Slip opinions decided 2020 — Colorado Court of Appeals

Defendant escaped from parole supervision, and a warrant for his arrest was issued. Officers Mitchell and Duda located and approached defendant and informed him that he was under arrest. When Duda moved to handcuff defendant, defendant resisted. Mitchell attempted to use a taser on defendant, but defendant obtained the taser during the struggle. The altercation ended when Mitchell shot defendant three times. At trial, both officers testified that, during the scuffle, they saw defendant holding a knife, and Mitchell testified that he feared defendant was going to stab Duda, who had fallen to the ground during the struggle. Defendant was convicted of two counts of attempted murder in the second degree, two counts of first degree assault of a peace officer, two counts of resisting arrest, two counts of menacing, and prohibited use of a stun gun. At a post-trial hearing, defendant was adjudicated a habitual criminal. The court sentenced defendant to two consecutive 64-year prison terms in Department of Corrections' custody for the first degree assault convictions. Defendant was sentenced concurrently for his remaining convictions. On appeal, defendant argued that the trial court erred by refusing to disclose Mitchell's and Duda's personnel and internal investigation files. Duda's and Mitchell's testimony was the prosecution's only evidence that defendant threatened the officers with a knife, and the officers' credibility was central to defendant's defense. The Court of Appeals reviewed the sealed personnel and internal investigation files and determined that Duda's files contained no relevant or material information. Accordingly, the trial court did not err in not disclosing Duda's files. However, Mitchell's files contained information from professional misconduct and internal investigations related to his credibility. Therefore, the trial court abused its discretion by not disclosing to the defense that information in Mitchell's files where it was found or alleged that Mitchell misreported information, departed from the truth, or embellished facts. Defendant next argued that the trial court erred during the habitual criminal hearing by (1) allowing the prosecution's fingerprint comparison witness to be qualified as an expert, and (2) relying on defendant's prior escape conviction in adjudicating him a habitual criminal. Here, the witness's training was sufficient to qualify him as an expert, and he was previously qualified as an expert in fingerprint comparison 13 times. Accordingly, the trial court did not err in allowing the expert testimony. As to the prior escape conviction, the parties agreed that the trial court erred by relying on this conviction in adjudicating defendant a habitual criminal, and the plain language of CRS § 18-1.3-801(5) explicitly forbids the use of a prior escape conviction to support a habitual criminal adjudication. Defendant next argued that his two resisting arrest convictions should merge because the unit of prosecution for resisting arrest is based on the number of arrests that are resisted, not the number of officers present. He asserted that because he only resisted a single arrest, the two resisting arrest convictions violate his constitutional protection against double jeopardy. Based on the plain language of CRS § 18-8-103(1), the unit of prosecution for resisting arrest is the number of discrete volitional acts of resisting arrest. Here, defendant's resistance was a continuous course of action to avoid a single arrest that did not end until he was shot by Mitchell. Therefore, the two resisting arrest convictions should merge. Thus, the trial court plainly erred. Defendant also contended that the trial court erred when it found that consecutive sentencing was required for his two first degree assault convictions. Here, defendant's first degree assault convictions were not based on identical evidence, and the habitual criminal statute does not preempt the crime of violence statute. Accordingly, the trial court did not err. The case was remanded to the trial court for it to disclose the specified parts of Mitchell's personnel and internal investigation files and to give defendant the opportunity to make the requisite showing of prejudicial error. If the trial court concludes there is a reasonable probability that the trial result would have been different, it must grant defendant a new trial. If the trial court finds no such reasonable probability exists, it may leave in place its judgment of conviction, subject to defendant's right to appeal. The trial court must also correct the mittimus as instructed. The remaining judgments of conviction and sentence were affirmed subject to the possibility of a new trial.

