Volume 44 — Colorado Court of Appeals Reports

1. <bold>ADMINISTRATIVE LAW AND PROCEDURE</bold> — <italic>Terminated — Employee — State</italic><italic>University — Action to Review — Indispensable Party — Failure to Join —</italic><italic>Dismissal Proper.</italic> Where, after his employment at state university was terminated, employee appealed to state personnel board, and after the board upheld the termination, he sought review in district court under the Administrative Procedure Act, the university was an indispensable party to that action, and the district court properly dismissed his complaint for his failure to join the university as a party.

1. <bold>INTOXICATING LIQUORS</bold> — <italic>"Charge-A-Drink" Plan — Alternative Method —</italic><italic>Purchase Drinks — No Violation — Solicitation — Receiving Order Provisions —</italic><italic>— Liquor Code.</italic> Since, under "charge-a-drink" plan of business, purchaser of card was required to go to participating bar or restaurant and, to obtain drink without charge by use of the card, was required to establish, like any other patron, that he was twenty-one years of age, the card represented merely an alternative way of paying for the drink, and thus, there was no violation of the solicitation or order receiving provisions of Colorado Liquor Code. 2. <italic>"Charge-A-Drink" Business — Not Liquor Retailer — Regulation —</italic><italic>Prohibiting Games of Chance — Not Applicable.</italic> Since business marketing "charge-a-drink" plan whereby purchaser of card could receive drink without charge at participating bars and restaurants was not a liquor retailer, Department of Revenue regulation prohibiting such retailers from using games of chance to increase liquor consumption unduly was not applicable to that business.

1. <bold>CRIMINAL LAW</bold> — <italic>Sentencing — Beyond Presumptive Range — Findings —</italic><italic>Circumstances of Murder — Justified Extended Sentence.</italic> Where trial court findings relative to imposition of sentence for second degree murder greater than the presumptive range were to the effect that defendant was acquainted with victim, that there was enmity between them, and that defendant, with adequate time for, and indication of, deliberation, fired two shots at victim, with one bullet striking victim in the back of the head, those findings, being supported by the evidence, were sufficient to support the imposition of the sentence of 16 years imprisonment plus one year of parole.

1. <bold>CRIMINAL LAW</bold> — <italic>Perjury — Grand Jury Testimony — Apparently False —</italic><italic>Suspect Indicted — Relevance Not Shown — Conviction Invalid.</italic> Although perjury defendant gave apparently false testimony to grand jury as to his knowing suspected member of heroin ring and as to his having been in suspect's car at particular time, the suspect was, nevertheless, indicted, and there was no showing as to why the allegedly false testimony was relevant; consequently, there was no showing that the testimony could have affected the outcome of the grand jury proceedings, and thus, conviction for perjury premised thereon was invalid.

1. <bold>TRIAL</bold> — <italic>Defendants — Motion to Dismiss — Close of Plaintiff's Case —</italic><italic>Then Presented Evidence — Denial of Motion — Error Not Sustainable — State</italic><italic>of Evidence — End of Trial — Determinative.</italic> Where defendants chose not to stand on their motion to dismiss, at the close of plaintiff's case, but instead presented evidence, they could not claim error based on the trial court's failure to grant the motion, and the correctness of the judgment will be determined by viewing the state of the evidence at the end of trial. 2. <bold>DEEDS</bold> — <italic>Quitclaim — Circumstances — Supported Finding — Undue</italic><italic>Influence.</italic> Where there was evidence that a confidential relationship existed between grantor and grantees of two quitclaim deeds, that grantor had previously refused to execute power of attorney in favor of one grantee when she was in a more lucid state, and that grantor signed deeds two days before her death without consideration after mental and physical deterioration, such evidence was sufficient to support trial court's finding of undue influence.

