Court Opinions – Aug 26, 2019

Burger Investments Family v. City of Littleton

Stone Creek Real Estate Partners applied to the City of Littleton for approval of an amendment to a planned development plan to allow for assisted living, memory care and accessory uses associated with assisted living and memory care facilities.

The Littleton City Council found that the proposed amendment to the planned development plan conformed to the development standards of the Planned Development Amendment criteria specified in the city code; thus, it passed an ordinance approving the application.

Burger Investments Family Limited Partnership owns property adjacent to the subject parcel and filed a complaint to review the city council’s decision, alleging that the city council’s decision violated specific provisions of the city’s code. 

Littleton moved to dismiss Burger’s complaint for lack of subject matter jurisdiction. It argued that the Littleton municipal courts have exclusive original jurisdiction to address the city council’s decision.

The district court concluded that Burger’s complaint alleged violations that lay with the municipal court and dismissed the action for lack of subject matter jurisdiction.

This appeal questioned whether the district court properly dismissed the complaint for lack of subject matter jurisdiction where the City of Littleton’s charter vests exclusive original jurisdiction in its municipal court over all violations of the charter and ordinances of the city. 

Because the Court of Appeals concluded the charter provision at issue does not apply to civil cases, it reversed the district court’s judgment and remanded the case for the court to reinstate Burger’s complaint.

The Pro’s Closet v. City of Boulder

The Pro’s Closet is licensed in Boulder as a secondhand dealer under the Boulder Revised Code. It sells used bicycles, bicycle parts and bicycle gear. Although it has a warehouse in Boulder, it does most of its business online.

In 2016, the 20th Judicial District’s District Attorney’s Office told the Boulder Police Department to treat Pro’s Closet as a “pawnbroker” under state law, meaning, among other things, that Pro’s Closet must hold used goods it buys for 30 days before reselling them instead of 96 hours as required by the Boulder Revised Code’s secondhand dealer ordinances.

Pro’s Closet filed suit and both Pro’s Closet and the city moved for summary judgment, which a district court granted in favor of the city.

The Pro’s Closet, Inc., appealed the district court’s summary judgment in favor of the defendant, the City of Boulder. The court ruled that Pro’s Closet is a “pawnbroker” and is therefore subject to the requirements, restrictions and potential sanctions of the state pawnbroker laws.

The Court of Appeals concluded that the district court did not err in interpreting the pawnbroker statutes and affirmed the judgment.

Avicanna Inc. v. Mewhinney

Avicanna, a Canadian plaintiff, filed suit in Colorado against Colorado defendants, and then unsuccessfully opposed a motion by those Colorado defendants to move the litigation back to Canada.

In this commercial dispute, the Court of Appeals considered whether the plaintiff, Avicanna Inc., should have been permitted to sue defendants in Pitkin County District Court or whether, as the district court found, 

Avicanna was bound by a forum selection clause that designated the courts of Ontario, Canada, as the forum for the resolution of any disputes between Avicanna and its contractual counterparties. Because nothing in the parties’ contract showed that the forum selection clause was included exclusively for Avicanna’s benefit, the Court of Appeals concluded that Avicanna could not unilaterally waive that provision.

The court affirmed the district court’s order enforcing the forum selection clause and dismissing Avicanna’s complaint without prejudice.

People v. Lee

In this People’s appeal, brought under section 16-12-102(1) of the Colorado Revised Statutes and Colorado Appellate Rule 4(b)(3), the Court of Appeals was asked to decide an issue left unresolved by another division in People v. Slaughter.

The Slaughter division held that charging a defendant with second-degree assault by strangulation under section 18-3-203(1)(i), of the Colorado Revised Statutes, (strangulation subsection), and a crime of violence count under section 18-1.3-406(2)(a)(I)(A) of the Colorado Revised Statutes violated his right to equal protection because the penalty was substantially more severe than if the defendant were charged with second-degree assault under section 18-3-203(1)(b) (deadly weapon subsection), a per se crime of violence, for the same conduct. 

The division affirmed the district court’s order dismissing the crime of violence counts attached to the strangulation charges.

In People v. Lee, the Court of Appeals was tasked with deciding whether a defendant may be charged with strangulation under both the deadly weapon and strangulation subsections of the second-degree assault statute. 

The court held that a defendant may not be charged under both subsections for two reasons. 

First, the court concluded that charging the same conduct under both subsections would violate a defendant’s right to equal protection because the subsections carry different maximum penalties. 

Second, the court concluded, from the legislative history, that when the General Assembly amended the second-degree assault statute to add the strangulation subsection, it intended all strangulation conduct to be charged under this specific subsection, rather than under the more general deadly weapon subsection.

Accordingly, the court affirmed the district court’s order dismissing the second-degree assault deadly weapon and crime of violence counts filed against the defendant, Dearies Deshonne Austin Lee. 

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