Court Opinions- Mar 25, 2019

People v. Cohen

Emily Cohen, a formerly licensed Colorado lawyer, appealed the judgment of conviction entered on jury verdicts finding her guilty of 13 counts of theft. 

The Court of Appeals considered whether Cohen opened the door to extensive evidence of the investigations the Colorado Office of Attorney Regulation Counsel conducted on her and the results of those investigations. The court concluded that while some evidence of the fact of and basis for the investigations could come in, much of the evidence about the investigations, and OARC’s findings, shouldn’t have. The court rejected the People’s argument that Cohen opened the door to all of the admitted evidence and discussed the limits of the opening-the-door doctrine. 

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The court held that the district court erred in admitting three OARC complaints against Cohen, and that the error wasn’t harmless. The court reversed the judgment of conviction and remanded the case for a new trial.

People v. Murphy

Justine Murphy appealed her judgment of conviction entered on a jury verdict finding her guilty of distributing methamphetamine and contributing to the delinquency of a minor.

Murphy contended that the district court erred in permitting unendorsed and unqualified expert testimony under the guise of lay opinion and that the testimony improperly commented on the meaning of the body language of a prosecution witness. The court reversed and remanded for a new trial.

Adoption of IEH

J.H., mother, and J.D.S., father, had a child, I.E.H., in 2008. J.H. appealed the juvenile court’s judgment terminating her legal relationship with the child. Before addressing J.H.’s contentions, the court considered whether it could review an order that terminates parental rights in anticipation of a stepparent adoption when the court has not finalized the adoption. The court answered that question “yes,” concluding that the order is final.

The court then addressed J.H.’s substantive contentions. It first concluded that the juvenile court in this case had jurisdiction to resolve the petition for stepparent adoption even though the child was subject to an existing parenting time order in a paternity proceeding. Second, the court declined to address a series of issues that J.H. raised on appeal but that she did not preserve in the juvenile court. Third, the court denied mother’s assertion that her counsel was ineffective. Fourth, the court rejected J.H.’s contention that the juvenile court’s findings were insufficient.

The court affirmed the juvenile court’s judgment terminating J.H.’s legal relationship with the child.

Tisch v. Tisch

In this individual and shareholder derivative action involving a closely held corporation, defendants — the Liquor Barn, Ltd.; and Gary Tisch as the officer, director and controlling shareholder — appealed the jury’s verdict in favor of plaintiffs and minority shareholders, Daniel Tisch and Eva Tisch. The jury found that Gary had committed civil theft against the Tisch siblings by using the Liquor Barn profits for his private use. It awarded the Tisch siblings $300,000 in damages for civil theft and the Liquor Barn, on whose behalf the Tisch siblings brought a derivative action, zero damages for civil theft. The jury also found that Gary had violated his fiduciary duty to the Liquor Barn and the Tisch siblings. It awarded $150,000 in damages to the Tisch siblings and zero damages to the Liquor Barn for breach of fiduciary duty. The trial court entered judgment against Gary and the Liquor Barn. The court then awarded the Tisch siblings treble damages, totaling $900,000 for the civil theft claim, $43,837.40 in costs and $150,000 in attorney fees.

The Court of Appeals was asked to decide two issues not previously resolved by Colorado Appellate courts. First, can corporate profits, not formally declared as distributions but used by the controlling shareholder for personal and other business matters, be found by a fact finder to constitute “distributions” to which minority shareholders are entitled a portion? The court answered that question “yes” and in doing so affirmed the trial court’s decision to submit the issue to the jury. Second, can undeclared distributions provide a basis for a minority shareholder to bring an individual claim for civil theft against the majority shareholder? The court answered that question “yes” and held that minority shareholders have a proprietary interest in undeclared distributions that can form the basis for an individual civil theft claim.

Gary raised five claims of error on appeal, and the Tisch siblings raised three claims of error in their cross-appeal. The court affirmed the jury’s damages awards for the Tisch siblings and the trebling of damages under the civil theft statute. The court also affirmed the trial court’s costs and attorney fees awards. Finally, the court concluded that the Tisch siblings are entitled to their reasonable appellate attorney fees related to the civil theft claim and remanded the case for that determination.

Gagne v. Gagne

Paula Gagne appealed the district court’s judgment dissolving four limited liability companies in which she and one of her sons, Richard Gagne, were the only members. Paula claimed that the district court erred by dissolving the four LLCs, in determining how the dissolutions would occur and in calculating each member’s portion of the LLCs’ assets. 

The court said it wasn’t convinced, though, that the district court erred and affirmed the judgment and remanded for the court to determine Richard’s reasonable attorney fees incurred on appeal.

Parental Responsibilities Concerning ACH

A psychological parent, a person who is unrelated to a child they help raise, who meets statutory criteria may seek an order for parenting time and decision-making responsibility. This “statutory grant of standing to a non-parent to seek legal custody of a child constitutes legislative recognition of the importance of ‘psychological parenting’ to the best interests of a child.”  Recognition as a psychological parent can occur through a contested proceeding or can be achieved through agreement between the natural/adoptive and psychological parents. But the statute addressing child support does not define the term “parent,” let alone mention a psychological parent. 

