Slip opinions decided 2018 — Colorado Court of Appeals

Colorado State Administrative Procedure Act—Sexual Abuse—Evidentiary Facts—Adverse Inference—Fifth Amendment. In this administrative law case, the Larimer County Department of Human Services (DHS) made a finding confirming that Romero sexually abused his grandchildren and exposed one grandchild to an injurious environment, which required Romero to be listed in the statewide child abuse registry. Romero appealed DHS's confirmations pursuant to Colorado's State Administrative Procedure Act (APA). An administrative law judge (ALJ) concluded in an initial decision that the preponderance of the evidence did not support DHS's confirmation decisions. DHS appealed, and the Colorado Department of Human Services (Department) reversed the ALJ's initial decision, concluding that the evidentiary facts, including an adverse inference based on Romero's invocation of his Fifth Amendment right to remain silent, supported a finding that Romero sexually abused his grandchildren. Romero appealed to the district court, which reversed the Department's final decision. On appeal, the Department argued that the district court erred by overruling the Department's final decision and by restricting the application of the adverse inference to situations where the Department provides an "adequate explanation" of why it has applied the inference. An agency's determination in a final agency action to apply an adverse inference to a defendant's invocation of his right to remain silent is an ultimate conclusion of fact under the APA. Consequently, the agency is required, as a matter of law, to make its own determination regarding the adverse inference and can substitute its own judgment for that of the administrative law judge regarding the inference and the weight to give the inference in light of the other evidence presented. To apply the adverse inference for invocation of the right against self-incrimination, a party in a civil case must have been asked questions the answers to which would have been potentially incriminating in a future criminal action, and the party must have invoked his Fifth Amendment rights. There must also have been probative evidence offered against the person claiming the privilege. It is undisputed that during discovery for the ALJ hearing, DHS deposed Romero and asked him incriminating questions, including whether he touched his grandchildren for his own sexual gratification. It is also undisputed that Romero invoked his Fifth Amendment rights for the entire deposition except for the first few questions. Further, the record is clear that had Romero been called to testify at the ALJ hearing, he would have invoked his Fifth Amendment rights because of the ongoing criminal investigation into the allegations. Here, the Department's application of the adverse inference was not arbitrary or capricious because it was supported by the record it considered Romero's constitutional rights and it was not contrary to the law on Fifth Amendment adverse inference. Further, there is no authority that supports the district court's imposition of a duty on the Department to provide an explanation for why it was applying the inference. Accordingly, the district court erred by effectively precluding the Department from making its own determination on the adverse inference. Romero argued that the district court's judgment should be upheld because the facts relied on by DHS to support findings of sexual abuse are speculative and do not support the ultimate findings. The Department's view of the evidence was not speculative or contrary to the weight of the evidence presented to the ALJ. The district court's judgment overturning the Department's final decision was reversed.

D.J.M., age 2, died after suffering a beating by his mother's boyfriend. D.J.M.'s father brought an action against the City of Colorado Springs (City) and Officer Carricato, individually and in his capacity as an officer with the City of Colorado Springs Police Department, for failing to report child abuse that father complained about to them multiple times. The complaint alleged violation of the Child Protection Act of 1987 (CPA) negligence (wrongful death) by the City and Officer Carricato negligence per se by the City and Officer Carricato violation of 42 USC § 1983 by the City and Officer Carricato vicarious liability against the City and an entitlement to exemplary damages under CRS § 24-10-118(1)(c) against Officer Carricato. The district court determined that while the negligence claims for wrongful death and negligence per se were barred by the Colorado Governmental Immunity Act (CGIA), the claim for violation of the CPA was not barred because it was not a claim based in tort. The district court allowed the claim for vicarious liability to stand insofar as it related to the violation of the CPA and found, without conducting a hearing under Trinity Broadcasting of Denver, Inc. v. City of Westminster, that the complaint alleged a sufficient factual basis to support a claim of willful and wanton behavior. On appeal, the City and Officer Carricato argued that the district court erred because the CGIA bars the claim for violation of the CPA and father's complaint does not allege specific facts sufficient to support a finding that Officer Carricato's conduct was willful and wanton. The City is undisputedly a "public entity." The exceptions to sovereign immunity are not applicable here because (1) the enumerated statutory exceptions are not at issue (2) the CPA does not fit within any of the statutory exceptions and (3) father is not requesting equitable, remedial, or non-compensatory remedies. Here, the essence of father's claim is that the City breached a duty of care owed to D.J.M., which caused his death. Because father's claim lies or could lie in tort, the CGIA bars the claim against the City for alleged violation of the CPA. Thus, the district court improperly denied that part of the motion to dismiss. Similarly, the vicarious liability claims are claims that lie in tort or could lie in tort and are thus barred by the CGIA. Furthermore, public employees are immune from liability for tort claims unless their act or omission was willful and wanton. The district court must determine whether the conduct was in fact willful or wanton. Here, the district court failed to hold a Trinity hearing on this issue. Finally, Officer Carricato argued that the claim for exemplary damages cannot stand because it was improperly pleaded and that exemplary damages cannot be awarded against a police officer. The CGIA allows a claim for exemplary damages against public employees only if their conduct was willful and wanton. The claim for exemplary damages against the police officer was prematurely pled. The portions of the judgment on the claims against the City, the vicarious liability claim, and the exemplary damages claim were reversed. The portion of the judgment relating to the claims against Officer Carricato was remanded.

Crim. P. 32(d)—Withdrawal of Plea—Deferred Judgment —Immigration—Deportation—Ineffective Assistance of Counsel. Defendant pleaded guilty to possession of a schedule II controlled substance and driving under the influence (DUI). The parties stipulated to a two-year deferred judgment on the possession count and probation on the DUI count. The court accepted the deferred judgment and sentenced defendant to two years of probation. About five months later, defendant filed a Crim. P. 32(d) motion to withdraw his guilty plea to the possession count, arguing that his defense and immigration counsel were ineffective for failing to advise him of the clear immigration consequences of the plea. After an evidentiary hearing, the district court denied the motion. The People filed a motion to dismiss the appeal, arguing that there was no jurisdiction to review the order denying the Crim. P. 32(d) motion. They contended that the order was not final and appealable because defendant's motion challenged a deferred judgment (a non-final judgment) that had not been revoked when the court entered the order or when defendant filed the notice of appeal. Under Crim. P. 32(d), a defendant may challenge a guilty plea involving a deferred judgment that is still in effect. The Court of Appeals concluded it could review the district court's order denying the Crim. P. 32(d) motion. Defendant argued on appeal that his guilty plea was not made knowingly, voluntarily, and intelligently because his counsel never informed him of the clear immigration consequences of the plea. The record supports the district court's finding that defendant's counsel advised him on multiple occasions that a guilty plea to a drug felony would result in deportation. The Court also rejected defendant's argument that counsel should have advised him that he would be held in custody during the removal proceeding, because counsel was not required to give this advice. Therefore, counsel's performance was not deficient, and the district court did not abuse its discretion when it denied the Crim. P. 32(d) motion. The order was affirmed.

Constitutional Law—Fourth Amendment—Illegal Search and Seizure—Reasonable Suspicion—Reasonable Expectation of Privacy—GPS Data—Identification. Campbell's vehicle was pulled over and Campbell was arrested on suspicion of burglary. Officers searched Campbell and found he had on an ankle monitor, which he was wearing at the request of a private bail bondsman. A detective later requested and received the global positioning system (GPS) data from the company owning the ankle monitor. The GPS data revealed that, within the month before the victim's home was broken into, Campbell had been at the location of two other homes when they were burglarized. The GPS data also placed Campbell at the victim's house at the time of the break-in. Campbell was convicted of two counts of second degree burglary, one count of attempted second-degree burglary, and three counts of criminal mischief. On appeal, Campbell contended that the trial court erred in denying his motion to suppress evidence obtained as a result of an illegal seizure and search of his person. The officers had reasonable suspicion to stop Campbell based on his violation of traffic laws. Further, the officers had probable cause to believe defendant was committing the felony of vehicular eluding, and therefore constitutionally arrested and searched him. The trial court did not err in denying Campbell's motion to suppress evidence obtained as a result of his seizure and search. Campbell also contended that the trial court erred in denying his motion to suppress GPS data obtained from the ankle monitor. The Court of Appeals concluded, as a matter of first impression, that defendant did not have a reasonable expectation of privacy in the GPS location data generated by the ankle monitor under the U.S. or Colorado Constitutions. Defendant voluntarily disclosed the data, which was transmitted to and collected by a third party that voluntarily gave the data to law enforcement officials. Further, the trial court did not err in admitting the GPS evidence without first conducting a hearing pursuant to People v. Shreck, 22 P. 3d 68 (Colo. 2001), to assess its reliability, because GPS technology is prevalent and widely regarded as reliable. Campbell additionally contended that the trial court erred in denying his motion to suppress the victim's identification because the identification was unduly suggestive and unreliable. The victim had the opportunity to see the intruder for one or two seconds in a well-lit area while the two men were approximately 10 feet apart before Campbell ran out of the house. Although the victim was not wearing contact lenses or eyeglasses, he felt he was able to see the intruder sufficiently to identify him. The victim immediately called 911 and described Campbell. The police brought Campbell to the scene handcuffed in the back of a police vehicle for a one-on-one identification. The identification occurred less than an hour after the victim saw the intruder. Although the lineup was suggestive, it was reliable under the totality of the circumstances. The judgment was affirmed.

Criminal Law—Fifth Amendment—Photo Identification—Demonstrative Exhibit. Defendant was convicted of felony murder, aggravated robbery, and other offenses after a drug-deal-turned-robbery ended in the shooting death of the victim by defendant's accomplice. On appeal, defendant argued that the court erred in failing to suppress a witness's identification as the product of an impermissibly suggestive identification procedure because defendant's photo was placed in position 3 in the photo array after the witness had selected a filler photograph in position 3 from the initial array. The witness, the victim's girlfriend, witnessed the murder. She had previously selected photos in positions 1, 3 and 5. Position 3 did not have special suggestive properties, as defendant's argument would apply with equal force if the officer had placed his photo in either position 1 or 5. The mere placement of defendant's photo in a particular position, without more, does not render the identification procedure impermissibly suggestive. The court properly denied the motion to suppress the girlfriend's identification. Defendant also argued on appeal that the court erred in permitting the prosecution to use demonstrative aids because their size was inaccurate, and the inaccuracy rendered the mock-ups misleading and therefore unfairly prejudicial. Here, the prosecution used a full-size mock-up of the garage crime scene as a demonstrative aid during the testimony of a sheriff's department investigator and the eyewitness drug supplier. The prosecution also referred to a smaller version of the mock-up during closing argument. A demonstrative aid must be authentic, relevant, a "fair and accurate representation of the evidence to which it relates," and not unduly prejudicial. Here, the record demonstrated that the full-size mock-up was substantially similar to the actual garage, and defendant failed to show any prejudice from the use of such mock-up. Further, defense counsel admitted that the smaller mock-up was accurate. Accordingly, the district court did not err in allowing the prosecution to use the demonstrative aids. The judgment was affirmed.