1. <bold>EVIDENCE</bold> — <italic>Tape Recording — Inaudible Segments — Not Unreliable —</italic><italic>Unless Substantial — Whole Tape — Untrustworthy — Within Discretion — Trial</italic><italic>Court.</italic> The mere presence of inaudible segments does not render a tape recording unreliable unless the inaudible portions are so substantial as to render the recording as a whole untrustworthy, and the trial court must exercise its discretion in determining whether a tape recording should be admitted where parts are inaudible. 2. <bold>CRIMINAL LAW</bold> — <italic>Tape Recording — Defendant — Undercover Officer —</italic><italic>Inaudible Portions — 15 Minutes — Good Quality — Ample Evidence —</italic><italic>Defendant's Guilt — Properly Admitted.</italic> Although tape recording of conversation between defendant and undercover police officer contained an unexplained gap and certain inaudible portions, approximately 15 minutes of the recorded portion were of good quality and that portion contained ample evidence of defendant's guilt; consequently, the trial court did not abuse its discretion in ruling that the tape recording was sufficiently reliable to be admitted into evidence. 3. <italic>Allegations of Defendant — Exculpatory Comments — Not Recorded — No</italic><italic>Allegation — State Deleted Comments — Admission Into Evidence — Not Abuse</italic><italic>of Discretion.</italic> Although defendant contended that in tape recording of defendant's conversation with undercover police officer, her statements of exculpatory nature were not recorded and that tape thus presented an inaccurate record of the conversation, there was no contention that prosecution had attempted to delete such statements, and thus, the trial court did not abuse its discretion in admitting the recording. 4. <italic>Testimony — Lay Witnesses — Defendant's Mental Condition —</italic><italic>Exclusion — Not Error — Jury Apprised — Views Stated.</italic> Even if testimony from lay witnesses regarding defendant's mental condition and mental capacity was admissible, the trial court did not commit reversible error by excluding such testimony, since in any event, the jury was apprised of the views of those witnesses on such issues.<page_number>Page 119</page_number> 5. <italic>New Trial — Not Warranted — Defendant — Suffered From Hypoglycemia —</italic><italic>— Not Probable — Lead to Acquittal.</italic> Defendant, who was found guilty of criminal solicitation to commit first-degree murder, was not entitled to a new trial based on newly discovered evidence that she was suffering from hypoglycemia, it not being probable that such evidence would have resulted in an acquittal.

1. <bold>CONTEMPT</bold> — <italic>Punitive — Language Used — Trial Court — Sufficient</italic><italic>Compliance — Rule of Procedure — Case Law.</italic> Where, in imposing punitive contempt, the trial court stated that husband had acted so as to flaunt the dignity of the court, and the court then stated that: "The reason for the punitive finding or punitive order of the court was to vindicate the dignity of this court and I think vindication is long overdue in this case," this language was sufficient to comply with C.R.C.P. 107 and applicable case law. 2. <italic>Husband — Forced Compliance — Court Orders — Appeal Without Merit —</italic><italic>Damages Awardable — C.A.R. 38.</italic> Where record in contempt proceeding revealed that husband was constantly having to be forced by judicial<page_number>Page 129</page_number> process to comply with the orders of the trial court, and the trial court findings, all factual in nature and supported by the evidence revealed no merit to his appeal, damages were awardable under C.A.R. 38 against the husband.

1. <bold>DISSOLUTION OF MARRIAGE</bold> — <italic>Husband's Petition — Wife Pay — Child Support</italic><italic>— Evidence — Supported Determination — Previous Order — Not Unconscionable —</italic><italic>— Parent — Physical Control — Pay Children's Expenses.</italic> On husband's petition to order wife to pay child support, evidence sustained trial court's determination that there were no substantial change in circumstances of parties or children which would render unconscionable the court's prior support order which required the parent having physical control of children to pay for the expense of their care.

1. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Statute — Petition for Disconnection — Failure</italic><italic>— Provide Municipal Services — Continuing Right Created — Estoppel Not</italic><italic>Arise — Consent to Annexation.</italic> Statutory provision allowing landowners to petition for disconnection from municipality three or more years after annexation if such municipality does not, upon demand, provide municipal services on same general terms and conditions as rest of municipality<page_number>Page 135</page_number> receives is a provision which creates a continuing right, and estoppel does not arise to bar disconnection merely because petitioner at one time consented to annexation. 2. <italic>Landowner — Satisfies Condition — Disconnection from Municipality —</italic><italic>Trial Court — Duty — Order Requested Disconnection.</italic> If a landowner satisfies the conditions necessary to be entitled to disconnection from municipality three or more years after annexation if such municipality does not, upon demand, provide municipal services on same general terms and conditions as rest of municipality receives, the trial court has the duty to order the disconnection requested. 3. <italic>Annexation Condition — Concerning Water Supply — Subdivision —</italic><italic>Municipality — Not Relieved — Obligation — Failure — Supply Water —</italic><italic>Disconnection — Mandatory.</italic> Annexation condition that town would not be required to supply water to landowners in annexed subdivision did not relieve town of its statutory obligation to provide subdivision with same municipal services on same general terms and conditions as rest of municipality received, and thus, since town failed to provide water to subdivision on same basis that water was supplied to other areas of town, disconnection of subdivision from town was mandatory.

