Court Opinions: Colorado Court of Appeals Opinions for July 1

Colorado Court of Appeals
On Oct. 12, the Colorado Supreme Court will hear oral arguments in two criminal cases in addition to arguments regarding a proposed congressional redistricting map.

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

Accetta v. Brooks Tower Residence

Anthony and Nancy Acetta bought a condo at the Denver-high rise building Brooks Tower in 2005. The building was originally split into condos in 1979 in compliance with the Condominium Ownership Act, the relevant common interest community association regulation at the time. In 1995, during a time of transition, the building issued an amended and restated declaration that “superseded” the 1979 declaration. It referenced the Colorado Common Interest Ownership Act, which went into effect July 1, 1992, and it specified how each unit would be responsible for undivided interests, common expenses and assessments. 

Based on the 1995 calculations, the Acetta’s were held responsible for higher monthly dues and assessments than other units. Stating that they did not have access to the 1995 declaration, the couple sued Brooks Tower in 2017 arguing the declaration was invalid under three provisions of 1992’s CCIOA and breached common law. The lawsuit originally included a handful of other plaintiffs, but the state supreme court ruled in 2019 that joinder parties were not necessary. 

In cross motions by the parties, a trial court issued three orders resolving the Acetta’s claims. First, it ruled that Brooks Tower is not affected by the entirety of CCIAO since it was formed in 1979 in compliance with the relevant rules at the time. Secondly, the court decided the couple can pursue their CCIAO declaratory judgement claim but not the common law claims against individual defendants. Finally, it granted the defendant’s motion for summary judgement, finding that the community is not subject to all of CCIOA and if it was subject to them, the 1995 declaration was not in violation. 

Appealing the first and third orders, the Acettas appealed the trial court’s decisions on its first and third arguments. The court of appeals rejected all appeals, siding with Brooks Tower and upholding the lower court’s decision. It found that even though the 1995 declaration was written after the CCIOA’s implementation date, the CCIAO only applies to common interest communities created after July 1, 1992. Additionally, it ruled that amending the 1979 bylaws did not create a new common interest community, meaning the community was not subject to all of CCIOA. 

People in Interest of J.M.M. 

The state supreme court considered if juvenile sex offenders can be removed from state registries after completing a sentence that was not their original sentence. The court based its decision on the state legislature’s choice of articles — using “a” not “the” — to determine that juvenile offenders are eligible after completing any sentence, not just the original sentence. 

At eleven years old, J.M.M. pleaded guilty to sexual assault on a child and submitted a two-year deferred sentence with specific terms and conditions in conjunction with the prosecution. After repeatedly breaching the deferred sentence condition, the state asked the court to revoke the sentence and gave him a new one. J.M.M. violated the new sentence three times, and in January 2004, he was sentenced to custody in the Department of Youth Corrections. J.M.M. satisfied his final sentence in December 2005.

In April 2019, J.M.M. filed a petition to discontinue sex offender registration, citing section 16-22-113(1)(e) CRS 2020. The state objected to this petition, arguing that since he had not fulfilled his original sentence, he was not eligible for deregistration until “twenty years from the date of discharge…from the department of human services.” 

At a deregistering hearing, a district court found that J.M.M. qualified for deregistering since he completed the juvenile sex offender program and did not present a community safety risk. On appeal, the state argued that because he did not satisfy the terms of his original deferred judgement and had probation revoked, the district court erred in applying 133(1)(e). 

Reviewing the statute as a whole, the court of appeals ruled that by writing “a juvenile sentence or disposition” as opposed to “the sentence or disposition,” the state general assembly referenced any sentence, not just the original sentence. 

Barnes v. State Farm

The Colorado Court of Appeals considered if a trial court erred by allowing a defendant to file a motion to strike separately from a motion to dismiss in an insurance coverage case. 

Julie Barnes was severely injured in a car crash caused by another driver. Her damages exceeded the at-fault driver’s insurance coverage and so she sought $200,000 in underinsured motorist coverage from two insurance policies she had through State Farm. Previously, Barnes signed an Underinsured Motorist Rejection Form on one of her vehicles, waiving $70,000 in underinsured driver coverage. State Farm paid her $100,000 based on the policy she did not waive and refused to pay more.

Barnes argues that if she had not rejected coverage on the other policy, she would have been able to stack policies and was entitled to $200,000 in coverage. The waived policy only covered $70,000 in damages, but Barnes mistakenly believed it was also for $100,000. 

Barnes filed a declaratory judgement against State Farm, arguing the rejection form contained a “half-truth” and was invalid or unenforceable. In response, the insurance company filed a motion to strike some sections of her complaint or alternatively require her to provide facts supporting certain claims. The motion to strike was denied by district court. State Farm then filed a motion to dismiss the complaint for failure to state a claim which was granted by district court after a hearing. 

Barnes appeals the dismissal, arguing that the district court erred in allowing a motion to dismiss after a motion to strike and the two motions should have been filed together under CRCP 12(g). The Court of Appeals agreed with Barnes that under 12(g) the motions should have been filed together. But, in this case, it found the error made by the lower court did not affect Barnes’ rights or influence the outcome or fairness of the trial. 

The Court of Appeals also considered if, as Barnes claims, the underinsured rejection form was unenforceable because it contained a misrepresented “half-truth” about stacking coverage. The Colorado Court of Appeals agreed with the trial court’s dismissal, finding that Barnes did not provide sufficient facts to prove State Farm was obligated to disclose additional information in the rejection form. 

The district court’s dismissal was affirmed. 

Winston v. Polis   

After a group of Colorado inmates sued Gov. Jared Polis over health risks posed to them due to COVID-19 while incarcerated, the Colorado Supreme Court considered if a trial court has the jurisdiction to review executive conduct and if Gov. Polis can be personally named as a defendant in the case. 

Five Colorado inmates — Gary Winston, John Peckham, Matthew Aldax, William Stevenson and Dean Carbajal — appealed the dismissal of their class-action suit against the governor by a trial court. The suit alleges that while in Colorado Department of Corrections facilities, Gov. Polis did not take necessary steps to protect the inmates from the risk of death or serious illness due to COVID-19, violating article II section 20 of the state constitution. 

The trial court dismissed the case, agreeing with a motion filed by Gov. Polis stating he was an improper defendant since he did not manage operations of the facilities, the court lacked discretionary power to order him to exercise his discretion and that mandamus relief cannot compel discretionary actions. 

On appeal, the plaintiffs asked the state court of appeals to review all three dismissal claims– if Gov. Polis was a proper defendant if the separation of powers doctrine means trial courts are unable to grant declaratory or injunctive relief and if they are entitled to mandamus relief. 

The court of appeals looked at Raven v. Polis, a decision by the state supreme court just five weeks after the trial court decisions, to rule that the governor is a valid defendant in lawsuits regarding CDOC facilities. Citing a handful of state and federal decisions, the court of appeals ruled that the separation of powers doctrine does not prevent trial courts from granting relief but does prevent the judiciary from ordering the Governor to grant reprieves, communications and pardons. By ruling on the constitutionality of Gov. Polis’ inaction, the Court of Appeals ruled, a trial court would not violate the separation of powers doctrine since the governor would retain his discretion to implement remedies. Because another form of relief is available to the inmates, the court did not consider if they are eligible for mandamus relief. 

Agreeing with the plaintiffs, the Colorado Court of Appeals reversed the trial court’s judgement and remanded the case for further proceedings.

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