Probate—Disability—Conservator—Fiduciary Duty—Conflict of Interest—Jurisdiction—Civil Theft. Black is the former conservator for his mentally-ill sister, Joanne. When he filed his petition to be appointed conservator, he did not tell the probate court that he sought the appointment to disclaim Joanne's interest in payable-on-death (POD) assets so that they could be redistributed in accordance with his and his children's expectations of his mother's estate plan. Nor did he disclose this conflict of interest when he requested authorization to disclaim Joanne's assets. Black later admitted this conflict. The probate court found that Black breached his fiduciary duties and committed civil theft by converting his sister's assets for his own benefit. Specifically, the court concluded that Black failed to adequately disclose his intent to use a disclaimer to divest his sister of one-third of the (POD) assets, and therefore did not have the court's authorization to redirect the assets. The court determined that his actions were undertaken in bad faith and satisfied the elements of civil theft. Based on its findings, the court surcharged Black in the amount of the converted funds and then trebled those damages under the civil theft statute. On appeal, Black first argued that the probate court lacked jurisdiction to enter the hearing order because only a CRCP 60(b) motion, and not a motion to void the disclaimer, could undo the court's order authorizing the disclaimer. However, the motion to void the disclaimer did not seek relief from a final order. Instead, the motion alleged that Black had breached his fiduciary duties to Joanne while acting as conservator, and it sought to unwind a transaction based on this breach. Thus, the probate court's jurisdiction was based on the court's authority to monitor fiduciaries over whom it has obtained jurisdiction. Accordingly, the court had jurisdiction to adjudicate the allegations and issues raised by the motion to void the disclaimer. Additionally, Black had sufficient notice of the proceedings. Black next argued that he could not have breached his fiduciary duty to Joanne because his conversion of one-third of her POD assets was disclosed to and approved by the probate court in accordance with CRS § 15-14-423. CRS § 15-14-423 allows a fiduciary to engage in a conflicted transaction only when the fiduciary has disclosed the conflict of interest and demonstrated that the conflicted transaction is nonetheless reasonable and fair to the protected person. Black received authority to transfer the POD funds to a Supplemental Needs Trust (SNT) for Joanne's benefit. Instead, he redistributed the POD funds two-thirds to the SNT and one-third to the Issue Trust, which benefited himself and his children. Because Black did not disclose the conflict of interest or demonstrate that this proposed redistribution was reasonable or fair, he did not have safe harbor under the statute. Thus, the probate court did not err in finding that Black breached his fiduciary duties. Next, Black contended that the probate court erred in finding him liable for civil theft, arguing that the probate court lacked jurisdiction over the claim the claim was time-barred and that, in any event, the evidence was insufficient to establish civil theft. The civil theft claim is coterminous with the breach of fiduciary duty claim and thus directly related to Black's duties as conservator. The probate court had jurisdiction over the civil theft claim, of which Black had notice. The record amply supports that the civil theft claim was timely asserted. As to the sufficiency of the evidence, Black did not dispute that he obtained control over Joanne's assets with the intent to permanently deprive her of them he disputed only the probate court's finding of deception. The record supports the probate court's finding that Black made misrepresentations or misleading statements or that he concealed material facts. When a conservator allegedly commits theft from a protected person by deception on the probate court, reliance is established if that court relied on the misrepresentation in authorizing the theft. Here, the court relied on Black's misrepresentations in authorizing the disclaimer, and it would not have authorized the transaction had it known the true facts. The evidence was sufficient to support the finding that Black committed civil theft. Black also contended that reversal is required because the probate court committed a series of errors that made the evidentiary hearing unfair. The Court of Appeals was unpersuaded by these arguments. Lastly, Black contended that the court erred in concluding that he lacked authority to create a separate trust for Joanne's workers' compensation and Social Security disability benefits. The Court discerned no error. Joanne cross-appealed, contending that the court erred by failing to make explicit findings denying her request to void the disclaimer. The court did not abuse its discretion in imposing a surcharge rather than ordering that the disclaimer transaction be unwound. The order was affirmed and the case was remanded for determination of reasonable appellate attorney fees.

Taxation—Municipalities—Accommodation Tax—Lessors—Renters—Online Travel Companies—Jurisdiction—Exhaustion of Administrative Remedies—Class Certification. The Town of Breckenridge sought to collect accommodation and sales taxes from 16 online travel companies (OTCs). The OTCs maintain websites through which travelers can book hotel accommodations and travel-related services. As relevant here, under the "merchant model" the OTCs contract with a hotel to allow customers logging into the OTC's website to book reservations for the hotel. These contracts offer rooms to OTCs at a discounted rate. OTCs coordinate information between travelers and hotels OTCs neither purchase nor reserve rooms in advance. Breckenridge brought this action to recover unpaid accommodation and sales taxes from the OTCs, asserting five causes of action. The district court partially granted the OTCs' motion to dismiss but refused to dismiss the accommodation tax claim. Breckenridge then unsuccessfully sought class certification for 55 home rule cities that also levy a lodger's or accommodation tax. The parties filed cross-motions for summary judgment, which were resolved in favor of the OTCs. On appeal, Breckenridge contended that the district court erred in concluding that OTCs are neither "lessors" nor "renters" of hotel rooms because they sell the legal right to use hotel rooms in exchange for consideration. Breckenridge asserted that the OTCs are capable of leasing or renting even without physical possession of hotel rooms. Because the hotels maintain possession of the rooms and are the sole grantors of the right of occupancy, hotels are lessors or renters and OTCs are essentially brokers. The accommodation tax statute indicates that the accommodation tax applies only to those who have a possessory interest in the accommodation being taxed. The OTCs had no possessory interest and were not engaged in the business of owning, operating, or leasing, and could not independently grant customers access to rooms, so they are not subject to Breckenridge's accommodation tax. Breckenridge also contended that the court erred in granting summary judgment because issues of fact exist. Breckenridge failed to meet its burden of producing sufficient evidence to establish that a genuine issue of fact exists as to whether OTCs acquire inventory, whether the OTCs provide customer service, and the extent of the hotels' involvement in merchant model transactions. The court properly granted the OTCs' summary judgment motion. Breckenridge also contended that the district court erred in concluding that it lacked subject matter jurisdiction over its sales tax claim because Breckenridge failed to exhaust administrative remedies. Breckenridge argued that it was not required to exhaust its own administrative remedies because doing so would be futile and whether OTCs are subject to sales tax was a question of law not subject to exhaustion requirements. It is evident from the Breckenridge Town Code that a party's first step in seeking relief for unpaid sales taxes is to petition for administrative review from the finance director. Breckenridge failed to take this step. Therefore, the district court lacked subject matter jurisdiction to address Breckenridge's unpaid sales tax claim. Finally, Breckenridge contended that the district court abused its discretion by denying Breckenridge's request for class certification. Breckenridge was not entitled to class certification under CRCP 23(b)(2) because Breckenridge was seeking primarily monetary damages, and it failed to meet the CRCP 23(b)(3) requirements because there was no predominance of common questions nor was class action the superior remedy. The judgment was affirmed.

Motor Vehicle Insurance—Uninsured/Underinsured—Summary Judgment. Airth was seriously injured in an accident while operating a semi truck owned by his employer, Sole Transport LLC, d/b/a Solar Transport Company (Solar). He was struck by a negligent, uninsured driver. Solar had uninsured/underinsured motorist (UM/UIM) insurance coverage of $50,000 for its employees through a policy issued by Zurich American Insurance Co. Airth brought a claim for declaratory relief, seeking to reform Solar's policy to provide UM/UIM coverage of $1 million. He alleged he was entitled to the higher amount because Zurich had failed, as required by CRS § 10-4-609, to (1) offer Solar UM/UIM coverage in an amount equal to its bodily injury liability coverage ($1 million), and (2) produce a written rejection by Solar of such an offer. On cross-motions for summary judgment, the district court entered judgment for Zurich ruling, as a matter of law, that (1) Zurich's documents adequately offered Solar UM/UIM coverage in an amount equal to the bodily injury liability limits of the policy, and (2) there is no requirement that the rejection of UM/UIM limits in an amount equal to liability limits be in writing. On appeal, Airth contended that both of the district court's rulings were incorrect and the court therefore erred in granting Zurich's summary judgment motion and denying Airth's cross-motion. CRS § 10-4-609(1)(a) prohibits an insurer from issuing an automobile liability policy unless a minimum amount of UM/UIM coverage is included in the policy, except where the named insured rejects UM/UIM coverage in writing. CRS § 10-4-609(2) requires an insurer, before a policy is issued or renewed, to offer the insured the right to obtain UM/UIM coverage in an amount equal to the insured's bodily injury liability limits. The facts here were undisputed. Before renewing Solar's policy, Zurich sent a package of documents pertaining to Solar's rights related to UM/UIM coverage and Solar's counsel affirmed that he had read all the documents. This included an opportunity to reject UM/UIM coverage or to select a higher than minimum level of UM/UIM coverage. Airth argued that none of this constituted an "offer" of the ability to obtain higher UM/UIM coverage, because the documents did not contain a premium quote or a way to estimate the premium for purchasing UM/UIM coverage commensurate with a bodily injury liability limit of $1 million. The Court of Appeals agreed that this would be the case if it were applying the meaning of the term "offer" as used in contract law. But the Colorado Supreme Court has attributed a different meaning to "offer" as it is used in CRS § 10-4-609 the dispositive question is whether, under the totality of the circumstances, the insured was adequately informed that higher UM/UIM coverage was available. Here, that standard was met by the documents Zurich provided to Solar. Airth also argued that Zurich was not entitled to summary judgment because there was no evidence that anyone from Solar read or understood the document. This argument overlooks that attestation of Solar's counsel. Airth further argued that reversal is required because the documents were signed and dated a month after the policy went into effect. The operative question is whether the insurer gave the insured the opportunity to purchase statutorily-compliant coverage before the insured needed it. The record reflects that Solar had received and responded to the notification and offer before the accident that injured Airth. Airth also contended that the district court erred in determining that the statute only requires a written rejection with respect to the minimum UM/UIM coverage available and not to the additional coverage available. The Court agreed with the district court's conclusion that a written rejection is required only if the insured declines the minimum amount of UM/UIM coverage, which was not the case here. The judgment was affirmed.

Dependency and Neglect—Final and Appealable Order—Lack of Jurisdiction. The Garfield County Department of Human Services (Department) filed a petition in dependency and neglect, naming mother and M.M. (father of two children and stepfather to the third, M.A.M.) as respondents. The children were initially placed with their maternal grandmother, but then M.M. moved from Florida to Colorado and sought custody of all three children. The children were placed with him under the protective supervision of the Department. The court adjudicated the three children dependent and neglected with respect to mother. The court adopted treatment plans for mother and M.M., but shortly thereafter he moved to modify the order under which he shared custody of the children with mother and to dismiss the dependency and neglect case. M.M. shared custody of the two older children with mother under a domestic relations order and asserted he should have custody of M.A.M. as her psychological parent. The juvenile court entered an order allocating parental responsibilities for the children between M.M. and mother (the APR order). The court concluded it had jurisdiction to allocate parental responsibilities as to M.A.M. pursuant to CRS 14-10-123(1)(d), which provides that a proceeding concerning allocation of parental responsibilities may be commenced by someone other than a parent who has been allocated parental responsibilities through a juvenile court order. Approximately two weeks later, the court entered an order terminating its jurisdiction and closing the case, from which order mother appealed. The Court of Appeals requested supplemental briefs addressing whether mother's appeal was timely and determined that the appealable order was the APR order. CRS § 19-1-104(6) provides that entry of an order allocating parental responsibilities for a child who is the subject of a dependency and neglect proceeding requested by a party to the case, once filed in the county where the child will permanently reside, will be treated as any other decree in a proceeding allocating parental responsibilities. This action ends the dependency and neglect proceeding and transfers jurisdiction over the child to the district court. Such an order is final and appealable, and a party who wishes to appeal must file a notice of appeal within 21 days of entry of the order. Here, the juvenile court entered an APR order and ordered that it be certified into an existing custody proceeding in the district court as to M.M.'s children, and certified into a new domestic relations case as to M.A.M. Mother did not appeal from that order but rather appealed from the order purportedly terminating its jurisdiction and closing the dependency and neglect case. Mother's appeal was untimely, and the Court lacked jurisdiction to hear it. However, mother argued the APR order wasn't a final, appealable order because the juvenile court didn't have jurisdiction to make the findings needed to grant APR to a nonparent. She contended that because the court did not adjudicate M.A.M. dependent and neglected with respect to her biological father, and the adjudication of the two older children with respect to father M.M. was still in "deferred" status, the APR order was invalid. The Court rejected this argument, reasoning that the question was not whether the court had jurisdiction to enter the order, but whether it was final and appealable. The APR order here was final and appealable Similarly, because mother failed to timely appeal the APR order, the Court rejected mother's argument that because the court failed to commence a paternity action it did not have independent jurisdiction under the Uniform Parentage Act (UPA) to enter an order allocating parental responsibilities. Finally, mother argued the APR order was not a final, appealable order because it did not fully resolve the right and liabilities of the parties as to paternity, support, and parental responsibilities with respect to M.A.M. Analyzing the issue under the UPA, the Court concluded there was no need for a paternity proceeding as to M.A.M. The Court rejected mother's argument that the APR order did not fully resolve the rights and liabilities of the parties because it didn't find anything else that needed to be resolved the order addressed visitation, parenting time, and other matters relevant to the allocation or parental responsibilities between mother and M.M. Mother also argued that the APR order was not final because it was subject to revision. Once it was entered and certified to the district court, jurisdiction to modify it was transferred to the district court, leaving nothing for the juvenile court to do. The Court further noted that all orders concerning parenting time and decision-making responsibility may be modified when circumstances warrant a change. Mother also raised an issue about noncompliance with the Indian Child Welfare Act. The Court declined to address this because it lacked jurisdiction due to the untimeliness of the appeal. The appeal was dismissed with prejudice for lack of an appealable order.