The Court of Appeals was asked to decide whether a psychological parent, who fought for and obtained a parenting time and decision-making responsibility order for his ex-girlfriend’s biological child, can also be ordered to pay child support on behalf of that child. For the reasons discussed below, we answer this question “yes.” As a result, the court reversed the order denying child support from a psychological parent and remanded the case to the district court for additional proceedings. 

Whiting-Turner v. Guarantee Company of North America USA

Performance bonds, like other forms of surety bonds, are critical to managing the risk inherent in construction projects. If a subcontractor fails to complete its work at a construction site, the surety that underwrote the performance bond assumes responsibility for the subcontractor’s obligations. Without performance bonds, a construction project could come to a halt if a single subcontractor walked off the job.

Performance bonds specify the actions that will trigger the surety’s obligations. In this appeal, a surety, Guarantee Company of North America USA, and a general contractor, WhitingTurner Contracting Company, dispute whether Whiting-Turner triggered GCNA’s obligations under a performance bond after a subcontractor, Klempco Construction Inc., stopped work at Whiting-Turner’s construction project. 

The parties’ disagreement centered on whether Whiting-Turner paid GCNA the “Balance of the Contract Price,” a key term in the performance bond, thereby satisfying one of the bond’s conditions precedent.

Following a bench trial, the trial court entered judgment in favor of Whiting-Turner and against GCNA. The trial court found that Whiting-Turner had complied with the condition precedent set forth in section 3.3 of the performance bond and that GCNA had failed to perform its obligations under the bond.

On appeal, GCNA contended that the trial court applied the wrong legal standard in determining whether Whiting-Turner complied with section 3.3 of the performance bond, erred in finding that GCNA had waived its argument regarding Whiting-Turner’s compliance with section 3.3, erroneously found that Whiting-Turner satisfied the condition precedent in section 3.3, awarded duplicative damages to Whiting-Turner, and improperly awarded attorney fees to Whiting-Turner. The Court of Appeals affirmed.

Rinker v. Colina-Lee

George Rinker and Lori Rose Colina-Lee are neighbors in the semirural subdivision of Soldier Canyon Estates in Larimer County. Their dispute centered on a culvert that Rinker installed to prevent runoff from draining onto his property. Colina-Lee contended that Rinker breached the neighbors’ road maintenance agreement when he installed the culvert.

Rinker appealed the district court’s orders granting Colina-Lee leave to assert counterclaims, denying his motion for leave to join the Galena Court Property Owners’ Association as a defendant and entering an injunction requiring Rinker to unblock the culvert.

The Court of Appeals affirmed the district court’s rulings and held the merits of a district court’s sua sponte ruling are reviewable on appeal, regardless of whether any party contemporaneously objected to it; an unincorporated association is not a necessary party in a case involving interpretation of its founding document; and a finding of irreparable harm is not a prerequisite for entering a permanent injunction to protect an easement

People in Interest of AN-B

D.B. and R.N. had been involved with child protective services agencies on two occasions. In January 2014, the Adams County Department of Human Services opened a voluntary case with the family after one of their children, who was 6 months old, suffered a fractured femur while in R.N.’s care. 

In September 2014, the same child suffered another fractured femur and fractured ribs. At the same time, his twin was found to have healing fractures to his ribs, skull and forearm. 

The Adams County Department of Human Services opened a dependency and neglect case, which was later closed with D.B. having full custody of the children, supervised visitation for father and a permanent protection order barring father from contact with the boy who had suffered fractured femurs.

In this case, in January 2017, the Jefferson County Division of Children, Youth, and Families filed a petition in dependency and neglect after mother left the then-3-year-old twins home alone for over six hours. The Division removed the children and placed them with their maternal grandfather, where they remained throughout the proceedings.

The juvenile court adjudicated the children dependent and neglected. In March 2017, the court adopted treatment plans for the parents. 

On Aug. 28, 2017, the guardian ad litem filed a motion to terminate the parent-child relationships. Over three days in December 2017 and January 2018, the court conducted an evidentiary hearing on the motion to terminate. In January 2018, the court terminated both parents’ parental rights. The Court of Appeals affirmed.

Bolton v. ICAO

Jennifer Bolton sought review of a final order of the Industrial Claim Appeals Office affirming the decision of an administrative law judge discontinuing her maintenance medical benefits. She contended that the only permissible procedural avenue for discontinuing her maintenance medical benefits was reopening the claim under section 8-43-303(1), C.R.S. 2018. Because her employer did not seek to reopen the claim, Bolton contended the Court of Appeals must set aside the Panel’s order. The court disagreed that under the circumstances of this case reopening was required. The court also concluded that the ALJ’s factual findings are supported by the record and affirmed the panel’s order.

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