Police discovered the victim in an alley wrapped in a blanket, mattress cover, and electrical cord. He had been stabbed more than 40 times. At trial, among other evidence, the prosecution presented evidence that defendant stayed in the same apartment complex as the victim, defendant and his brother regularly purchased crack cocaine from the victim, and there was animosity between defendant and the victim over drug dealings. In addition, defendant confessed to four people that he murdered the victim, and they all testified at trial. A jury found defendant guilty of first degree murder. Defendant unsuccessfully moved for postconviction relief in two proceedings. As relevant here, the second postconviction court denied his motion for DNA testing and his claims regarding ineffective assistance of counsel. On appeal, defendant contended that the postconviction court erred by denying his motion for additional DNA testing under CRS § 18-1-413, which prohibits a court from ordering postconviction DNA testing unless the petitioner demonstrates that favorable DNA testing results will show the petitioner's actual innocence. Actual innocence is clear and convincing evidence that no reasonable juror would have convicted the defendant. Here, the absence of defendant's DNA on the mattress pad, blanket, extension cord, and victim's clothes failed to satisfy the actual innocence standard because the other evidence against defendant was so strong. Further, Crim. P. 35(c) does not authorize postconviction DNA testing. Accordingly, the postconviction court did not err. Defendant next contended that the postconviction court erred by denying his ineffective assistance of counsel claims as to his trial counsel, alleging that trial counsel failed to investigate or provide expert testimony regarding defendant's theory that during his altercation with the victim, his wrist was cut by broken glass rather than the victim. These claims were procedurally barred because they could have been raised in the first postconviction motion and were thus successive under Crim. P. 35(c)(3)(VII). Defendant also argued that his first postconviction counsel provided ineffective assistance of counsel because she failed to investigate or to procure expert testimony about the wrist-laceration theory and failed to request additional DNA testing of objects associated with the murder. Defendant did not demonstrate that expert testimony on the wrist-laceration theory would have changed the result of the first postconviction proceeding or that the result of the prior proceeding would have been different had counsel requested additional DNA testing. Therefore, defendant failed to demonstrate prejudice from counsel's alleged deficient performance, so the court properly denied these claims. The orders were affirmed.

The juvenile court adjudicated the children dependent and neglected based on the parties' stipulation. Two months later, the parties reached a stipulation concerning parental responsibilities for the children. As pertinent here, the stipulation provided that mother would be the children's custodian and have sole decision-making responsibilities and the domestic relations court would determine child support. Mother filed a motion asking the juvenile court to order father to release his prior three months of Social Security Disability Income (SSDI) benefits to her. Father filed a written objection to the motion. The juvenile court held a hearing and found it had jurisdiction to consider child support in a dependency and neglect proceeding. It ordered father to turn over his previous three months of SSDI benefits to mother and to restore mother as the payee of his benefits until further order of the court. On appeal, father argued that the juvenile court lacked jurisdiction to issue the child support order addressing his SSDI benefits because it had already ended the case by accepting the parties' stipulation to defer child support to the domestic court. The Children's Code expressly authorizes a juvenile court to enter an order addressing child support when it maintains jurisdiction in a case involving a child who is dependent and neglected and no child custody action or action for the allocation of parental responsibilities concerning the same child is pending in a district court. Here, although mother initiated a separate domestic relations proceeding, no party asserted that a custody or parental responsibilities action was pending in that case. Consequently, the domestic relations proceeding did not affect the juvenile court's jurisdiction to determine child support. Further, the record shows that the court considered both mother's motion to release father's SSDI benefits and the parties' request for the court to approve their stipulation at the same time, and it granted both requests as part of the same order, which it later certified to the domestic relations court. Thus, the juvenile court was not divested of jurisdiction to issue an order concerning the children's support. Father also contended that the juvenile court was precluded from considering mother's request to release his SSDI benefits by the parties' stipulation. The terms of the stipulation did not restrict the court's authority to consider mother's request. However, the juvenile court contradicted itself by ordering father to release his SSDI benefits while at the same time adopting the parties' stipulation that child support would be addressed through their domestic relations case. These provisions cannot be reconciled. Father also argued that the juvenile court erred by failing to apply the child support provisions in the Uniform Dissolution of Marriage Act (UMDA). When the juvenile court determines child support in a dependency and neglect proceeding, it must follow the provisions for establishing child support orders under article 6 of the Children's Code, and the UMDA provides that the child support guidelines apply to child support obligations established or modified under article 6 of the Children's Code. Here, the court did not consider relevant facts related to the children's needs or the children's financial resources and earning abilities, nor did it consider the child support guidelines. Therefore, the court erred. Father further argued that the juvenile court's order requiring him to name mother as the payee of his SSDI benefits violates federal law. SSDI benefits constitute income for child support purposes. However, the Social Security Act does not permit a state court to determine who should serve as a representative payee. Thus, the juvenile court lacked authority to require father to name mother as representative payee for his SSDI benefits. The child support portion of the judgment was reversed and the case was remanded to vacate the provision of the order requiring father to designate mother as the representative payee of his SSDI benefits. The court must also either redetermine child support or certify the issue into the parties' domestic relations case.