Dependency and Neglect—Indian Child Welfare Act—Tribal Notification Requirements. In this dependency and neglect proceeding, the trial court first inquired about the applicability of the Indian Child Welfare Act (ICWA) at the termination hearing after orally ordering termination of parental rights. When the inquiry was made, mother responded that both she and the father had Native American blood and she and her family had been "kicked off the tribe." At a subsequent hearing, mother indicated she had Indian heritage through her biological family and named several tribes. She stated she was an adoptee, but her biological mother would know of her tribal affiliation. The Alamosa County Department of Human Services (Department) stated it did not believe the ICWA applied, but failed to describe the efforts it had made to determine whether any of the children was an Indian child, and the record contained no evidence that the Department sent notice to the tribes named. Mother appealed the judgment terminating her parent–child legal relationship with her children. CRS § 19-1-126(1)(a) requires the petitioning party to make continuing inquiries to determine whether the child subject to the proceeding is an Indian child. The petitioning party must also disclose in the commencing pleading whether the child is an Indian child and the identity of the child's tribe, or what efforts the petitioner made to determine whether the child is an Indian child. The Bureau of Indian Affairs regulations and guidelines also contain notice and inquiry provisions for trial courts and require trial courts to ask participants in emergency or voluntary or involuntary child-custody proceedings whether they know or have reason to know that the child is an Indian child. This inquiry is made at the commencement of the proceeding, and all responses should be on the record. Departments must directly notify each concerned tribe by registered mail with return receipt of the pending proceedings and its right to intervene. Here, the trial court's inquiry should have been made at the first hearing after the petition in dependency and neglect was filed and again at the start of the termination proceeding. Mother's disclosures gave the trial court reason to believe the children were Indian children. The Department did not comply with the ICWA's notice requirements. The Department contended that mother's signing of a written advisement of her rights, which included a question about the ICWA, served as the court's initial inquiry. The inquiry should be made on the record. Regardless, the Court of Appeals found that the Department failed to send notice to the appropriate tribes when mother identified a reason to believe the children were Indian children. The case was remanded with instructions for the limited purpose of directing the Department to send appropriate notice to the Kiowa Indian Tribe of Oklahoma and the Pueblo of Taos.

Foreclosure Commitments—Colorado Consumer Protection Act—Colorado Fair Debt Collection Practices Act—Deceptive Trade Practices—Statute of Limitations—Title Insurance Policy—Cancellation Fee—Civil Penalties—Evidence. Hopp is an attorney whose law firms provided legal services for mortgage defaults, including residential foreclosures, in Colorado. Hopp also owned businesses that supported the law firms' foreclosure services, including National Title, LLC and First National Title Residential, LLC, which provided foreclosure commitments for the law firms. National Title and First National Title Residential issued title commitments and policies through an underwriter, Fidelity National Title Insurance Company (Fidelity). Fidelity had a Division of Insurance (DOI)-approved manual that set forth rates and charges for foreclosure commitments. While representing loan servicers, the law firms typically ordered foreclosure commitments from Hopp's title companies. National Title invoiced the law firms a charge of 110% of the schedule of basic rates upon the delivery of a foreclosure commitment. As a routine practice, within 10 days of filing a foreclosure action, the law firms passed this cost on to the servicers by billing and seeking reimbursement from them for the charge of 110% of the schedule of basic rates, even though this cost may not have actually been incurred. The State of Colorado ex rel. Cynthia H. Coffman, Attorney General for the State of Colorado, and Julie Ann Meade, Administrator, Uniform Consumer Credit Code (collectively, plaintiffs) sued Hopp, his law firms, his affiliated title companies, and his business that provided accounting and bookkeeping services for the law firms and title companies (collectively, defendants), alleging that defendants violated the Colorado Consumer Protection Act (CCPA) and the Colorado Fair Debt Collection Practices Act (CFDCPA) by engaging in the billing practices described above. The district court found in favor of plaintiffs and imposed penalties of $624,000. On appeal, defendants contended that the trial court erred by imposing penalties under the CCPA and the CFDCPA because they were barred by the one-year limitation period in CRS § 13-80-103(1)(d) and CRS § 5-16-113(5) (CFDCPA claims), and CRS § 6-1-115 (CCPA claims). Because the CCPA contains a statute of limitations specifically addressing cases brought under its provisions, the three-year statute of limitations controls over the more general CRS § 13-80-103(1)(d). Further, because the CFDCPA did not contain a clear statute of limitations applying to government enforcement actions at the times relevant to this action, a catch-all provision applies requiring the government to file any claims within one year of discovery, which was done in this case. Therefore, the trial court did not err in concluding that the CFDCPA claims were timely filed. Defendants next contended that the trial court erred when it concluded that they violated the CCPA and the CFDCPA by charging 110% of the schedule of basic rates for foreclosure commitment required by Fidelity's rates on file with the DOI. This was the same amount that Fidelity's manual listed as the charge for a completed title insurance policy, even in cases where the policy would never be issued because the foreclosure was cured or cancelled. Defendants did not charge amounts in compliance with Fidelity's filed rates because they required payment from servicers even when a title insurance policy was never issued. The evidence supported the trial court's finding that defendants misrepresented the premium charges as actually incurred costs. Therefore, the trial court did not err. Defendants also contended that the trial court erred when it concluded that they knowingly engaged in a deceptive trade practice. Here, the trial court's finding that defendants acted knowingly was supported by evidence in the record. Defendants next argued that the trial court abused its discretion when it admitted plaintiffs' Exhibit 103 and relied on it in assessing civil penalties against defendants. Exhibit 103 is a 1,114-page spreadsheet compiling electronic invoicing data submitted by Hopp's law firms through a billing software to the servicers from 2008 until the time of trial. The trial court did not abuse its discretion when it admitted Exhibit 103 as a business record under CRE 803(6). Plaintiffs contended on cross-appeal that the trial court abused its discretion when it admitted defendants' Exhibit 1093 to rebut plaintiffs' Exhibit 104. At times, servicers directed the law firms to order foreclosure commitments from LSI Default Title and Closing (LSI), instead of from one of Hopp's affiliated title companies. Plaintiffs amended their complaint to add claims for defendants' violation of the CCPA and CFDCPA through conduct regarding the LSI transactions. Exhibit 104 reflected that LSI appeared to charge defendants only $350 for title commitments ordered, which was representative of a cancellation fee. Exhibit 1093 was an email from an LSI representative to Hopp's wife, which included an attached spreadsheet showing charges for full policy premiums rather than outstanding charges of $350. There were "unusual and unexplained adjustments" to Exhibit 104, and the trial court declined to place any weight on the exhibit in its final order and concluded that plaintiffs failed to prove their claim based on the LSI transactions. Here, there was a proper foundation for admitting Exhibit 1093, and given the late addition of the LSI claim and the parameters of the claim set forth in the plaintiffs' written notice, the trial court did not abuse its discretion in declining to exclude Exhibit 1093 as a sanction for defendants' failure to supplement their mandatory disclosures at a late point in litigation. Both parties requested an award of attorney fees and costs incurred in this appeal. Plaintiffs, but not defendants, are entitled to an award.

Buy and Sell Contract—Mineral Rights—Warranty Deed—Negligence—Breach of Contract—Statute of Limitations—Third Party—Cause of Action—Accrual Date. The Bells hired Orr Land Company LLC (Orr) and its employee Ellerman to represent them in selling their real property. Orr found a buyer and the Bells entered into a buy and sell contract with the buyer, which provided, as pertinent here, that the sale excluded all oil, gas, and mineral rights in the property. Orr then retained Land Title Guarantee Company (Land Title) to draft closing documents, including the warranty deed. In 2005 the Bells signed the warranty deed and sold the property to the buyer. The Bells didn't know that the warranty deed prepared by Land Title didn't contain any language reserving the Bells' mineral rights as provided in the buy and sell contract. For over nine years, the Bells continued to receive the mineral owner's royalty payments due under an oil and gas lease on the property. In 2014 the lessee oil and gas company learned that the Bells didn't own the mineral rights, so it began sending the payments to the buyer. After that, the Bells discovered that the warranty deed didn't reserve their mineral rights as provided in the buy and sell contract. In 2016 the Bells filed this negligence and breach of contract action against defendants Land Title, Orr, and Ellerman. Defendants moved to dismiss, arguing that the Bells' claims were untimely because the statute of limitations had run. The district court granted defendants' motion to dismiss. On appeal, the Bells contended that the district court erred in granting defendants' motions to dismiss because they sufficiently alleged facts that, if true, establish that the statute of limitations didn't begin to accrue on their claims until the oil and gas company ceased payment in September 2014, which is when they contended they discovered that the warranty deed didn't reserve their mineral rights. A plaintiff must commence tort actions within two years from the date the cause of action accrues, and contract actions within three years from the date the cause of action accrues. A cause of action accrues on the date that "both the injury and its cause are known or should have been known by the exercise of reasonable diligence." The trial court relied on the legal principle that one who signs a document is presumed to know its contents, so the Bells should have known on the day they signed the deed that the mineral rights reservation language was not included, and thus their claims accrued on that date. However, the presumed-to-know principle applies conclusively only where a party (for example, a grantor) seeks to avoid the legal effects of a deed in an action against another party to the conveyance (a grantee), not where a party (a grantor) asserts claims against third parties who failed to conform the deed to an underlying agreement on that party's behalf. Here, the Bells claims against defendants, who aren't parties to the deed, don't seek to avoid the deed, but seek damages for negligent preparation of the deed, and the purpose of the presumed-to-know principle isn't applicable. Taking the complaint's factual allegations as true, the Bells filed their negligence and breach of contract claims within the statute of limitations and stated a plausible claim for relief. The court erred in granting defendants' motions to dismiss. The order of dismissal was reversed.

Bankruptcy—Attorney Fees—Colorado Consumer Protection Act—Colorado Fair Debt Collection Practices Act—Civil Penalty—Reasonableness—Groundless. The State brought an action alleging that Hopp and his wife Lori Hopp, and Hopp's law firms and affiliated companies, violated the Colorado Consumer Protection Act (CCPA) and the Colorado Fair Debt Collection Practices Act (CFDCPA) (see 2018 COA 69, No. 16CA1983, State of Colorado v. Robert J. Hopp & Associates, LLC). The district court entered judgment against Hopp and in favor of plaintiffs, but concluded there was insufficient evidence to find Lori Hopp liable for any alleged misconduct. The trial court also awarded plaintiffs most of their reasonable attorney fees and costs incurred in bringing the enforcement action under the CCPA and CFDCPA. On appeal, Hopp contended that the trial court erred when it imposed an award of attorney fees and costs against him because it was precluded from doing so by his discharge of debts in bankruptcy. Hopp filed for bankruptcy in January 2013 and obtained a discharge in February 2014. Plaintiffs' enforcement action was filed 10 months later. Hopp argued that the bankruptcy discharge applied to any claim for attorney fees and costs that could have been fairly or reasonably contemplated during the bankruptcy case. The trial court's attorney fee awards under the CCPA and CFDCPA are not dischargeable, and the Court of Appeals declined to order that they be vacated as void under 11 USC § 5243. Hopp further contended that the trial court erred when it failed to reduce plaintiffs' attorney fees award by the amount of any fees incurred for their unpursued and unsuccessful claims. Because plaintiffs' claims involved a common core of facts and were brought under the same legal theories, the trial court did not abuse its discretion in declining to reduce plaintiffs' attorney fees. Lori Hopp contended that the trial court erred in rejecting her argument that she was entitled to her attorney fees and costs under CRS §§ 13-17-101 to -106 for defending against plaintiffs' eventually unsuccessful claims against her. The trial court's decision that plaintiffs' CCPA claim against Lori Hopp was not substantially groundless was not manifestly arbitrary, unreasonable, or unfair, and the trial court did not abuse its discretion when it declined to award her attorney fees. The order was affirmed.

Vacant Land Tax Assessment—CRS § 39-1-102(14.4)(a)—Residential Property—"Used as a Unit" Element—Assessor's Reference Library. Rust bought residential property in Summit County and a year later bought the adjacent undeveloped parcel (the subject property). He and his family have used the two parcels for decades. The county assessor classified the subject property as vacant land for the years 2013 through 2015, subjecting it to a tax rate almost triple the rate for residential property. Rust sought reclassification, asserting that both properties should be classified as residential under CRS § 39-1-102(14.4)(a). The Board of Assessment Appeals (BAA) affirmed the decision of the Board of County Commissioners of Summit County denying reclassification. On appeal, Rust contended that the BAA misconstrued the "used as a unit" element in CRS § 39-1-102(14.4)(a), which defines residential land. County assessors use the Assessor's Reference Library (ARL) for guidance in classifying land under this statute. The ARL further defines "used as a unit" as contiguous parcels of land that are under common ownership and are "used as an integral part of a residence." Assessors use four guidelines when applying this definition. Here, the parties stipulated that the parcels are commonly owned and contiguous the only issue was whether the subject property was "used as a unit" with the residential parcel. The assessor found no evidence that the subject property was an integral part of the residence, and the use of the subject property failed to support its reclassification as residential property. There was no error in the BAA's decision. The BAA's order was affirmed.

