Court Opinions: Colorado Court of Appeals Opinions for Aug. 24

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

People v. Bonde 

According to a Colorado Court of Appeals opinion, as part of a plea agreement to resolve two cases, Ryan Bonde was sentenced to concurrent, four-year sentences in a community corrections program. About six months later, Bonde successfully completed the residential portion of these sentences and was transferred to nonresidential community supervision to complete the remainder of his time.

After spending 355 days in the nonresidential portion of the program, Bonde’s placement in the community corrections program was terminated after he was arrested on new charges. In its termination report, the community corrections program calculated Bonde had earned 153 days of earned time credits for his time in both the residential and nonresidential portions of the program.  

The district attorney sought resentencing under Colorado Revised Statute 18-1.3-301(1)(e). Before he was resentenced, Bonde requested his 355 days of nonresidential time be deducted from his Colorado Department of Corrections sentences under section 18-1.3-301(1)(j).

The district court denied Bonde’s request. The court ruled 18-1.3-301(1)(j) only entitled Bonde to good time or earned time credits for his nonresidential time, not a sentence deduction for the entire amount of time he had served.

Bonde renewed his request at the sentencing hearing. The district court denied his request but noted on his mittimus both the 153 days of “earned time credit” calculated by community corrections and the 355 days of nonresidential time. According to a footnote, the court also credited Bonde with presentence confinement credit for his time in jail and residential community corrections on the amended mittimus for each case. 

On appeal, Bonde contended the district court erred, claiming he is entitled to a 355-day sentence deduction for his nonresidential time under either the presentence-confinement statute, section 18-1.3-405 or the community corrections statute, 18-1.3-301(1)(j). The appeals court disagreed.

Bonde asked the Colorado Court of Appeals to depart from the holding of the 1991 Colorado Supreme Court case People v. Hoecher, because he asserted the rationale on which the Supreme Court’s holding rests, has eroded in the intervening 30 years since it was decided.

The appeals court concluded only the Supreme Court could revisit Hoecher’s explicit holding and it declined this invitation. The appeals court unanimously affirmed the sentence.

Bertoia v. Denver Gateway LLC

The Colorado Court of Appeals unanimously reversed an order in a complex case with multiple factors.

According to the Colorado Court of Appeals opinion, the following facts are taken from Wanda Bertoia’s two complaints filed in separate district court actions — one against Frisco Acquisition, LLC and other entities not parties to this appeal and one against Denver Gateway LLC, that were originally assigned to different divisions of the Denver District Court.

Bertoia solely owned WPB Hospitality, LLC which received financing from American Lending Center, LLC to construct a hotel near the Denver airport and in 2018, WPB filed for bankruptcy. When the bankruptcy proceeding was pending, WPB entered into two contracts with Frisco under which Frisco would purchase WPB and assume WPB’s liability to ALC and the other creditors in the bankruptcy proceeding. 

WPB sought approval from the bankruptcy court to enter into these contracts and Frisco represented it was ready and willing to perform the contractual obligations, subject to some limited due diligence. Then Bertoia alleged, Frisco “failed or refused to perform its contracts with WPB.” Bertoia sued Frisco and its owner, Jagmohan Dhillon, for fraud and breach of contract.

Meanwhile, ALC submitted a bid that was successful for the property at a foreclosure sale. Frisco filed notices of intent to redeem the property based on mechanics’ liens it had acquired during the WPB bankruptcy, the opinion explained. ALC sued Frisco, alleging the mechanics’ liens had expired, weren’t timely enforced and couldn’t be used to redeem the property because they were junior to ALC’s claims. ALC and Frisco settled, with ALC agreeing to convey the property to Frisco.

Frisco and ALC executed a purchase and sale agreement for the property as contemplated by their settlement agreement. Later Frisco assigned the PSA to the recently formed Denver Gateway, an assetless company wholly owned by Dhillon’s wife. Denver Gateway paid nothing for the assignment of the PSA and the assignment disposed of substantially all of Frisco’s assets. Frisco then filed a “no-asset” bankruptcy petition in Texas, the opinion explained. 

