Cases of Note
Courts presume that the General Assembly is aware of court decisions that construe state statutes or the constitution. The OLLS will update this web page quarterly to notify the General Assembly of such court decisions. Cases that may be of particular interest because they meet certain criteria have been summarized and are listed below in chronological order. Summaries for cases older than a year are available in an archive.
Doe v. Wellbridge Club Mgmt., Colorado Court of Appeals No. 21CA1299 (December 1, 2022)
Holding: An exculpatory provision in an athletic club membership agreement did not bar a premises liability claim against the club for the sexually abusive behavior of its employee against a member because (1) the provision did not express the parties' intention to waive sexual abuse claims in clear, unambiguous, and unequivocal language; and (2) the provision created a substantial likelihood that a reader would fail to recognize that the provision could apply to the risk of the club's employee sexually abusing a member due to the defendant's alleged negligence or failure to exercise reasonable care.
Case Summary: A minor child's (the Child's) grandfather signed a membership agreement that enabled the Child to use the facilities at an athletic club (the Club). In the membership agreement, there was an exculpatory provision that stated it released the Club from "...all claims, damages, liabilities, expenses, and costs arising out of, or relating to (a) the negligence of [the Club], its owners, managers, and employees...or (d) [the member's or member's guest's] use of [the Club's] facilities...." While at the Club, the Child received tennis instruction from the Club's employee (the Club Employee). It was alleged that the Club Employee sexually abused the Child on and off the Club's premises. In regard to his interaction with the Child, the Club Employee later pled guilty to sexual exploitation of a child and child abuse.
The Child's mother (the Mother) sued the Club for damages for alleged harm the Child suffered due to the sexual abuse committed by the Club Employee. The District Court dismissed the Mother's case, reasoning that the exculpatory provision/waiver in the membership agreement barred the Mother's claims.
The Court of Appeals reversed the District Court's dismissal of the Mother's case. Using the fourth factor of a four-factor test from Jones v. Dressel, 623 P.2d 370 (Colo. 1981), the Court of Appeals held that the Mother's lawsuit was not barred by the exculpatory provision in the Club's membership agreement because (1) the provision did not express the parties' intention to waive sexual abuse claims in clear, unambiguous, and unequivocal language; and (2) the provision created a substantial likelihood that a reader would fail to recognize that the provision could apply to the risk of a Club employee sexually abusing a member due to the Club's alleged negligence or failure to exercise reasonable care. (For more information, contact Lennée Mozia.)
Anschutz v. Dept. of Rev., Colorado Court of Appeals No. 21CA1242 (November 17, 2022)
Holding: The trial court erred in granting the department of revenue's motion to dismiss taxpayers' refund claim made in an amended state income tax return based on an amendment to federal income tax laws that applied to prior tax years. Taxpayers were entitled to file an amended state income tax return for the 2018 tax year claiming the entirety of their "excess business loss" as a deduction based on the federal CARES Act of 2020, which suspended the "excess business loss" deduction limits for the 2018 through 2020 tax years. Absent an amendment by the General Assembly to the state income tax code to not conform with changes to the federal Internal Revenue Code, section 39-22-103(5.3) unambiguously automatically incorporates amendments to the federal Internal Revenue Code, including amendments that relate to prior tax years. The department's emergency rule erroneously defined "internal revenue code" to exclude any federal statutory changes enacted after the last day of the taxable year and was not entitled to deference.