Annexation—Colorado Constitution Article XX, section 6—Regional Transportation Authority—Sales Tax—Use Tax—Matter of Mixed Local and State Concern. Colorado's Regional Transportation Authority law (RTA Law) allows municipalities, counties, special districts, and the state to combine to provide regional transportation services and to collect sales and use taxes to pay for such services. In 2014, the City of Fountain annexed a parcel of vacant land (the Property) from unincorporated El Paso County. The Property was within the boundaries of the Authority when it was formed in 2004. Fountain, a home rule city in El Paso County, has never been a member of the Authority. After the Pikes Peak Rural Transportation Authority (Authority) announced its intention to collect a 1% sales tax from recently built retail businesses on the Property, the operators of the businesses, WalMart Stores, Inc. and Sam's West, Inc. (collectively, plaintiffs) filed a declaratory judgment action against the Authority and the Colorado Department of Revenue (DOR), which collects sales tax on behalf of both Fountain and the Authority. Plaintiffs sought a declaration that defendants could not collect sales and use taxes on the Property because the Property was now part of Fountain, which was not a member of the Authority. On cross-motions for summary judgment the district court declared that the taxes could be collected and entered summary judgment for defendants. On appeal, plaintiffs first argued that Fountain's annexation of the Property removed it from the Authority's boundaries and that the Authority's attempt to tax retail sales outside of its boundaries violates the RTA law. A municipality may annex property from unincorporated parts of the county in which it lies. However, that annexation power does not permit a municipality to automatically remove territory from other political subdivisions of the state. The Property remained within the Authority's boundaries. Plaintiffs' also argued that under CRS § 43-4-603(2)(d) the Property was no longer within the boundaries of the Authority due to its annexation by Fountain, which is not a "member of the combination" constituting the Authority and must be deemed to be outside the Authority's boundaries under RTA Law. The Court of Appeals concluded that the legislature intended the statute to define the boundaries of an authority at its inception, not to define requirements for changing those boundaries thereafter. Further, the RTA law defines a specific procedure for how territory may be removed from an established authority, which was not followed here. Fountain's annexation of the Property did not remove it from the Authority's boundaries Plaintiffs further contended that the Authority's statutory power to tax is preempted by Article XX, section 6 of the Colorado Constitution, which they argued gives home rule cities "plenary" and "sole" authority over local concerns such as municipal taxation and supersedes state statutes that conflict with local laws in these areas. Colorado case law has long recognized that transportation regulation is generally a matter of mixed local and state concern, and the Colorado Constitution does not give home rule cities sole authority over taxation within their boundaries. The provision of transportation services to the Property and the imposition of taxes to pay for such services is not a matter of purely local concern that under article XX, section 6 would supersede conflicting state law. Further, plaintiffs failed to establish that the state statute granting the Authority the right to impose such a tax conflicts with Fountain's power to impose its own taxes. The district court did not err in rejecting plaintiffs' preemption argument and concluding that the Authority's sales tax on eligible transactions on the Property was valid. Lastly, the Court rejected plaintiffs' argument that the district court erred by failing to address all of the factors that courts frequently consider in determining whether an issue is a matter of local, mixed, or state concern. The judgment was affirmed.

Emergency Guardianship—Non-Emergency Guardianship—Personal Service of Notice—Jurisdiction—Probate Code. On July 15, 2016, the Fremont County Department of Human Services (Department) filed a petition for emergency appointment of a guardian for Spohr in the district court. Counsel was appointed for Spohr and an emergency hearing was held three days later. There was no transcript of the hearing and no indication that Spohr was present or that he received notice of the hearing. On July 19 the magistrate issued an order dispensing with notice under CRS § 15-14-312 stating that Spohr would be substantially harmed if the appointment was delayed. The court appointed the Department as emergency guardian and required notice of the appointment to be personally served on Spohr within 48 hours, as required by CRS § 15-14-312(2). There is no proof that service was made. Despite the CRS § 15-14-312(1) requirement that an emergency guardian appointment may not exceed 60 days, the court did not hold another hearing for more than six months and the emergency guardianship remained in place during that time. A permanent guardian was appointed for Spohr at a February 2017 hearing, but there is no indication that he was served with notice of this hearing. The trial court record includes a finding that the "required notices have been given or waived." The Court of Appeals previously remanded this case to the district court to make findings as to whether any of the required notices were ever sent to Spohr. On remand, the Department presented no further information and the court found that the record remained unclear as to service. On appeal, Spohr argued for the first time that he did not receive personal service of a notice of hearing on the petition for guardianship. As relevant to this case, the Colorado Probate Code requires personal service on the respondent of a notice of hearing on a petition for guardianship. The Probate Code would have allowed the appointment of an emergency guardian to be made without notice to Spohr only if the court found, based on testimony at the emergency hearing, that he would have been substantially harmed if the appointment were delayed. If the protected person was not present at the hearing, he must be given notice within 48 hours after the appointment. While the magistrate made this finding, the requisite notice within 48 hours of the appointment was never made. The Probate Code does not contain provisions for how a transition is to be made from an emergency guardianship to a non-emergency guardianship. In the absence of such provision, the Court concluded that after the 60-day limit on emergency guardianship, if a guardianship is still sought for the protected person, CRS § 15-14-304, governing judicial appointment of a guardian on a non-emergency basis, must be followed. Among other requirements for this process, CRS § 15-14-309(1) requires that a copy of the petition and notice of hearing on the petition must be served personally on the respondent. Further, the notice requirement is jurisdictional, and the lack of notice may therefore be raised at any time. Here, Spohr was not given notice within 48 hours after the appointment of his emergency guardian, nor did he waive notice of the appointment and the ability to request a hearing on the emergency guardian's appointment. And the emergency guardian served long after 60 days had passed. The record also fails to show that Spohr was provided with the required notice before his non-emergency guardianship. The failure to personally serve the respondent 14 days before the guardianship hearing is jurisdictional and respondent cannot waive service. Thus the court lacked jurisdiction to appoint a permanent guardian.

Special District—Taxation—Taxpayer's Bill of Rights—Due Process—Injunction—Uniform Tax Clause of the Colorado Constitution—Mill Levy—Misappropriation of Bond Sales. A developer created the Marin Metropolitan District (the District), a special district, to comprise two separate projects, the Landmark Project and the European Village Project. The developer created the District as a means to use owners of condominiums in the Landmark Project to pay for improvements in the European Village Project. As part of his application to Greenwood Village for approval of the District, the developer submitted a Service Plan. Using dubious means and without notice to the Landmark Project buyers, the developer and his associates then voted in an election to organize the District and approve bonds and "taxes" to pay for the bonds. The District sold bonds to Colorado Bondshares (Bondshares). UMB Bank, N.A. (UMB) held the bond sales proceeds in trust. Among other things, the Service Plan capped the debt service levy for the bonds at 49.5 mills, but the District imposed a levy of 59.5 mills. The developer drew on the funds, but the European Village Project infrastructure was never built. Landmark Towers Association, Inc. (Landmark), a homeowners association, sued UMB, Bondshares, and the District (collectively, defendants), challenging the creation of the District. Landmark asserted that the special district can't levy Landmark owners' properties to pay for bonds issued by the special district, which funded improvements on other property, because the election organizing the special district, approving the bonds, and approving the levies paying for the bonds violated the Taxpayer's Bill of Rights (TABOR) and the Landmark owners' rights to due process. The district court ruled that the election was illegal Landmark is entitled to injunctive relief preventing the District's levy the District's mill levy rate exceeds the legal limit Landmark owners are entitled to a refund of excessive assessments and Landmark owners are entitled to a "refund" of misappropriated bond sale proceeds. It enjoined the District from trying to collect levies from the Landmark owners and ordered that the owners may recover bond proceeds misappropriated by the District's creator under TABOR. On appeal, defendants asserted that the district court erred in finding that including the Landmark Project in the District violated the Landmark owners' rights to due process. Specifically, defendants argued that the levy was a tax, and property subject to a tax does not need to receive any benefit in return for the tax payments. Colorado law is clear that imposing a special assessment on property that doesn't specially benefit from the funded improvements violates the due process rights of those property owners. Here, the Landmark project was included in the District only to use it as a payment source for improvements to other property, and Landmark receives no benefit from those improvements. Further, the "tax" is in substance a special assessment because it doesn't defray the general expenses of government but funds a private venture's infrastructure. Because the Landmark owners derive no benefit from the improvements, the special assessments violated the owners' rights to due process. Defendants also argued that the district court erred in weighing the equities in imposing the injunction. The district didn't abuse its discretion in balancing the equities. Defendants further contended that the injunction violated the Uniform Tax Clause of the Colorado Constitution because it means that only some of the property in the district can be taxed. First, it is undisputed that defendants raised this issue for the first time in their motion for reconsideration, which was too late. Second, the Uniform Tax Clause applies only to taxes, not special assessments. Third, the injunction doesn't obligate the District to do anything with respect to other persons or property outside the Landmark Project. Fourth, the violation of the Landmark owners' rights to due process under both the U.S. and Colorado Constitutions entitles them to the injunctive relief they request, as a matter of law. Therefore, the district court correctly ruled on this issue. Defendants also contended that the district court erred in ruling that the District may not levy property taxes in excess of 50 mills. The mill levy rate imposed by the District exceeds that allowed by the statutorily required service plan approved by the City of Greenwood Village. Furthermore, it did not comply with the District's Service Plan or the financing plan. Therefore, the 59.5-mill-rate levy was illegal. Finally, defendants contended that the district court erred in ruling that the misappropriation of bond sale proceeds violated TABOR and in ordering a refund of those proceeds because the bond proceeds aren't "revenue." The bond proceeds at issue are borrowed funds, not "revenue" within the meaning of the relevant TABOR provision. Further, they aren't subject to refund because they were lent to the District by a private, outside entity and not collected from property owners. Therefore, the owners may not recover bond proceeds misappropriated by the District's creator under TABOR. Nor may the owners recover those misappropriated funds under other provisions of the Colorado Constitution because the District is not subject to those provisions. Therefore, the district court erred in ordering refunds of the misappropriated money. The portion of the judgment ordering TABOR refunds was reversed. The remainder of the judgment was affirmed and the case was remanded.

Dependency and Neglect—Indian Child Welfare Act Notice—Bureau of Indian Affairs. In this dependency and neglect proceeding, J.S.R. is the father of one of the four children. He told the Weld County Department of Human Services (Department) that he had Cherokee heritage on his father's side and his lineage descended from a tribe in Arkansas, but he did not know which tribe. The Department did not notify any tribe or the Bureau of Indian Affairs (BIA) of the dependency and neglect proceeding. Following the filing of their motion to terminate parental rights, the Department sent notice of the termination proceedings to the three federally recognized Cherokee Tribes. Each responded that the child was not a member or eligible for membership. The Department also notified the BIA, but did not mention J.S.R.'s reported affiliation to an unknown tribe in Arkansas. No further inquiry was made and all three parents' parental rights were terminated. On appeal, J.S.R. contended that the trial court and the Department did not comply with the Indian Child Welfare Act of 1978 (ICWA) after he asserted Native American heritage. He argued the Department failed to comply with the ICWA's notice requirements because it did not send notice to any tribes in Arkansas. ICWA-implementing legislation in Colorado requires that in dependency and neglect proceedings, the petitioning party must make continuing inquiries to determine whether the child is an Indian child. When there is reason to know or believe that a child involved in a child custody proceeding is an Indian child, the petitioning party must send notice of the proceeding to the potentially concerned tribe or tribes. The BIA publishes a list of designated tribal agents for service of ICWA notice in the Federal Register each year. There are no federally recognized tribes with designated tribal agents in Arkansas. If the identity or location of a tribe cannot be determined, notice must be given to the BIA. While the ICWA does not require courts or departments of human services to find tribal connections from vague information, it was the BIA's burden to research whether there could be a tribal connection in Arkansas. However, the notice in this case did not alert the BIA that J.S.R. had reported a tribal connection to Arkansas, so it had no reason to conduct such an investigation. The case was remanded with detailed directions to proceed with ICWA compliance.

Criminal Law—Voice Identification—Fifth Amendment—Custodial Interrogation—Agent of the State—Miranda. The victim of an armed robbery was directed by the police to speak with defendant while he was in custody to see if defendant would say anything to the victim. At the time, defendant was handcuffed in the backseat of a police vehicle with the window closest to him rolled down. Defendant was not warned of his Fifth Amendment rights under Miranda v. Arizona. Unlike a typical voice identification procedure, defendant was not merely asked to repeat the words heard by the victim during the robbery. Instead, defendant and the victim had a brief conversation during which defendant made statements that were nearly identical to the statements made by the robber. The victim identified defendant as the robber and based on this identification, he was arrested and charged with armed robbery. Defendant moved to suppress both the out-of-court voice identification and the statements he made during the voice identification procedure. The trial court denied the motion. The statements were admitted at defendant's criminal trial as substantive evidence of his guilt. Defendant was convicted as charged. On appeal, defendant contended that the trial court violated his Fifth Amendment right against self-incrimination when it admitted the statements he made to the clerk during his voice identification. Here, the statements were made during a custodial interrogation, and the clerk was acting as an agent of the state because he was acting at the specific direction of law enforcement officials. Further, the words spoken by defendant were not merely a voice exemplar used to identify him but were volitional statements used by the prosecution as substantive evidence of his guilt. Therefore, the admission of defendant's statements made during a one-on-one voice identification procedure not preceded by Miranda warnings violated his Fifth Amendment right against self-incrimination. This error was not harmless beyond a reasonable doubt.

