Court Opinions- May 21, 2018

People v. Coleman

Norman Coleman was convicted with aggravated driving after revocation prohibited (ADARP), driving under the influence and careless driving. He was given one year with the Department of Corrections for ADARP. For the DUI, he received two years in jail and four years of probation. For careless driving he received 90 days in jail.

Coleman appealed his conviction on the grounds that the trial court was wrong to deny his motion to suppress statements he made on the night of the arrest, that the prosecutor made an improper closing argument and that he should not have been given probation for the DUI with the sentencing he was given for the ADARP.

The defendant argued that he was not given a Miranda warning. The court rejected the defendant’s argument, as the police stop did not qualify as an interrogation requiring a Miranda warning. 

Coleman’s position on the prosecutor’s closing arguments was that they violated his Fifth Amendment right against self-incrimination since the prosecutor used Coleman’s silence pre- and post-arrest as a sign of guilt since any other person would readily offer their driver’s license or accept a blood test. The court rejected this argument since at the time Coleman did not object to the prosecutor’s statements and they did not undermine the fairness of the trial in the court’s eyes.

The court did agree that Coleman should not be given the four years of probation since he was convicted of ADARP, which is a class-six felony under the ADARP statute.  

The Court of Appeals affirmed the judgment but vacated the sentencing and remanded the case for resentencing.

People v. Wagner

Ryan Wagner was convicted on three counts of stalking — one count under each of subsections (a), (b), and (c) of section 18-3-602(1) of the Colorado Revised Statutes. On appeal, the Colorado Court of Appeals considered whether the double jeopardy clauses of the U.S. and Colorado constitutions required his three stalking convictions merge. 

The court concluded that Wagner’s stalking convictions should have merged and remanded the case so the trial court can vacate two of the counts. The court also rejected Wagner’s other contentions of error by entering convictions unsupported by sufficient evidence and rejecting a defense-tendered unanimity instruction or, in the alternative, failing to require the prosecution to elect which acts constituted credible threats. 

Colorado v. Robert J. Hopp & Associates, LLC

In a case of first impression in Colorado, the Court of Appeals addressed whether the Colorado Consumer Protection Act and the Colorado Fair Debt Collection Practices Act prohibit foreclosure attorneys and title companies from billing mortgage servicer clients foreclosure commitment charges when those full costs were not actually incurred, despite knowing that these fraudulent costs would be assessed against homeowners in foreclosure. 

Plaintiffs brought a civil law enforcement action against defendants, foreclosure lawyer Robert J. Hopp; his law firms, Robert J. Hopp & Associates, LLC, and The Hopp Law Firm, LLC as well as Hopp’s affiliated title companies, National Title, LLC, d/b/a Horizon National Title Insurance, LLC, and First National Title Residential, LLC; and Safehaus Holdings Group, LLC. 

The state alleged that Hopp, the law firms and their affiliated companies violated the CCPA and the CFDCPA by engaging in the billing practice described above. The district court mostly agreed with the state and imposed penalties totaling $624,000. While Hopp’s wife, Lori Hopp, was a defendant in the district court action, she was not found liable for any claims and is not named as a party to this appeal.

Defendants appealed the trial court’s judgment; plaintiffs cross-appealed an evidentiary ruling.

The court affirmed the district court’s judgment and remanded the case with directions.

Bell v. Land Title Guarantee Company et al.

Charles Bell and Shirley Bell sold their property with representation by Orr Land Company, which hired Land Title Guarantee Company to draft documents. The deed used to sell the land did not reserve the Bell’s mineral rights as they were in the buy and sell contract. The oil and gas company using their former land learned they had no mineral rights and started sending the royalties to the land’s buyer.

The Bells filed negligence and breach of contract against the defendants. This was dismissed under statute of limitations. The court stated that they must review if the Bells have alleged facts that state a plausible claim for relief. The court concludes that the lower court was wrong to grant the defendants motion to dismiss.

