Court Opinions- Feb 03, 2020

People v. Tallent


Randy Tallent appealed his judgment of conviction entered on a jury verdict finding him guilty of theft, second degree burglary, second degree criminal trespass and theft by receiving. He also appealed his adjudication as a habitual criminal and his sentence. A division of the Colorado Court of Appeals previously reversed the trial court’s judgment relying on People v. Morehead to conclude that the trial court may not hear new arguments on remand in opposition to a defendant’s motion to suppress. 

After the Colorado Supreme Court’s decision in People v. Morehead, stating that the trial court should exercise its discretion in allowing or disallowing the prosecution to argue new theories opposing a motion to suppress evidence on remand, the division established a two-prong test intended to aid the trial court’s decision. The division concluded that the trial court should consider three factors — whether entertaining new arguments would unfairly prejudice any party to the case, whether the party proposing the new argument is at fault for not preserving it in an earlier proceeding, and any other factor the court deems relevant — in exercising its discretion to determine whether it will allow the prosecution to advance new arguments on remand; and if the court determines that new arguments opposing suppression may be raised for the first time on remand, it should proceed to the second step by ruling on the substance of the new arguments.

Igou v. Bank of America

Darrell Igou filed claims for declaratory judgment and injunctive relief against Bank of America. Both claims were based on Igou’s allegation that BOA’s C.R.C.P. 120 motion, filed in a separate case and seeking authorization to foreclose on Igou’s home, was barred by the statute of limitations. At trial, after Igou had presented his evidence, the district court dismissed both of Igou’s claims ruling that, based on Igou’s evidence, BOA’s motion was not barred by the statute of limitations. 

A division of the Court of Appeals considered when a claim to foreclose on a mortgage accrues where the mortgage agreement gives the creditor the option to accelerate the entire loan if the debtor defaults on a monthly payment. The division concluded that, after a default, if the creditor notifies the debtor that the entire mortgage will be accelerated on a specific future date if the debtor fails to cure the default by that date, the debt is accelerated and the claim accrues once that date arrives and the debt remains uncured. The division also considered whether, after the debt in this case had been accelerated, that acceleration was abandoned under Bank of New York Mellon v. Peterson, 2018 COA 174M. The division concluded that it was.

Marriage of Weekes

William Weekes appealed the denial of his motion to retroactively modify child support. Ordinarily, any modification of a child support order applies only prospectively. But if a change in physical care of the child occurs, section 14-10-122(5), C.R.S. 2019, allows the court to apply the modification retroactively, as of the date of the change in physical care.

Weekes moved to retroactively modify child support based on a change in physical care of the child. The district court denied the motion as untimely, applying an amendment to the statute that became effective after the change in physical care but before Weekes filed the motion. 

As a matter of first impression, a division of the Court of Appeals concluded that the district court’s retroactive application of the amended statute was not unconstitutionally retrospective. However, the division concluded that the district court erred in analyzing the applicability of the statutory exception. Accordingly, the division reversed the order and remanded for further proceedings.

Emmons v. Department of Revenue 

A division of the Court of Appeals considered whether the Colorado Department of Revenue, Division of Motor Vehicles, had jurisdiction to revoke Kerry Emmons’ driver’s license. Generally, the Department of Revenue must hold a driver’s license revocation hearing within 60 days of receiving a driver’s written request for such a hearing. However, for a legitimate cause, the Department may reschedule a hearing more than 60 days after receiving the driver’s request if the Department reschedules the hearing for the “earliest possible time” the hearing officer becomes available. 

`Then, as a matter of first impression, the division concluded that the Department of Revenue has the burden to show that it rescheduled a driver’s license revocation hearing for the “earliest possible time” a hearing officer became available. 

Because the Department rescheduled the hearing more than 60 days after Emmons requested a hearing, and because the Department did not prove that it rescheduled the hearing at the “earliest possible time” a hearing officer became available, the division concluded that the Department lacked jurisdiction to revoke Emmons’ license. 

Accordingly, the division reversed the district court’s judgment affirming the Department’s revocation of Emmons’ license.

Harvey v. Centura

Peggy Harvey suffered injuries when a truck driven by an employee of Gibbons Erectors, Inc., rear-ended her vehicle. On April 2, 2018, a few days after the accident, Centura provided medical services to her. At the time of the accident and when she received treatment, Harvey was a Medicare beneficiary and a Medicaid recipient. She presented Centura with proof of her eligibility for these benefits. 

Centura billed her more than $15,000 for its services. Centura also sent the bill to Gibbons. 

After not receiving payment, Centura assigned the bill to Avectus Health Care Solutions for collection. Geico Insurance Company insured Harvey. The coverage included medical expenses. Travelers Insurance Company insured Gibbons. 

When contacted by Avectus on May 9, Harvey provided her Geico policy number and her claim number with Travelers. Avectus contacted both Geico and Travelers. On May 15, Avectus resubmitted the bill to Gibbons. Two days later, Avectus submitted the bill to Geico. 

Then on May 25, Avectus filed a hospital lien on Centura’s behalf and against Harvey in the billed amount. Neither Centura nor Avectus ever billed Medicare or Medicaid. On June 12, Geico told Avectus that it was withholding payment of the Centura bill pending an agreement with Harvey’s attorney concerning allocation of settlement proceeds. The bill remained unpaid. 

Harvey brought this action alleging that by filing the lien before billing Medicare and Medicaid, Centura violated section 3 38-27-101(1). Under section 38-27-101(7), she sought damages of twice the amount of the lien. Centura moved to dismiss. The trial court treated the motion as one for summary judgment and granted it. Harvey did not challenge the ruling based on any disputed issue of material fact.

In this hospital lien case, a division of the Court of Appeals concluded that section 38-27-101(1), C.R.S. 2019, of the hospital lien statute does not require a hospital to bill Medicare and Medicaid for medical services before creating a lien against the person who received the services, when that person is covered by other insurance. 

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