Volume 43 — Colorado Court of Appeals Reports

1. <bold>AUTOMOBILES</bold> — <italic>Jury Instruction — Driving Under the Influence —</italic><italic>Demonstrates — Wanton and Reckless Conduct — Ordinarily Inappropriate —</italic><italic>Undisputed Evidence — Shows — Defendant's Driving — Maximally Impaired —</italic><italic>Refusal of Instruction — Error.</italic> Although, in personal injury action arising out of truck-bicycle accident, instruction that driving under the influence of intoxicating liquor constitutes wanton and reckless disregard for the rights and safety of others was, in effect, a request for a directed verdict and thus would ordinarily be inappropriate, nevertheless, where the undisputed evidence revealed that defendant's blood alcohol level was such that his driving would be maximally impaired, reasonable people could reach only one conclusion on the evidence and it was error for the trial court not to give the requested instruction. 2. <italic>Defendant — Admitted Intoxication — Plaintiff's Jury Instructions —</italic><italic>Statutory Presumption Of Intoxication — Definition Of Driving — Under The</italic><italic>Influence — Properly Refused.</italic> Where, in personal injury action arising out of truck-bicycle accident, defendant admitted his intoxication at the time of the accident, plaintiff's proffered jury instructions concerning the statutory presumption of intoxication and the definition of driving while under the influence in the context of the guest statute were properly refused.<page_number>Page 90</page_number>

1. <bold>CERTIORARI</bold> — <italic>Setting Maximum Water Rates — By County Commissioners —</italic><italic>Legislative Action — Not Reviewable — Certiorari Action.</italic> The setting of uniform water rates for all users by county commissioners is a legislative action that is not reviewable in a C.R.C.P. 106(a)(4) action for relief in the nature of certiorari. 2. <bold>INJUNCTION</bold> — <italic>Ratemaking Procedure — Water Users — Legislative Action —</italic><italic>Declaratory And Injunctive Relief — Proper Methods Of Review.</italic> Because ratemaking procedure by which county commissioners set water rates for all users was a legislative action, declaratory and injunctive relief are the proper methods of review.<page_number>Page 132</page_number> 3. <bold>PARTIES</bold> — <italic>Petitioners — No Interest — Judicial Review Action — Beyond</italic><italic>Other Water Users — Not Indispensable Parties — Dismissal For Failure To</italic><italic>Join — Error.</italic> Since residents of subdivision who petitioned county commissioners to set a maximum rate for water service had no interest in the outcome of action to review the commissioners' action beyond that shared by all water users in the county, their presence was not necessary for continuation of the action; thus, the trial court erred in dismissing the action for failure to join indispensable parties.

1. <bold>ZONING</bold> — <italic>No Reasonable Reliance — Variance Granted — Specific</italic><italic>Circumstances — No Longer Exist — New Variance Sought — Hardship Shown —</italic><italic>First Variance — Not Exist — Second Application — Variance Properly Denied.</italic> One cannot reasonably rely on a zoning variance granted under a specific set of circumstances to again be granted when those conditions are no longer present; thus, although there was a showing of hardship when sign variance was initially granted, those circumstances no longer existed when a second variance was sought, and, there being no hardship shown as a basis for the second variance application, it was properly denied. 2. <italic>Basis — Denial of Variance — Clearly Stated — Failure to Show</italic><italic>Hardship — No Evidence — No Basis — Trial Court Remand — Further</italic><italic>Proceedings.</italic> Where basis of denial of zoning variance was clearly stated by Board of Adjustment to be a failure to prove hardship, and where there was no evidence presented showing hardship, there was no basis for trial court to remand the matter to the Board for further proceedings. 3. <italic>Variance — Expenditures Relative Thereto — Not Relevant — Not Estop</italic><italic>City — Denial of Variance.</italic> Where zoning variance for advertising sign was granted for specific purpose, and that variance was terminated, without appeal, after that purpose ceased to exist, the expenditures made by the property owner relative to installation of new sign were not relevant as to request for second variance, and thus, they did not estop the city from denying the second variance.

1. <bold>APPEAL AND ERROR</bold> — <italic>Husband Accepted — Assets Distributed — Foreclosed —</italic><italic>Seeking Appellate Review — Award of Maintenance.</italic> Where, in dissolution of marriage action, husband accepted the benefits accruing to him pursuant to the trial court's division of property, he was foreclosed from seeking appellate review of the award of maintenance contained in the same order.

