Court Opinions: Colorado Court of Appeals Opinions for Aug. 11

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

People v. Moss

The Colorado Court of Appeals unanimously affirmed in part and reversed in part a case involving restitution.

Miranda Moss appealed a district court’s order that she pay restitution of $461.13. The appeals court clarified the rule that a defendant can’t be ordered to pay restitution for uncharged conduct necessarily means any monetary loss needs to be tied to the conduct of the defendant occurring on the dates the offenses. The appeals court wrote, since the prosecution didn’t connect the date of some of the losses Moss allegedly caused to the date of the conduct she was charged criminally, the court reversed and remanded for further proceedings. 

In early 2019, Moss possessed the victim’s Ford Mustang. Moss and the victim disagreed about whether she had permission to use the vehicle. Moss was sent a text message by the victim eventually, demanding the car be returned. Moss didn’t immediately return it, so the victim reported it stolen. She was arrested Nov. 19, 2019. Moss pleaded guilty to aggravated motor vehicle theft and first-degree criminal trespass of the victim’s apartment. These alleged offenses occurred on or about Nov. 19, 2019.

The prosecution asked for $4,187.19 in restitution which was based on a repair estimate eight months after authorities recovered the vehicle. Moss objected, saying she didn’t proximately cause the damage to the car. The district court found the prosecution didn’t meet its burden establishing Moss proximately caused all the claimed damages. 

The district court, however, did rule the damages Moss proximately caused led to the replacement of transmission fluid and battery. That also led to the victim having to pay a tow bill to have the vehicle returned. The district court then imposed restitution for $461.13.

Moss contended the district court erred ordering restitution for the battery and transmission fluid because she claimed she wasn’t the proximate cause of the alleged loss, among other things. Moss didn’t contest the restitution order concerning the $275 towing fee, so the appeals court left that undisturbed. 

The district court wrote Moss’ guilty plea was for alleged criminal conduct on about Nov. 19, 2019. That led to the appeals court concluding Moss was deemed an offender on or about that date. The appeals court also wrote the prosecution presented no evidence that replacing the transmission fluid or battery came from Moss’ conduct around Nov. 19.

The appeals court reversed the district court’s order regarding restitution for the transmission fluid and battery and remanded with instructions to impose the towing fee cost.

Herrera v. Santangelo Law Offices, P.C.

The appeals court unanimously reversed a case involving an arbitrator’s authority.

In an arbitration between Santangelo Law Offices, P.C. and Touchstone Home Health LLC, an arbitrator sanctioned Touchstone’s arbitration counsel, Robert Herrera, after Herrera was accused of fraudulently obtaining Santangelo’s signature on a settlement agreement while falsely telling an arbitrator the parties settled. The arbitrator awarded Santangelo about $150,000 against Herrera personally for attorney fees Santangelo incurred when responding to Herrera’s alleged falsehood and in pursuing sanctions against him. On appeal Herrera argued the arbitrator lacked the authority to sanction him personally. The appeals court agreed and reversed.

Touchstone contracted with Santangelo for legal services which contained the arbitration clause that the parties agree to submit any controversy or claim that arises from this agreement or the parties relationship to confidential binding arbitration by a single attorney. That arbitration would be conducted under the Commercial Arbitration Rules of the American Arbitration Association.

Years later, when the relationship between Santangelo and Touchstone ended, Santangelo tried to collect unpaid legal fees and demanded arbitration under the Touchstone-Santangelo fee agreement. Herrera entered his appearance in arbitration as sole attorney for Touchstone. 

After the parties rejected opposing settlement offers, Herrera asserted in an email to the arbitrator, a settlement had been reached. According to court records, Santangelo disputed this, asserting Touchstone engaged in a scheme fabricating the settlement using a fake FedEx driver to obtain a signature from Santangelo on a delivery slip in exchange for a box containing about 5,000 one dollar bills. That signature was then allegedly superimposed or forged on a settlement agreement Santangelo had not seen.

Santangelo moved for sanctions against Touchstone, along with Herrera in a personal capacity. Herrera responded, rejecting any obligation to arbitrate his individual liability for sanctions, while filing a court action for declaratory relief, establishing the arbitrator didn’t have the authority to enter sanctions against him.

An arbitrator found Herrera admitted he knew Santangelo’s signature on the alleged settlement agreement was obtained and placed on the document through deception. The arbitrator also determined the issue of sanctions against Herrera were arbitrable and Santangelo incurred $148,184.15 in fees and expenses responding to Herrera’s false assertions and moving sanctions against him. The arbitrator ordered Herrera to pay it personally. Touchstone and Santangelo later settled their fee dispute, but didn’t resolve the arbitrator’s award of sanctions against Herrera individually.

In a district court suit, Herrera moved to vacate the arbitrator’s award of sanctions against him, which the court denied. Herrera believed the award of sanctions should be vacated because he didn’t agree to arbitrate the issues of attorney sanctions either individually in the arbitration or as a non-party that was bound to the Touchstone-Santangelo fee agreement. He also contended the arbitrator didn’t have the authority to sanction the attorney of an arbitrating party, unless there was an agreement granting the arbitrator that authority. 

The appeals court agreed with both of Herrera’s contentions. As a non-party to the arbitration agreement, the attorney wasn’t bound to his client’s arbitration obligation under ordinary principles of contract or agency law. The appeals court concluded the arbitrator didn’t possess the authority to sanction the attorney by virtue of the client’s arbitration obligation. The appeals court also concluded the arbitrator didn’t possess the authority to sanction the attorney statutorily under C.R.C.P. 11; section 13-17-102 or the provisions under the Colorado Uniform Arbitration Act.

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