Plaintiffs were formerly employed as truck drivers for JP Trucking, Inc. (JP Trucking). They filed a complaint alleging that JP Trucking failed to pay them time and a half as required by the Fair Labor Standards Act (FLSA) and the Colorado Minimum Wage Order No. 31 (Wage Order). Following a bench trial, the trial court found for plaintiffs and awarded them damages. JP Trucking appealed, and another Court of Appeals division concluded it could not resolve the appeal without further factual findings. On remand, the trial court found that plaintiffs were exempt from overtime under FLSA's Motor Carrier Act (MCA) exemption. However, the trial court also found that because plaintiffs either did not drive out of state or their out-of-state driving was de minimis, they were not "interstate drivers" under the Wage Order. The court awarded plaintiffs damages under the Wage Order along with reasonable fees and costs. On appeal, JP Trucking contended that the trial court interpreted "interstate drivers" in the Wage Order too narrowly. FLSA sets federal minimum wage and overtime requirements for certain employees nationwide, while the Wage Order sets the minimum wage and overtime pay requirements for Colorado employees who work in certain industries. The Wage Order provisions are largely patterned after FLSA, and the Wage Order exemption includes employees who are subject to the MCA exemption, which exempts from the foregoing requirements drivers who transport goods in interstate commerce. Here, the trial court's findings on limited remand established that plaintiffs are subject to the MCA exemption, and JP Trucking satisfied its burden of proving that it transported goods in interstate commerce. Accordingly, plaintiffs are exempted from overtime pay. The judgment was reversed and the case was remanded with directions to enter judgment in favor of JP Trucking and to vacate the damages award.

The Adams County Human Services Department (Department) filed a petition in dependency or neglect based on concerns that mother and father were using methamphetamine, engaging in domestic violence, and neglecting the children's basic and special educational needs. The juvenile court adjudicated the children dependent or neglected and approved treatment plans for the parents, and it terminated both parents' parental rights 18 months later. On appeal, mother contended that the juvenile court violated her constitutional right to due process and her statutory right to visitation services when it denied her those services for reasons unrelated to the children's health, safety, or well-being. A child's health and safety are the paramount concerns in determining whether services, including visitation, are necessary and appropriate. Here, mother's visitation was suspended entirely pending two weeks of demonstrated sobriety. Because mother never established two consecutive weeks of clean urinalysis tests, the Department did not offer visitation services for her and the children. But there was no showing that such total deprivation was necessary to protect the children. As a result, mother and the children were deprived of the visitation services required by CRS § 19-3-208(2)(h). Further, the record does not support a determination that the Department made reasonable efforts to reunite mother with the children. Thus, the juvenile court erred when it terminated mother's parental rights. Father asserted that the Department did not make reasonable efforts to reunify the family or to rehabilitate him. Father met the sobriety requirement and resumed monitored visitation with the children. At a review hearing, the caseworker reported that father was appropriate in visits with both children, but after a later disruptive visit, father's visits were suspended indefinitely. There was no record evidence that the Department made any referrals for therapy or therapeutic visitation for father and E.A. Therefore, the Department did not provide adequate visitation services for father and E.A., nor did it make reasonable efforts to reunite them. Further, the Department failed to provide any substance abuse treatment referrals to father, and thus did not make reasonable efforts to rehabilitate him. Accordingly, the juvenile court erred when it terminated father's parent-child legal relationships with the children. The judgment was reversed and the case was remanded with directions.

