Court Opinions – Jul 29, 2019

People v. Hernandez

In this appeal of a restitution order Joey Ray Hernandez presents a novel question in Colorado — does a defendant have a right to be present at a restitution hearing? The Court of Appeals concluded that the answer is “yes.” 

Turning to the particular facts presented, the court also concluded that the trial court plainly erred by holding the restitution hearing in Hernandez’s absence, despite his attorney’s attempted but ineffective waiver of his presence. The restitution order must be vacated and the case remanded for further proceedings. If, on remand, the trial court determines that Hernandez had authorized his attorney to waive his presence, a new restitution hearing need not be held.

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Adoption of S.S.A.R.

In this kinship adoption proceeding, R.L.S. (the father) appealed the judgment terminating his parental rights to S.S.A.R. (child) and decreeing the child’s adoption by K.L.R., Sr., and S.M.R. (aunt and uncle). R.L.S. contended that he was denied his right to counsel because he was incarcerated out-of-state and had no ability to participate in the proceedings.

As a matter of first impression, and under the circumstances presented, the Court of Appeals concluded that in determining whether a parent is entitled to appointed counsel requires application of the Mathews v. Elridge factors and also concluded that the judgment terminating father’s parental rights is void because the court entered it in violation of his due process right to appointed counsel. 

The court vacated the judgment terminating father’s parental rights and decreeing the child’s adoption and remand the case to the juvenile court for a new hearing. If the court finds that father is still indigent, it must appoint counsel.

23 LTD v. Herman

This case presented an employment law issue of first impression in Colorado –– when, if ever, is a court required to blue-pencil a noncompete or nonsolicitation agreement to conform it to Colorado law?

23 LTD, d/b/a Bradsby Group, sued former employee Tracy Herman for breach of noncompete and nonsolicitation provisions in her employment agreement. A jury determined that Herman had not breached the noncompete provision. The jury returned a verdict (and awarded nominal damages of one dollar) in favor of Bradsby on the nonsolicitation claim, but the district court set aside that verdict and entered judgment in favor of Herman because the nonsolicitation provision violates Colorado law and because the court declined to narrow the provision to render it enforceable. Despite entering judgment in favor of Herman on both claims, the court denied her request for attorney fees under the agreement’s fee-shifting provision. Bradsby appeals the merits judgment, and Herman cross-appeals the denial of attorney fees.

The Court of Appeals concluded that the record supports the jury’s verdict on the noncompete claim and that the court did not err or abuse its discretion in declining to blue pencil the nonsolicitation provision. The Court of Appeals affirmed the court’s merits judgment. It also concluded that Herman is entitled to attorney fees because she prevailed on both breach of contract claims and reversed the court’s order denying attorney fees and remand with directions.

Information Network v. Colorado Mined Land

In November 1999, Piñon Ridge Mining was issued a permit for a uranium mining operation, releasing the company’s predecessor from its permit. The site last produced ore in 1989. In March 2014, the Division of Reclamation, Mining, and Safety approved an initial period of temporary cessation for the site, with an effective date of June 13, 2012.

In May 2017, the division received a request for approval of a second period of temporary cessation for the site. Information Network for Responsible Mining, Earthworks and Sheep Mountain Alliance filed objections to the request. The board held a hearing on the matter, during which Piñon Ridge Mining testified that minerals had not been extracted since it had taken over the site because the depressed market price of uranium made production unprofitable. Piñon Ridge also testified that the operator had explored one other avenue for extraction.

The board ultimately granted the request for approval of a second period of temporary cessation. The district court affirmed the board’s order. The objectors then appealed the board’s decision, asserting that the board ignored the plain language of the Colorado Mined Land Reclamation Act when approving a second period of temporary cessation. The Court of Appeals reversed.

SG Interests I, Ltd. v. Kolbenschlag

Peter Kolbenschlag is an environmental activist from Paonia, Colorado, who manages Mountain West Strategies, Ltd., a website that “specializes in public outreach and community engagement” in western Colorado. In 2016, the BLM cancelled 18 of SGI’s gas leases in Colorado, which was reported by a local newspaper. 

Kolbenschlag posted a reader comment to the article on the newspaper’s website, and four months later, SGI filed this lawsuit. Kolbenschlag filed a motion to dismiss, contending that his comment was substantially true and that SGI had not pleaded actual malice.

After SGI filed an amended complaint, Kolbenschlag renewed his motion to dismiss. The district court converted the motion to one for summary and set an expedited briefing schedule. Kolbenschlag then withdrew the portion of his motion seeking judgment on actual malice. 

Thereafter, SGI filed a response and sought leave to take Kolbenschlag’s deposition concerning his factual basis for stating the comments were substantially true.

The district court granted the motion for summary judgment, denied SGI’s request to depose Kolbenschlag, and in a separate hearing not at issue here, awarded Kolbenschlag attorney fees finding that the lawsuit was frivolous and vexatious.

SGI appealed the district court’s order granting summary judgment and challenged the court’s findings that Kolbenschlag’s online comments were substantially true and immaterial. It also challenged the court’s refusal to order Kolbenschlag’s deposition under C.R.C.P. 56(f). The Court of Appeals affirmed the court’s judgment and remanded for the determination and award of reasonable appellate attorney fees. 

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