Slip opinions decided 2018 — Colorado Public Domain Citations

In this case, the Supreme Court considered whether CRS § 42-2-126(8)(c) requires all written statements from non-law enforcement sources to be presented in affidavit form and sworn to under penalty of perjury before they can be considered as evidence in driver's license revocation hearings. CRS § 42-2-126(8)(c) provides that, in driver's license revocation proceedings, a hearing officer "may consider evidence contained in affidavits from persons other than the respondent," so long as those affidavits meet certain requirements, including the requirement that the affidavits be sworn to under penalty of perjury. The Supreme Court held that CRS § 42-2-126(8)(c) does not require all written statements from non-law enforcement sources to be presented in affidavit form and sworn to under penalty of perjury before they can be considered as evidence in driver's license revocation hearings. Specifically, the Court held that the blood alcohol content test report in this case did not have to meet the affidavit requirements of CRS § 42-2-126(8)(c) for the hearing officer to consider its contents. Accordingly, the Court reversed the judgment of the Court of Appeals.

Constitutional Law—Colo. Const. Art. V, § 50—Motion to Dismiss. In this case, the Supreme Court considered whether petitioner's complaint alleged a violation of article V, section 50 of the Colorado Constitution sufficient to overcome a motion to dismiss. The Court held that to state a claim for relief under section 50, a complaint must allege that the state made a payment to a person or entity—whether directly to that person or entity, or indirectly through an intermediary—for the purpose of compensating them for performing an abortion and that such an abortion was actually performed. Because petitioner's complaint did not allege that the state made such a payment, the complaint failed to state a claim for relief under CRCP 12(b)(5). Accordingly, the Court affirmed the judgment of the Court of Appeals. In this case, the Supreme Court considered whether petitioner's complaint alleged a violation of article V, section 50 of the Colorado Constitution sufficient to overcome a motion to dismiss. The Court held that to state a claim for relief under section 50, a complaint must allege that the state made a payment to a person or entity—whether directly to that person or entity, or indirectly through an intermediary—for the purpose of compensating them for performing an abortion and that such an abortion was actually performed. Because petitioner's complaint did not allege that the state made such a payment, the complaint failed to state a claim for relief under CRCP 12(b)(5). Accordingly, the Court affirmed the judgment of the Court of Appeals.

Motion for New Trial—Evidence. In this case, the Supreme Court considered two questions. The first is whether a Crim. P. 33(c) motion for a new trial is time-barred because it was filed more than one year after the defendant's conviction, and thus arguably more than one year after "entry of judgment." The second is whether the trial court erred in granting a new trial after concluding that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide to the defense evidence that the prosecution had obtained at the outset of the investigation until after defendant's conviction. The Court held that "entry of judgment," for the purposes of Rule 33(c), does not occur until both a verdict or finding of guilt and the imposition of a sentence. The Court concluded that, applying Brady's disclosure requirements, the trial court did not abuse its discretion in granting a motion for a new trial.

Attempted Recklessness—Attempted Reckless Manslaughter—Equal Protection. In this case, the Supreme Court considered whether the requirement in the attempted reckless manslaughter and attempted second degree assault statutes that a defendant place "another person" at risk of death or serious bodily injury necessitates that an actual, discernible person be placed at risk, or whether "another person" can refer to the public at large. The Court concluded that the statutes at issue require a showing of a risk to an actual, discernible person and that a risk to the public at large is insufficient. Here, because the People presented no evidence that defendant's actions put any particular person at risk, the Court affirmed the Court of Appeals' judgment reversing his convictions.

Election Law—Disclosure. A lawyer filed a report for Coloradans for a Better Future (Better Future), a political organization, without charging a fee. The Supreme Court reversed the Court of Appeals' determination that Better Future was required to report the donated legal service as a "contribution" under Colorado's campaign-finance laws. The constitutional definition of "contribution" does not address political organizations, and neither part of the statutory definition relied on by the Court of Appeals covers legal services donated to political organizations. CRS § 1-45-103(6)(b) does not apply to political organizations, and the word "gift" in CRS § 1-45-103(6)(c)(I) does not include gifts of service.

Election Law—Constitutional Law—Political Speech. The Supreme Court held that a political committee must report payments to a law firm for its legal defense as contributions, but not as expenditures. "[E]xpenditures . . . and obligations" under CRS § 1-45-108(1)(a)(I) are limited to payments and obligations for expressly advocating the election or defeat of a candidate payments for legal defense are not for express electoral advocacy. But, pursuant to Colo. Const. art. XXVIII, § 2(5)(a)(II), payments to a third-party law firm for a political committee's legal defense count as reportable contributions because they are payments "made to a third party for the benefit of any . . . political committee." The Court reversed the administrative law judge's determination that the contribution-reporting requirement is unconstitutional as applied to Alliance for a Safe and Independent Woodmen Hills (Alliance). Under Buckley v. Valeo, 424 U.S. 1, 61–68 (1976), for political committees like Alliance whose major purpose is influencing elections, the governmental interests in political transparency and preventing corruption justify the First Amendment burdens of reporting and disclosure. It makes little difference that the payments here were made post-election and for legal defense elections are cyclical and money is fungible.

