Court Opinions- Feb 26, 2018

In re the Marriage of Runge 

In this post-dissolution of marriage dispute between Barbara Runge and David Runge, Barbara Runge moved under Colorado Rules of Civil Procedure 16.2(e)(10) to discover and allocate assets that she alleged David Runge did not disclose or misrepresented in the proceedings surrounding their 2011 separation agreement. David Runge moved to dismiss her motion. In a written order, the district court granted the David Runge’s motion to dismiss, ruling that Barbara Runge’s motion did not state sufficient grounds to trigger discovery and allocation of assets under the rule.

On appeal, Barbara Runge challenged the district court’s order. She contended that the district court erred by not applying the “plausibility” standard, which was announced in Warne v. Hall, when granting David Runge’s motion to dismiss and ruling that she did not state sufficient grounds in her motion. She also contended that the court should have at least allowed her to conduct discovery to prove her allegations.

The Colorado Court of Appeals concluded that the “plausibility” standard did not apply to the dismissal of a motion under Colorado Rules of Civil Procedure 16.2(e)(10). The Court of Appeals also agreed with the district court that Barbara Runge’s motion did not state sufficient grounds to trigger an allocation of assets or discovery under the rule. Accordingly, the Court of Appeals affirmed the district court’s order.

People v. Rojas 

A division of the Court of Appeals considered whether a defendant can be prosecuted for theft of food stamps under the general theft statute, section 18-4-401 of the Colorado Revised Statutes or whether that defendant can only be prosecuted under a more specific statute criminalizing the theft of food stamps by a fraudulent act, section 26-2-305 of the Colorado Revised Statutes. Applying the test from People v. Bagby, the majority concluded that the defendant could only be prosecuted under the more specific statute. 

Dorsey & Whitney LLP v. Reg Scan Inc.

BNA, a competitor of RegScan, began marketing a product to which RegScan believed it had exclusive rights. Edward Ertel, RegScan’s president and CEO, called his close friend and former college roommate, Greg Tamkin, a partner in Dorsey & Whitney’s Denver office who specializes in intellectual property matters. After they discussed the situation, RegScan hired the law firm. The parties’ engagement letter limited the scope of the law firm’s representation to pre-litigation work.

But once it became clear that RegScan would have to take BNA to court to vindicate its perceived rights, Ertel and Tamkin agreed that the law firm would represent RegScan in that litigation.  The law firm filed the BNA case in the U.S. District Court for the Eastern District of Virginia. Throughout the litigation, Ertel had frequent, almost daily, conversations with attorneys in the law firm’s Denver office via telephone and email. Each month, the law firm sent detailed bills to RegScan, charging time in tenth-of-an-hour increments.

While RegScan didn’t specifically question the legitimacy of the hours worked or the billed hourly rates, it eventually complained to Tamkin that the litigation costs were exceeding his estimates. According to RegScan, Tamkin had estimated that the total cost of the representation would be between $300,000 and $400,000 dollars. The law firm ultimately billed RegScan a total of $769,894.71, of which RegScan paid $371,187.28.

Through a series of emails, the parties attempted to negotiate a resolution. But they couldn’t reach an agreement, and the law firm sued RegScan in Denver District Court for the claimed outstanding balance, asserting claims for breach of contract and account-stated. A jury found in the law firm’s favor on both claims, awarding damages of $398,707.43, less $25,000, the amount of the retainer RegScan had already paid. The Court of Appeals affirmed the judgment of the district court.

People in the Interest of J.C.

The juvenile court sentenced J.C. to an indeterminate one-to-two-year term of commitment in the custody of the Division of Youth Corrections with a mandatory minimum term of one year. The Court of Appeals concluded that the sentence was illegal for two reasons. First, nothing in the juvenile sentencing statutes authorized an indeterminate sentence to the Division of Youth Corrections commitment. Second, a mandatory minimum sentence to the Division of Youth Corrections commitment is authorized only if the juvenile qualifies as a special offender under section 19-2-908 of the Colorado Revised Statutes. J.C. didn’t qualify as such an offender, and, therefore, the juvenile court had no statutory authority to impose a mandatory minimum sentence. Accordingly, the Colorado Court of Appeals vacated the sentence and remanded the case with directions. 

