Court Opinions: Colorado Court of Appeals Opinions for July 13

By Star Ilalaole and Matt Suoja

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

Gomez v. Walker

The Colorado Court of Appeals unanimously affirmed a judgment and affirmed and vacated an order in part in a case involving a statute of limitations.

According to the appeals court opinion, Carmelita Gomez and Ryan Walker were involved in a car crash June 15, 2016. Gomez filed her complaint June 17, 2019, alleging Walker negligently collided with her causing her to suffer injuries. 

Walker moved to dismiss Gomez’s complaint under Colorado Rule of Civil Procedure 12(b)(5) because it was filed beyond the applicable three-year statute of limitations period under Colorado Revised Statute 13-80-101(1)(n)(I). 

Since the limitations deadline (June 15, 2019) fell on a Saturday, Gomez maintained the court should accept her June 17, 2019 filing because that day was the next business day the court was open. 

The district court initially agreed with Gomez, concluding the limitations period ended June 17, 2019, and denied Walker’s motion to dismiss. In April 2021, a division of the Colorado Court of Appeals published Morin v. ISS Facility Services, Inc. which had a similar fact pattern. In Morin, the appeals court held C.R.C.P. 6(a)(1), which provides for the extension of a time period when the period ends on a Saturday, Sunday or legal holiday, doesn’t extend a statutory limitations period expiring on a weekend. 

Based on Morin, Walker filed a “renewed motion to dismiss” and Gomez opposed the motion, asserting CRS 2-4-108(2) extended the applicable statute of limitations and Morin didn’t address that statute. 

After relying on Morin, the district court granted the renewed motion and dismissed Gomez’s claims as untimely. Gomez moved for reconsideration and the district court denied it. Walker also moved for and was granted attorney fees and costs. 

Gomez appealed, contending the district court erred by dismissing her complaint as untimely and awarding Walker his attorney fees and costs. The Colorado Court of Appeals determined 2-4-108(2) doesn’t extend the statute of limitations period in this case, and it affirmed the judgment and the portion of the district court’s order awarding costs.

The appeals court also determined the district court should have construed Walker’s “renewed” motion to dismiss as one for judgment on the pleadings under C.R.C.P. 12(c). The appeals court vacated the portion of the district court’s order awarding attorney fees under CRS 13-17-201. 

Cuevas v. Public Service

The Colorado Court of Appeals unanimously made multiple rulings in a consolidated appeal that arose from a personal injury action.

According to the Colorado Court of Appeals opinion, Francisco Cuevas worked for and was an owner of third-party defendant Outdoor Design Landscaping, LLC. In November 2017, Peggy Anderson, who was not a party to this appeal, hired Outdoor Design to decorate her spruce tree with Christmas lights. The tree was within 26 inches of a high voltage overhead powerline and when Cuevas was hanging lights on the tree he was electrically shocked, knocking him off a stepladder to the ground. The fall fractured Cuevas’ spine and it caused permanent paralysis. 

“Cuevas filed the underlying action against Xcel based on its alleged failure to maintain the vegetation near its power line, and against Anderson based upon her asserted failure to warn of the dangerous condition created by the proximity between the tree and the line,” the appeals court opinion explained.

Xcel moved to dismiss the case pursuant to Tariff Sheet No. R87 of the Xcel Electric Tariff, arguing it barred Cuevas’ claims as a matter of law. Cuevas countered R87 didn’t insulate Xcel from liability for his injuries. 

In denying the motion to dismiss, the district court found R87 relieved Xcel of liability for any injuries caused by the proximity of a tree to its lines, unless the subject line was in a defective condition. Since the court was  “without sufficient information . . . as to whether the line was defective . . . and what caused [Cuevas] to be electrocuted,” the motion to dismiss was denied. 

Xcel filed an answer and third-party complaint joining Outdoor Design as a third-party defendant. Xcel argued Outdoor Design’s failure to notify Xcel in advance of the work violated the High Voltage Safety Act, CRS 9-2.5-101 to 106. Xcel also argued Outdoor Design was obligated to reimburse Xcel for any liabilities resulting from Cuevas’ injuries pursuant to HVSA’s indemnification provision. 

