurer on both the coverage issue and the counterclaims. It reasoned that the policy defined an occurrence as an accident and expressly excluded coverage for bodily injury or personal injury that is caused intentionally or results from an intentional act with reasonably foreseeable results, making the invasion of privacy claim (which was based on intentional conduct) unambiguously excluded, consistent with prior precedent interpreting similar policy language.

business & regulatorytorts & liability

The case involved defendant Bruce Norman Robb, a salesperson for Kidztime TV Inc. and related entities, who was charged with securities fraud and computer crime for his role in selling partnership interests using a misleading brochure during 1995-1998. A jury convicted Robb of one count of securities fraud and one count of computer crime. On appeal, the court affirmed the securities fraud conviction, reversed the computer crime conviction and vacated the sentence on that count, and affirmed the restitution order in part while reversing it in part as to the allocation of collection duties, remanding for modification. The decision on the computer crime count turned on whether computers were used to obtain money or things of value through false pretenses, and the restitution ruling applied statutory limits on which entities may distribute funds.

criminal lawbusiness & regulatory

In this case, defendant Matthew Castellano, who had pleaded guilty to felony theft, appealed his resentencing to three and one-half years in the Department of Corrections after failing placements in intensive supervision probation and a community corrections program. The defendant argued that increasing his original two-year prison sentence violated his constitutional protection against double jeopardy. The court affirmed the sentence, holding that the defendant had no legitimate expectation of finality in the original sentence because it remained subject to review and reduction under Crim. P. 35(b) for 120 days, and he had voluntarily sought and obtained a sentence reduction that carried the risk of a longer term upon revocation. The court reviewed for plain error and found none, distinguishing precedents where statutes prohibited sentence increases.

criminal lawprocedure

The case involved an insured driver, DeHerrera, who was injured in a car accident and received $5,000 in medical payments from his insurer, American Family, under a policy with an express subrogation clause. After settling his personal injury claim against the at-fault driver for $55,000, DeHerrera sued American Family to recover the subrogated amount and asserted additional claims for bad faith and outrageous conduct. The district court granted summary judgment to American Family, ruling that the policy and equitable subrogation principles entitled the insurer to reimbursement from the tortfeasor's insurer, that the anti-subrogation rule did not apply, and that the make-whole doctrine was inapplicable. The Court of Appeals affirmed, holding that the contract language and equitable principles supported the insurer's recovery rights and that the trial court properly denied a late motion to amend the complaint.

business & regulatorytorts & liabilityprocedure