Court Opinions- Mar 30, 2020

People v. Pettigrew

William Pettigrew appealed his convictions for pandering of a child and tampering with a witness or victim. He claimed that the trial court’s statements made to the jury during voir dire regarding reasonable doubt lowered the prosecution’s burden of proof, and he asserted that evidence from his cell phone was admitted in violation of the Fourth Amendment. 

The second claim raised a question of first impression in Colorado: What identifying information must be included in a search warrant authorizing the search of a cell phone to meet the Fourth Amendment’s particularity requirement?

A division of the Court of Appeals contended that none of the statements made by the trial court lowered the prosecution’s burden of proof. The division also concluded that the independent source exception to the Fourth Amendment exclusionary rule applied to the evidence found in Pettigrew’s phone and that the search warrant sufficiently identified the phone to be searched. For these reasons, the division affirmed the judgment.

People v. Wardell

Wendel Wardell Jr. asserted that he had the right to appear at a post-conviction hearing, that he sufficiently established ineffective assistance of counsel and that his plea in this case was involuntary. Deciding an issue of first impression, a division of the Court of Appeals concluded that a defendant does not have a right to appear in person at an evidentiary hearing. 

Whether a defendant may appear in person is subject to the post-conviction court’s discretion. In this case, the division concluded that the post-conviction court did not abuse its discretion when it denied Wardell’s request to be present in person at the evidentiary hearing. The division also rejected Wardell’s substantive Rule 35(c) claims and affirmed.

People v. Hunsaker

A division of the Court of Appeals decided whether the holding in Leyva v. People — that the correction of an illegal sentence resets the three-year limitations period for filing a Crim. P. 35(c) motion — applies to any collateral attack that a defendant might assert or only to claims that relate to how the illegality in that sentence potentially affected the defendant’s original convictions. 

The division concluded that the correction of an illegal sentence only resets the time period for filing a Crim. P. 35(c) motion for claims that relate to the illegality in the sentence. For that reason, all but one of the claims asserted by Hunsaker in his Crim. P. 35(c) motion were found to be untimely. And, because the timely claim may be denied as a matter of law, the division affirmed the district court’s order denying that motion.

People v. Flynn

Kristin Flynn appealed the judgment of conviction entered on jury verdicts finding her guilty of the misdemeanor offenses of harboring a minor and obstructing a peace officer. She challenged only the sufficiency of the evidence to support her conviction for harboring a minor, which required a division of the Court of Appeals to interpret, as matter of first impression, section 18-6-601(1)(a)(I), C.R.S. 2019.

Because the plain language of the statute makes it a crime for a person to fail to release a minor after being requested to do so by the officer, and because nothing in the trial record established that element, the division vacated Flynn’s harboring conviction and affirmed the judgment in all other respects.

People v. Vogel

Pro se respondent William Vogel appealed the district court’s entry of a default order of forfeiture against him after the court ruled in favor of the Boulder County Drug Task Force when Vogel failed to appear at a civil forfeiture proceeding. The Task Force then seized Vogel’s trailer and other items related to an illegal drug operation investigation. 

A division of the Court of Appeals affirmed because Vogel failed to comply with the statutory requirements for responses to civil forfeiture petitions and, therefore, failed to prove that the trial court erred in denying his request to set aside the default order.

Martinez v. LHM Corporation, TCD

Canuto Martinez alleged that a car dealership violated the Colorado Consumer Protection Act. The dealership, LHM Corporation, appealed the district court’s determinations that attorney fees awarded under the CCPA are costs and not damages for the purposes of determining the finality of a judgment being appealed; and Martinez satisfied the public impact element of his CCPA claim. 

A division of the Court of Appeals considered whether attorney fees awarded under section 6-1-113(2)(b), C.R.S. 2019, of the CCPA are costs or damages and concluded that, because section 6-1-113(2) shifts fees and costs to a violator, attorney fees under the CCPA are more akin to costs than to damages. Accordingly, it concluded that the district court’s order was a final, appealable order and that LHM did not timely appeal that order. And, because LHM did not substantively challenge the district court’s award of attorney fees, the division affirmed the district court’s order.