Criminal Law—Harmless Error. The Supreme Court reviewed the Court of Appeals' opinion affirming defendant's conviction for burglary, kidnapping, sexual assault, and other offenses. The Court of Appeals held that although the trial court erred by admitting a victim's out-of-court statements as excited utterances under CRE 803(2), the trial court's error did not require reversal because the statements were admissible as prior consistent statements to rehabilitate the victim's credibility after defense counsel attacked it during his opening statement. The Court concluded that any error in the admission of the victim's out-of-court statements was harmless because there was no reasonable possibility that the admission of these statements contributed to defendant's conviction. Accordingly, the Court declined to address whether defense counsel's opening statement opened the door to the admission of the victim's out-of-court statements and expressed no opinion on this issue. The Court therefore affirmed the judgment of the Court of Appeals, albeit on different grounds.

Physician–Patient Privilege—Implied Waiver. In this original proceeding, the Supreme Court considered the scope of the physician–patient privilege in a medical malpractice action. Contrary to the conclusion of the trial court, the Court held that plaintiffs' non-party medical providers were not in consultation with defendants such that the typically privileged information held by those non-party medical providers was no longer protected by the physician–patient privilege. Therefore, the trial court abused its discretion when it granted defendants' request to hold ex parte interviews with those non-party medical providers on consultation grounds. However, the Court remanded the case to the trial court for consideration of whether plaintiffs impliedly waived the protection of the physician–patient privilege such that ex parte interviews may still be permitted.

C.A.R. 21.1— Certified Questions of State Law—Colorado Wage Claim Act—Statute of Limitations—Statutory Construction. The Supreme Court accepted jurisdiction under C.A.R. 21.1 to answer a certified question of law from the U.S. District Court for the District of Colorado regarding how far back in time a terminated employee's unpaid wage claims can reach under the Colorado Wage Claim Act, CRS §§ 8-4-101 to -123. The Court held that, under the plain language of CRS § 8-4-109, a terminated employee may seek any wages or compensation that were unpaid at the time of termination however, the right to seek such wages or compensation is subject to the statute of limitations found in CRS § 8-4-122. That statute of limitations begins to run when the wages or compensation first become due and payable and thus limits a terminated employee to claims for the two years (three for willful violations) immediately preceding termination.

Adjoining Landowners, Stare Decisis.

Election Law. In this expedited appeal under CRS § 1-1-113(3), the Supreme Court addressed whether the Colorado Secretary of State (Secretary) may certify incumbent Representative Doug Lamborn to the 2018 Republican primary ballot for Colorado's Fifth Congressional District. Relying solely on the Colorado Election Code, the Court concluded he may not. The Court held that although the Secretary properly relied on the circulator's affidavit and information in the voter registration system in verifying the petition and issuing a statement of sufficiency, petitioners nonetheless had the statutory right to challenge the validity of the petition under CRS §§ 1-4-909 and 1-1-113 before the Secretary certified Rep. Lamborn's name to the ballot. Petitioners properly presented additional evidence to the district court in challenging the actual residence of the petition circulators. The Court concluded that the district erred when it focused on the challenged circulator's subjective intent to move back to Colorado, rather than the test set forth in CRS § 1-2-102, when determining the challenged circulator's residency. In applying the correct test to the essentially undisputed facts here, the Court concluded that the challenged circulator was not a resident of Colorado when he served as a circulator for the Lamborn Campaign. Accordingly, the Court reversed the district court's ruling to the contrary. Because the challenged circulator was statutorily ineligible to serve as a circulator, the signatures he collected are invalid and may not be considered. That caused the Lamborn Campaign's number of signatures to fall short of the 1,000 required to be on the Republican primary ballot. Therefore, the Court held that the Secretary may not certify Rep. Lamborn to the 2018 primary ballot for Colorado's Fifth Congressional District. The Court did not address the Lamborn Campaign's arguments regarding the constitutionality of the circulator residency requirement in CRS § 1-4-905(1) because the Court lacks jurisdiction to address such claims in a proceeding under CRS § 1-1-113.