People v. Joslin 

In two separate cases, Matthew Joslin accepted the benefit of a plea bargain. In 2009, he was charged with six sex offenses but pleaded guilty to only two. He was sentenced to probation and ordered to pay over $8,000 in fees. He was not ordered to pay restitution. In 2013, Joslin faced 30 new charges, 21 of which were class 3 felonies, but he pleaded guilty to only four. He was sentenced to 92 years to life in the custody of the Department of Corrections and ordered to pay over $14,000 in fees and $1,520 in restitution. When Joslin did not pay the restitution within a year, he was charged interest on that unpaid restitution pursuant to section 18-1.3-603(4)(b) of the Colorado Revised Statutes. 

He then filed two nearly identical Criminal Procedure 35(c) motions alleging that in each case he was never told that he would be charged interest on unpaid restitution. 

He claimed that he would never have pleaded guilty if he had known he would have to pay interest. The district court denied the motions without a hearing.

On appeal, Joslin essentially contended that he was entitled to postconviction relief because either the district court or his counsel was required to tell him that he would be required to pay interest on unpaid restitution and neither did. 

Central to addressing Joslin’s contentions is the premise that defendants must be advised of the direct, but not collateral, consequences of a plea. The Court of Appeals concluded that interest on unpaid restitution is a collateral consequence of a plea and that neither the district court nor Joslin’s counsel had a duty to advise Joslin of this possibility. 

Scott v. Scott

A division of the Court of Appeals considered the situation where a party to a court-ordered separation agreement promised to maintain his first wife as the beneficiary of life insurance proceeds but then remarried and changed the named beneficiary to his second wife before his death.

The first wife filed a complaint against the second wife alleging civil theft, conversion and unjust enrichment. The second wife moved to dismiss under Colorado Rules of Civil Procedure 12(b)(5), arguing that the first wife’s complaint failed to state a claim for civil theft because it did not allege intent to permanently deprive her of the proceeds, for conversion because the husband was the “converter” and the first wife had only an expectancy interest in the proceeds, and for unjust enrichment because the husband was the wrongdoer. 

She also moved to dismiss under Colorado Rules of Civil Procedure 12(b)(6) because the husband’s estate should have been joined as a necessary party. 

The court summarily dismissed the entire case based on the reasoning in the motion to dismiss and then awarded the second wife attorney fees and costs. 

The Court of Appeals concluded that the district court did not err in dismissing the civil theft claim for lack of a plausible allegation of intent to permanently deprive. However, the Court of Appeals further concluded that the district court erred in dismissing the conversion and unjust enrichment claims under Colorado Rules of Civil Procedure 12(b)(5). 

The division also concluded that the district court erred by dismissing the complaint under Colorado Rules of Civil Procedure 12(b)(6), reasoning that decedent’s estate was not a necessary party to this tort action.

Accordingly, the Court of Appeals affirmed the judgment in part and reversed in part, vacated the order granting the second wife’s motion for attorney fees and costs and remanded the case to proceed on the conversion and unjust enrichment claims. 

Denver Police Protection Association v. City and County of Denver

In this collective bargaining case, the Court of Appeals held that body-worn cameras are not “personal safety and health equipment” under the charter of the City and County of Denver. 

The Court of Appeals concluded that body-worn cameras are not a mandatory subject of collective bargaining. Accordingly, the Colorado Court of Appeals reversed the contrary judgment of the district court. 

People in the Interest of L.H. 

A division of the Court of Appeals addressed the sufficiency of notice under the Indian Child Welfare Act of 1978 when a parent identifies a potential affiliation with an ancestral group but does not identify a specific tribe. 

The division concluded that if only a tribal ancestral group is indicated, then the Jefferson County Department of Human Services, Division of Children, Youth and Families must notify each of the tribes in that ancestral group to identify whether the parent or child is a member of any such tribe.

In this case, the mother identified a potential Navajo ancestry, but she did not indicate a specific tribal affiliation. Based upon this, the Jefferson County Department of Human Services sent notice to the Navajo Nation but did not send notice to the Colorado River Indian Tribes, which are designated by the Bureau of Indian Affairs as having a historical affiliation with the Navajo. 

The Court of Appeals held that under the circumstances presented, the Jefferson County Department of Human Services was required to send notice to all tribes historically affiliated with the Navajo, including the Colorado River Indian Tribes. Because the Court of Appeals concluded that the trial court did not comply with the Indian Child Welfare Act’s notice requirements, it remanded the case to the trial court.

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