Carbajal v. Wells Fargo Bank

After Dean Carbajal was convicted of various felony offenses, he sued the victim and her employer. The district court entered summary judgment in favor of the victim and employer. Several years later, Carbajal moved to set aside the summary judgment, alleging that the defendants and their lawyers had conspired to withhold documents and information in discovery and, as a result, summary judgment was erroneously entered. 

The district court construed Carbajal’s amended complaint as a motion to set aside a judgment based on fraud under C.R.C.P. 60(b)(2) and dismissed it as untimely. On appeal, Carbajal contended that his complaint is an independent equitable action to set aside a judgment and therefore not subject to the time limitation in Rule 60(b)(2). 

A division of the Court of Appeals concluded that, as a matter of law, mere discovery violations do not constitute extrinsic fraud for purposes of satisfying the criteria for an independent action under Rule 60(b).

La Plata County Board v. Colorado Department of Public Health and Environment

The Colorado Department of Public Health and Environment’s and the Board of County Commissioners of La Plata County’s dispute over groundwater quality remediation presented an issue of first impression – whether Colorado’s Governmental Immunity Act prevents the Department from bringing an enforcement action against a county under the Solid Waste Disposal Sites and Facilities Act. 

La Plata also cross-appealed the district court’s denial of its request for interlocutory appeal of the Office of Administrative Court’s ruling that La Plata is a “person” under the SWA and that La Plata did not suffer irreparable injury necessary to review the OAC’s ruling under section 24-4-106(8), C.R.S. 2019, of the State Administrative Procedure Act.

Because a public enforcement action under the SWA does not and could not lie in tort, the division held that the CGIA does not preclude the Department’s SWA enforcement against La Plata. Accordingly, the division reversed the district court’s ruling on this issue. 

Better Baked v. GJG Property, Peak Holdings Group, Dorenka

In this dispute over a right of first refusal in a commercial lease, Better Baked, LLC appealed the district court’s judgment entered in favor of GJG Property, LLC; Peak Holdings Group, LLC; and Dorenka LLC granting their petition to declare that two lis pendens recorded by Better Baked against property owned collectively by GJG, Peak and Dorenka and partly leased to Better Baked were spurious documents. The court also awarded GJG, Peak and Dorenka attorney fees. 

Because Better Baked’s claim was based on a right of first refusal, the enforcement of which can affect title to real property, the lis pendens in this case was not groundless or spurious. A dissenting judge for a division of the Court of Appeals said that whether a lis pendens is groundless (and spurious) depends not on whether it has been filed in connection with a claim affecting title to real property, but, rather, on the merits of the claim in connection with which it was filed. 

Because, in the dissenting judge’s view, the documentary evidence unambiguously revealed that the parties had terminated Better Baked’s right of first refusal with respect to the purchase of real property, the lis pendens was groundless and spurious. Because of these two opinions, the division affirmed in part, reversed in part and remanded for further proceedings. 

HCA-HealthONE v. Colorado Department of Labor and Employment

HCA HealthONE LLC, North Suburban Medical Center, appealed the district court’s order affirming the final agency decision holding that the Hospital owed wages and penalties to a former employee for work she performed during designated meal periods. 

The decision, issued by the Colorado Department of Labor and Employment, Division of Labor Standards and Statistics, determined that those periods were compensable under the Colorado Minimum Wage Order Number 35.

A division of the Court of Appeals considered whether the Colorado Minimum Wage Order Number 35 entitled the employee to compensation. The division held that the MWO is not ambiguous and its plain language provides that a meal period is compensable unless it is both “uninterrupted” and “duty free.” Because the record shows that the employee had duties during some meal periods at issue, the division held that the employee was entitled to compensation for those particular meal periods. The division affirmed in part, reversed in part and remanded for further proceedings. 

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