Xcel moved for summary judgment against Cuevas under both R87 and HVSA. Xcel also moved for summary judgment against Outdoor Design under HVSA and Outdoor Design filed a cross-motion for summary judgment against Xcel, contending the undisputed facts showed no equipment, tool or other materials it used came within 10 feet of the power line at the time of the incident and there wasn’t a causal link between the alleged HVSA violation and Cuevas’ injuries. 

The district court granted Xcel’s motion for summary judgment against Cuevas, concluding R87 barred his claim under the law. The court rejected Xcel’s argument 9-2.5-102(1) barred Cuevas’ claim, but granted summary judgment for Xcel against Outdoor Design based on 9-2.5-104(2). The lower court also denied Xcel’s claim for an award of costs and attorney fees under HVSA, but awarded Xcel its costs under C.R.C.P. 54(d). 

The aggrieved parties appealed these determinations. 

The appeals court reversed the district court’s entry of summary judgment against Cuevas based on R87. It affirmed the district court’s denial of Xcel’s motion for summary judgment against Cuevas under HVSA, but affirmed its entry of summary judgment against Outdoor Design under HVSA. 

The appeals court also vacated the court’s award of costs against Cuevas and Outdoor Design. The appeals court also affirmed the court’s denial of Xcel’s claim for attorney fees. The case was remanded to the district court for further proceedings. 

Mulberry Frontage Metropolitan District v. Sunstate Equipment Co., LLC

The Colorado Court of Appeals unanimously affirmed an order in part, reversed in part and remanded a case involving attorney fees and costs.

The Mulberry Frontage Metropolitan District filed the underlying condemnation petition against the Niesje J. Van Heusden Revocable Trust (the owner), Sunstate Equipment Co., LLC (the lessee) and the Larimer County Treasurer, seeking to condemn real property in Fort Collins for public street improvements. 

The subject property was part of a larger parcel Sunstate rented under a long-term lease to operate an equipment rental business. According to the appeals court opinion, the property is burdened by a recorded deed of covenant held by the Colorado Department of Transportation prohibiting any construction or improvements in anticipation of a future highway project. The district identified that covenant in its petition, but didn’t name CDOT as a respondent.

Sunstate moved for joinder of CDOT or dismissal of the case for failure to join CDOT. Sunstate requested attorney fees and costs under CRS 38-1-122(1) for the entire case if it was dismissed or for just the motion if joinder was ordered.

In an August 2021 order, the court denied the request to dismiss, but granted the request for joinder, directing the district to join CDOT to the case. The court denied the request for attorney fees and costs, finding Sunstate is “just a tenant” and “not the property owner” and 38-1-122(1) “clearly states that attorney fees shall be awarded ‘to the property owner.’” 

After the district filed an amended petition joining CDOT, the owner and Sunstate jointly moved for dismissal on the ground the proposed project conflicted with CDOT’s covenant. They jointly requested an award of attorney fees and costs under 38-1-122(1) and Sunstate asked the court to “reconsider its interpretation of [section 38-1-122(1)]” and requested, in the alternative, an award of attorney fees under CRS 13-17-102.

In a November 2021 order, the court dismissed the amended petition, “award[ed] reasonable attorney fees and costs pursuant to [section] 38-1-122,” and instructed “Respondents” to file related affidavits. (The order had collectively defined the owner and Sunstate as the “Moving Respondents.”) The court didn’t address Sunstate’s alternate request for attorney fees under section 13-17-102.

The owner and Sunstate filed documents detailing the amount of their requested attorney fees and costs. The district moved for clarification of the court’s ruling on Sunstate’s request for attorney fees. 

In April 2022, the court ruled on the district’s motion for clarification stating it was “reaffirm[ing] that [the lessee] is not entitled to fees in this matter.” The court contended its August 2021 order found Sunstate ineligible for attorney fees and costs under 38-1-122(1) and its November 2021 order didn’t reconsider that finding. 

The court acknowledged “the use of the plural ‘Respondents’ in the November [2021] order may have caused confusion,” it found that “the record does not demonstrate that [it] reconsidered its prior holding.” The court didn’t address Sunstate’s alternate attorney fee request under 13-17-102. 