Case Summary: Congress enacted the CARES Act in March 2020, which Act retroactively reduced the federal taxable income for taxpayers who had "excess business loss" deductions for tax years 2018 through 2020 by suspending the limits on such deductions. In June 2020, the department adopted emergency rule 39-22-103(3.5), which states, in part, "'Internal revenue code' does not, for any taxable year, incorporate federal statutory changes that are enacted after the last day of that taxable year." Also in June, the General Assembly passed HB20-1420 (the "Tax Fairness Act"), which prevents taxpayers from using certain CARES Act provisions, including the unlimited "excess business loss" deduction, in calculating their Colorado taxable income for tax years ending on and after the enactment of the CARES Act, but before January 1, 2021, and for income tax years beginning on and after the enactment of the CARES Act, but before January 1, 2021. The Tax Fairness Act was signed into law in July 2020. Before the passage of HB20-1420, the taxpayers-appellants filed amended federal and Colorado income tax returns for tax year 2018, claiming the entirety of their "excess business loss" and seeking income tax refunds. The department rejected the refund claim citing the emergency rule. The taxpayers appealed to the district court, which court granted the department's motion to dismiss, reasoning that section 39-22-103(5.3) is ambiguous and the department's interpretation was reasonable, consistent with the General Assembly's later amendments to the statute, and entitled to deference. A panel of the Court of Appeals unanimously reversed and remanded the case, holding that while the General Assembly can amend the state income tax code to not confirm with changes to the Internal Revenue Code, until such amendments are effective, Colorado law automatically incorporates amendments to the Internal Revenue Code, whether retrospective or prospective in their operation. (For more information, contact Alison Killen.)
People v. Dennel, Colorado Court of Appeals No. 19CA1007 (October 5, 2022)
Holding: The juvenile transfer statute does not condition transfer eligibility on a previous delinquency adjudication.
Case Summary: Juvenile defendant was charged in juvenile court with committing a delinquent act that if committed by an adult would constitute second degree murder, a class 2 felony. On the date of the alleged offense, defendant was 15 years old. The juvenile court transferred defendant's case to district court for adult criminal proceedings pursuant to the juvenile transfer statute, § 19-2.5-802, C.R.S. In the district court, defendant pleaded guilty to manslaughter, a class 4 felony, and was sentenced as an adult. The defendant appealed, contending that his case was ineligible for transfer because the transfer statute requires a juvenile to have a prior felony adjudication in order for the case to be transferred, and defendant did not have a prior felony adjudication.
The court held that the plain language of the transfer statute does not require the transfer petition to allege the juvenile had been previously adjudicated for a delinquent act in order to transfer the juvenile's case to district court. As relevant to the issue in the case, the transfer statute only requires the delinquency petition to allege that the juvenile is at least a certain age and that the juvenile is accused of committing an offense of at least a certain seriousness. The court found that the petition in this case satisfied both conditions.
The court in this case acknowledged that another division of the court of appeals, in People v. Nelson, 2015 COA 123, interpreted the transfer statute to require a prior felony adjudication in order to transfer a juvenile's case to district court. The division in this case was not persuaded to depart from its plain language statutory analysis by the Nelson division's analysis because Nelson didn't turn on the issue of whether a prior felony adjudication was required and the Nelson division only addressed the issue in passing. (For more information, contact Conrad Imel.)
People v. Snelling, Colorado Court of Appeals No. 20CA1144 (October 5, 2022)
Holding: First degree criminal trespass, § 18-4-502(1)(a), C.R.S., is a lesser included offense of second degree burglary, § 18-4-203(1), C.R.S.
Case Summary: Defendant was convicted of both first degree criminal trespass and second degree burglary. On appeal, defendant argued that first degree criminal trespass is a lesser included offense of second degree burglary, so the trespass conviction should merge with the burglary conviction.
An offense is a lesser included offense of a greater offense if the lesser offense contains only elements that are also included in the elements of the greater offense. If a defendant is found guilty of a greater offense and a lesser included offense, the court must merge the lesser offense into the greater. In this case, the court found that both first degree criminal trespass and second degree burglary are committed by knowingly and unlawfully entering a dwelling; second degree burglary differs only because it requires the intent to commit a crime upon entry. Because all of the elements of first degree criminal trespass are included in second degree burglary, the trespass is a lesser included offense of the burglary and convictions for the offenses merge.
The court acknowledged that its holding conflicts with the Colorado Supreme Court's opinion in People v. Garcia, 940 P.2d 357 (Colo. 1997), in which the court held that first degree criminal trespass was not a lesser included offense of second degree burglary, and with the opinion of another division of the court of appeals in People v. Whiteaker, 2022 COA 84, in which the division relied on Garcia to hold that second degree burglary and first degree trespass do not merge. The court of appeals division in this case found that it is not bound by Garcia's holding because the Supreme Court implicitly overruled Garcia when, in a later case, it adopted a standard different from the one used in Garcia to determine whether two offenses merge. (For more information, contact Conrad Imel.)
