Court Opinions: Colorado Court of Appeals Opinions for Nov. 3

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


People v. Black

The Colorado Court of Appeals unanimously affirmed a judgment in connection to first-degree murder.

Terance Black appealed his conviction of first-degree murder and conspiracy to commit first-degree murder. In August 2016, the victim, who was a traveling mechanic, fixed a vehicle for an acquaintance of Terance Black’s mother, Tina Black, at a motel in Denver. According to court records, as the victim was waiting for a ride home, they saw evidence in Tina Black’s motel room that the Blacks and several others had robbed a medical marijuana dispensary. 

Terance Black is then accused of pointing a gun at the victim and acquaintance, threatening to kill them if they don’t stay quiet. The victim later told police what he saw, and officers arrested Terance Black, along with others who were later charged. The Blacks later learned the victim was the main witness against them. Tina Black is accused of telling Terance Black, in an acquaintance’s presence, that they should wait a little bit before they killed the victim. In October 2016, the victim was shot to death.

In July 2017, the people moved to dismiss the charges in the robbery case against Terance Black, but the following month prosecutors refiled those charges, adding charges of first-degree murder and conspiracy to commit first-degree murder. The district court later granted Terance Black’s motion to dismiss the dispensary robbery charges, finding prosecutors violated his right to a speedy trial.

In June 2018, the district court granted the prosecutor’s motion to consolidate Terance’s and Tina Black’s trial. Terance Black was only charged in the murder case, while Tina Black was charged in the dispensary robbery and murder case. A jury found the Blacks guilty as charged. 

Terance Black appealed on multiple grounds, including the district court reversibly erred by closing the courtroom to the public. The appeals court rejected his arguments, including the closure of the trial during part of the jury selection process. The appeals court concluded under the circumstances — a small courtroom, large venire and a brief closure based on the district court’s concern for fire safety — the closure was trivial and did not impair Terance Black’s right to a public trial.

Education ReEnvisioned BOCES v. Colorado Springs School District 11

The appeals court unanimously reversed and remanded a judgment involving school districts and the Boards of Cooperative Services Act.

The BOCES Act was created to expand the education services of public schools in the state. It allows two or more school districts to cooperate providing services authorized by law through creating boards of cooperating services.

Education ReEnvisioned BOCES is one of those school district cooperatives. Its members, at the time of the dispute, were the Falcon School District 49, Creede Consolidated School District 1, Durango School District 9-R and Pikes Peak Community College. The defendant and third-party plaintiff, Colorado Springs School District 11, isn’t a member of Education ReEnvisioned. 

Education ReEnvisioned and third-party defendant Colorado Literacy and Learning Center reached an agreement where the Learning Center would operate Orton Academy within the boundaries of District 11 without getting permission from District 11’s school board, according to court records. 

District 11 objected, and Education ReEnvisioned filed a complaint asking for a declaratory judgment so that it could continue its Orton Academy operations at its current location without District 11’s permission. District 11 filed a counterclaim against Education ReEnvisioned and a third-party claim against the Learning Center, seeking the opposite declaratory judgment and an injunction against further operations of Orton Academy within the district.

The district court found under the language of Colorado Revised Statute 22-5-111(2), it gave Education ReEnvisioned and the Learning Center the authority to locate Orton Academy in District 11 without the district’s permission. The district court denied District 11’s motion for a partial summary judgment and granted Education ReEnvisioned and the Learning Center’s motion for summary judgment. District 11 appealed.

The appeals court then interpreted 22-5-111(2) and concluded under the plain reading, the General Assembly doesn’t grant BOCES extraterritorial authority meaning BOCES can’t locate schools in non-member school districts without those districts’ permission.

The order was reversed, and the case was remanded for entry of partial summary judgment in favor of District 11 and for the district court to determine if injunctive relief is appropriate in light of the recent adoption of 22-5-111(4) of the BOCES Act. 

Home Improvement, Inc. et al. v. Villar

The appeals court unanimously reversed and remanded a case involving last known addresses.

Jose Villar contracted with Home Improvement, Inc. for repair work at his residence. According to the contract, Home Improvement worked with Villar’s insurance company to figure out what work needed to be done. Home Improvement then requested that Villar’s insurance company send Villar the last insurance check to his post office box. 

According to court records, Home Improvement told Villar’s wife it learned from the insurance company that the check had been mailed to the P.O. box. Villar’s wife told Home Improvement they hadn’t checked the P.O. box in three weeks and hadn’t gotten the check. Home Improvement then attempted to collect the outstanding amount owed of $5,374.69. 

In April 2019, Home Improvement texted Villar’s wife a screenshot of the notice of intent to file a mechanic’s lien with the wife responding she had seen there was a lien on the house. In June 2019, with the Villars still not paying, Home Improvement sent Villar a notice of intent to file a mechanic’s lien via certified mail to the property. The notice was sent with a return receipt requested, but it was returned as undeliverable with a handwritten notation stating “UAA P[.]O. Box.”