Criminal Procedure—Not Guilty by Reason of Insanity—Crim. P. 32(d)—Withdrawal of Guilty Plea—CRS § 16-8-115. The prosecution charged defendant with one count of criminal attempt to commit unlawful sexual contact and one count of indecent exposure. These charges were based on events that occurred while defendant was a patient at a psychiatric ward. Defense counsel entered an insanity plea on defendant's behalf over his objection. The court ultimately accepted defendant's insanity plea, and it found defendant not guilty by reason of insanity. Defendant spent almost 10 years at the Mental Health Institute. Shortly after being placed in the community, defendant filed a Crim P. 32(d) motion to withdraw his insanity plea, which the trial court denied. On appeal, defendant argued that the court erred by denying his Rule 32(d) motion. A request to withdraw a plea under Rule 32(d) applies only to guilty pleas and nolo contendere pleas, not to pleas of not guilty by reason of insanity. Further, an insanity plea should not be treated as the equivalent of a guilty plea for purposes of Rule 32(d). Rule 32(d) did not apply to defendant's request to withdraw his insanity plea. The order was affirmed.

Criminal Law—Murder—Accessory—Fifth Amendment—Double Jeopardy—Undisclosed Alibi Defense—Mistrial—Testimonial Hearsay Statements—Doctrine of Forfeiture by Wrongdoing—Residual Hearsay Exception—Complicity Jury Instruction—Lesser Included Offense—Transferred Intent. Jackson and his friends were members of "Sicc Made," a subset of the Crips gang. Jackson drove a vehicle to the apartment of E.O., a rival gang member, with the intention of shooting E.O. Victim Y.M. lived in E.O.'s apartment complex. Believing Y.M. was E.O., another "Sicc Made" gang member got out of Jackson's car, walked over to an SUV, and shot Y.M. twice in the head, killing him instantly. When they realized they had killed the wrong man, the men turned and fired numerous shots into E.O.'s apartment. Defendant was convicted of first degree murder after deliberation, attempted first degree murder after deliberation, attempted first degree murder with extreme indifference, conspiracy to commit first degree murder, and accessory. On appeal, Jackson first challenged the court's decision to declare a mistrial after cross-examination of his ex-wife revealed an undisclosed alibi defense. A defendant may not elicit alibi evidence, absent good cause, without first complying with the Crim. P. 16(II)(d) alibi disclosure requirements. It is undisputed that the defense provided no notice to the prosecution of the alibi, despite receiving it a month before trial. The defense decided not to disclose the new information but to elicit it on cross-examination in violation of Rule 16. Further, the trial court carefully considered the parties' arguments and its available options and was in the best position to assess the prejudicial impact. The trial court did not abuse its discretion in deciding to declare a mistrial. Jackson next contended that the trial court erroneously admitted testimonial hearsay statements of uncharged co-conspirator Walker to law enforcement officials under the doctrine of forfeiture by wrongdoing and under the CRE 807 residual hearsay exception. However, (1) the prosecution proved by a preponderance of the evidence that Jackson forfeited his right to confront Walker because he caused Walker's refusal to testify, and (2) the trial court did not abuse its discretion in admitting Walker's statements under CRE 807. Jackson also contended that the complicity instruction was erroneous. The jury instruction defining first degree murder after deliberation, when read with the complicity instruction, accurately required the jury to find that Jackson was aware that the shooter acted after deliberation and with the intent to cause the death of the victim. Accordingly, there was no error in the complicity instruction. Finally, Jackson contended that the trial court erred in imposing two convictions and consecutive sentences for his attempted murder convictions. When a defendant attempts to deliberately kill one person but mistakenly kills a different person and is convicted of both the attempted murder of the intended victim and the actual murder of the unintended victim, the attempted murder conviction must be vacated because it is a lesser included offense of the murder conviction. Here, the undisputed evidence shows that the shooter and Jackson intended to kill E.O. and mistakenly killed Y.M., believing him to be E.O. Under the doctrine of transferred intent, Jackson's specific intent to kill E.O. transferred to Y.M. and made him criminally liable for Y.M.'s death. Therefore, the attempted murder of E.O. after deliberation is a lesser included offense of the murder after deliberation of Y.M. The trial court's error was obvious, substantial, and undermined the fairness of the proceeding. The convictions of first degree murder after deliberation, attempted first degree murder with extreme indifference, conspiracy to commit first degree murder, and accessory were affirmed. The judgment for attempted first degree murder after deliberation was vacated and the case was remanded for correction of the mittimus.

Tax Sale—Adequate Notice—Treasurer's Deed—Due Process—Reinstatement Order. The Cordells owned a tract of land in La Plata County. After they failed to pay taxes for several years, Heller purchased a tax lien for the property and assigned it to Klingsheim, who later requested a deed from the La Plata County Treasurer. Before issuing the deed, the Treasurer sent the Cordells a copy of the notice of application for a treasurer's deed by certified mail. The notice was mailed to the Cordells in one envelope, using a New Mexico address listed for the Cordells in the county tax records. A return receipt was received indicating the notice had been received by Mr. Cordell's mother. The Cordells did not redeem, and the Treasurer issued a treasurer's deed to Klingsheim. Sometime later the Cordells learned of the notice and filed suit seeking a declaratory judgment that they were the owners of the property and the treasurer's deed was void. The trial court ruled that the Treasurer had not made a "diligent inquiry" in attempting to notify the Cordells that their land might be sold to satisfy the tax lien and voided the deed. The alternative basis for the decision was that the deed was void because no "separate notice" was mailed to Ms. Cordell. The Court of Appeals previously affirmed the voiding order but did not address the "separate notice" argument. On certiorari review, the Colorado Supreme Court concluded that the Treasurer fulfilled the diligent inquiry duty and the Treasurer's transmission of the notice by certified mail satisfied due process, and the Court reversed and remanded the case. On remand to the Court of Appeals, the Cordells requested the division to consider the separate notice argument. The division declined to do so, and a mandate was issued reversing the voiding order and remanding the case to the trial court. On remand, the trial court issued a reinstatement order without substantive analysis of its own. On appeal of the reinstatement order, the Cordells argued that the trial court was not required to reinstate the treasurer's deed on remand because the Supreme Court's holding reached only one of the two grounds on which the trial court rested the voiding order. Neither the Supreme Court nor the trial court reached the separate notice issue. Because the issue was not resolved, the Court of Appeals considered whether the trial court's failure to consider the issue warrants reversal. Here, the Cordells were married and both were receiving mail at the same address. The Court concluded that notice mailed to both record owners in a single piece of mail is constitutionally adequate. Thus, the reinstatement of the treasurer's deed on remand was proper. The reinstatement order was affirmed.

Property Tax—Residential Land—Common Ownership—Vacant Land—CRS § 39-1-102(14.4)(a). Kelly purchased two adjacent parcels of land in Summit County (the County). She built a home on one parcel (the residential parcel) and left the subject parcel vacant. Sometime later, Kelly placed the residential parcel in an irrevocable trust and the subject parcel in a revocable family trust. Kelly was the settlor, trustee, and beneficiary of both trusts. For tax purposes, the Summit County Assessor classified the residential parcel as residential land but the subject parcel as vacant land, which is taxed at a higher rate. In 2016, Kelly appealed the subject parcel's classification to the Summit County Board of County Commissioners, requesting that it be reclassified as residential under CRS § 39-1-102(14.4)(a), and sought a tax abatement for the tax years 2014 and 2015. The County denied the petition. The Board of Assessment Appeals (BAA) affirmed, finding that because the two parcels were owned by two separate trusts, they were not commonly owned and therefore the subject parcel did not qualify under the statutory section. On appeal, Kelly contended that the BAA erred in concluding that the subject parcel was not residential land. She argued that the BAA misconstrued the "common ownership" element of CRS § 39-1-102(14.4)(a). The statute does not define common ownership, and the Property Tax Administrator has neither defined nor offered guidance to assessors on determining whether parcels are under common ownership. The BAA and the County interpreted "common ownership" to mean the same record titleholder. The Court of Appeals focused its analysis on the meaning of "ownership," noting that ownership goes beyond mere record title and focuses on who has the power to possess, use, enjoy, and profit from the property. It concluded that ownership of contiguous parcels for purposes of CRS § 39-1-102(14.4)(a) depends on a person's or entity's right to possess, use, and control the contiguous parcels. Here, the unchallenged testimony that Kelly was the beneficiary, trustee, and settler of both trusts established that Kelly held legal title to and was the equitable owner of both parcels. Further, Kelly testified that she only placed the parcels in the trusts on the advice of counsel for tax and estate planning purposes and that she possessed, controlled, and used the parcels before and after they were placed in trust. The Assessor testified that she considered the parcels separate simply because the names on the trusts were different. The Court of Appeals concluded that the parcels were under common ownership for tax years 2014 and 2015 and the BAA erred in denying the request to reclassify the subject property. Kelly also argued that the BAA abused its discretion when it rejected the parties' stipulation that the contiguous parcels element was not at issue. The BAA's decision to reject the signed stipulation two months after the close of evidence and without notice to the parties was manifestly unfair. The BAA's order was reversed and the case was remanded with directions for the BAA to reclassify the subject parcel as residential land.

Uninsured/Underinsured Settlement and Release Agreement—CRCP 12(b)(1) Dismissal. Arline submitted claims to American Family Mutual Insurance Company (American) under insurance policies that provided $5,000 in MedPay coverage and $50,000 in individual underinsured motorist (UIM) coverage. American paid $5,000 in MedPay benefits on Arline's behalf and negotiated Arline's damages under her UIM coverage to be $27,000, after subtracting the $5,000 in MedPay benefits already paid. In November 2015, Arline, represented by counsel, accepted the $27,000 payment and signed a release agreement (Agreement) releasing American under the UIM policy. In November 2016, the Colorado Supreme Court held for the first time in Calderon v. American Family Mutual Insurance Co., 2016 CO 72, that CRS § 10-4-609(1)(c) prohibits insurers from reducing the UIM benefits paid on a claim by the amount of MedPay benefits paid on that claim, which the court deemed a "setoff." (Counsel in that case now represents Arline.) Arline then sued American for breach of contract and seeking class certification, asserting that American had unlawfully reduced UIM payments using a MedPay setoff. American responded that the Agreement was a complete bar to the cause of action and moved to dismiss. The district court found the Agreement enforceable and granted American's motion to dismiss for lack of standing. On appeal, Arline argued that the district court erred in dismissing her complaint because American's payment pursuant to the Agreement caused her to suffer an injury-in-fact to a legally protected interest. Though the Supreme Court held that CRS § 10-4-609(1)(c) prohibits policy provisions allowing a setoff from other coverage, it did not hold that the statute extended to settlement agreements. An insured may agree to a settlement and release as long as the terms do not violate statutory prohibitions or public policy. If a release agreement is valid, dismissal of claims encompassed by the agreement is proper. Here, Arline entered into the Agreement voluntarily while represented by counsel who was fully informed that certiorari had been granted in Calderon. She negotiated her damages benefits and agreed that the UIM benefit amount paid compensated her sufficiently to warrant releasing American from any further claims. In addition, Colorado public policy favors the settlement of disputes when the settlement is fairly reached. Arline signed a valid release agreement that is not void as against public policy or prohibited by statute. The district court properly dismissed her claim. The judgment was affirmed.

Monroe boarded a city bus and sat down next to Faulkenberry. The two almost immediately began to argue. Eight to 10 minutes after the dispute began, Monroe stabbed Faulkenberry in the neck. At trial, Monroe did not testify, but her counsel asserted that Monroe had been acting in self-defense. During closing and rebuttal arguments, the prosecution made several references to Monroe's ability to retreat from the situation. Defense counsel's objections to these statements were overruled. The jury was formally instructed regarding the duty to retreat. Monroe was convicted of attempted first degree murder and first degree assault. The trial court adjudicated her a habitual criminal and sentenced her to concurrent prison terms of 96 years on the attempted murder count and 48 years on the assault count. On appeal, Monroe argued that the trial court committed reversible error when it permitted the prosecution to argue that the jury should consider Monroe's failure to retreat when deciding whether she had acted in self-defense. A person who reasonably perceives an imminent use of unlawful physical force by another may use force in defending himself or herself without first retreating and does not have to consider whether a reasonable person in the situation would choose to retreat rather than to resort to physical force in defense. Here, the prosecution raised the issue of the availability of retreat five times during its closing and rebuttal arguments, and the prosecution's argument inappropriately imposed a duty to retreat. The trial court permitted the jury to believe that it could consider whether a reasonable person would have retreated, in direct contravention of its instruction that no such duty exists. Thus, the trial court abused its discretion. Further, although the court and the prosecutors themselves repeatedly stated that Monroe had no duty to retreat, there was a reasonable probability that the jury was misled and that the misleading arguments contributed to the verdict, so the error was not harmless. The judgment was reversed and the case was remanded for a new trial.

