Court Opinions: Colorado Supreme Court Opinions for April 24

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

In the Matter of: Lance Timbreza

Former Mesa County District Court Judge Lance Timbreza appeared before the Special Tribunal of the Colorado Supreme Court to be disciplined.

According to court records, during an incident, Timbreza believed his propositions with an attorney were welcomed. Timbreza acknowledged that due to his alcohol consumption, his ability to objectively perceive events was compromised. 

A special tribunal was convened because the Colorado Supreme Court had recused itself under Colorado Rules of Judicial Discipline 41(b). The Colorado Commission on Judicial Discipline recommended the approval of the Stipulation for Resolution of Formal Proceedings (the first stipulation), which Timbreza and the commission executed under Rule 37(e) and a second stipulation for a resolution of costs and fees, which Timbreza and the commission executed under rules 37(c), 38 and 40. 

Before the entry of the first stipulation, Timbreza resigned his position as a judge. As part of the first stipulation, Timbreza also stipulated to the entry of public censure. Timbreza and the commission also agreed the issue of whether any additional sanctions should be imposed against him would be resolved at a future date.

Under the first stipulation, the commission and Timbreza agreed he violated multiple rules of the Colorado Code of Judicial Conduct. Other issues were addressed in the second stipulation. The commission recommended the special tribunal issue a public censure and order Timbreza to pay $20,658 in attorney fees and costs to the state of Colorado. The special tribunal adopted the recommendations.

Timbreza previously received a public censure for driving while impaired. 

US Bank National Association v. Silvernagel et al.

The Colorado Supreme Court en banc unanimously reversed a judgment in a bankruptcy case.

In 2006, Jerome Silvernagel took out a second mortgage on a home, agreeing to make monthly payments of $556.85 to pay down a $62,400 principal and a 10% annual interest, with the remaining balance due by 2036. 

Silvernagel alone signed the promissory note, agreeing to pay the loan. Both Silvernagel and Dan Wu signed the deed of trust securing payment of the note. The deed and trust included an acceleration clause that gave the lender power to declare the entire loan immediately due and payable upon default. When exercised, acceleration allowed the lender to foreclose on the property to satisfy the outstanding debt and any fees.

In 2012, a bankruptcy court discharged Silvernagel’s personal liability on the mortgage under Chapter 7. Silvernagel stopped making payments on the note before the discharge and had made no payments since. The discharge stopped creditors from attempting to collect the debt from Silvernagel directly, but didn’t extinguish the right to enforce a valid lien, like a mortgage or security interest, against the debtor’s property after bankruptcy.

In 2019, US Bank National Association allegedly threatened to foreclose on the property if Silvernagel didn’t make payments on the mortgage. Silvernagel and Wu requested declaratory relief, arguing the bank couldn’t foreclose on the home because a six-year limitation period had expired. 

A trial court disagreed and dismissed the case, finding US Bank’s claim hadn’t accrued, meaning the six-year limitation period hadn’t started yet. 

The Colorado Court of Appeals reversed, holding the statute of limitations began running upon Silvernagel’s 2012 bankruptcy discharge, barring US Bank’s claims.

The Colorado Supreme Court reversed the appeals court’s decision. The high court held a bankruptcy discharge doesn’t accelerate payment on a mortgage, nor does it trigger the statute of limitations for the remaining payments.

The Colorado Supreme Court relied on its 2012 case Hassler v. Account Brokers of Larimer County, Inc. In that case, it required lenders to perform a clear and unequivocal affirmative act to accelerate payment on a security agreement. Since that didn’t occur, Silvernagel’s payments continued to become due according to the original contract terms.

The Colorado Supreme Court also remanded the case to the appeals court to consider Silvernagel’s laches argument, which he argued prevented the enforcement of the agreement.

People v. Platteel

The Colorado Supreme Court en banc made a rule absolute concerning the testimony of an alleged victim and the Victim Rights Act. 

Evan Platteel was charged with committing sexual assault (physical force or violence), a class 3 felony. During a preliminary hearing, Platteel’s counsel asked all witnesses to be sequestered. Prosecutors responded they only had one witness, a detective. The prosecutor added while the alleged victim E.G. was in the courtroom, she shouldn’t be sequestered because she had a right to be present under binding authority, including the VRA, and she wouldn’t be testifying at the hearing.