In this dependency or neglect case, the trial court held a single adjudicatory trial to determine the dependent or neglected status of the child. The judge served as fact-finder with respect to allegations against mother, and a jury sat as fact-finder with respect to the allegations against father. The judge ultimately concluded that the child was dependent or neglected "in regard to" mother. In contrast, the jury concluded there was insufficient factual basis to support a finding that the child was dependent or neglected. In light of these divergent findings, the trial court adjudicated the child dependent or neglected and continued to exercise jurisdiction over the child and mother, but entered an order dismissing father from the petition. The People appealed the jury's verdict regarding the father. The Court of Appeals dismissed the People's appeal for lack of jurisdiction, reasoning that the dismissal of a single parent from a petition in dependency or neglect based on a jury verdict is not a final appealable order because neither the appellate rule nor the statutory provision governing appeals from proceedings in dependency or neglect expressly permits an appeal from a "'no adjudication' finding." The Supreme Court concluded that, with limited exceptions not relevant here, section 19-1-109(1) of the Colorado Children's Code authorizes appeals in dependency or neglect proceedings from "any order" that qualifies as a "final judgment" for purposes of CRS § 13-4-102(1). Because the trial court's order dismissing father from the petition was not a "final judgment," the Court concluded that the Court of Appeals lacked jurisdiction and properly dismissed the Department of Human Services' appeal. The Court of Appeals' dismissal was affirmed.

This case required the Supreme Court to decide two questions: (1) whether the owner–director of a nonprofit school regulated by various governmental entities is a "public employee" within the meaning of CRS § 18-9-110(1), and (2) whether respondent waived or invited error with respect to a constructive amendment claim when his defense counsel stated that he was "satisfied" with the proposed jury instructions, notwithstanding the fact that the elemental instruction on the charge of interference with the staff, faculty, or students of an educational institution tracked CRS § 18-9-109(1)(b) rather than CRS § 18-9-109(2), which was the subsection charged in the information. As to the first question, the Court concluded that "public employee" means an employee of a governmental entity, and therefore an employee of a nonprofit school is not a public employee. Accordingly, the Court agreed with the Court of Appeals division's decision that respondent's conviction for interference with a public employee in a public building cannot stand. As to the second question, the Court concluded that respondent neither waived nor invited error with respect to his constructive amendment claim because the record does not indicate that he or his counsel either intentionally relinquished a known right or deliberately injected the erroneous jury instruction as a matter of trial strategy. The Court instead construed respondent's general acquiescence to the instructions as a forfeiture and, reviewing for plain error, concluded that the constructive amendment of respondent's charging document constituted plain error necessitating a new trial. The Court affirmed in part and reversed in part the Court of Appeals division's judgment.

Invited Error—Waiver—Simple Variance—Plain Error Review. In this case, the Supreme Court reviewed two issues: (1) whether respondent waived or invited error with respect to his claim of a prejudicial simple variance when his defense counsel stated that the proposed jury instructions were generally acceptable, and (2) whether a jury instruction on menacing that does not identify the particular victim named in the charging document creates a simple variance warranting reversal when the jury could potentially have deemed either of two people to be the victim. In light of the Supreme Court's opinion in People v. Rediger, 2018 CO 32, ___ P.3d ___, the Court concluded that respondent neither waived nor invited error with respect to his simple variance claim. The Court thus reviewed respondent's variance claim for plain error and concluded that because the evidence presented at respondent's trial would not obviously have allowed the jury to find that the respondent menaced a victim not named in his charging document, the trial court did not plainly err in instructing the jury on menacing without specifying the victim. The Court reversed the Court of Appeals division's judgment.

This case required the Supreme Court to determine whether the State may seek to terminate a parent's parental rights under the relinquishment provision of the Colorado Children's Code, CRS § 19-5-105, when the child is already subject to a dependency and neglect proceeding under Article 3 of the Code, CRS §§ 19-3-100.5 to -805. The Court concluded that when a dependency and neglect proceeding is pending, the State can terminate parental rights only through the procedures set forth in Article 3 of the Code and cannot use the more limited processes provided in Article 5. The Court affirmed the Court of Appeals division's judgment.

Pursuant to C.A.R. 4.1, the People challenged an order of the district court granting Taylor's motion to suppress drug evidence. The Supreme Court held that the district court erred in granting Taylor's motion to suppress because no seizure had yet taken place when Taylor dropped the drugs. The Court reversed the district court's suppression order and remanded the case for further proceedings.