Later in April, Sunstate filed its notice of appeal. Soon after, the trial court issued an order establishing the amount of attorney fees and costs awardable to the owner. On appeal, Sunstate contended the trial court erred by denying its request for attorney fees and costs under 38-1-122(1) and by not addressing its request for attorney fees under 13-17-102.

The district disagreed with both contentions and argued the appeals court lacked jurisdiction over the appeal, contending Sunstate’s notice of appeal was untimely. 

The appeals court disagreed the notice was untimely and found it had jurisdiction over the appeal.

The Colorado Court of Appeals explained the Colorado General Assembly has provided when a court rejects a condemnation petition on the ground the petitioner isn’t authorized to acquire the subject property, the property owner that participated in the proceedings is entitled to recover reasonable attorney fees and costs under 38-1-122(1). 

The question in the case was whether that statute extends to lessees who participated in the proceedings. The appeals court concluded it doesn’t. 

The appeals court affirmed the trial court’s denial of a request by the respondent, Sunstate, for attorney fees and costs from the district under the statute. 

The appeals court concluded, however, the trial court erred by not addressing, and thus implicitly denying without explanation, Sunstate’s request for attorney fees under 13-17-102. The appeals court reversed and remanded with instructions to make findings on that request.

People In Interest of Jean B. Uwayezuk, a/k/a Jean B. Uwayezu

The Colorado Court of Appeals unanimously affirmed a district court’s order authorizing the involuntary administration of medications.

The opinion was previously announced as “not published pursuant to C.A.R. 35(e)” on June 1 and is now designated for publication. The prior opinion announced June 1 was withdrawn.

According to a Colorado Court of Appeals opinion, Jean Uwayezuk, also known as Jean Uwayezu, was placed in the custody of the Department of Human Services after his defense counsel raised the issue of his competency in pending criminal matters. While awaiting placement in a restoration facility, Uwayezuk’s mental health deteriorated, the opinion noted, to the point the state sought and was granted an order authorizing the involuntary administration of certain medications under section CRS 16-8.5-112.

On Nov. 28, 2022, the state filed a petition for the involuntary administration of medication, pursuant to section 16-18.5-112, signed by Dr. Laura Albert, a psychiatrist at Denver Health Medical Center and Uwayezuk’s treating doctor. The petition alleged Uwayezuk was in custody at the Denver County Jail because he was awaiting a bed at a “competency restoration program.” The state requested an emergency order authorizing the involuntary administration of some medications. The probate court-appointed counsel for Uwayezuk on Nov. 30, 2022, and held an expedited hearing on Dec. 2, 2022.

At the hearing, Uwayezuk’s counsel sought dismissal of this action on grounds the state’s petition failed to plead a plausible claim for relief under the 2016 Colorado Supreme Court decision in Warne v. Hall; asserted the statutes authorizing the involuntary administration of medications were unconstitutionally void for vagueness; requested a continuance because appointed counsel only had two days to prepare for the hearing and was unable to meet with Uwayezuk because the sheriff didn’t allow counsel into the jail; alleged constructive ineffective assistance of counsel because the court denied counsel’s request for a continuance; and argued for the state to obtain such an order the factors from Sell v. United States as opposed to the factors in the 1985 Colorado Supreme Court decision in People v. Medina applied.

At the beginning of the hearing, the probate court stated the Denver Sheriff’s Department had notified the court that morning that Uwayezuk was unwilling to get out of bed, so the court construed his absence as “refusing to appear.” It heard arguments from both counsels on the preliminary issues raised by Uwayezuk’s counsel, denied the request for a continuance and concluded the statutes governing the involuntary administration of drugs were constitutional. And while the court didn’t make specific findings on if the petition was sufficiently pled under Warne, such a finding was implied given that the court went forward with the hearing.

Following these rulings, the court heard testimony from Albert. The court accepted Albert as an expert in the fields of adult and forensic psychiatry. Albert testified Uwayezuk had been sitting in jail for a year awaiting a bed at either the Colorado Mental Health Institute at Pueblo or another restoration facility. Albert was referred to evaluate Uwayezuk at the jail and conducted an evaluation Nov. 28, 2022.