The court declined to issue a sequestration order and E.G. was allowed to remain in the courtroom. The detective testified about his investigation concerning E.G.’s allegations.

After the detective’s testimony, the prosecution rested. Platteel’s counsel then called E.G. to testify, even though it hadn’t subpoenaed her, according to court records. E.G. exited the courtroom, but the court prevented her from leaving the courthouse, ordered her to return to the courtroom and eventually required her to testify.

Prosecutors objected based on the VRA and Colorado case law, but the court overruled their objection. Like the defense counsel, the court relied on the 1978 Colorado Supreme Court Decision in McDonald v. District Court

In that case, the alleged victim was in the courtroom during the testimony by police officers, but hadn’t been subpoenaed. The defense tried to call the alleged victim to the witness stand, but the prosecution objected and the court sustained.

The alleged victim was an eyewitness, available and able to testify directly from her perception of the charged crimes and because the officers’ testimony was essentially hearsay, the high court concluded in that case, the trial court should have permitted her to testify on the relevant issue of identification. The high court ordered a new preliminary hearing with instructions to allow the alleged victim to be subpoenaed if they didn’t voluntarily appear at a new hearing.

In the current case, the prosecutors filed a petition in the Colorado Supreme Court which issued a rule to show cause. The high court concluded that given the state of the record at the preliminary hearing, the lower court erred by applying McDonald.

The high court further held McDonald preceded the VRA and in reading McDonald “with the gloss supplied by the VRA” the high court found the defense counsel cannot call an unsubpoenaed alleged victim to the stand, who happens to be in attendance at the preliminary hearing.

The rule to show cause was made absolute. On remand, if E.G. exercises her right to attend the remaining portion of the preliminary hearing, she cannot be called to testify by the defense without a subpoena. If the defense serves her with a subpoena and the prosecutors move to quash it, the court should proceed in accordance with the Colorado Supreme Court’s case law.

Justices William Hood and Richard Gabriel concurred in the judgment. 

“Because the majority unnecessarily overrules, at least in part, McDonald v. District Court … a precedent that has existed in this state for nearly half a century, I respectfully concur only in the judgment of the court,” Hood wrote. “The trial court could have found probable cause without letting the defendant call the alleged victim to the stand. That alone provides an adequate basis for making the rule absolute.”

People in the Interest of A.T.C

The Colorado Supreme Court en banc unanimously made a rule absolute in a delinquency case.

The original proceeding required the Colorado Supreme Court to consider whether a juvenile in a delinquency case can seek interlocutory review of a magistrate’s competency finding in juvenile court. The high court held it can. 

The defense counsel raised concerns regarding 17-year-old A.T.C.’s competency. A magistrate ordered a competency evaluation. A psychologist from the Office of Behavioral Health evaluated A.T.C. and determined he was incompetent but restorable. After the OBH’s evaluation, the magistrate entered the same finding.

Prosecutors moved for a second evaluation, asking the magistrate to allow a psychologist of their choosing to evaluate A.T.C. The defense objected, but the magistrate granted the motion.

The psychologist retained by the prosecutors evaluated A.T.C. and found he was competent to proceed. After a contested hearing with OBH’s psychologist, the psychologist retained by the prosecutors, and a third psychologist all testified, the magistrate found A.T.C. was competent to proceed. 

The defense counsel petitioned the juvenile court for review under C.R.M. 7(a)(3) and Colorado Revised Statute 19-1-108(5.5). The juvenile court denied the petition on the grounds that a finding an individual has been restored to competency isn’t a final order under C.R.M. 7(a)(3) and no other independent statutory authority exists allowing for an interlocutory appeal of that type of finding. 

The defense counsel petitioned the Colorado Supreme Court to exercise its original jurisdiction. The high court issued an order to show cause.

The high court held that a magistrate’s finding of competency under 19-1-108(3)(a.5) is subject to review in juvenile court under the rules laid out in 19-1-108(5.5).

The Colorado Supreme Court reversed the juvenile court’s order denying the petition for review for lack of jurisdiction and made the rule to show cause absolute. On remand, the juvenile court is asked to review the magistrate’s competency findings, as 19-1-108(5.5) directs, under the limited grounds of Colorado Rule of Civil Procedure 59.

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