The Supreme Court considered whether a $0.20 charge on paper bags is a tax subject to the Taxpayer's Bill of Rights (TABOR). The Court held that if the primary purpose of a charge is to raise revenue for the general expenses of government, the charge is a tax. Conversely, the Court concluded that a charge is not a tax if the primary purpose of a charge is to defray the reasonable direct and indirect costs of providing a service or regulating an activity, because such a charge does not raise revenue for the general expense of government. After analyzing the charge in this case, the Court held that this charge is not a tax. Aspen imposed this charge as part of a regulatory program aimed at waste management, and the $0.20 charge for the right to use a paper bag bears a reasonable relationship to Aspen's cost of permitting that use. Because this charge is a not a tax, it is exempt from TABOR's requirements. The Court affirmed the Court of Appeals' judgment.

Colorado Governmental Immunity Act—Sovereign Immunity. The Supreme Court considered whether the City and County of Denver waived its immunity under the Colorado Governmental Immunity Act (CGIA). After a motorcycle accident, plaintiff sued the City and County of Denver, and alleged that Denver had waived its immunity under the CGIA because the road on which plaintiff was traveling constituted a dangerous condition that physically interfered with the movement of traffic. To prove a dangerous condition, a plaintiff must prove four elements, one of which is that the road constituted an unreasonable risk to the health and safety of the public. The Court defined "unreasonable risk" in this context as a road condition that creates a chance of injury, damage, or loss that exceeds the bounds of reason. This determination will be fact specific, and in this case, the road did not create an unreasonable risk to the health and safety of the public. Nor did the condition of the road physically interfere with the movement of traffic. The Court reversed the Court of Appeals' judgment.

Water Law—Jurisdiction. The Jim Hutton Educational Foundation, a surface-water user, claimed that a statute prohibiting any challenge to a designated groundwater basin that would alter the basin's boundaries to exclude a permitted well is unconstitutional. The water court dismissed that claim for lack of subject matter jurisdiction, concluding that the surface-water user had to first satisfy the Colorado Groundwater Commission that the water at issue was not designated groundwater. The Supreme Court concluded that, because jurisdiction vests in the water court only if the Colorado Groundwater Commission first concludes that the water at issue is designated groundwater, the water court properly dismissed the constitutional claim for lack of subject matter jurisdiction. The Court affirmed the water court's ruling.

Insurance—Underinsured Motorist Benefits—Unreasonable Delay/Denial of Payment. The Supreme Court held that under CRS § 10-3-1115 insurers have a duty not to unreasonably delay or deny payment of covered benefits, even though other components of an insured's claim may still be reasonably in dispute. Here, an insurer issued multiple underinsured motorist insurance policies that covered a driver who was injured by an underinsured motorist. Though the insurer agreed that its policies covered the driver's medical expenses, it refused to pay them because the insurer disputed other amounts (including lost wages) that the driver sought under the policies. A jury found that the insurer violated CRS § 10-3-1115, which provides that an insurer "shall not unreasonably delay or deny payment of a claim for benefits owed to or on behalf of any first-party [insured] claimant." Because the Court of Appeals properly upheld the driver's jury award, the Court affirmed its judgment.

In this interlocutory appeal, the Supreme Court reviewed the trial court's order appointing a special prosecutor for the purpose of litigating defendant's post-trial motion for a new trial. In his motion, defendant alleged that the prosecution had improperly instructed a witness to evade a defense subpoena. The trial court concluded that the Colorado Rules of Professional Conduct compelled it to appoint a special prosecutor for the purposes of the hearing on this motion because, subject to exceptions not pertinent here, Colo. RPC 3.7 prohibits an attorney from acting as both an advocate and a witness during the same proceeding. The Court concluded that the trial court abused its discretion in appointing a special prosecutor because that court misapplied the law when it found that Colo. RPC 3.7 required the appointment of a special prosecutor in the circumstances present here. Specifically, the rule serves to prevent prejudice that arises from jury confusion in cases in which an attorney serves as both counsel and witness. Because this proceeding arose in the context of a post-trial motion, that concern is not implicated. The Court reversed the trial court's order and remanded this case for further proceedings.

The Supreme Court considered whether and when a civil protection order is available to a victim of alleged domestic abuse who comes to Colorado seeking refuge from a non-resident. The Court concluded that an out-of-state party's harassment of, threatening of, or attempt to coerce an individual known by the non-resident to be located in Colorado is a tortious act sufficient to establish personal jurisdiction under the state's long-arm statute, CRS § 13-1-124. The Court also concluded that such conduct creates a sufficient nexus between the out-of-state party and Colorado to satisfy the requisite minimum contacts such that the exercise of jurisdiction by a Colorado court to enter a protection order comports with traditional notions of fair play and substantial justice. The Court reversed the district court's order vacating the permanent civil protection order and remanded the case for further proceedings.