People in Interest of A.C., Colorado Supreme Court No. 22SA73 (October 4, 2022)
Holding: 1) The Supreme Court's exercise of original jurisdiction under Colorado Appellate Rule 21(a)(1) was justified to determine whether the Juvenile Justice Code authorized a magistrate to order a juvenile who had been found incompetent to proceed to undergo a reassessment evaluation as part of restoration review or restoration hearing procedures under C.R.S. sections 19-2.5-704 and 19-2.5-705, respectively.
2) When a juvenile court determines during a restoration review (pursuant to C.R.S. section 19-2.5-704) or after a restoration hearing (pursuant to C.R.S. section 19-2.5-705) that a juvenile remains incompetent, the court has the authority under C.R.S. section 19-2.5-706(2) to order the juvenile to submit to a reassessment evaluation to determine whether the juvenile has been restored to competency.
3) A reassessment evaluation authorized under 19-2.5-706(2) is legally distinct from a second competency evaluation that is prohibited by the case People in Interest of B.B.A.M., 2019 CO 103 (B.B.A.M.)
Case Summary: The state filed a petition in delinquency against a juvenile (the juvenile), and the juvenile moved for a competency evaluation under C.R.S. section 19-2.5-703(1) in light of his Attention Deficit Hyperactivity Disorder (ADHD). The magistrate granted the motion for a competency evaluation. The evaluating doctor (doctor) and the magistrate found the juvenile to be incompetent to proceed (see C.R.S. section 16-8.5-101(12)), and the magistrate ordered the Colorado Department of Human Services (CDHS) to provide restoration services to the juvenile.
Approximately six months after the magistrate's initial order, the magistrate held a hearing to determine whether the juvenile's competency had been restored. During the hearing, the doctor and the juvenile's restoration services provider did not give opinions about whether the juvenile had been restored. The doctor said that he could not form an opinion about the juvenile's competency because he had not seen the juvenile since the initial evaluation. The doctor noted that he did not believe he could see the juvenile after the initial evaluation because he thought that the holding in the case People in Interest of B.B.A.M., 2019 CO 103 (B.B.A.M.), prevented him from performing a reassessment evaluation. The magistrate then ordered the juvenile to participate in an reassessment evaluation.
The juvenile objected to a reassessment evaluation, arguing that it was the same as a second competency evaluation, which is prohibited by the B.B.A.M. case. The magistrate held that a reassessment evaluation is not the same as a second competency evaluation, and the district court agreed.
The juvenile then sought relief from the Supreme Court. The Supreme Court held that it had original jurisdiction to hear this case under Colorado Appellate Rule 21(a)(1) because the case raised an issue "of significant public importance that [the Court had] not yet considered" and the juvenile could have suffered irreparable harm without Court intervention.
The Court held that, pursuant to C.R.S. section 19-2.5-706(2), a reassessment evaluation is legally distinct from a second competency evaluation that is prohibited by B.B.A.M. The Court also held that the law allows a juvenile court to order a reassessment evaluation after a determining a juvenile is incompetent. (For more information, contact Lennée Mozia.)
Ford Motor Co. v. Walker, Colorado Supreme Court No. 20SC947 (June 21, 2022)
Holding: If a civil judgment is reversed on appeal and a new judgment entered on retrial, postjudgment interest accrues at the market interest rate after the date of the first judgment rather than the statutory 9% interest rate.
Case Summary: Under § 13-21-101, C.R.S., if a judgment debtor appeals a judgment, postjudgment interest accrues from the date the judgment is entered until the judgment is satisfied at the market interest rate rather than the statutory interest rate of 9%. In this case, the judgment debtor successfully appealed the first judgment, resulting in reversal and remand to the trial court for a new trial. Following the new trial, a second judgment was entered for the plaintiffs. In an appeal to the Colorado Supreme Court following entry of the second judgment, the issue was whether the market interest rate should apply from the date the first judgment was entered until the second judgment was satisfied or whether the statutory 9% interest rate should apply once the first judgment was reversed and the case sent back to the trial court for retrial. The Supreme Court found that the statute was ambiguous, but interpreted the legislative intent of the statute to require application of the market interest rate for the entire period after the date of the first judgment and until the second judgment was satisfied. (For more information, contact Jeremiah Barry.)