Defendant assisted his father in setting up a joint bank account for depositing his father's Supplemental Security Income (SSI) checks from the Social Security Administration (SSA). A month later, defendant's father left the United States to live in Jordan and never returned. Though the SSI application and award notice informed defendant's father that he had to report to the SSA if he left the United States for more than 30 days, he never reported. From January 2008 to January 2011, the SSA deposited checks monthly into the joint account, and defendant withdrew the funds to pay for household expenses. When the SSA realized that defendant's father had been outside the country for years, defendant confessed to SSA's agents that it was wrong for him to take the funds. Defendant received a letter from the SSA informing him that $24,494 had been overpaid to his father. Defendant was convicted of a single count of theft of $20,000 or more from the SSA. On appeal, defendant contended that the prosecution failed to present sufficient evidence to prove beyond a reasonable doubt that he committed theft. Here, the prosecution presented sufficient evidence for a reasonable juror to find beyond a reasonable doubt that defendant committed theft from the SSA, including evidence that defendant helped his father apply for SSA benefits, set up a joint account with his father, and admissions that he knew retaining the funds after his father left for Jordan was wrong. Defendant also argued that the court failed to properly instruct the jury (1) on the definition of the word "another" in the theft statute, and (2) on its requirement to find that the "aggregate value" exceeded $20,000 within one of the prescribed units of prosecution. There is no statutory requirement to define "another," and the SSA's possessory or proprietary interest in the funds was not a disputed issue in this case. Although the trial court plainly erred when it instructed the jury that it could find defendant guilty of stealing $20,000 or more, the error was harmless because a proper jury instruction would not have changed the jury's findings. Defendant also contended that the prosecution failed to prove that he took $20,000 or more within any prescribed unit of prosecution permitted under the theft statutes in effect on the offense dates. The People conceded and the Court of Appeals concluded that the trial court erred by entering judgment for a class 3 felony theft on the jury's verdict. The judgment of conviction for one class 3 felony theft count was vacated and the case was remanded to the trial court to enter judgment of conviction for four class 4 felony theft counts and to resentence defendant accordingly.

Late one night Jones opened the unlocked door of an apartment located in a large, gated apartment complex. He turned on the hall light and walked into one of the bedrooms. The apartment was occupied by two brothers and their two cousins (the homeowners). Jones and the homeowners had never met each other. Jones and the occupants fought until Jones was finally subdued. At trial, Jones argued that he had entered the apartment by mistake, and when the homeowners used force against him, he justifiably defended himself using the knife he carried for protection. A jury convicted Jones of one count of second degree assault and one count of third degree assault. On appeal, Jones contended that the trial court erred in instructing the jury that the make-my-day statute is triggered upon any unlawful entry into a dwelling, rather than upon a "knowingly" unlawful entry, and as a result the erroneous make-my-day instruction negated his otherwise valid claim of self-defense. When the make-my-day statute applies it operates as a bar to a trespasser's claim of self-defense, so if it applied here, Jones would not be justified in using physical force against the homeowners. An instruction clarifying the meaning of "unlawful entry" is necessary where the evidence supports a theory that the defendant accidentally entered the dwelling or otherwise entered without the requisite mental state. Here, the court erred in failing to instruct the jury that the make-my-day statute's unlawful entry element requires that the unlawful entry be made knowingly. Additionally, the instructional error was not harmless. The evidence supported Jones's theory that he entered the apartment accidentally under the mistaken belief that he was entering the apartment of his cousin, who lived in the complex. Therefore, the language of the make-my-day instruction improperly abridged Jones's claim of self-defense and created a reasonable probability that the jury could have been misled in reaching a verdict. The judgment of conviction was reversed and the case was remanded for a new trial.

When Davis was 17 years old, he and McGrath robbed the victim, McGrath's former coworker. The victim was transporting money to a bank from the restaurant at which he and McGrath had worked. In the course of the robbery, the victim was shot and killed. Davis was convicted of first degree murder after deliberation, felony murder, aggravated robbery, aggravated motor vehicle theft, conspiracy to commit first degree murder, and conspiracy to commit aggravated robbery. As required by statute, the trial court sentenced him to life in the custody of the Department of Corrections with the possibility of parole after 40 years (LWPP-40) on the murder after deliberation count. Additionally, the trial court imposed a consecutive sentence of eight years and one day on the aggravated robbery count. The sentences imposed for the remaining counts were ordered to run concurrently with the sentences to life plus eight years and a day. The felony murder conviction was merged with the conviction for murder after deliberation. Davis filed two Crim. P. 35(c) motions, which the district court denied in a series of orders. On appeal, Davis contended that the trial court violated his constitutional rights when it denied his motion to suppress statements he made during police interrogation, arguing that the Denver detective violated his right to counsel by continuing an interrogation after he asked for an attorney. Davis' statements were admissible because although Davis had previously asked for an attorney, he had voluntarily reinitiated the interrogation by asking the Denver detective whether McGrath had been arrested. Even assuming that the trial court erred in denying the motion, any error was harmless beyond a reasonable doubt in light of the relative insignificance of the statements to the People's case and the substantial evidence of guilt. Davis also argued that reversal is required because he never executed an on-the-record waiver of his right to testify. Where the trial court's on-the-record advisement includes the five essential elements set forth in People v. Curtis, 681 P.2d 504, 514 (Colo. 1984), as occurred here, the record conclusively demonstrates that defendant made a valid waiver of the right to testify. Further, Davis did not present any evidence to show that despite the Curtis advisement, his waiver was nonetheless invalid. Thus, the district court did not err in concluding that Davis knowingly, voluntarily, and intelligently waived his right to testify. Davis next contended that his sentence of LWPP-40 together with a sentence of eight years plus one day is unconstitutional. LWPP-40 is a constitutional sentence, and the trial court did not abuse its discretion in sentencing Davis to eight years and one day to run consecutively to his LWPP-40 sentence. Further, Colorado's parole system provides juveniles sentenced to LWPP-40 a meaningful and realistic opportunity for release based on demonstrated maturity and rehabilitation. The orders were affirmed.

McGlaughlin pleaded guilty to third degree assault and violation of a protection order. He was represented by a law student extern practicing under CRCP 205.7. Thereafter, McGlaughlin moved to vacate his plea and the resulting convictions claiming that he was deprived of his Sixth Amendment right to effective assistance of counsel when he was represented only by a law student, not a licensed lawyer, at his plea hearing. The postconviction court denied McGlaughlin's Crim. P. 35(c) motion without a hearing, concluding that the record disproved McLaughlin's claim. On appeal, McGlaughlin argued that his plea was constitutionally invalid under the Sixth Amendment because he was not represented by a licensed lawyer at a critical stage of his criminal case. When a criminal defendant is represented by a student attorney under CRCP 205.7, a supervising attorney must be physically present in the courtroom during all critical stages of the criminal case. If the supervising attorney is not present during a critical stage, the defendant is denied his Sixth Amendment right to counsel. The record here did not clearly establish that the supervising attorney was present during defendant's plea hearing. The order was reversed and the case was remanded to the postconviction court for an evidentiary hearing and further findings.

The prosecution filed a grand jury indictment against several defendants, including Soto-Campos and Flores-Rosales, for their alleged involvement in a heroin distribution enterprise. Defendants' attorneys filed motions requesting that the district court conduct a probable cause review under CRS § 16-5-204(4)(k) for count sixty-one, Special Offender,Within 1000 Feet of a School. After review, the court dismissed that count. The prosecution then asked the court to reconsider, arguing that defendants were not entitled to probable cause review of the sixty-first count because it was a sentence enhancer, not a substantive offense. The district court denied the motions. On appeal, the People contended that the district court erred in conducting the probable cause review because, considering legal principles governing preliminary hearings, the sixty-first count is a "stand-alone" sentence enhancer, and thus not subject to review under CRS § 16-5-204(4)(k). CRS § 16-5-204(4)(k) is not limited to substantive offenses, but instead broadly requires a district court to dismiss "any indictment" based on a probable cause finding that lacks record support. Therefore, the district court properly reviewed the sixty-first count under CRS § 16-5-204(4)(k) and did not abuse its discretion in dismissing this count for lack of record support. The orders were affirmed.

Welborne and his mother were charged with setting fire to their rented house and then filing false insurance claims based on the fire damage. Welborne was convicted of first degree arson, criminal mischief, theft, and attempted theft. The Court of Appeals previously rejected his challenges to his convictions based on Reyna-Abarca v. People, 2017 CO 15. After this decision, the Colorado Supreme Court clarified Reyna-Abarca and vacated the Court's judgment here as to the included offense statute and remanded this case. On appeal, Welborne contended that criminal mischief is an included offense of first degree arson and, therefore, those convictions must merge under both statutory and double jeopardy dictates. Criminal mischief is included in first degree arson where both offenses are based on the same conduct. Here, when Welborne knowingly burned the rented house without the owner's consent, he committed both criminal mischief and first degree arson. The failure to merge the convictions was plain error. The criminal mischief conviction and sentence were vacated. The judgment was affirmed in all other respects. The case was remanded for the trial court to correct the mittimus.

Jompp, the victim, and an acquaintance, B.B., were driving around one evening in a stolen car while high on methamphetamine. After they picked up C.P., they later pulled the vehicle over and a fight broke out between Jompp and the victim. Jompp, B.B., and C.P. left the victim unconscious on the ground, and the victim later died of his injuries. Days later, police found Jompp. After the police handcuffed Jompp, he took off running. After a short chase he was caught and taken to jail. A jury convicted Jompp of third degree assault, robbery, and escape. The trial court adjudicated Jompp a habitual criminal and sentenced him to 48 years in prison. On appeal, Jompp contended that the court violated his speedy trial rights by continuing his jury trial, over his objection, beyond six months after he pleaded not guilty and 13 months after he was arrested. Here, the trial court acted within its discretion by relying on the prosecution's offer of proof that they were diligently trying to find B.B. to secure her testimony at trial and by finding that there was a reasonable possibility that B.B. would be available to testify. Therefore, there was sufficient record evidence to support the court's granting of the prosecution's request for a continuance. Further, the trial court didn't plainly err because Jompp's constitutional right to a speedy trial wasn't obviously violated. Jompp also contended that the prosecution presented insufficient evidence that he committed robbery, as either a principal or accomplice. Here, after Jompp attacked the victim, B.B. said she then saw C.P. get out of the car, go over to the victim, and start digging through his pockets. C.P. admitted that she went through the victim's pockets to get money at Jompp's direction and she gave him the money she found. Further, the Court of Appeals rejected Jompp's argument that the prosecution had to show that the force he used against the victim was calculated to take the victim's money. The record contained sufficient evidence to support the jury's conclusion beyond a reasonable doubt that Jompp robbed the victim. Jompp next contended that the court erred by failing to instruct the jury that it could convict him of the lesser nonincluded offense of resisting arrest. Here, the undisputed record evidence showed that Jompp was in custody. He had already submitted to the police officer's instructions, was handcuffed, searched, and led by the arm to a patrol car for transport to jail before he ran from the officer. Therefore, the court didn't abuse its discretion by declining to instruct the jury on the crime of resisting arrest. Finally, Jompp contended that the court convicted him in violation of his Sixth Amendment right to a jury trial when, at sentencing, it, not the jury, found that he had prior convictions and increased his sentence under the habitual criminal sentencing statute. Jompp failed to preserve this issue at trial, and the prior conviction exception remains well-settled law, so the trial court did not err. Finally, Jompp contended that his sentence is illegal because his noncustodial escape conviction can't be deemed a current offense under the habitual criminal statute. The Court held that CRS § 18-1.3-801(5) (2013) precluded a noncustodial escape conviction from being used as a current conviction for adjudicating a defendant a habitual criminal under subsection (2) of that section. Therefore, the trial court erred in adjudicating Jompp a habitual criminal on his noncustodial escape conviction. The judgment of conviction was affirmed. The part of the sentence based on Jompp's escape conviction was vacated and the case was remanded for resentencing on that conviction. The remainder of the sentence was affirmed.

Ramirez was the victim's foster father. When the victim was 4 years old, Ramirez ordered her and her sister to approach him. He placed their hands in front of him, pulled down his pants and underwear, and masturbated. Ramirez ejaculated into their hands and made them drink the semen. A jury convicted Ramirez of sexual assault on a child (SAOC), sexual assault on a child by one in a position of trust (SAOC-POT), and indecent exposure. On appeal, Ramirez contended that there was insufficient evidence to support the charges of SAOC and SAOC-POT. To prove the crimes of SAOC and SAOC-POT the prosecution must prove, beyond a reasonable doubt, that "for the purposes of sexual arousal, gratification, or abuse" the defendant knowingly touched the victim's intimate parts or the victim touched the defendant's intimate parts. Semen is not an "intimate part" within the meaning of CRS § 18-3-401(2). Here, the victim testified that Ramirez never touched any of her "private parts" and that she never touched his "private parts." The evidence was insufficient to prove beyond a reasonable doubt that Ramirez committed SAOC or SAOC-POT. The SAOC and SAOC-POT convictions were vacated and the case was remanded for the trial court to dismiss those charges with prejudice. The convictions for indecent exposure were affirmed.