Based on Albert’s observations and medical diagnosis, she testified the medications she requested were: Risperdal, with Haldol as an intermuscular backup if he refused the first; Zyprexa, which she would begin in a few weeks if Uwayezuk didn’t respond to Risperdal or Haldol; Ativan to help with Uwayezuk’s acute agitation if needed; and Benadryl and Cogentin to prevent or alleviate stiffness in the muscles that can be a side effect of antipsychotic medications.

Albert testified to the various side effects of all the medications requested, but she noted the authority to conduct physicals and labs was also requested as part of the order so that staff could monitor and safely administer the drugs.

After the testimony, the probate court determined the state proved by clear and convincing evidence the four Medina factors were satisfied and granted the state’s request for an order authorizing the involuntary administration of the medications requested by Albert. The probate court also concluded it had “no doubt” that Uwayezuk had effective assistance of counsel, although the court didn’t make specific findings delineating between Uwayezuk’s claim he was denied effective counsel because two days were inadequate to prepare for the hearing and his claim the government interfered with his counsel’s ability to meet with him.

Uwayezuk filed this appeal. Although an appeal for this type of order is expedited, issuance of this opinion was delayed given this division disqualified Uwayezuk’s appointed counsel on appeal on the basis he had a conflict of interest because he asserted claims of ineffective assistance of counsel.

Following the appointment of new counsel, the parties submitted amended briefs. Newly appointed counsel contended the probate court erred because denial of the request for a continuance resulted in the constructive denial of counsel; it denied the request for dismissal on grounds the state’s petition was insufficiently pled; and the state failed to prove the fourth Medina factor by clear and convincing evidence.

Based on analysis and evidence, the Colorado Court of Appeals affirmed the district court’s order.

Dodge v. Padilla et al.

The Colorado Court of Appeals unanimously affirmed an order and remanded a case involving the Colorado Governmental Immunity Act.

In this negligence action arising from an automobile accident, the Adams County Sheriff appealed a district court’s order denying his motion for partial dismissal of a complaint filed against him by Timothy Dodge.

Dodge brought the underlying action to recover damages for injuries he suffered in an automobile accident with Jacob Padilla, an Adams County sheriff’s deputy. Padilla was on duty, driving a patrol car allegedly owned by Adams County, when the accident occurred. Dodge alleged, among other things, Deputy Padilla breached his duty to use reasonable care by failing to keep a proper lookout, by failing to yield to oncoming traffic and by operating the vehicle in a careless, negligent and reckless manner. Dodge additionally named the sheriff as an official capacity defendant, asserting the sheriff’s office was also liable under the doctrine of respondeat superior.

The county attorney moved for partial dismissal of the complaint under Colorado Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, asserting immunity under CGIA. The county attorney argued the sheriff is not a public entity, but rather a public employee who is immune from liability arising out of his acts or omissions during the performance of his duties; the sheriff played no role in the vehicle accident, other than hiring Padilla; and respondeat superior is not available as a theory of liability against a sheriff or a sheriff’s office.

The district court denied the county attorney’s motion. Relying on the 2006 Colorado Court of Appeals decision in Carothers v. Archuleta County Sheriff, the district court reasoned Dodge sued the sheriff in his official capacity so, the claim was against the Adams County Sheriff’s Office, which is a public entity, and “immunity principles applicable to suits against the state or against public entities” — including waiver of immunity in automobile accident cases applied. The district court’s order didn’t directly address the county attorney’s arguments regarding respondeat superior liability. The sheriff appealed.

The Colorado Court of Appeals considered the appeal as a challenge to the classification of a sheriff’s office as a public entity under CGIA. The Adams County Attorney’s Office asserted a sheriff is an officeholder only and a sheriff’s office is not a cognizable entity meaning certain immunity waivers that apply to public entities under CGIA didn’t apply to the sheriff in this case. The county attorney further asserted that even if a sheriff’s office were a public entity, it can’t be held liable for the negligent acts of its deputy under the doctrine of respondeat superior.