ACA,CRCP 38,Right to a Jury Trial,Legal or Equitable,Basic Thrust Test. This case concerns the right to a jury trial in a civil case. The Supreme Court considered whether trial courts must review the claims in a plaintiff's amended complaint, as opposed to those in its original complaint, to determine whether a party is entitled to a jury trial under CRCP 38. The Court concluded that its prior cases and the Colorado Rules of Civil Procedure require it to answer that question affirmatively. Accordingly, the Court held that when a plaintiff amends its complaint and a party properly demands a jury trial under CRCP 38, the trial court should determine whether the case may be tried to a jury based on the claims in the amended complaint. The Court further held that CRCP 38 permits a case to be tried to a jury when the claims in the plaintiff's amended complaint are primarily legal, as opposed to equitable. Finally, after examining respondents' amended complaint, the Court concluded that respondents' claims against petitioner are primarily legal. Thus, petitioner was entitled to a jury trial under CRCP 38. The Court of Appeals' judgment was reversed.

Preliminary Hearings. Austin petitioned for relief pursuant to C.A.R. 21 from a district court order denying his motion for a preliminary hearing. The Supreme Court issued its rule to show cause why the order should not be disapproved, and the People responded. The Court now makes the rule absolute and orders that Austin be given a preliminary hearing because he was charged by information with a class 4 felony committed as a "crime of violence" as defined in CRS § 18-1.3-406(2)(a)(I)(B) and (II)(C), which statutorily entitles him to a preliminary hearing, whether or not he would actually be subject to mandatory sentencing for a crime of violence.

Amendment 41,Independent Ethics Commission,Jurisdiction. The Supreme Court considered whether Colorado's Independent Ethics Commission (the IEC) had jurisdiction pursuant to article XXIX of the Colorado Constitution to hear a complaint based on allegations that then-Secretary of State Scott Gessler (the Secretary) breached the public trust by using money from his statutorily provided discretionary fund for partisan and personal purposes. The IEC investigated the complaint, held an evidentiary hearing, and determined that the Secretary's conduct breached the public trust. The Secretary sought judicial review of the IEC's ruling, arguing that the IEC lacked jurisdiction over the case, the relevant jurisdictional language must be narrowly construed to avoid unconstitutional vagueness, and the IEC violated his procedural due process rights. Both the district court and the Court of Appeals affirmed the IEC's ruling. The Court held that relevant jurisdictional language in Colo. Const. art. XXIX, § 5 authorizes the IEC to hear complaints involving ethical standards of conduct relating to activities that could allow covered individuals, including elected officials, to improperly benefit financially from their public employment. The Court further held that CRS § 24-18-103 is one such ethical standard of conduct. This provision establishes that the holding of public office or employment is a public trust, and that a public official "shall carry out his duties for the benefit of the people of the state." Because the allegations against the Secretary clearly implicated this standard, the Court concluded that the complaint fell within the IEC's jurisdiction and rejected the Secretary's jurisdictional and vagueness challenges. Additionally, the Court rejected the Secretary's procedural due process claim because he failed to demonstrate that he suffered any prejudice as a result of the alleged violation. The Court of Appeals' judgment was affirmed.

Life insurance Policies,Suicide Exclusion Clauses. In this opinion, the Supreme Court answered a question of state law certified by the U.S. District Court for the District of Colorado. The Court was asked to interpret the meaning of the words "suicide, sane or insane" when used in life insurance policies. The Court concluded that, under Colorado law, a life insurance policy exclusion for "suicide, sane or insane" excludes coverage only if the insured, whether sane or insane at the time, committed an act of self-destruction with the intent to kill himself.

Attorney–Client Privilege,Implied Waiver. In this original proceeding pursuant to C.A.R. 21, the Supreme Court reviewed the district court's determination that petitioner State Farm Fire and Casualty Company impliedly waived the attorney–client privilege protecting communications between it and its former counsel when it submitted an affidavit from that former counsel to rebut factual allegations of discovery misconduct. The Court issued a rule to show to cause why the district court's finding of implied waiver should not be reversed and now makes that rule absolute. The attorney affidavit submitted in this case did not put privileged information at issue by asserting a claim or defense that depends on privileged information or attorney advice. Rather, the affidavit contained only factual statements that were intended to rebut allegations of discovery misconduct. Accordingly, the Court concluded that the district court erred in finding that State Farm impliedly waived its attorney–client privilege on the facts presented.

Public Defender Representation—Statutory Interpretation. In this case, the Supreme Court determined whether the Office of the State Public Defender has statutory authority to represent an indigent defendant in a civil forfeiture matter. Reviewing the plain language of the relevant statutes, the Court concluded that the Office of the State Public Defender was not statutorily authorized to enter its appearance in the underlying civil forfeiture matter.