1. <bold>CRIMINAL LAW</bold> — <italic>First-degree Sexual Assault — First-degree Burglary —</italic><italic>Jury Instructions — Elements — Statutory Language — And Intent Element —</italic><italic>Correct Guideline — "Knowingly" — Not Necessary.</italic> In prosecution for first-degree sexual assault and first-degree burglary, where jury was instructed on the elements of first-degree sexual assault in the statutory language effective at the time of trial and on the necessary element of intent, the jury was provided an adequate and correct guideline on the law to be applied in the case; since "knowingly" was not a statutory element of first-degree sexual assault at the time of trial, it was not necessary to include that factor in the definition of the crime so long as general intent factor was covered elsewhere. 2. <italic>No Reasonable Possibility — Jury Instruction — Defense of</italic><italic>Intoxication — Contributed to Conviction — Not Plain Error.</italic> In prosecution for first-degree sexual assault and first-degree burglary, since there was no reasonable possibility that instruction on the defense of intoxication contributed to defendant's conviction, there was no plain error in the giving of the instruction. 3. <italic>Photographs — Defendant's Ring — Distinctive Bruises — Victim</italic><italic>Suffered — During Assault — Admission into Evidence — Not Error.</italic> In prosecution for first-degree sexual assault and first-degree burglary, since defendant did not contest victim's testimony that she received certain distinctive bruises when she was struck during the assault and did not contest the testimony of police officer that defendant was wearing a certain ring in question the morning after the assault, trial court did not err in admitting into evidence photographs which showed defendant's ring being held next to the bruises which had been suffered by victim during the assault.

1. <bold>CRIMINAL LAW</bold> — <italic>Elements — Attempted Sexual Assault — Proven — Actions</italic><italic>Construable — Intent to Rape — No Defense — Sexual Assault Charge.</italic> In sex offense prosecution, the evidence established the elements of the crime charged, including that defendant's actions were for the purpose of sexual arousement, gratification, or abuse; thus, even though his actions might also be construed as evincing intent to commit rape, that did not constitute a defense to charge of attempt to commit third-degree sexual assault by force, intimidation, and threat. 2. <italic>Information — Informed Defendant — Used Force — Attempted Sexual</italic><italic>Assault — Properly Sentenced — Class 5 Felony.</italic> Although information was somewhat inartfully drawn, it sufficiently informed defendant of charge that he used force in his attempt to commit sexual assault and did not, as he contended, merely allege that he attempted to use force; thus, defendant was properly sentenced for commission of class 5 felony, rather than for a class 2 misdemeanor.

1. <bold>DRIVING UNDER THE INFLUENCE</bold> — <italic>Revocation Proceeding — Driver — Entitled</italic><italic>— Attack Validity — Underlying Conviction — Lack of Notice.</italic> In proceeding to revoke driver's license because he had been convicted three or more times of driving under the influence or while his ability was impaired, driver should have been permitted to attack validity of one of the convictions which formed basis for revocation on basis that he assertedly had no notice of proceeding which resulted in such conviction. 2. <italic>Revocation Proceeding — Driving History — Prima Facie Proof —</italic><italic>Subject to Attack — Allegation — Lack of Notice — Underlying Proceeding —</italic><italic>Jurisdictional Question — Cognizable At Any Time.</italic> In drivers' license revocation proceedings, driving history record is prima facie proof of its contents, including convictions, but driver may present evidence to attack accuracy of any item in the record, raising question of fact to be resolved by hearing officer; and, where driver alleged that he had failed to receive notice of proceedings which resulted in a previous conviction, that allegation represented a direct attack upon jurisdiction of trial court which entered the judgment, and, as such, was cognizable at any time.