Price d/b/a Peak Billing (Price) contracted with Mountain Sleep Diagnostics, Inc. (MSD) to provide billing services for MSD and its patients. The contract automatically renewed every year unless one party notified the other of its intent to terminate at least 90 days before the renewal date. Disputes under the contract, including any involving inadequate notice of the contract's termination, were subject to binding arbitration, and the prevailing party in an arbitrated dispute was entitled to attorney fees. MSD terminated Price's contract less than 90 days before the renewal date and Price filed a motion to compel arbitration in district court. The court granted the motion, and after a two-day arbitration hearing, the arbitrator awarded Price $124,224 for MSD's breach of the contract plus $24,600 in attorney fees. The trial court affirmed the award. MSD moved to vacate the award, alleging that, while performing billing services for MSD, Price had committed fraud by misappropriating more than $60,000 in payments meant for MSD. The trial court issued an order denying MSD's motion to vacate and granting Price's motion to confirm. On appeal, MSD argued that the arbitrator's award should be vacated because discoveries MSD made after the arbitration was complete established by clear and convincing evidence that Price procured the arbitration award through fraud, and the district court was required to hold a hearing on the motion to vacate. Though the merits of an arbitration award are generally unreviewable, a court must vacate an arbitration award if it was "procured by corruption, fraud, or other undue means." A party seeking to vacate an award on the grounds that it was procured by corruption, fraud, or undue means must show by clear and convincing evidence that (1) fraud occurred (2) the fraud was not discoverable by exercising due diligence before or during the arbitration and (3) the fraud had a material effect on a dispositive issue in the arbitration. Motions to confirm and vacate arbitration awards should, if possible, be decided only on the written materials submitted. Here, MSD's motion and supporting affidavits did not make a threshold showing that it acted with due diligence to discover the misappropriation before the arbitration was over. Therefore, the district court appropriately denied its motion to vacate the arbitration award without holding a hearing. The judgment was affirmed.

Plaintiffs are the TABOR Foundation, the Colorado Union of Taxpayers Foundation, and two of their members. Plaintiffs filed suit claiming that the Hospital Provider Fee (HPF) Program and the Healthcare Affordability and Sustainability Fee (HASF) Program, administered by the Colorado Healthcare Affordability and Sustainability Enterprise (CHASE), violate the Taxpayer's Bill of Rights (TABOR), Colo. Const. art. X, § 20, and are also otherwise unconstitutional. The HPF Program was terminated in 2017 when the General Assembly enacted HASF. Under both programs, hospitals are required to make payments to the state or a state-created enterprise. The federal government provides matching funds to the state or enterprise, which then distributes the combined funds to the hospitals. Plaintiffs argued that both programs violate TABOR because the money paid by the hospitals to the programs constitutes taxes that were not approved by the voters, CHASE is an unlawful enterprise under TABOR, the HASF program violated TABOR's excess state revenues cap, and CHASE and the HASF program are unconstitutional because their enabling statutes violated the Colorado Constitution's single-subject requirement. On cross-motions for summary judgment, the parties agreed that no trial was necessary and the court should decide the case on the facts presented. The court rejected defendants' argument that plaintiffs lacked standing and it addressed and rejected all of plaintiffs' substantive attacks on the statutes and programs. On appeal, plaintiffs argued that the member plaintiffs had taxpayer standing. This type of standing requires a clear nexus between the status as a taxpayer and the challenged government action to satisfy the injury-in-fact requirement. Here, the unrebutted evidence showed that the programs are funded solely by the hospitals and matching federal dollars. Thus, there is no nexus between the member plaintiffs' taxpayer dollars and the hospital programs. Because there is no nexus between the member plaintiffs' taxpayer dollars and the constitutional violations they alleged, the member plaintiffs did not have taxpayer standing, and the district court erred by concluding otherwise. Plaintiffs also argued that the member plaintiffs had individual standing based on economic injury because their bills for their hospital care increased beyond what they would have been required to pay but for the programs. However, individual standing is based on a direct and individualized injury to the plaintiff. Here, the programs affect healthcare consumers only indirectly because hospitals have several alternatives for recouping net loses under the programs, and there was no evidence that plaintiffs suffered an actual economic injury. Accordingly, the member plaintiffs lacked individual standing. The foundation plaintiffs contended that they had associational standing. However, their two proffered members lacked standing and they failed to identify any other member who does have standing. The dismissal of the action was affirmed, but it should have been based on lack of standing. Accordingly, the rejection of defendants' standing challenge was reversed and those portions of the order that address the merits of plaintiffs' claims were vacated.