The Colorado Court of Appeals concluded a sheriff’s office is a public entity under CGIA and a sheriff’s office may be held liable under a respondeat superior theory. The court affirmed the order and remanded the case to the district court for further proceedings.

Cronk v. Bowers et al.

The Colorado Court of Appeals unanimously made multiple rulings connected to a disputed piece of real property. 

This case involved a dispute between neighboring landowners over the legal significance of a long-existing fence. Kenneth Cronk, Douglas Bowers and Jason Bowers all owned real property in Washington County in eastern Colorado. The property owned by the Bowerses is directly east of the land owned by Cronk. The parcels shared a mile-long border. The parties disputed ownership of a strip of land running along the border of their respective parcels.

Cronk and his parents, through Cronk Farms Partnership, owned and farmed their property from 1975 to 1983. When they began operations, a fence ran the length of the mile-long border between the two properties. The family’s farming operation extended up to this fence line. Unbeknownst to them, this fence was located approximately 30 feet west of the county’s section line. This placement effectively expanded their property 30 feet westward, creating the disputed property. In 1983, the Cronk Farms Partnership transferred the property to Cronk, who continued to farm the property and the disputed property until 2017.

From 1975 to 2011, a family owned the property directly east that was later bought by Douglas and Jason Bowers. That family grazed livestock on the land from 1975 to 1998 and, according to the opinion, whenever livestock would break through the fence and into the disputed property, the two property owners would return the livestock and alternate repairs of the fence. Once during this timeframe, the former owners paid Cronk $300 for permission to graze their livestock on Cronk’s side of the fence. Additionally, while Cronk sold his crop — including what he grew on the disputed property — the former owners never requested payment for any portion of those sales.

The Bowers family purchased the property in 2011. Cronk continued to farm up to the fence until March 2017, when, according to the opinion, the Bowers family, without consulting Cronk removed the northern half mile of the fence. Cronk testified he told the Bowerses the historic fence line was the boundary and they could replace the original fence with a new fence in the same location.

Consistent with his farming schedule, Cronk planted wheat in late 2018 for harvest in early 2019. In March 2019, the Bowerses removed the southern half mile of the original fence and erected a new fence on the section line (i.e., thirty feet east of the original fence). The Bowerses, the opinion noted, also sprayed and killed Cronk’s wheat crop that was planted between the original fence and the newly erected fence and replaced it with their own crop.

Cronk sued the Bowerses. Cronk’s principal contention was that he owned the disputed property. Cronk argued he owned this land because he and the former owners acquiesced to the original fence as the legal boundary between the properties from 1975 to 2011 or, in the alternative, he acquired the property through adverse possession. He sought a declaration pursuant to C.R.C.P. 105(a) that he owned the disputed property and a permanent injunction barring the Bowerses from entering it. Based on his claimed ownership, Cronk also advanced claims for trespass, civil theft, conversion and unlawful detention stemming from the Bowerses’ destruction of his wheat crop in early 2019.

The district court held a two-day bench trial. In a written decision, the court concluded Cronk acquired ownership of the disputed property through acquiescence and adverse possession. It further concluded Cronk proved his civil theft and unlawful detention claims but failed to establish elements of his trespass and conversion claims. Finally, the court granted Cronk’s request for an award of attorney fees and costs.

The district court found Cronk and the previous owners mutually acquiesced to the original fence as the boundary between the properties from 1975 to 2011. The court’s finding was informed by its determination Cronk exercised actual possession over the property during that time frame. 

​​The Bowerses appealed various aspects of the district court’s judgment. The Bowerses also challenged the court’s award of attorney fees and costs. The Colorado Court of Appeals affirmed the court’s judgment relating to Cronk’s ownership of the disputed property. It reversed the court’s issuance of a permanent injunction prohibiting the Bowerses from entering the disputed property and award of attorney fees and costs because the lower court didn’t enter findings of facts or include an analysis justifying either ruling.

The Colorado Court of Appeals remanded the case for findings on whether, on the existing record, a permanent injunction is warranted. It also remanded for the lower court to determine Cronk’s reasonable attorney fees and costs incurred at trial and on appeal.

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