1. <bold>WITNESSES</bold> — <italic>Expert — Opinions — Must Be Based — Facts in Evidence —</italic><italic>Assumed Speeds — Not Supported — No Error — Exclude Testimony.</italic> Opinions of expert witnesses must be based upon facts in evidence; thus, the trial court did not err in excluding testimony sought to be elicited in automobile collision case from expert concerning location of vehicles based upon assumed speeds that were not supported by facts in evidence. 2. <bold>APPEAL AND ERROR</bold> — <italic>Erroneous Remarks — Trial Court — No Contemporaneous</italic><italic>Objection — Not Considered.</italic> Where record disclosed no contemporaneous objection to allegedly erroneous remarks of the trial court, such remarks would not be considered on appeal. 3. <bold>VERDICT</bold> — <italic>Jury Finding — Plaintiff More Negligent — Damages Award —</italic><italic>"Zero" — Not Evidence — Prejudice — Not Internally Inconsistent.</italic> Where jury found that plaintiff's negligence was greater than defendant's and jury had been advised of the effect of its allocation of negligence on damages award, the jury's insertion of word "zero" in damages portion of verdict was not evidence of prejudice, nor was the verdict internally inconsistent.

1. <bold>PRACTICE AND PROCEDURE</bold> — <italic>Proposed Rule — Amendments — Summons and</italic><italic>Complaint Form — Not Submitted — Supreme Court — Municipal Court — Not</italic><italic>Without Jurisdiction — Allow Amendment.</italic> Although municipal court had not submitted a proposed rule dealing with amendments to a "summons and complaint" to the Colorado Supreme Court for approval, that fact did not mean that the municipal court was without authority to permit amendments; hence, municipal judge was not without jurisdiction to grant motion by city attorney to amend "summons and complaint" charging a "passing on the left" violation to add a charge of reckless driving.

1. <bold>AUTOMOBILES</bold> — <italic>Vehicular Assault Conviction — Not Forwarded — Department</italic><italic>of Revenue — 19 Months — Revocation — Driver's License — Not Violation —</italic><italic>Due Process.</italic> Although, in violation of statutory requirement, the record of driver's vehicular assault conviction was not forwarded to Department of Revenue by trial court until 19 months after that conviction, that delay did not mean that Department's decision to revoke driver's license on basis of such conviction constituted deprivation of due process. 2. <italic>Vehicular Assault Conviction — Forwarded Late — Revocation of</italic><italic>Driver's License — Valid Exercise — Police Powers.</italic> Although trial court failed to forward record of vehicular assault conviction to Department of Revenue until 19 months after the conviction, the Department's revocation of driver's license on basis of that conviction constituted a valid exercise of its police powers. 3. <italic>Vehicular Assault Conviction — Forwarded Late — Department of</italic><italic>Revenue — Held Prompt Hearing — Revocation of License — Not Abuse of</italic><italic>Discretion.</italic> Although trial court did not forward record of vehicular assault conviction to Department of Revenue until 19 months after it occurred, the Department, upon receipt of record, promptly conducted hearing, and this represented full compliance with statute governing mandatory revocation of driver's license by Department; consequently, the Department's revocation of driver's license did not constitute an abuse of discretion.

1. <bold>CRIMINAL LAW</bold> — <italic>Defendant Took Money — Officer Posing As Drunk — Lying</italic><italic>Prone — Specific Intent — Unaffected — Defendant's Belief — Dead Body.</italic> Where defendant admittedly took money from police officer, posing as a drunk and lying prone in store entryway, it made no difference with regard to the specific intent of defendant to "deprive another" of a thing of value whether or not defendant had a good faith belief that he was taking the money from a dead body; even if the officer had been dead defendant would not have been entitled to the money. 2. <italic>Defendant Approached Decoy Officer — Humanitarian Intentions —</italic><italic>Decided — Take Money — Dead Body — Defense of Entrapment — Not Established.</italic> Where defendant testified that he approached with humanitarian intentions a police officer who was posing as a drunk and lying prone in store entryway, but then decided that if he were dead, the officer would not need the money in his wallet, it is apparent that the police only provided an opportunity for a thief who was ready and willing; hence, the facts did not establish the defense of entrapment. 3. <italic>Defense of Entrapment — At Issue — Prior Felony Conviction —</italic><italic>Relevant — Defendant's Predisposition — Commit Theft — Refusal Limiting</italic><italic>Instruction — Not Error.</italic> Since defense of entrapment was at issue in theft prosecution in which defendant had taken money from police officer who was posing as a drunk and lying prone in store entryway, defendant's prior felony conviction was relevant on issue of his predisposition to commit the crime; consequently, it was not reversible error for the trial court to refuse to give a limiting instruction vis a vis the testimony introduced concerning the earlier conviction.<page_number>Page 250</page_number>