Health Care Availability Act—Statutory Construction—Alternative Dispute Resolution. CRS § 13-64-403 of the Health Care Availability Act governs arbitration agreements between patients and healthcare providers. Under CRS § 13-64-403(4), such agreements must contain a certain notice to patients to help ensure that they enter the agreements voluntarily, and the notice must be emphasized by at least 10-point font and bold-faced type. The agreement here contained the notice in 12-point font, but it was not bold-faced. The Court of Appeals determined the statute requires strict compliance and that the agreement therefore failed for lack of bold-faced type. The Supreme Court held that CRS § 13-64-403 requires only substantial compliance. The Court further concluded the agreement here substantially complied with the formatting requirements of CRS § 13-64-403, notwithstanding its lack of bold-faced type. Accordingly, the Court reversed the Court of Appeals' judgment and remanded the case for further proceedings consistent with the opinion.

Suppression of Statements—Two-Step Interrogation—Plurality Supreme Court Opinions—Miranda Warnings. This case required the Supreme Court to decide (1) whether the U.S. Supreme Court's fractured opinion in Missouri v. Seibert, 542 U.S. 600 (2004), created a precedential rule that could be applied to future cases, and (2) whether statements made by petitioner after she was given Miranda warnings should be suppressed because the statements were made after petitioner provided unwarned, incriminating statements to the police. The Court concluded that Justice Kennedy's concurring opinion in Seibert, which created an exception to the framework established in Oregon v. Elstad, 470 U.S. 298 (1985), for cases involving a deliberate two-step interrogation aimed at undermining the efficiency of the Miranda warning, is the controlling precedent to be applied. Applying Justice Kennedy's test here, the Court concluded that the officers in this case did not engage in a two-step interrogation in a deliberate attempt to undermine the effectiveness of Miranda warnings provided to petitioner. Therefore, the Court concluded that the Elstad framework applies, and because petitioner's pre- and post-warning statements were indisputably voluntary, the Court concluded that the division correctly determined that petitioner's post-warning statements were admissible. Accordingly, the Court affirmed the Court of Appeals division's judgment.

Undisclosed Principals—Fraud—Breach of Fiduciary Duty—Restatement (Third) of Agency. This case arose out of a sale of oil and gas assets by petitioners to a buyer who was acting as an agent for a third company. The third company was represented by respondents, but due to a prior, contentious business relationship between petitioners and the third company, neither the buyer, the third company, nor respondents disclosed to petitioners that the buyer was acting on behalf of the third company in the sale. After the sale was complete, petitioners learned of the third company's involvement and sued respondents, among others, for breach of fiduciary duty, fraud, and civil conspiracy. The district court ultimately granted summary judgment for respondents, and a division of the Court of Appeals affirmed. The Supreme Court here decided whether (1) petitioners could avoid their sale agreement for fraud when the buyer and respondents purportedly created the false impression that the buyer was not acting on behalf of the third company (2) an assignment clause in the transaction documents sufficiently notified petitioners that the buyer was acting on behalf of others, such that the third company would not be considered an undisclosed principal under the Restatement provision on which petitioners' contract avoidance argument is exclusively premised (3) petitioners stated a viable claim for fraud against respondents and (4) prior agreements between petitioners and the third company negated any joint venture relationship or fiduciary obligations between them. The Court first concluded that the assignment clause in the pertinent transaction documents made clear that the buyer had partners in the transaction to whom it could assign a portion of its interests. As a result, the third company was not an undisclosed principal under the Restatement provision on which petitioners' rely, and petitioners' contract avoidance argument and the civil conspiracy claim that flows from it fail as a matter of law. The Court further concluded that, even if the Restatement provision did apply, the record did not support a finding that either the buyer or respondents created a false impression that the buyer was not acting on behalf of an undisclosed principal. For this reason as well, petitioners' civil conspiracy claim failed as a matter of law. The Court next concluded that, as a matter of law, petitioners did not demonstrate the requisite false representation or reasonable reliance to support a viable claim for fraud against respondents. Finally, the Court concluded that the controlling agreements between petitioners and the third company expressly disavowed any pre-existing joint ventures and fiduciary obligations between the parties, and therefore the district court properly granted summary judgment for respondents on petitioners' claim for aiding and abetting a breach of fiduciary duty. Accordingly, the Court affirmed the Court of Appeals division's judgment.

Constitutional Law — Public Access to Court Records. In this original proceeding, the Supreme Court considered and rejected a news organization's contention that a trial court erred in refusing to grant public access to certain records maintained under seal in a capital murder case. The Court emphasized that, while presumptive access to judicial proceedings is a right recognized under both the state and federal constitutions, neither the U.S. Supreme Court nor the Colorado Supreme Court has ever held that records filed with a court are treated the same way. The Court thus declined the invitation to hold that unfettered access to criminal justice records is guaranteed by either the First Amendment or Article II, section 10 of the Colorado Constitution.

