Court Opinions: Colorado Court of Appeals Opinions for Oct. 27

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


People v. Robinson

Natasha Robinson purchased a car but didn’t initially buy insurance coverage for it. Two weeks later, Robinson’s boyfriend and cousin were driving the uninsured car and knocked over a stop sign, causing heavy damage to the car. Later that day, Robinson bought insurance coverage for the car. A few days later, Robinson reported to police that her car was stolen and that it had no prior damage. She also filed a claim for insurance coverage based on the alleged theft. During two recorded telephone calls with her insurance company, as well as one recorded telephone call with a police detective, Robinson lied about her car being stolen and not knowing who took it. She repeated those lies in the affidavit she submitted to her insurance company. Robinson was convicted of four counts of insurance fraud and one count of false reporting to authorities and was sentenced to concurrent terms of three years of probation.

Robinson appealed her conviction. She contended, among other things, that because her four convictions for insurance fraud are based on a single insurance claim, those convictions violate double jeopardy principles.

In resolving her appeal, a division of the Colorado Court of Appeals addressed an issue of first impression in Colorado and held that, when a defendant is convicted under section 18-5-211(1)(b) of the 2022 Colorado Revised Statutes for one count of presenting a fraudulent insurance claim and section 18-5-211(1)(e) for one or more counts of making false statements in support of the same insurance claim, the prohibition against double jeopardy and multiplicity will generally require the conviction (or convictions) under section 18-5-211(1)(e) to merge into the conviction under section 18-5-211(1)(b).

In this case, the insurance fraud statute, the complaint and information filed by the prosecution and the evidence and argument presented at Robinson’s trial all supported the conclusion that her three convictions for making false statements under section 18-5-211(1)(e) must merge into her one conviction for insurance fraud under section 18-5-211(1)(b), the Court of Appeals held.

The division affirmed the judgment in part, reversed it in part and remanded the case.

Ute Water v. Fontanari

Without utility easements, homes and businesses would lack access to critical services such as power, telecommunications, internet and water. Through easements, utilities obtain the right to place their transmission lines on private property situated between their facilities and their customers. 

This case concerned the remedies available to a water utility when a landowner whose property is burdened by easements for the utility’s water transmission line takes actions that place the transmission line at risk. 

The Ute Water Conservancy District provides water to approximately 80,000 customers in a 250-square-mile service area in western Colorado. Ute Water’s main transmission pipeline delivers approximately two-thirds of the total volume of water to Ute Water’s customers. If the pipeline were disabled, hospitals, fire stations, schools and hundreds of residences throughout the service area would lose access to water.

The pipeline crosses, among other properties, two parcels of land owned by Rudolph Fontanari, Jr., Ethel Fontanari and the Ethel Carol Fontanari Revocable Trust. The parcels consist of a 121-acre parcel, referred to as the road parcel, and a 1.3-acre parcel, referred to as the residential parcel. The residential parcel includes a “residence pad” adjacent to the houses located on the parcel. According to the parties’ pleadings, Fontanari Jr. and Ethel Fontanari own the road parcel and Fontanari Jr. and the Ethel Carol Fontanari Revocable Trust own the residential parcel.

In 1980, the Fontanari defendants’ predecessors-in-interest executed two conveyance instruments granting Ute Water two perpetual easements and construction easements on the parcels. The easements granted Ute Water the right to construct and maintain the pipeline on the parcels. 

Ute Water constructed the pipeline in 1981. At the time of its construction, the portion of the pipeline on the parcels, the Fontanari portion, was located approximately four feet under a private road on the road parcel. The Fontanari portion crossed the residential parcel at two points and covered 846 feet of the pipeline.

Fontanari Jr. expanded the residence pad on the residential parcel by adding fill from a nearby hillside. He widened the pad by 35 feet and lengthened it by 120 feet. After the expansion, the pad encroached onto the road parcel and increased the depth of the pipeline under the road parcel by approximately twelve feet. The expansion also covered areas that Ute Water needed to access the pipeline.