1. <bold>DISSOLUTION OF MARRIAGE</bold> — <italic>Trial Court Orders — Comparison — Husband's</italic><italic>Superior Education — Wife's Lack of Skill — Statutory Criteria Applied —</italic><italic>Not Abuse of Discretion.</italic> Where trial court's orders as to property division, child support, maintenance, and attorneys fees in dissolution of marriage action were based primarily on a comparison of evidence concerning the husband's superior educational background and earning capacity acquired during the marriage and the wife's lack of skill and education fully to support herself, together with evidence that the wife had emotional problems, those orders reflect consideration of the applicable statutory criteria and reveal no abuse of discretion by the trial court. 2. <italic>Wife's Attorney's Fees — Reasonableness Question — Not Raised —</italic><italic>Hearing — Not Proper Issue — On Appeal.</italic> Where the question of the reasonableness of wife's attorney fees in dissolution of marriage action was not raised at the trial court hearing on permanent orders, that question is not properly an issue on appeal.

1. <bold>JURY</bold> — <italic>Person Charged — Municipal Code Violations — Maximum $5 Fine —</italic><italic>Entitled to Jury Trial.</italic> Individual charged with violations of municipal code pertaining to overtime parking, maximum possible punishment for which was $5 fine, was entitled to jury trial on the charges. 2. <italic>Individual Charged — Parking Violations — No Longer Entitled —</italic><italic>Proceed In Forma Pauperis — Issue — Denial of Waiver — Statutory Jury Fee —</italic><italic>Moot.</italic> Since individual charged with parking violations was no longer entitled to proceed in forma pauperis, his status at time of original municipal court denials of his request for waivers of statutory jury fee was not relevant; thus, although district court erred in not addressing the issue of whether he was entitled to such waivers, that issue had become moot.

1. <bold>SOCIAL SECURITY AND PUBLIC WELFARE</bold> — <italic>Welfare Recipient — Erroneously</italic><italic>Paid — Judgment — Against Ex-husband — Child Support — Statements —</italic><italic>District Attorney's Employee — Not Estop — Social Services Department —</italic><italic>Collecting Payments.</italic> Where department of social services brought action to recover funds defendant, a welfare recipient, had received by virtue of judgment against her ex-husband for child support, statements allegedly made by employee of district attorney's office that defendant was entitled to the money could not serve as a basis to estop the department from collecting the payments it had erroneously made. 2. <italic>Statute — Precluded Recovery — Payments — By Department of Social</italic><italic>Services — Not Preclude Recovery — Payments by Former Husband — Mistakenly</italic><italic>Transferred — Welfare Recipient.</italic> Under statute providing department of social services could not recover any overpayment from any person who is without fault and who reported to the department any increase in income or changes in resources or property, the department would be precluded from recovering any payments made by county department in error, but that statute did not preclude recovery of support payments paid by welfare recipient's former husband into registry of court and then mistakenly given to welfare recipient.<page_number>Page 379</page_number>