1. <bold>INSURANCE</bold> — <italic>No Fault Act — Language of Policy — Not Extend Coverage —</italic><italic>Insured Injured — Covered Accident — Increase Susceptibility — Later Injury</italic><italic>— Non-covered Accident.</italic> Neither the Colorado Auto Accident Reparations Act (the No Fault Act) nor the language of the insurance policy in question contemplates holding a personal injury protection carrier liable in perpetuity for the increased susceptibility to injury of an insured who once suffers injury in a covered accident; thus, summary judgment was properly entered against insured seeking recovery from her No-Fault insurer for arm broken in a fall in her home and allegedly made more susceptible to such injury by previous break sustained in covered auto accident.

1. <bold>CRIMINAL LAW</bold> — <italic>Search Warrant — Affidavit — Not Specifically Identify —</italic><italic>Citizen-Informants — Identifiable — Minimal Investigation — Similarities —</italic><italic>Robber and Defendant — Sufficient — Affidavit Not Defective.</italic> Although affidavit for search warrant did not specifically identify the citizen-informants which had provided the underlying information, it did contain sufficient details such that only minimal investigation would have been necessary to ascertain their names, and witnesses' statements as to similarities between defendant and robber of drive-in were sufficient to support the affidavit's contents; hence, the affidavit supporting the warrant was not defective. 2. <italic>Instruction — Witness Credibility — Given — Witness Identification</italic><italic>Instruction — Properly Refused.</italic> Inasmuch as the general instruction on witness credibility was given, defendant's tendered instruction on witness identification was not needed and was properly refused. 3. <italic>Alibi — Clear Explanation Required — Burden Remains On Prosecution —</italic><italic>— Instruction As Given — Not Include Explanation — Reversible Error.</italic> In an alibi situation, unless the court clearly explains that the burden remains on the prosecution, the jury may mistakenly assume that the burden is on the defendant to prove he was somewhere else, which is not the law; therefore, trial court committed reversible error in giving alibi instruction without this explanation as to the prosecution's burden relative thereto.

1. <bold>CRIMINAL LAW</bold> — <italic>Jury Oath — Administered — After Testimony of First</italic><italic>Witness — No Contemporaneous Objection — Issue Not Raised — Motion For New</italic><italic>Trial — No Showing Of Prejudice — Not Reversible Error.</italic> Although the trial court failed to administer the oath to the jury until after the first witness had testified, that failure did not constitute reversible error inasmuch as no contemporaneous objection was made, the issue was not raised in defendant's motion for new trial, and defendant showed no prejudice from the delayed swearing. 2. <italic>Photographic Array — Not So Suggestive — Make Identification</italic><italic>Unreliable — Suppression Not Necessary.</italic> Where a photographic array is not so suggestive as to make identification unreliable as a matter of law, identification of defendant by a witness need not be suppressed. 3. <italic>Probable Cause — Issuance Of Warrant — Statements — Supporting</italic><italic>Affidavit — Known To Be False — Must Be Stricken — Sufficient Facts Remain —</italic><italic>Support Independent Conclusion — Probable Cause Present — Warrant</italic><italic>Properly Issued.</italic> In determining whether probable cause exists for issuance of a warrant, those statements in the affidavit supporting the search warrant which are known by the affiant to be false must be stricken; however, if the affidavit still contains sufficient facts to allow an independent conclusion that probable cause existed to justify issuance of a warrant, then the warrant was properly issued.<page_number>Page 332</page_number> 4. <italic>Evidence — Indicative — Identity of Defendant — Incidentally</italic><italic>Indicates — Commission Of Another Offense — Admissible.</italic> Evidence tending to establish the identity of a defendant as a perpetrator of an offense is admissible even if it incidentally indicates commission of another offense. 5. <italic>Tendered Special Instructions — Refused — General Instruction Given —</italic><italic>— Credibility — Proper.</italic> The trial court may properly refuse tendered special instructions on the credibility of eyewitnesses where a general instruction on credibility is given.

1. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Nature of Case — Determinative — Applicable</italic><italic>Rules of Procedure — Municipal Court Conviction — Trial De Novo — County</italic><italic>Court — Municipal Rules Applicable.</italic> It is the nature of the case, and not the court in which the case is being tried that determines whether the Municipal Court Rules of Procedure or the Rules of Criminal Procedure apply; consequently, where a defendant, upon conviction in municipal court, timely requested a trial <italic>de novo</italic> in the county court, the Municipal Court Rules of Procedure remained applicable in the county court proceeding. 2. <bold>APPEAL AND ERROR</bold> — <italic>Trial De Novo — County Court — Not New Trial —</italic><italic>Continuation — Original Trial — As Appeal — Municipal Court Conviction —</italic><italic>Municipal Rules Applicable.</italic> A trial <italic>de novo</italic> in the county court is not an entirely new trial, but is, instead, a continuation of the original trial in the form of an appeal, and thus, where a defendant requested a trial <italic>de</italic><italic>novo</italic> in county court following her conviction of a municipal ordinance violation in municipal court, the Colorado Municipal Court Rules, rather than the Rules of Criminal Procedure, were applicable. 3. <bold>CRIMINAL LAW</bold> — <italic>Municipal Rules Applicable — Trial De Novo — County</italic><italic>Court — Speedy Trial Rule Violated — Petitioner — Entitled to Dismissal.</italic> Since Municipal Court Rules of Procedure were applicable in de novo trial in county court following conviction in municipal court, the speedy trial provision of those rules was also applicable, and since petitioner was not brought to trial within the 90 days permitted under the pertinent municipal rules, the county court should have granted her motion to dismiss and, likewise, the district court erred in not granting her requested relief in the nature of prohibition.

1. <bold>QUIETING TITLE</bold> — <italic>1963 Divorce Action — Quitclaim Deed to Plaintiff —</italic><italic>Recorded — Seven Year Statute — Jurisdictional Challenge — Applicable —</italic><italic>Plaintiff — Entitled to Summary Judgment.</italic> Where, as a result of divorce action in 1963 real property was conveyed by quitclaim deed from clerk of court in joint tenancy to plaintiff in present quiet title action and her husband and where that deed was duly recorded, statute setting seven year time limit to any challenge to divorce court's jurisdiction became applicable; thus, in quiet title action, circa 1977, the identity of the owner of the property before 1963 was not material and plaintiff was entitled to summary judgment.<page_number>Page 534</page_number>

1. <bold>EXECUTORS AND ADMINISTRATORS</bold> — <italic>Personal Representative — Acceptance —</italic><italic>Notice of Intent — Exercise Option — "Beneficial" to Estate — Powers —</italic><italic>Related Back.</italic> Personal representative's acts of accepting, before he was<page_number>Page 536</page_number> appointed personal representative, optionees' notice of intent to exercise their option to purchase certain real estate from decedent's estate and of accepting first check issued in exercise of such option was "beneficial" to the estate even though the property could have been sold for a substantially greater price than that specified by the option contract, and thus, powers of personal representative related back in time to give such acts the same effect as acts occurring after his appointment. 2. <bold>CONTRACTS</bold> — <italic>Fair and Reasonable — When Entered — Not Disturbed Later —</italic><italic>Becomes Disadvantageous — One Party.</italic> A contract that was fair and reasonable at time it was signed will not be disturbed simply because at a later date it becomes disadvantageous to one of the parties as a result of vagaries of the economy. 3. <italic>Optionees — Not "Creditors" — Optioner's Estate — No Duty — Obtain</italic><italic>Appointment — Personal Representative — Preserve — Right of Option.</italic> Optionees, who entered into option contract to purchase from decedent's estate certain real property, were not "creditors" of the estate who would have had power and duty to have a personal representative appointed within period during which the option had to be exercised so as to preserve their right to exercise the option.

1. <bold>AUTOMOBILES</bold> — <italic>Traffic Violation Conviction — Not Penalty Assessment —</italic><italic>Result of Court Appearance — No Notation — Points Assessed — Not Preclude</italic><italic>Use — Driver's License Suspension.</italic> Traffic violation conviction which driver sought to challenge was not the result of penalty assessment procedure but rather resulted from court appearance; thus, the fact that it did not bear on its face a notation of the points assessed for the offense did not preclude it from being used in driver's license suspension proceeding.