In 2014, Fontanari Jr. began developing a private road to accommodate the transportation of heavy equipment to and from a mine that he owns. Over the next two to three years, Fontanari Jr. placed concrete culvert pipes on top of the road and added fill to level out and increase the depth of the road. The added fill covered approximately 300 feet of the length of the pipeline.

In total, Fontanari Jr.’s alterations impacted approximately 350 feet of the Fontanari portion. Before making the alterations, he didn’t contact Ute Water to determine the boundaries of the easements or the location of the pipeline nor seek a court’s permission to proceed with the alterations.

Ute Water learned of the alterations in 2014. It discovered that the alterations impacted its access to the pipeline, increased the likelihood of damage to the pipeline and made the detection and location of leaks more difficult. The alterations also prevented Ute Water from safe and time access to the pipeline for routine maintenance or emergency repairs.

Ute Water filed a lawsuit against the Fontanari defendants under theories of declaratory relief, injunctive relief, negligence, nuisance and trespass. The trial court dismissed Ute Water’s negligence, nuisance and trespass claims on the grounds that they were barred by the economic loss rule. Ute Water then filed an amended complaint containing a new breach of contract claim and reasserting the claims for declaratory and injunctive relief.

After several failed attempts at settlement during the pendency of the lawsuit, Ute Water constructed a new section of the pipeline that bypassed the parcels and stopped using the Fontanari portion. Ute Water then severed the Fontanari portion from the pipeline and plugged each end of the Fontanari portion with concrete. At trial, Ute Water requested an award of damages in the amount of the expenses it incurred in relocating the pipeline away from the parcels.

Following a bench trial, the trial court entered judgment in favor of Ute Water on its breach of contract claim. In its post-trial order, the court rejected the Fontanari defendants’ arguments that Ute Water failed to substantially perform its contractual obligations under the conveyance instruments and that Ute Water had abandoned the easements. Notably, the court found — and the Fontanari defendants didn’t contest on appeal — that the Fontanari defendants unreasonably interfered with the easements.

The court entered judgment in favor of Ute Water and against the Fontanari defendants in the amount of $557,790.31 and awarded Ute Water its relocation expenses. Because Ute Water had already relocated the pipeline, the court determined that its claims for a declaratory judgment and injunctive relief were moot and denied them. The Fontanari defendants appealed. 

A division of the Colorado Court of Appeals held that, under the circumstances of this case, the trial court didn’t err by awarding relocation damages to the utility after finding that the landowner’s actions made relocation of the transmission line reasonable, necessary and foreseeable.

People in Interest of Joergensen

Jesper Joergensen is accused of intentionally setting a fire in Costilla County that burned more than 100,000 acres and destroyed more than 140 structures. He was charged with 208 counts of arson in July 2018. Since then, Joergensen has been found incompetent to stand trial on numerous occasions. In April 2020, the Costilla County District Court committed Joergensen to the custody of the Colorado Department of Human Services for competency restoration services. Joergensen was eventually transferred to the Colorado Mental Health Institute at Pueblo.

This appeal arose out of a court order declining to authorize the involuntary medication of Joergensen. The court concluded prosecutors met their burden to prove three of the four factors required by the 2003 U.S. Supreme Court’s decision in Sell v. United States, which established factors necessary to authorize an involuntary medication order. The court also concluded prosecutors proved the requested medication would render Joergensen competent. 

But the court also found that if Joergensen was restored to competency, he would cease taking the prescribed medication and, as a result, would become incompetent before he could be tried on the criminal charges. Based upon these findings, the court concluded prosecutors failed to prove Joergensen would be rendered competent and that he would remain competent until he could be tried on the underlying criminal charges. Thus, the court concluded, prosecutors failed to meet their burden under the second Sell factor and denied the request for an involuntary medication order.

No reported Colorado case has addressed whether prosecutors are required to prove that a prescribed medication would render a defendant competent to stand trial and that the defendant’s competency would be maintained until the trial actually occurs. 

A division of the Colorado Court of Appeals determined Sell doesn’t impose such a requirement. Additionally, and also as a matter of first impression, the division concluded a Sell order may subject a defendant to involuntary medication to maintain their competency until such time as the trial is completed.

The division reversed and remanded the matter for further proceedings.

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