During a creditors’ meeting in Frisco’s bankruptcy case, Bertoia learned about the PSA and its assignment to Denver Gateway. 

As a result, Bertoia amended her complaint to include a claim under the Colorado Uniform Fraudulent Transfer Act against Frisco and Dhillon and a fraudulent omission claim against Dhillon. In addition, Bertoia filed a separate action against Denver Gateway and Dhillon’s wife, also alleging a CUFTA claim. In both CUFTA claims, Bertoia sought avoidance of the assignment, among other relief and the two lawsuits were ultimately consolidated in the district court. 

At the time Bertoia filed the complaint against Denver Gateway, she recorded a notice of lis pendens on the property at issue. Denver Gateway moved to expunge the notice of lis pendens under Colorado Rule of Civil Procedure 105(f)(2). After holding an evidentiary hearing, the district court found Bertoia’s CUFTA claim wouldn’t affect title to the property; so it struck and expunged the notice of lis pendens.

Just before the hearing on the first notice of lis pendens, Bertoia recorded a second notice of lis pendens — the one at issue in this appeal — on the property under the caption of the Frisco litigation. During the same time period, Bertoia filed a request to consolidate the two cases. Before either judge presiding over the cases had ruled on the request to consolidate, Denver Gateway filed in its case a C.R.C.P. 105.1 petition to strike the second notice of lis pendens as a spurious document; the judge presiding over the Denver Gateway action transferred the hearing on the Rule 105.1 petition to the judge presiding over the Frisco action.

The judge presiding over the Frisco action held a hearing for the Rule 105.1 petition, the opinion noted. The court granted the request to consolidate the cases and, in another order, granted Denver Gateway’s Rule 105.1 petition, declaring the second notice of lis pendens invalid for the same reason it found the first notice of lis pendens invalid and releasing the second notice. The district court’s order concluded that, under Rule 105.1(d), Bertoia was obligated to pay the reasonable attorney fees and costs incurred by Denver Gateway in defending the action. Bertoia appeals this order.

Later the district court entered an attorney fees and costs award of $20,000 against Bertoia pursuant to a stipulation by the parties. The order provided Denver Gateway shall not attempt to collect any attorney fees until the appeal in this case is resolved; and if this court reverses the order striking the second notice of lis pendens, the attorney fees and costs order shall also be vacated.

After Bertoia initiated an appeal of the order expunging the first notice of lis pendens (a footnote said Bertoia’s appeal of the release of the first notice of lis pendens is a separate case), the district court entered an order requiring her to post a supersedeas bond of $25 million within 10 days or else both notices of lis pendens would be released. No bond was posted and the court clerk issued a certificate to be recorded with the county clerk and recorder’s office, releasing both the first and second notices of lis pendens, the opinion explained.

The Colorado Court of Appeals then issued an order to show cause why Bertoia’s appeal of the order striking the second notice of lis pendens shouldn’t be dismissed as moot because both notices of lis pendens were released. The resolution of this show cause order was deferred to the merits division, according to the opinion.

During the pendency of this appeal, a jury trial was held in district court and the jury found against Bertoia on her breach of contract, fraud and fraudulent omission claims. The district court found the CUFTA claim was moot and dismissed it.

Bertoia, appealed the district court’s order striking the notice of lis pendens, recorded as to real property titled to Denver Gateway, as a spurious document under to Rule 105.1. 

The appeals court first addressed whether subsequent events rendered the appeal moot and by doing so, it determined that a district court has the authority under the lis pendens statute, 38-35-110, to condition the continuation of a notice of lis pendens pending appeal on the posting of a supersedeas bond. 

The appeals court explained, despite Bertoia’s failure to post such bond, however, this appeal wasn’t moot. Turning then to the merits of the appeal, the appeals court reversed the district court’s order.

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