Court Opinions: Colorado Court of Appeals Opinions for Aug. 25

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


Fresquez v. Trinidad Inn, Inc. et al.

The Colorado Court of Appeals unanimously affirmed and remanded a case involving an arbitration agreement under the Health Care Availability Act.

The Health Care Availability Act allows health care providers to ask patients to sign arbitration agreements. Under the act, the patient doesn’t surrender their right to sue. The patient cannot be denied care if they refuse to sign the agreement or exercise their right to rescind an arbitration agreement the patient already signed.

The act details steps a health care provider needs to take for an enforceable arbitration agreement, but it is silent concerning the requirements a patient’s agent must satisfy to bind the patient to the agreement. The appeals court held when an agent has the authority to execute documents to admit a patient to a health care facility, that authority doesn’t bind the patient to an arbitration agreement if the patient is unaware the facility asked the agent to sign the agreement and the patient didn’t discuss the agreement with the agent or someone with the facility. 

Ralph Fresquez alleges the negligence of the nursing facility Trinidad Inn, Inc., its owner and manager C&G Health Care Management, Inc., and administrator Brittnee Fransua caused the death of Fresquez’s mother, Beatrice Trujillo, when she was a resident at Trinidad Inn.

Trinidad Inn moved to start arbitration due to the agreement Fresquez signed as Trujillo’s agent when she was admitted. After an evidentiary hearing, the district denied Trinidad Inn’s motion on the grounds the agreement was invalid. Trinidad Inn appealed, but the appeals court affirmed the district court’s ruling.

Trujillo moved into Trinidad Inn after having trouble living alone. Fresquez assisted Trujillo with the admission process. During that process, Fresquez gave a social services assistant at Trinidad Inn a referral packet from Trujillo’s doctor. It included a note that said an attorney requested a nursing home placement for Trujillo. The social services assistant believed this reference to the attorney meant Trujillo had executed a power of attorney authorizing Fresquez to act for her. The social services assistant also testified Fresquez told her he had power of attorney, but she never saw the power of attorney. 

Fresquez recalled signing the arbitration agreement believing Trinidad Inn wouldn’t admit Trujillo if he didn’t. According to court records, no representative of Trinidad Inn discussed the arbitration agreement with Trujillo who died six months later.

The district court denied Trinidad Inn’s motion to compel arbitration on multiple grounds including that there wasn’t a document that memorialized Fresquez’s authority. Trinidad Inn argued the district court erred when it ruled the arbitration agreement was invalid.

“In sum, Trujillo’s words and actions indicated only that Fresquez possessed the authority to make decisions related to Trujillo’s medical care and her admission to Trinidad Inn,” wrote Judge Lino Lipinsky de Orlov in the appeals court opinion. “Trujillo never made any manifestations indicating that Fresquez also had the authority to bind her to the arbitration agreement. Thus, we affirm the district court’s determination that Fresquez lacked apparent authority to execute the arbitration agreement on Trujillo’s behalf.”

For those reasons, the appeals court concluded Trujillo didn’t ratify the arbitration agreement. The case was remanded for further proceedings that are consistent with the opinion.

People v. Vergari

The appeals court unanimously affirmed a ruling involving elements connected to an alleged road rage incident.

Brian Vergari appealed a jury conviction for second-degree assault. The question the appeals court answered was whether or not a defendant waives a claim of error that arose from the denial of a challenge for cause to a juror when the defendant declined to excuse the juror with a peremptory challenge and did not exhaust their peremptory challenges.  

The appeals court answered the above question affirmatively. In doing so, the appeals court declined to address Vergari’s challenge concerning the makeup of the jury. The court rejected Vergari’s other challenges.

Vergari was accused of involvement in a road rage incident and allegedly hit Ruben Miscles with a wrench. During the defense’s voir dire, juror F.M. expressed a hesitation concerning the presumption of innocence for Vergari. The defense counsel challenged F.M. for cause and the trial court spoke with F.M. asserting the burden rested with the prosecution. F.M. agreed that if the prosecution didn’t meet its burden, the juror would need to find Vergari not guilty. The trial court denied the defense counsel’s challenge for cause.

The defense didn’t use any peremptory challenges to remove F.M. from the jury. Vergari argued the trial court abused its discretion for failing to grant a challenge for cause for F.M. The Colorado Attorney General’s Office responded, arguing since Vergari chose not to exercise his available peremptory challenges to excuse F.M., the defense waived its claim Vergari’s right to a fair and impartial jury was violated.

“Thus, we hold that by failing to remove Juror F.M. while not exhausting his peremptory challenges, Vergari waived his claim that the trial court erred by denying his challenge for cause,” wrote Judge Ted Tow in the opinion. “We therefore decline to review it.”

Vergari also argued the trial court erred by permitting a witness to narrate two video exhibits. The appeals court found no need for reversal. The appeals court concluded the witness should not have narrated the video, but any such error was harmless.

More arguments were brought forward by the defense, all of which were rejected by the appeals court and the judgment was affirmed.

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