Outside of mailing the notice, Home Improvement again texted it, along with a letter from counsel, to Villar’s wife. Months later, Home Improvement filed a complaint against Villar to recover the balance. A process server tried to serve Villar five times unsuccessfully at the property. Home Improvement filed a verified motion requesting permission to proceed against the property in rem, while requesting to serve by mail and publication.

The district court authorized service by publication and mail and provided the service by mail would be completed upon mailing “together with such return receipt attached thereto signed by such addressee.” As for publication, the order would be complete on the last day of publication.

Home Improvement sent a copy of the process through certified mail, with a return receipt requested, to the property. The mail was returned undeliverable. Home Improvement also published the process in a newspaper where the action was pending. It also had the process server attach a copy of the complaint and other process to the front door of the house.

Since Villar never appeared in the case, Home Improvement moved for entry of a default judgment on the mechanic’s lien, which included attorney fees and costs, along with a decree of foreclosure. The district court entered both the default judgment and decree of foreclosure.

The sheriff mailed the notice of the foreclosure to the property, but it was returned. The foreclosure sale was also published in the county newspaper. A sheriff auctioned off the property, and it was bought by the Pauline W. O’Neil Intervivos Trust.

Villar’s wife was served with a notice to quit at the property, and Villar retained counsel, moving to set aside the default judgment and foreclosure sale pursuant to C.R.C.P. 60(b)(3) and 60(b)(5). After concluding Villar’s last known address was at the property, the district court rejected much of Villar’s attack on the judgment. The only exception was the district court agreed with Villar on the point of attorney fees because he didn’t separately sign the portion of the contract acknowledging terms and conditions. Thus he hadn’t agreed to the attorney fee provision. The district court concluded Home Improvement wasn’t entitled to attorney fees and revised that part of the default judgment under C.R.C.P. 60(b)(5), but it was otherwise left intact.

The district court also consolidated a separate forcible entry and detainer action the trust brought against Villar with the mechanic’s lien case. After the possession hearing, the district court entered an order granting possession to the trust, dismissing Villar’s counterclaims.

Villar appealed the district court’s order denying, in part, his motion under C.R.C.P. 60(b) to set aside the in rem default judgment and foreclosure sale of his residence and granting possession to the trust. The appeals court was required to define the address and last known address for purposes of service by mail or publication. 

The division held Home Improvement failed to use Villar’s last known address when trying to obtain service. The order denying the motion to set aside the default judgment and order of possession was reversed and the case was remanded for further proceedings.

Environmental Defense Fund et al. v. Colorado Department of Public Health and Environment et al.

The appeals court unanimously affirmed a judgment in a case connected to greenhouse gas emissions and state law.

Colorado Gov. Jared Polis signed House Bill 19-1261 and Senate Bill 19-096 into law in 2019 with the goal of reducing greenhouse gas emissions statewide to help fight climate change. The case required the appeals court to interpret how these bills impact one another.

H.B. 1261 concerns the reduction of greenhouse gas pollution by creating goals while making appropriations. Relevant in this case are sections 25-7-102 and -105. Section 25-7-105 lays out the Colorado Air Quality Control Commission’s duties arising from 25-7-102. The commission’s main responsibility is to promulgate rules and regulations for the goals.

Under S.B. 96, its goal concerns collecting data on emissions so the state can reach its emission reduction goals. The statute also directs the Colorado Air Pollution Control Division to have regular updates for statewide inventories on emissions by sector and to make the data public. 

The bill also provides in 25-7-140(2)(a)(III) that by July 1, 2020, the commission needs to publish a notice of proposed rulemaking that brings forward rules to implement measures that would be cost-effective to meet the state’s emission reduction goals.

On July 7, 2020, WildEarth Guardians sued the governor and agency defendants, asking for declaratory and injunctive relief for the agency defendants’ purported failure to abide by the July 1, 2020 deadline. The Environmental Defense Fund’s identical lawsuit against the agency defendants was consolidated with WildEarth Guardians, and the Public Service Company of Colorado intervened.

The defendants conceded by stipulation they hadn’t proposed rules or promulgated regulations since the passage of H.B. 1261 and S.B. 96 that would, if complied with, be enough to meet the goals of emission reduction. 

The district court ruled in favor of the agency defendants, concluding 25-7-140(2)(a)(III) is ambiguous and the July 1, 2020 rulemaking requirement concerns data collection and inventory regulations and not as the plaintiffs contended, comprehensive rules to meet emission reduction goals. The court further argued the agency defendants had promulgated rules that take steps to ensure more robust data collection and inventory, finding they had satisfied section 25-7-140(2)(a)(III)’s deadline.

The Environmental Defense Fund and WildEarth Guardians appealed. The appeals court affirmed, holding that 25-7-140(2)(a)(III) language is ambiguous and only requires the agencies to propose regulations by July 1, 2020, that pertain to collecting and maintaining emission data and corresponding statewide inventories. Since the agencies have done so, they have satisfied the rulemaking requirement.

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