Gwinn rear-ended another car while driving home from work and was arrested for driving while under the influence of alcohol (DUI). Gwinn admitted drinking four beers before the accident occurred. After a jury convicted Gwinn of DUI and careless driving, the trial court, in a separate proceeding, found that Gwinn had three prior DUI convictions, adjudicated him a felony DUI offender, and sentenced him to 30 months of probation, two years of work release, and 90 days in the county jail. On appeal, Gwinn first contended that the trial court's refusal to allow the testimony of eight current and former Colorado Department of Public Health and Environment (CDPHE) employees deprived him of his constitutional right to present a defense. Gwinn sought to introduce this testimony to show that the Intoxilyzer 9000 breath test machine did not produce accurate results. The trial court did not err when it granted CDPHE's motion to quash the witness subpoenas, finding that the testimony was irrelevant to Gwinn's refusal because it failed to establish Gwinn's knowledge of the Intoxilyzer 9000's alleged deficiencies at the time he refused to submit to chemical testing. Because the accuracy of the breath test machine was not relevant, Gwinn was not deprived of the right to present a defense. Gwinn next contended that the trial court erroneously permitted the prosecutor to lead a friendly witness, Officer Perez, "under the guise of impeachment" where no impeachment occurred. Because Officer Perez's direct testimony that Gwinn's speech "sounded normal" was contradicted by his previous statement in the sobriety examination report that Gwinn's speech was "mumbled," no error occurred when the trial court allowed impeachment with leading questions about a prior statement. Gwinn next argued that the trial court erroneously admitted People's Exhibit 1, an express consent affidavit and notice of revocation form, under CRE 403. Officer Perez testified that he reviewed the express consent affidavit with Gwinn, which made the affidavit relevant to Gwinn's knowledge of the consequences of his refusal to take a chemical test. Here, the trial court properly admitted the exhibit under CRE 803(6). Gwinn also contended that the trial court erroneously rejected a tendered instruction informing the jury that law enforcement may obtain a search warrant to compel a defendant to submit to a blood test and instructing the jury that it was permitted to draw an inference from an officer's failure to employ this procedure that the officer did not believe there was evidence to support a search warrant. However, the officer was not required to obtain a search warrant, and the officer testified that he does not usually do so in DUI cases. Therefore, there was no error. Gwinn last contended that his prior DUI convictions trial, conducted by the trial court, violated his federal constitutional right to a jury trial. The General Assembly intended prior DUI convictions to constitute a sentence enhancer rather than an element of DUI. A defendant is not entitled to have a jury determine the existence of the prior DUI convictions used to enhance his sentence from a misdemeanor to a felony. Further, the prosecution's burden of proving prior convictions is by a preponderance of the evidence not, as Gwinn argued, beyond a reasonable doubt. The judgment was affirmed.

C.O. and L.A. spent about three weeks camping alone with Aldridge, their maternal grandfather. At the time, C.O. was 4 years old and L.A. was 9 years old. Both girls alleged that they had touched Aldridge's penis during the camping trip and that it got stiff. A jury found Aldridge guilty of two counts of sexual assault on a child by one in a position of trust as part of a pattern of abuse, two counts of sexual assault on a child as part of a pattern of abuse, four counts of sexual assault on a child by one in a position of trust,victim under 15, four counts of sexual assault on a child, and two counts of aggravated incest. The trial court sentenced him to 116 years to life in the custody of the Department of Corrections. On appeal, Aldridge contended that the trial court erred by excluding him from the courtroom while C.O. and L.A. testified. Before trial, the People moved for C.O. and L.A. to testify by closed-circuit television under CRS § 16-10-402. Over Aldridge's objection, the trial court granted the motion. Neither the trial court nor the parties indicated that Aldridge, rather than the children, would be removed from the courtroom. At trial, rather than having the witnesses testify from another room, the trial court permitted the children to testify in the courtroom while the judge and defendant watched from the judge's chambers. The jury could not see or hear defendant during the children's testimony. Aldridge's exclusion from the courtroom during the children's testimony, in the absence of a stipulation, violated CRS § 16-10-402, and this procedure violated defendant's due process right to be present because he was denied an opportunity to exert a psychological influence on the jury. This error was not harmless beyond a reasonable doubt.

Plaintiff was in a car accident and sued the other driver for negligence and State Farm Mutual Automobile Insurance Co. for underinsured motorist (UIM) benefits. Plaintiff's policy covered him up to $100,000 for damages caused by underinsured motorists. The other driver's insurance company covered him for $100,000 in damages and also agreed to pay the full extent of a jury's verdict. At trial, State Farm presented evidence that plaintiff had not cooperated with claims adjusters and had committed fraud, and therefore plaintiff voided the insurance contract and he was not entitled to UIM benefits. The jury rejected State Farm's affirmative defenses of fraud and failure to cooperate and awarded plaintiff $300,000 in damages. State Farm moved for entry of judgment based on a letter from the other driver's insurance company that effectively provided unlimited liability insurance coverage for him. State Farm argued that because there was no difference between the coverage limit and the amount of damages, plaintiff was not entitled to UIM benefits. The other driver did not object. The trial court granted the motion and the other driver's insurance company paid the entire judgment. On appeal, plaintiff argued that it was error to grant State Farm's motion for entry of judgment. Plaintiff contended that the trial court should not have considered the merits of State Farm's motion because the motion raised an affirmative defense that State Farm waived by not presenting before trial. An affirmative defense must be in the nature of a confession and avoidance. Here, State Farm did not contend that it owed UIM benefits but could avoid its obligation to pay them for some other reason rather, the motion asserted that it did not owe benefits at all. State Farm's motion did not raise an affirmative defense. The motion was properly made and the trial court did not err by entertaining it. Plaintiff also contended that under the plain language of CRS § 10-4-609, State Farm is required to provide him with the full amount of UIM benefits. Plaintiff argued that even though he recovered the full amount of the jury's verdict from the other driver's insurer, he should still be allowed to recover an additional $100,000 in UIM benefits. UIM benefits are intended to cover the difference between the negligent driver's liability limits and the damages. The plain language of the statute does not allow a plaintiff to recover UIM benefits in excess of the total amount of actual damages. Further, the statute does not prevent an insurer from effectively increasing a driver's liability coverage by offering to pay any damages awarded at trial. Here, there is no difference between the amount of damages and the amount of coverage, so UIM benefits are not triggered. The Court of Appeals also found no statutory support for plaintiff's arguments that (1) the letter from the other driver's insurance company does not meet the requirements of a complying policy, and so it is not legal liability coverage and (2) the determination of whether a driver is underinsured is made at the time of the accident. The judgment was affirmed.

In 2009, the Sand Hills Metropolitan District (Sand Hills) included the 70 Ranch within its boundaries and began assessing ad valorem taxes on the oil and gas extracted from the mineral estate. Plaintiffs Bill Barrett Corporation and Bonanza Creek Energy, Inc., and intervenor Noble Energy, Inc. (lessees), challenged these taxes and obtained summary judgment in Weld County District Court. Both sides appealed. In that appeal, the division agreed with the district court that when Sand Hills included the 70 Ranch it was a material departure from its 2004 service plan, which required approval from the Weld County Board of County Commissioners. Because that approval had not been obtained, the division held that Sand Hills lacked taxing authority after 2009. Following entry of the summary judgment and before the Sand Hills appeal was filed, Lembke and 70 Ranch, LLC (the LLC) (collectively, defendants) petitioned South Beebe Draw Metropolitan District (South Beebe) to include the 70 Ranch. Defendants owned the surface estate where all of lessees' well heads are located. Lessees were not notified of this action. South Beebe resolved to include the 70 Ranch, and the Adams County District Court approved the inclusion. Lessees filed a motion for a preliminary injunction to prevent South Beebe from taxing oil and gas that lessees produce from the mineral estate underlying the 70 Ranch. The trial court denied the motion and entered summary judgment that under CRS § 32-1-401, the severed mineral estate underlying the 70 Ranch could not be included within South Beebe because all the owners and lessees of that estate did not petition for and consent to inclusion. Lessees obtained a temporary restraining order in the Weld County District Court that prohibited the Weld County Treasurer, who had collected the disputed taxes, from disbursing the monies to South Beebe. Venue was transferred to Adams County and, following an evidentiary hearing on lessees' motion for a preliminary injunction, the court found lessees had not shown a reasonable probability of success on the merits and denied the motion. Later, the court entered a final judgment against lessees on their CRS § 32-1-401 claim. Lessees appealed and asked that the status quo be preserved by enjoining the treasurer from disbursing taxes collected to South Beebe. A motions division granted the request. On appeal, lessees argued that without their consent and that of the other mineral estate owners, the 70 Ranch, or at least the underlying mineral estate, could not have been included within South Beebe. South Beebe responded that because the mineral and surface estates were severed, only the surface owners needed to petition for and consent to inclusion, and all of them did. The Court of Appeals first held that mineral estate owners are "fee owners," but lessees are not. Next, because the parties agreed and the record supports that not all of the mineral estate owners consented to the 70 Ranch's inclusion, the Court considered whether South Beebe's services can benefit the mineral estate. Because lessees did not argue that the mineral estate owners would benefit from the inclusion, the Court concluded that lack of consent by all mineral estate owners did not preclude South Beebe from taxing lessees. Consequently, the Court affirmed the trial court's entry of summary judgment as to lessee's CRS § 32-1-401(1)(a) claim. Lessees also challenged the trial court's ruling that lessees had not shown a reasonable probability of successfully establishing that South Beebe had violated CRS § 32-1-207(2)(a) by failing to obtain Board of County Commissioners (BOCC) approval for a material change in its service plan, because it had obtained approval from the planning commission. However, the Court found that the actions of the planning commission and other officials did not satisfy the requirement that South Beebe had to obtain BOCC approval for a material modification of its service plan. Therefore, lessees have a reasonable probability of success in establishing that South Beebe did not obtain the requisite BOCC approval. Further, the trial court dissolved the temporary restraining order and denied a preliminary injunction on this ground alone, without considering the other factors set forth in Rathke v. MacFarlane, 648 P.2d 648, 651 (Colo. 1982). Lessees also argued that it was error to conclude that South Beebe's inclusion of the 70 Ranch was not a material modification. Boundary changes alone are presumptively not material modifications, and the Court found that inclusion of the 70 Ranch was just a boundary change. Thus, the trial court acted within its discretion in ruling that lessees had not shown a reasonable probability of success in challenging inclusion of the 70 Ranch as an unapproved material modification. Finally, lessees argued that under CRS § 32-1-107(2), South Beebe could not levy and collect taxes to support services if those services are already being provided by another special district (in this case, Sand Hills). The Court agreed with the trial court that the statute prohibits overlapping services, not merely overlapping territory. Here, no party asked the court to resolve the factual question of overlapping services, thus the question of whether the services were overlapping was not properly before the Court. The summary judgment on lessees' CRS § 32-1-401(1)(a) claim was affirmed. The order denying lessees' motion for a preliminary injunction was vacated. The case was remanded for the trial court to make findings on the remaining Rathke factors and reconsider whether to enter a preliminary injunction. The temporary injunction will remain in effect until the trial court enters its renewed ruling on the motion for preliminary injunction.

Cummings was a deputy sheriff in Arapahoe County. The Sheriff terminated Cummings' employment, asserting that he violated the Sheriff's employee manual (the Manual) and was dishonest during the investigation of the original charges against him. Cummings exhausted his remedies within the Sheriff's department and sued for (1) wrongful discharge in violation of public policy, and (2) breach of an implied contract of employment, based on the policies in the Manual. The Sheriff moved to dismiss the wrongful termination claim based on governmental immunity, and the district court dismissed the claim with prejudice. The district court denied the Sheriff's motion to dismiss the implied contract claim, and the Sheriff moved for summary judgment. The district court denied the motion for summary judgment, holding that there was an implied contract of employment and disputed issues of material fact existed. The Sheriff brought an interlocutory appeal under C.A.R. 42 challenging the denial of summary judgment. On appeal, the Sheriff contended that the trial court erred in denying his motion for summary judgment. He argued that the at-will employment concept in CRS § 30-10-506 requires the court to hold that all policies promulgated by a sheriff relating to termination of deputy sheriffs' employment are only precatory, and to conclude otherwise would mean that the sheriff lacks the power to terminate at-will employees. CRS § 30-10-506 requires a sheriff to promulgate written employment policies, and the sheriff must give deputies the rights of notice and opportunity to be heard. A sheriff's other employment policies may be, but are not required to be, binding. If the sheriff elects to confer binding employment rights on his deputies, those rights are enforceable according to their terms. The Sheriff next argued that even if CRS § 30-10-506 allows sheriffs to promulgate binding personnel policies, the disclaimers in the Manual and the yearly disclaimers that Cummings signed preclude, as a matter of law, the formation of an implied contract of employment. Except with respect to the rights expressly granted to deputy sheriffs by statute, these clear and conspicuous disclaimers preclude, as a matter of law, Cummings' implied contract claims. But here, material facts are disputed on whether Cummings received the required notice of the charges that led to his dismissal. The part of the summary judgment order permitting Cummings to pursue an implied contract claim based on rights conferred in the Manual that effectuate the due process rights granted by CRS § 30-10-506 was affirmed. In all other respects, the summary judgment order was reversed and the case was remanded.