Magana v. People, Colorado Supreme Court No. 20SC928 (June 13, 2022)
Holding: 1) The Colorado Supreme Court affirmed the Court of Appeals by holding that a defendant's convictions for two counts of first degree arson, two counts of second degree arson, and fourteen counts of fourth degree arson all arising from a single criminal episode were not a violation of the constitution's double jeopardy clause because (a) the unit of prosecution for first degree arson is each building or occupied structure that is damaged, (b) the unit of prosecution for second degree arson is each person's property (other than a building or occupied structure) that is damaged, and (c) the unit of prosecution for fourth degree arson is each person endangered by the criminal act.
2) The Colorado Supreme Court reversed the Court of Appeals by holding that fire alone is not a deadly weapon for the purpose of prosecuting first degree arson as a crime of violence subject to sentence enhancement.
Case Summary: A criminal defendant started a fire that engulfed two cars and a duplex that contained fourteen people. The trial court found the defendant guilty of eighteen counts of arson, including two counts of first degree arson, two counts of second degree arson, and fourteen counts of fourth degree arson. The defendant's charges for first degree arson were charged as crimes of violence based on the defendant's use of "fire and accelerant" as a "deadly weapon". A conviction of first degree arson as a crime of violence is subject to sentence enhancement under the law. The jury found that both counts of first degree arson involved the use of a deadly weapon. However, the trial court believed that the jury reached its sentence enhancement finding based on fire alone. The trial court refused to sentence the defendant under the crime of violence sentence enhancement laws because the court reasoned that the use of fire was already necessary to an arson conviction. The Court of Appeals affirmed the trial court's convictions but concluded that the trial court should have imposed the crime of violence enhancement.
On appeal to the Supreme Court, the defendant argued that his eighteen convictions violated the double jeopardy clause and that his use of fire in the commission of first degree arson did not qualify him for a crime of violence sentence enhancement.
The Supreme Court affirmed the defendant's eighteen convictions. In its holding, the Court referenced Woellhaf v. People, 105 P.3d 209 (Colo. 2005), which stated that "[t]he unit of prosecution is the way the General Assembly, in drafting a criminal statute, divides a defendant's conduct 'into discrete acts for purposes of prosecuting multiple offenses.'" The Supreme Court found no double jeopardy clause violation in the defendant's convictions because (a) the unit of prosecution for first degree arson is each building or occupied structure that is damaged, (b) the unit of prosecution for second degree arson is each person's property (other than a building or occupied structure) that is damaged, and (c) the unit of prosecution for fourth degree arson is each person endangered by the criminal act.
The Supreme Court reversed the Court of Appeals' holding that the trial court should have applied a crime of violence sentence enhancement to defendant's first degree arson convictions. Although the defendant was charged for first degree arson using "fire and accelerant", the parties to the appeal focused only on the use of fire, and the question before the Supreme Court was "whether fire is a deadly weapon that can make first degree arson a crime of violence." The Supreme Court concluded that fire alone is not a deadly weapon for the purpose of prosecuting first degree arson as a crime of violence because "...first-degree-arson fires...would always trigger the [crime of violence] sentence enhancer[,]" and the Court saw "nothing to suggest that the legislature intended to make all first-degree-arson fires [crimes of violence]." (For more information, contact Lennée Mozia.)
Gregory v. Safeco Ins. Co. of Am., Colorado Court of Appeals No. 20CA1694 (April 21, 2022)
Holding: 1) The Court of Appeals refused to apply the notice-prejudice rule, which excuses an insured party's late filing of a claim when the insurer is unable to demonstrate that its interests were prejudiced by the late notice, to excuse a homeowner's untimely notice to her homeowner's insurance carrier regarding hail damage. The Court reasoned that the Colorado Supreme Court has not applied the notice-prejudice rule in the context of a homeowner's insurance policy, and such a departure from precedent is an undertaking exclusively reserved to that Court. For this reason, the Court upheld the district court's dismissal of the homeowner's claim.
