Court Opinions: Colorado Court of Appeals Opinions for Feb. 9

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

People v. Vigil

The Colorado Court of Appeals unanimously reversed an order and remanded a case involving the revocation of probation and the Fifth Amendment.

Robert Vigil was charged with two counts of sexual assault on a child by one in a position of trust. Vigil testified he never sexually assaulted the person, but he was convicted as charged. This case has bounced around the court system including previously reaching the Colorado Supreme Court on a jury instruction issue.

In this matter, Vigil appealed a district court’s order revoking his probation for refusing to sign his treatment contract, which contained acknowledgments he believed amounted to self-incrimination. 

The appeals court held the state cannot revoke a defendant’s probation based on a valid invocation of the Fifth Amendment privilege against self-incrimination where the conviction is final, but the defendant’s initial period for seeking postconviction relief hasn’t run.

The appeals court concluded that Vigil validly invoked his privilege against self-incrimination and was pursuing postconviction relief. The appeals court reversed the order revoking probation and remanded the case to district court for further proceedings consistent with the opinion.

People v. Omar

The Colorado Court of Appeals unanimously affirmed an order involving a suspended sentence.

In March 2019, Yusuf Omar pleaded guilty to one count of aggravated robbery, a class 3 felony, for a crime he committed in the fall of 2017 when he was 18 years old. Under the plea agreement, the district court sentenced Omar to five years in the Youthful Offender System with a 15-year Department of Corrections sentence suspended upon successful completion of the YOS sentence. 

At the YOS, Omar signed a contract that stated Omar’s understanding the YOS sentencing could be revoked for failure to actively participate; failure to meet the terms and conditions of his sentence; and serious misconduct which could include sexual misconduct and assaulting, menacing or threatening employees, contract workers, volunteers or other offenders.

During the first few months at YOS, Omar was written up for allegedly making verbal threats against staff, assaulting another offender, sexual misconduct and other infractions. Staff at the YOS held a suitability hearing to determine whether to recommend revoking Omar’s YOS sentence. It recommended revocation. 

Many issues popped up concerning the revocation petition, including the pandemic and time deadlines. Eventually, the district court imposed the previously suspended 15-year DOC sentence. Omar appealed.

Colorado Revised Statute 18-1.3-407(5) imposes certain procedures and deadlines for revoking a YOS sentence. The appeals court held the deadlines in the statute aren’t jurisdictional, arguing the district court retained jurisdiction over the sentencing proceedings if a deadline passes and has discretion to remedy missed deadlines. Under the specific circumstances of this case, the appeals court found the district court didn’t abuse its discretion by refusing to order a remedy. The appeals court affirmed the order.

Air Solutions, Inc. et al. v. Spivey

The Colorado Court of Appeals affirmed a judgment in part, vacated in part, reversed in part and remanded a case in a breach of contract case.

The case comes from a dispute over ownership of a new closely held business Air Solutions, Inc. that would buy an established closely held business, Air Cleaning Specialists, Inc. Air Solutions and Benjamin Vrbancic brought the case seeking a declaration Christopher Spivey isn’t an owner of Air Solutions, arguing he never entered into a binding agreement to become an owner.

Spivey counterclaimed, alleging he and Vrbancic had contractually agreed he would be an owner of the nascent corporation. Spivey also asserted a variety of other legal and equitable counterclaims against Air Solutions and Vrbancic (individually or in tandem) relating to that alleged contract, negotiations leading up to it and disputes over Spivey’s relationship with Air Solutions.

A district court had a jury decide Spivey’s legal counterclaims and reserved ruling on any remaining declaratory judgment and equitable claims and counterclaims until after a jury decided Spivey’s legal counterclaims. Spivey dismissed some of his counterclaims during trial and before it. The only legal claims decided by the jury were Spivey’s counterclaims against Vrbancic for breach of contract and fraud. The jury ruled in Vrbancic’s favor on the fraud counterclaims and in Spivey’s favor on his breach of contract counterclaim. 

Spivey then asked the court for a decree of specific performance on the breach of contract counterclaim and declaratory relief. Spivey argued the nature of the contract rendered an award of damages inadequate to compensate him for the benefit of his bargain.

The court denied Spivey’s request for specific performance and his remaining declaratory judgment and equitable counterclaims. The court also denied Air Solutions and Vrbancic’s declaratory judgment claim based on the jury’s verdict on Spivey’s breach of contract counterclaim.

On appeal, Spivey challenged the district court’s denial of his request for a decree of specific performance and the court’s denial of his declaratory judgment and equitable counterclaims. The appeals court concluded when the district court denied Spivey’s request for a decree of specific performance, the court misapplied the law and relied in part on reasons not supported by the record, thereby abusing its discretion.

The appeals court wrote Spivey is entitled to a decree of specific performance against Vrbancic on the contract the jury found. The appeals court also concluded the district court erred denying Spivey’s counterclaims for declaratory judgment against Air Solutions and Vrbancic. 