Breach of Contract,Mitigation,Settlement Offer,Accord and Satisfaction. U.S. Welding, Inc. (Welding) sought review of the Court of Appeals' judgment affirming the district court's order awarding it no damages whatsoever for breach of contract with Advanced Circuits, Inc. (Advanced). Notwithstanding its determination following a bench trial that Advanced breached its contract to purchase from Welding all its nitrogen requirements during a one-year term, the district court reasoned that by declining Advanced's request for an estimate of lost profits expected to result from Advanced's breach before the contract term expired, Welding failed to mitigate. The Supreme Court reversed the Court of Appeals' judgment concerning the failure to mitigate and remanded the case for further proceedings. The Court held that the district court erred by requiring Welding to settle for a projection of anticipated lost profits, rather than its actual loss, as measured by the amount of nitrogen Advanced actually purchased from another vendor over the contract term, because an aggrieved party is not obligated to mitigate damages from a breach by giving up its rights under the contract.

Colorado Common Interest Ownership Act,Common Interest Communities,Homeowners' Associations. The Supreme Court reviewed the Court of Appeals' opinion affirming the trial court's order finding that the recorded instruments in this case were sufficient to create both a common interest community by implication and an unincorporated homeowners' association. The Court held that the recorded instruments were insufficient under the Colorado Community Interest Ownership Act to create a common interest community by implication. Accordingly, the Court reversed the Court of Appeals' judgment and remanded the case for further proceedings consistent with this opinion.

Attorney Fees,Statutory Interpretation. In this case, the Supreme Court considered whether a trial court may award attorney fees under CRS § 13-17-102 for conduct occurring outside Colorado courts. Reviewing the plain language of section 102, the Court concluded that an award of attorney fees pursuant to that section is limited to conduct occurring in Colorado courts and therefore affirmed the judgment of the Court of Appeals.

Declaratory Judgment Actions,CRCP 57,CRCP 106,Municipal Ordinances,Finality. This case arises out of respondents' challenge to petitioner city's attempt to create a light and power utility. Respondents assert that the ordinance establishing the utility violates the city's charter. Respondents thus seek a declaratory judgment deeming that ordinance null and void. The city asserted that respondents' complaint was, in reality, an untimely CRCP 106 challenge to a prior ordinance by which the city had concluded that it could meet certain prerequisites for the formation of the utility as prescribed by the city charter. The district court agreed with the city and dismissed respondents' complaint for lack of jurisdiction. A division of the Court of Appeals, however, vacated the district court's judgment, concluding that neither of the pertinent ordinances was final and therefore respondents' complaint was premature. The Supreme Court reversed the division's decision and remanded the case for further proceedings on respondents' declaratory judgment claim. Although the Court agreed with the city that the division erred, contrary to petitioners' position and the premises on which the courts below proceeded, the Court agreed with respondents that the complaint asserted a viable and timely claim seeking a declaration that the ordinance establishing the utility violated the city charter. Accordingly, the Court concluded that the district court had jurisdiction to hear respondents' declaratory judgment claim, and the Court remanded the case to allow that claim to proceed.

Double Jeopardy. Pursuant to C.A.R. 21, the People challenged a district court order granting Stackhouse's motion to compel the People to elect a particular allegation of sexual assault on a child as their sole basis for proceeding in Stackhouse's retrial. The Supreme Court held that the district court erred when it concluded that the jury in Stackhouse's first trial had necessarily concluded that he did not commit multiple acts of assault, and therefore that he could not be retried for more than a single assault. The Court made the rule to show cause absolute, reversed the district court's order, and remanded the case to the district court for further proceedings.

James sought review of the Court of Appeals' judgment affirming his conviction for possession of methamphetamine. Upon realizing that it had failed to discharge the alternate juror before the jury retired to deliberate, the district court recalled and dismissed the alternate, instructed the jury to continue with deliberations uninfluenced by anything the alternate may have said or done, and denied the defense motion for dismissal or mistrial. The Court of Appeals concluded that the trial court's error in allowing the alternate juror to retire with the jury and the juror's presence for part of the deliberations were harmless beyond a reasonable doubt and, after rejecting James's other assignments of error, affirmed his conviction. The Supreme Court held that the evidence proving defendant's guilt of the offense of possession was overwhelming, and therefore the district court's failure to recall an alternate juror for approximately 10 minutes amounted, under the facts of the case, to harmless error. Accordingly, the judgment of the Court of Appeals was affirmed.