2) The Court of Appeals also held that a provision in a homeowner's insurance policy that requires the homeowner to notify the insurer about a covered loss in a shorter amount of time than the applicable statute of limitations allows for filing a lawsuit against the insurer does not unlawfully restrict an insured party's ability to file such a lawsuit.
Case Summary: The plaintiff (the Homeowner) had a homeowner's insurance policy that provided coverage from February 15, 2017, to February 15, 2018. The Homeowner's home suffered hail damage in May 2017, but she did not notify the defendant (the Insurer) until about eighteen months after her home suffered damage. The policy stated, "In case of a loss to which this insurance may apply, you must...give immediate notice...within 365 days after the date of the loss....No action shall be brought against [the Insurer] unless there has been compliance with the policy provisions." The Insurer denied the Homeowner's claim as untimely and did not investigate the property damage until after the Homeowner filed a lawsuit.
More than two years after the Insurer's denial, the Homeowner sued the Insurer for breach of contract, bad-faith breach of an insurance policy, and unreasonable delay and denial of payment. The district court dismissed the Homeowner's claims because the Homeowner's delayed notice violated the policy, was unexcused, and relieved the Insurer of its obligation to provide coverage.
The Homeowner admitted that her untimely notice to the Insurer was unjustified, but she argued that the district court should have applied the notice-prejudice rule which states that "...an insured who gives late notice of a claim to his or her insurer does not lose coverage benefits unless the insurer proves by a preponderance of the evidence that the late notice prejudiced its interests." The Court of Appeals declined to apply the notice-prejudice rule because the Colorado Supreme Court has applied the rule only to cases involving underinsured motorist and liability insurance policies and not to cases involving homeowner's insurance policies. The Court held that "...applying the notice-prejudice rule to an entirely new class of insurance policies would...require departure from our supreme court's precedent, an undertaking exclusively reserved to that court...."
The Homeowner also argued that the Insurer's 365-day notice requirement effectively shortened the applicable statute of limitations for her legal claims. The Court disagreed, stating, "...a policy requirement to file a timely claim with an insurer has no bearing on the insured's ability to file a timely lawsuit for the insurer's violations of that policy."
For these reasons, the Court of Appeals affirmed the district court's dismissal of the Homeowner's case. (For more information, contact Lennée Mozia.)
People v. Moreno, Colorado Supreme Court No. 21SA181 (March 28, 2022)
Holding: The phrase "intended to harass" in subsection § 18-9-111(1)(e) is facially overbroad and therefore unconstitutional.
Case Summary: Defendant was charged with harassment under § 18-9-111(1)(e) for making multiple derogatory and offensive comments about his ex-wife on social media. Because the term "harass" has a broad meaning that can be applied to protected and unprotected speech, the court ruled that the phrase "intended to harass" was substantially overbroad on its face because the phrase substantially extends into areas of protected speech. Therefore, the court partially invalidated the statute by removing the words "harass or" from (1)(e). (For more information, contact Chelsea Princell.)
Rojas v. People, Colorado Supreme Court No. 20SC399 (February 22, 2022)
Holding: Criminal conviction was reversed because of admission of evidence of prior criminal act under the common law doctrine of res gestae. The court found that res gestae no longer applies in Colorado.
Case Summary: Defendant was convicted of two counts of theft based upon her improper receipt of food stamps benefits. At trial, the prosecution, over objection, submitted evidence of her application for benefits after the time period in which she received the improper benefits. The trial court and court of appeals upheld the submission of such evidence under the common law doctrine of res gestae. The supreme court reversed and held that the doctrine of res gestae is abolished in criminal cases and that evidence of other wrong doing should be analyzed under Rule 404 of the Colorado Rules of Evidence. (For more information, contact Jeremiah Barry.)