Colorado v. Robert J. Hopp & Associates, LLC 

In the above case regarding Robert J. Hopp & Associates, the district court agreed with plaintiffs and entered judgment in their favor, except it concluded there was insufficient evidence to find Lori Hopp personally liable for any alleged misconduct. 

Defendants appealed the district court’s award of plaintiffs’ attorney fees and costs. Lori Hopp further appealed the district court’s denial of her request for her attorney fees. The Court of Appeals affirmed the district court’s order.

Rust v. Board of County Commissioners of Summit County

Robert Rust bought a parcel of residential property in Summit County. About a year later, he purchased the adjacent undeveloped parcel. He and his family have used the two parcels, primarily as a winter vacation spot, for decades.  

The county assessor classified the subject property as vacant land from 2013 to 2015, subjecting it to a tax rate nearly three times the rate for residential property. Rust challenged that classification and sought reclassification of the subject property, asserting that both parcels should be classified as residential. After a hearing, the BAA denied reclassification. 

Rust appealed from the order of the Board of Assessment Appeals, which affirmed the decision of the Board of County Commissioners of Summit County, denying his request to reclassify land for tax purposes. The Court of Appeals affirmed.

Wal-Mart Stores, Inc. et al. v. Pikes Peak Rural Transportation Authority and Colorado Department of Revenue

In 2014, the City of Fountain annexed a parcel of vacant land from unincorporated El Paso County. 

After the Pikes Peak Rural Transportation Authority announced its intention to collect a 1 percent sales tax from recently built retail businesses on the property, the operators of the businesses, WalMart Stores, Inc., and Sam’s West, Inc., filed a declaratory judgment action against the authority and the Colorado Department of Revenue. 

They sought a declaration that defendants could not collect sales and use taxes on the property because the property was now a part of Fountain, which was not a member of the authority. Resolution of the issue presented required answers to two questions: Can a municipality remove property from the boundaries of a regional transportation authority simply by annexing the property; and is such authority’s statutory power to tax preempted by article XX, section 6 of the Colorado Constitution, which gives home-rule cities the power to collect sales taxes within their own borders?

The district court and the Colorado Court of Appeals answered both questions “no.” The Court of Appeals affirmed the judgment in favor of defendants.

In the Interest of I.B.-R., A.B.-R., M.B.-R., and A.R., children and concerning J.S.R., C.M.H. f/k/a C.M.R., and S.B.-R.

In this dependency and neglect proceeding, C.M.H., the mother, formerly known as C.M.R., appealed the trial court’s judgment terminating her parent-child relationships with her children, I.B.-R., A.B.-R., M.B.-R., and A.R. 

J.S.R., who is the father of A.R., appealed the judgment terminating his parent-child relationship with A.R. 

S.B.-R., who is the father of A.B.-R. and I.B.-R., appealed the judgment terminating his parent-child relationships with A.B.-R. and I.B.-R.

One of J.S.R.’s contentions is that the trial court and the Weld County Department of Human Services did not comply with the Indian Child Welfare Act of 1978  after he asserted Native American heritage. The Court of Appeals agreed with J.S.R. that, though the department notified some tribes and the Bureau of Indian Affairs, the notice was inadequate.

Further, the trial court did not make the required inquiry of the participants as to all of the children after the department initiated the proceeding to terminate parental rights. The Court of Appeals remanded the case to the trial court for the limited purpose of ensuring compliance with ICWA.

In the Interest of Edward William Spohr, Protected Person v. Fremont County Department of Human Services

Due process measures should be followed when someone — and especially a government entity — attempts to impose a guardianship on a person (referred to by statute as a respondent). 

Provisions of the Colorado Probate Code have been enacted to ensure such due process. Those provisions require, as relevant to this case, that when a guardianship is being sought in court, personal service of a notice of hearing on a petition for guardianship has to be made on the respondent. Edward William Spohr argued for the first time on appeal that he did not receive personal service of such a hearing.

Because those statutory provisions cannot be waived by a respondent, and were not followed here, the Court of Appeals vacated the judgment imposing a guardianship on Spohr. 

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