Johnson sought review of the Court of Appeals' judgment reversing jury verdicts in his favor on personal injury claims against Schonlaw and VCG Restaurants. At the close of the case, the district court overruled the objections of Schonlaw and VCG to its announced decision to allow the alternate to deliberate to verdict with the other jurors. The Court of Appeals concluded that the trial court had erred in allowing an alternate juror to participate in jury deliberations over the objection of a party, and that the error gave rise to a presumption of prejudice, which remained unrebutted by Johnson, and therefore required reversal. The Supreme Court reversed, holding that because the error did not affect the substantial rights of any defendant, it should have been disregarded as harmless, as required by CRCP 61.

In this quiet title action, the Supreme Court reviewed whether the owner of a garage condominium unit validly subdivided the unit under CRS § 38-33.3-213 of the Colorado Common Interest Ownership Act by merely painting or marking lines on the garage wall, and thereafter separately conveying the spaces thus marked as individual condominium parking units. Because CRS § 38-33.3-213(3) provides that "no subdivision of units shall be effected" without executing and recording the necessary amendments to the condominium declaration, and because no documents were recorded in connection with his purported subdivision, the Court held that the owner did not accomplish a valid subdivision of the garage unit in this case. The Court further held that a quitclaim deed obtained from the owner was not void for fraud in the factum. Although evidence in the record suggests the owner may have been deceived as to the purpose of the deed, fraud in the factum requires proof that the grantor was ignorant as to the nature of the instrument itself. Here, the owner understood that he was signing a quitclaim deed, even if he failed to appreciate the ramifications of his act. Accordingly, the Court reversed the Court of Appeals' judgment and remanded the case for further proceedings to determine the resulting chain of title for the disputed parking units.

In this interlocutory appeal, the Supreme Court held that the trial court did not abuse its discretion by denying the People's request to have their witness testify remotely via Skype. Trial courts have broad discretion to control the manner in which witnesses offer testimony, and a decision to prohibit a witness from testifying is reviewed for an abuse of discretion. Because the trial court worked extensively to accommodate the witness, the People were on notice about the importance of the witness appearing in-person, and because denying the People's request to allow the witness to testify remotely is not outcome determinative, the Court concluded that the trial court did not abuse its discretion.

The Supreme Court held that under the Colorado Uniform Fraudulent Transfer Act (CUFTA), an innocent investor who profits from his investment in an equity-type Ponzi scheme, lacking any right to a return on investment, does not provide reasonably equivalent value based simply on the time value of his investment. Here, an investor unwittingly invested in a Ponzi scheme. Before the scheme's collapse, he withdrew his entire investment, plus a profit. A court-appointed receiver sued to claw back the investor's profits under CUFTA, CRS § 38-8-105(1)(a), which provides that a "transfer made . . . by a debtor is fraudulent as to a creditor . . . if the debtor made the transfer . . . [w]ith actual intent to hinder, delay, or defraud any creditor of the debtor." The investor raised an affirmative defense, CRS § 38-8-109(1), contending that he could keep his profit because he "took in good faith and for a reasonably equivalent value." Because the time value of money is not a source of "value" under CUFTA and equity investors have no guarantee of any return on their investments, the Court concluded that the investor did not provide "reasonably equivalent value" in exchange for his profit. Accordingly, the Court reversed the Court of Appeals' judgment.

This case required the Supreme Court to determine whether Colorado's recently enacted sentencing scheme for juvenile offenders who received unconstitutional mandatory sentences to life in prison without the possibility of parole (LWOP) violates the Special Legislation Clause of the Colorado Constitution. The Court assumed without deciding that the revised sentencing scheme, which the General Assembly enacted in response to U.S. Supreme Court cases deeming unconstitutional mandatory LWOP sentences for juvenile offenders, is subject to the Special Legislation Clause and implicates one of the provisions enumerated therein. The Court then concluded that the revised sentencing scheme does not run afoul of the Colorado Constitution's prohibition of special legislation because the statute creates a genuine class and its legislative classifications are reasonable. The Court rejected the People's contentions that the class must be deemed illusory because it is "closed" and that the class is, in fact, closed to future members. Accordingly, the Court discharged the rule to show cause.

This case required the Supreme Court to determine whether the trial court's decision to find discretionary aggravation was compliant with Blakely v. Washington, 542 U.S. 296 (2004). The trial court relied on a jury finding beyond a reasonable doubt as to elements of offenses for which there were convictions to aggravate defendant's sentences for concurrent convictions. The Court held that elements of an offense for which there is a conviction are Blakely-compliant facts because they were found by a jury beyond a reasonable doubt. Therefore, a trial court can rely on such facts to aggravate a sentence for a concurrent conviction. Accordingly, the Court of Appeals' judgment was affirmed on other grounds.