On remand the district court will need to determine precise terms of any such declaration, taking into account the decree of specific performance; the effect of the jury’s verdict on Spivey’s requests for declaratory relief not related to the specific performance of the contract; and evidence admitted at trial. The appeals court also affirmed the lower court’s denial of Spivey’s equitable counterclaims for promissory estoppel and unjust enrichment. 

The portions of the judgment denying Spivey specific performance of the contract the jury found and declaratory relief against both Air Solutions and Vrbancic are reversed. The award of damages for Spivey on the breach of contract counterclaim is vacated. The case was remanded to district court for further proceedings, for the specific performance and declaratory relief issues, that are consistent with the opinion. The judgment is otherwise affirmed.

Colorado Court of Appeals Judge Timothy Schutz concurred in part and dissented in part. Schutz dissented from the portions of the majority’s opinion that reversed the trial court’s orders and vacated the jury’s damage award.

Fontanari v. Colorado Mined Land Reclamation Board et al.

The Colorado Court of Appeals unanimously dismissed an appeal in part and affirmed a judgment connected to a timing issue.

Snowcap Coal Company, Inc. has a permit to mine coal under land owned by Rudolph Fontanari. The permit required Snowcap to reclaim the mine which is required by a reclamation plan approved by the Office of Mine Reclamation under Colorado Revised Statute 34-33-111. Snowcap filed a performance bond with the Colorado Division of Reclamation, Mining and Safety to make sure there was compliance with the reclamation plan.

Snowcap applied for a partial release of the bond after completing certain reclamation work. DRMS inspected the land three times, considered Fontanari’s comments on Snowcap’s request and held an informal conference on the application at Fontanari’s request.

On Sept. 16, 2019, DRMS delivered its proposed decision approving Snowcap’s request to Fontanari. DRMS’s letter accompanying the proposed decision stated DRMS had issued a proposed decision, that proposed decision would be published in a newspaper as quickly as possible, and Fontanari could request an adjudicatory hearing with the Colorado Mined Land Reclamation Board under Rule 3.03.2(6). It also said the request for an adjudicatory hearing needs to be received within 30 days of the first publication in the newspaper.

Four days after DRMS delivered the proposed decision to Fontanari, the notice was published. It was again published seven days later. Fontanari’s counsel submitted a request for an adjudicatory hearing to DRMS Oct. 21, 2019, which was 35 days after DRMS transmitted the proposed decision to Fontanari and Snowcap and 31 days after the notice of the proposed decision was first published.

Snowcap moved to dismiss Fontanari’s request for an adjudicatory hearing, arguing the board lacked jurisdiction because Fontanari didn’t file the request within 30 days of the issuance of the proposed decision as required by Colorado Revised Statute 34-33-125(6). Fontanari opposed the motion, as did DRMS.

DRMS didn’t take a side on whether the rule conflicts with 34-33-125(6) or what effect any such conflict would have. DRMS only invoked the rule and principles of equity as reasons to deny the motion, acknowledging it had cited the deadline set forth in the rule in its proposed decision and its letter transmitting the proposed decision to Fontanari. 

After a hearing, the board granted Snowcap’s motion. It concluded the rule conflicts with 34-33-125(6) and the latter controls. Because Fontanari’s request for an adjudicatory hearing wasn’t received within 30 days of the issuance of DRMS’s proposed decision, the decision became final under 34-33-125(5) and the board couldn’t review it. 

As noted, Fontanari sought review of the board’s decision in district court under Colorado Revised Statute 34-33-128, essentially making the same arguments that were made before the board. That time around, DRMS joined Snowcap and the board in taking the position that the board’s decision was correct. Snowcap also requested attorney fees.

The district court agreed with Snowcap, DRMS and the board. It granted Snowcap’s request for attorney fees under 34-33-128(4) concluding Fontanari’s appeal of the board’s order was frivolous.

On appeal, Fontanari contended the rule doesn’t conflict with 34-33-125(6); the board couldn’t invalidate the rule without going through the formal rulemaking procedures of the State Administrative Procedure Act; the board violated his right to due process by not applying the rule; the district court erred denying his request for attorney fees; and the district court erred awarding attorney fees to Snowcap.

The appeals court found the rule conflicts with 34-33-125(6) and is therefore void. The appeals court wrote that means the board lacked jurisdiction over Fontanari’s request for review. The appeals court also rejected Fontanari’s contentions that the board lacked authority to refuse to apply the void rule, and that the board’s failure to apply the void rule violated his right to due process. 

The appeals court affirmed the district court’s judgment including the denial of Fontanari’s request for attorney fees. The appeals court also dismissed that portion of Fontanari’s appeal seeking review of the district court’s award of attorney fees to Snowcap. The appeals court said that the issue isn’t appealable because the district court hasn’t determined the amount of fees.

CORRECTION NOTE: An earlier version of the opinion in the Fontanari case said it was connected to a timing of an appeal. It has since been changed to more accurately reflect the issue on appeal. The clarification was made Feb. 10.

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