Begley and Hirsch (plaintiffs) own residential property on which they wanted to demolish the existing house and build a new one. Ireson is their neighbor on one side, and Hoeckele was their neighbor on the other. Plaintiffs contracted with Forte Development Group, LLC (Forte) to undertake the project, and Forte demolished the existing home and began shoring work necessary to excavate the basement of the new home. However, Forte ceased work because, as alleged by plaintiffs, Ireson and Hoeckele, individually and through their attorney Gibbs, made statements, threats, and complaints that their properties had been damaged during construction. Plaintiffs further alleged that when excavation began again, Gibbs threatened police intervention and demanded that the work stop. Plaintiffs filed a complaint against Ireson, Hoeckele, and Gibbs asserting claims for intentional interference with contract and intentional interference with prospective contractual relations. Ireson and Hoeckele then filed a lawsuit against plaintiffs and Forte. Hoeckele moved to dismiss plaintiffs' complaint for failure to state a claim upon which relief can be granted, arguing that her allegedly tortious conduct was protected by the litigation privilege. Ireson and Gibbs joined in the motion and the district court dismissed the complaint, holding that plaintiffs failed to allege that Ireson and Hoeckele caused Forte to breach the contract and that Gibbs's conduct was absolutely privileged. Plaintiffs appealed and a division of the Court of Appeals reversed. On the litigation privilege issue, the case was remanded to determine whether the prospective litigation was contemplated in good faith. On remand, Gibbs moved for summary judgment. The court granted the motion and awarded Gibbs costs as the prevailing party. Ireson and Hoeckele moved for summary judgment on the same grounds. The district court partially granted the motion, concluding that they could not be vicariously liable for Gibbs's conduct because it was privileged. However, it held that genuine issues of material fact remained regarding Ireson's and Hoeckele's conduct before they retained Gibbs. Later, the parties filed a joint motion to dismiss with prejudice the remaining claims against Ireson and Hoeckele, which was granted. On this second appeal, plaintiffs argued that it was error to find the application of the litigation privilege warranted summary judgment in favor of Gibbs, Ireson, and Hoeckele. Statements made by an attorney during or in preparation for pending legal proceedings are absolutely privileged so long as the remarks have some relation to the proceeding. Prelitigation statements are privileged only if the statement is related to prospective litigation and the prospective litigation is contemplated in good faith. Plaintiffs contended that the litigation privilege shields only defamatory statements and Gibbs's statements were not defamatory. However, the litigation privilege applies to nondefamatory statements as well. Plaintiffs also contended that it was error for the district court to conclude that Gibbs's allegedly tortious statements "related to" contemplated litigation. Here, all of Gibbs's statements were made on behalf of his clients and related to potential clams and initiation of litigation. Accordingly, the district court did not err by concluding that Gibbs's allegedly tortious conduct related to prospective litigation. Plaintiffs further contended that it was error to conclude that Gibbs contemplated the litigation against them in good faith because good faith is a question that cannot be resolved on summary judgment. While "good faith" is not usually something that can be decided on summary judgment, the record and affidavits submitted, and the fact that litigation was actually commenced, showed good faith on the part of Gibbs and shifted the burden to plaintiffs to establish a triable issue of fact as to Gibbs's good faith contemplation of litigation. Plaintiffs failed to meet this burden. Therefore, the entry of summary judgment was proper. Lastly, plaintiffs argued that it was error to fail to conduct a hearing on Gibbs's request for an award of costs. If a party contests the factual basis for or reasonableness of an award of costs and timely requests a hearing, the district court must hold a hearing. Plaintiffs timely requested a hearing, so the district court erred in not holding one. The summary judgment in favor of defendants was affirmed. The award of costs was reversed and the case was remanded for a hearing on Gibbs's bill of costs.