While at a bar, defendant said something to Abram's sister that offended Abram. Defendant tried to make amends by offering Abram a beer. Abram responded by punching defendant twice in the face. Defendant then drew his firearm, for which he had a concealed carry permit, and aimed it at Abram. After a short standoff, defendant handed the gun to his fiancée and the two left the bar. A jury found defendant guilty of two counts of felony menacing and prohibited possession of a firearm. The first count of felony menacing named the alleged victim as a security guard who had stepped between defendant and Abram after defendant drew his weapon the second count named the alleged victim as another bar patron who had been sitting near Abram. On appeal, defendant contended that the trial court erred in rejecting his jury instructions on the affirmative defense of self-defense. Here, defendant raised credible evidence that he acted in self-defense against Abram. Defendant's intent to defend himself against Abram would, if the jury believed his testimony, allow the intent as to Abram to transfer to the encounter with the alleged victims. Thus, the trial court erred in rejecting defendant's jury instructions on self-defense as an affirmative defense to the menacing charges. Further, the error was not harmless because while the defense's theory of the case instruction referred generally to self-defense, the instruction did not require the prosecution to disprove self-defense beyond a reasonable doubt. Defendant also contended that prosecutorial misconduct required reversal of his conviction for possession of a firearm while intoxicated. Here, the prosecutor asked defendant 44 times whether another witness's testimony was incorrect, wrong, or untrue, or whether the witness had lied this went beyond asking non-prejudicial questions designed to highlight discrepancies in the evidence. The error was plain and warranted reversal. The judgment was reversed and the case was remanded for a new trial on all charges.

A.V. was arrested in connection with a series of home and business burglaries. The victim businesses included Animal Attractions Pet Store (Animal Attractions) and the Country Inn Restaurant (Country Inn). Country Inn sustained extensive fire damage in the burglary, and the fire destroyed most of the business. As part of a global case disposition, A.V. pleaded guilty to some counts in exchange for dismissal of other counts, stipulating to a factual basis and agreeing to pay restitution to all victims, including those in the dismissed cases. The juvenile court ordered restitution of $1,000 to Country Inn's owner for the deductible and $681,600 to Country Inn's insurer for the repair work. The juvenile court further found that the loss amounts submitted by Animal Attractions and its insurer in the victim impact statements sufficiently established the victims' losses to order restitution in the amount requested. On appeal, A.V. contended that no facts exist to show that he caused the Country Inn fire and that the prosecution failed to meet its burden of proving proximate cause for these claimed losses. Here, A.V. waived his challenge to proximate cause by (1) stipulating to a factual basis in the plea agreement and at the providency hearing (2) stipulating to pay restitution to the victims of the dismissed counts (in this case the arson count) in the plea agreement (3) agreeing with the prosecutor before the restitution hearing that A.V.'s stipulated factual bases in all cases included a stipulation to causation and (4) asking the court to order $470,874.47 for losses related to the dismissed arson count. A.V. next contended that the juvenile court erroneously ordered him to pay the estimated repair costs to Country Inn's insurer, rather than actual costs incurred to date. Here, the prosecution presented competent evidence of the estimated expenses, which A.V. did not rebut. Therefore, the juvenile court did not err. A.V. also contended that the invoices submitted with Animal Attractions' victim impact statement were insufficient to establish restitution and that the prosecution was required to present witness testimony to satisfy its burden. The restitution statute does not require the prosecution to present evidence in the form of testimony. Here, because the documents support the court's order and A.V. offered no rebuttal evidence, the juvenile court's order was not an abuse of discretion. A.V. last contended that the juvenile court was required to make specific reasonableness findings before ordering restitution and that $692,806.20 was not a reasonable amount of restitution to be awarded against an incarcerated juvenile. However, the statute's plain language mandates that the juvenile court order full restitution for the victims' losses, and the juvenile court is not required to make specific reasonableness findings before imposing restitution. The restitution orders were affirmed.

In 2004, the police obtained a warrant to search Chavez's house as part of an investigation and seized evidence they used to charge Chavez in five separate criminal cases, none of which underlie this appeal. In the case underlying this appeal, Chavez pleaded guilty to both sexual assault and kidnapping and was sentenced for those crimes. Three years later, Chavez moved the criminal court for the return of the items seized during the search of his house. The district court denied the motion on the merits. On appeal, Chavez contended that the district court erred in denying his motion for return of property. The imposition of sentence ends a criminal court's subject matter jurisdiction, with the sole exception of motions brought under Crim. P. 35. Because a motion for return of property is not authorized by Crim. P. 35, criminal courts do not have jurisdiction over such motions made after sentencing. Thus, the criminal court lacked jurisdiction to address the merits of Chavez's motion. The order denying Chavez's motion was vacated for lack of jurisdiction.

Police responded to a report of a car parked in the middle of a field. When an officer arrived, he found Schulte asleep in the car with the engine running. A deputy sheriff contacted Schulte and had him perform voluntary roadside maneuvers. Schulte did not perform the tests like a sober person, so the deputy asked him to submit to a chemical test under Colorado's express consent law. Schulte refused. The deputy later arrested him, drove him to jail, turned him over to booking officers, and drove back to the scene. When the deputy returned to the jail, he completed the license revocation paperwork and began to serve Schulte with the notice of revocation. Before he could do so, Schulte asked to take a blood test. The deputy told him that it was too late. Schulte requested a Division of Motor Vehicles hearing to contest his license revocation. The hearing officer revoked his driving privileges, and the district court upheld the revocation. On appeal, Schulte contended that the hearing officer and the district court erred when they decided, as a matter of law, that his retraction of his refusal was untimely. Colorado's express consent law requires a driver to cooperate with law enforcement's request to take a blood or breath test. If a licensee refuses to submit to a test, law enforcement must serve a notice of revocation on him or her and then take possession of the driver's license. If a licensee does not offer to retract an initial refusal while the officer remains engaged in requesting or directing the completion of the test, the attempted retraction is untimely as a matter of law. Here, substantial evidence supports the hearing officer's determination that Schulte did not cooperate with the deputy while the deputy was engaged in requesting or directing the test. The retraction of the refusal was untimely as a matter of law. The order was affirmed.

Defendant's truck hit plaintiff's car from behind as she slowed for traffic. A week later plaintiff was diagnosed with neck strain. The following year, plaintiff was involved in a second car accident in which she hit a car from behind. She testified that the second accident did not injure her. A year later, plaintiff sought additional medical treatment for her neck and lower back. She sued defendant for negligence, claiming damages of $38,356.46. She was awarded $1,980.81 by a jury in economic damages and zero on her claims of physical impairment and noneconomic damages. On appeal, plaintiff argued it was error to instruct the jury to consider whether the second accident worsened any injuries, damages, or losses caused by the first accident because defendant hadn't presented any evidence supporting such an instruction. Here, neither party presented evidence that plaintiff suffered any injury or aggravation of an existing injury because of the second accident, so the evidence was insufficient to justify instructing the jury about the second accident and the trial court abused its discretion. Further, but for the trial court's improper instruction, the jury might have reached a different verdict. Plaintiff also argued that the trial court erred by excluding her expert's testimony about her 15% permanent whole body impairment rating. Before trial, defendant requested that the court exclude testimony about plaintiff's impairment rating. While it allowed testimony that plaintiff suffered an impairment, the court excluded testimony about the impairment rating as irrelevant under CRE 401 and prejudicial under CRE 403. The Court of Appeals could not discern any reason that the percentage rating of the impairment would not be relevant, and found reasons why it would be relevant. The Court similarly found no support for the trial court's belief that such testimony would be unfairly prejudicial, confusing, or misleading. The trial court abused its discretion by excluding the testimony. Plaintiff finally contended that it was error for the trial court to prevent her counsel from asking prospective jurors during voir dire whether they had an interest in defendant's insurance carrier. Counsel was entitled to ask the insurance question during voir dire to determine the biases and prejudices of the prospective jurors, so the trial court abused its discretion.

Media Kings LLC (Media) entered into a contract to provide marketing services to Transcendent Marketing, LLC (Transcendent). Media then contracted with Digital Landscape Inc. (Digital) to provide advertising services to Transcendent. The contract between Media and Digital had an arbitration clause providing that any disputes arising under the agreement would be resolved by binding arbitration. Per the contract, Media agreed to pay Digital a portion of its earnings from Transcendent in exchange for Digital's work on the project. Media failed to pay Digital, and Transcendent proposed that Digital take over the project. Digital's principal officer agreed, but had one of his other companies take over the work. Thus, Media was effectively cut out of its agreement with Transcendent. Digital sued Media for breach of contract, and as relevant here, Media filed a counterclaim alleging that Digital had breached the implied covenant of good faith and fair dealing. The district court ordered the parties to arbitrate the dispute. The arbitrator awarded Digital $68,197.41. While discussing the counterclaim, the arbitrator also referred to it as addressing a breach of Digital's duty of loyalty to Media. The arbitrator decided that Digital still owed a duty of loyalty to Media that it had breached, and she awarded Media damages on the counterclaim. Lastly, finding that there was no prevailing party, she declined to award either party attorney fees. The district court confirmed the order. On appeal, Digital contended that the arbitrator lacked jurisdiction to consider whether Digital had breached a duty of loyalty to Media because this claim did not "arise under" the arbitration clause. The Court of Appeals analyzed the phrase "arising under" and concluded that it was sufficiently broad to include the duty-of-loyalty counterclaim. Further, the arbitration clause was unrestricted. Digital further contended that the arbitrator improperly converted the counterclaim alleging breach of implied covenant of good faith and fair dealing to a different one, breach of loyalty, which Media had not raised. It alleged that the ruling on this different claim was unfair and the award to Media was therefore void. The Court found as an initial matter that the arbitrator did not intend to rule on a facially different counterclaim. But even assuming that she had, the different claim was within the issues that the parties had agreed to submit. The arbitrator did not exceed her powers because the substituted counterclaim "arose under" the contract between Digital and Media. Further, the evidence and arguments were encompassed in the breach-of-the-duty-of-good-faith-and-fair-dealing claim. The district court did not err when it confirmed the arbitrator's award. Finally, Digital argued that the arbitrator exceeded her authority by refusing to award attorney fees because neither party had prevailed. The Court concluded there was clearly no prevailing party, so the arbitrator did not have to award attorney fees. The judgment was affirmed.

Andres Trucking Co. (Andres) operated a dump truck that caught fire while it was insured by United Fire and Casualty Co. (United). The parties agreed that the truck was a total loss but disagreed about its value. Ultimately, Andres filed an amended complaint alleging breach of contract and bad faith denial and delay of an insurance claim under CRS §§ 10-3-1115 and -1116 and challenging the enforceability of the contractual appraisal provision. The district court struck the amended complaint on the ground that the insurance policy required an appraisal. Following an appraisal, United paid Andres the truck's appraised value and moved for entry of judgment under CRCP 12(b)(5), contending that as a matter of law the appraisal process had resolved Andres's claims. While this motion was pending, Andres moved to amend its complaint. The district court again denied the motion, reasoning that the appraisal process concluded the issues before the court, and entered judgment for United. On appeal, Andres argued that the district court erred in dismissing its complaint because the appraisal process did not resolve whether United had breached the insurance policy or unreasonably denied or delayed payment of benefits. The Court concluded that the appraisal process did not determine United's liability for breach of contract or statutory bad faith delay. The district court erred in determining that the appraisal precluded Andres from pursuing these claims. Andres also raised various challenges to the appraisal process itself. The Court rejected the arguments that (1) the appraisal provisions are unconstitutional (2) United did not properly invoke the appraisal because it never demanded it and (3) the appraisal process did not result in a binding loss valuation. The appraisal award is a binding determination of the value of the insured property, and thus Andres may not further litigate that issue. The district court did not err in enforcing the appraisal provision. The Court also determined that the district court did not err in awarding United attorney fees, but it denied United's request for appellate attorney fees.

Dos Almas LLC began operating a restaurant after it acquired nearly all of the assets of WooPig LLC, which had operated a different restaurant at the same location. After the acquisition, Dos Almas applied for an unemployment compensation insurance account and a determination of employer liability by submitting a form along with a copy of the asset purchase agreement to the Department of Labor and Employment (Department). A deputy ruled that Dos Almas was a successor employer to WooPig for unemployment compensation tax rate liability purposes because it met the requirements of CRS § 8-76-104(1)(a) due to the acquisition. Dos Almas appealed more than eight months after the applicable 21-day time limit. Nevertheless, a hearing officer ruled that good cause was shown for the delay, and following a hearing the officer found that Dos Almas was not a successor entity to WooPig under the statutory criteria largely because it did not retain the employees as part of the asset sale. A panel of the Industrial Claims Appeal Office (the Panel) reversed. The Panel upheld the factual findings, but based on Dos Almas having acquired 90% of WooPig's physical and intangible assets, ruled that it had acquired substantially all of WooPig's assets and thereby met the statutory criteria to be considered a successor employer for unemployment compensation tax rate liability purposes. On appeal, Dos Almas contended that the Panel erred in ruling that it is a successor to WooPig for unemployment tax rate liability purposes. The hearing officer's factual findings support the conclusion that Dos Almas is a successor employer to WooPig for unemployment compensation tax rate liability purposes under the applicable statutory criteria in CRS § 8-76-104(1)(a). Further, the lack of employee retention in the asset purchase transaction is irrelevant to the successor issues in this case. The Panel did not err. The order was affirmed.