1. <bold>INTOXICATING LIQUORS</bold> — <italic>Administrative Procedure Act — Not Apply —</italic><italic>Revocation of Liquor License — Failure to Comply — That Act — Not — Denial</italic><italic>of Equal Protection.</italic> The provisions of Administrative Procedure Act did not apply to liquor license revocation proceedings, but, rather such<page_number>Page 388</page_number> proceedings were governed by, Colorado liquor code section governing liquor license revocation, and thus, board of county commissioners' failure to conduct their revocation proceedings pursuant to Administrative Procedure Act did not deny liquor licensee equal protection of the law. 2. <italic>Board of County Commissioners — Not Gather Evidence — Sit In</italic><italic>Quasi-Judicial Capacity — Determine — Liquor License Violation.</italic> Even if it is assumed that it would be improper for board of county commissioners to gather evidence to prove violation of liquor code, and then to sit in quasi-judicial capacity to determine whether licensee had in fact committed violation, the record did not establish that such had occurred; rather, record revealed that it was county sheriff's department and not board that gathered information regarding possible liquor law violations; hence, licensee's challenge to license revocation on this basis was without merit. 3. <italic>Liquor Licensee — Challenged Constitutionality — Regulation — State —</italic><italic>— Not Joined — Trial Court — Jurisdiction — Not Lost.</italic> Although liquor licensee, whose license had been revoked by board of county commissioners for violating regulation prohibiting licensee from permitting "lewd or indecent displays," failed to join state as party, such failure did not mean that trial court did not have jurisdiction to determine constitutionality of such regulation; the state did not have to be joined in order for court to rule on regulation's constitutionality. 4. <italic>Liquor Licensee — Constitutional Challenge — Regulation — Trial</italic><italic>Court — Failed to Rule — Appellate Court — Could Rule — Issue of Law.</italic> In proceeding to review decision by board of county commissioners to revoke liquor licensee's license for violating regulation prohibiting licensee from permitting "lewd or indecent displays," the trial court's failure to rule on licensee's assertion that such regulation was unconstitutionally vague under First and Fourteenth Amendments did not preclude appellate court from making such a ruling as question was purely one of law. 5. <italic>Liquor Licensee — Conduct — Clearly Within Regulation — Could Not</italic><italic>Challenge — Basis — Misled by Wording.</italic> Conduct of liquor licensee, whose license was revoked by board of county commissioners for violating regulation prohibiting licensee from permitting "lewd or indecent displays," was so clearly within ambit of type of conduct sought to be prohibited by such regulation that licensee could not be heard to assert that it was misled by wording of regulation. 6. <italic>Liquor Licensee — Not Assert — Regulation — "Chilling" Effect —</italic><italic>Freedom of Expression — Unconstitutionality — As To Licensee — Not</italic><italic>Demonstrated.</italic> Liquor licensee, whose license had been revoked by board of county commissioners for violating regulation prohibiting licensee from permitting "lewd or indecent displays," could not assert that such regulation had a "chilling" effect on freedom of expression guaranteed by First Amendment; in order to make such assertion license had to first demonstrate that regulation was unconstitutional as to it, and since its conduct was so patently within specific prohibition of regulation, licensee had failed to do so. 7. <italic>Violation of Regulation — "Lewd and Indecent Displays" — Flagrant</italic><italic>and Intentional — Revocation of License — Not Abuse of Discretion.</italic> Where liquor licensee's violations of regulation prohibiting licensee from<page_number>Page 389</page_number> permitting "lewd or indecent displays" were intentional and flagrant, such violations merited serious sanctions, and thus, board of county commissioners did not abuse its discretion in revoking licensee's license for violating such regulations.

1. <bold>INSURANCE</bold> — <italic>Notice by Insurer — Requesting Overdue Premium — Payment</italic><italic>Received — Two Days After Notice — Insurer — Not Disclaim Coverage —</italic><italic>Accident — After Expiration — Before Premium Received.</italic> Although automobile liability policy provided that no change or waiver could occur except by endorsement, where insurer, through its agent, sent a "did you forget" notice requesting overdue renewal premium so that insured "won't be without protection," and the insurer received payment of the overdue premium at the latest two days after insured received the notice, the insurer could not disclaim coverage for accident occurring after stated expiration of policy but before receipt of renewal premium.

1. <bold>JUDGMENT</bold> — <italic>Default — Allegation — Complaint and Motion — Defendants —</italic><italic>Indebted to Plaintiff — Joint Obligation — All Defendants.</italic> Where it was alleged, within complaint and affidavit of indebtedness attached to motion for default judgment, that the defendants were indebted to plaintiff, default judgment in the full amount against all defendants who had been served was properly entered as a joint obligation of all of them. 2. <italic>Default — Joint Obligation — Two Defendants Released — Liability —</italic><italic>Other Defendants — Proportionately Reduced.</italic> Where default judgment had been a joint obligation of all defendants who had been served and plaintiff subsequently released two defendants on payment of certain sum, liability of certain other defendants was reduced to their proportionate share of the judgment.

1. <bold>AUTOMOBILES</bold> — <italic>Consideration — All Offenses — Preceding 24 Months —</italic><italic>Revocation of License — Proper — Used for Prior Suspension — Immaterial.</italic> In determining whether to revoke minor driver's license, the Department of Revenue correctly considered all points accumulated by driver for traffic offenses occurring within 24-month period preceding the last traffic offense; it was immaterial that one violation occurring during such 24-month period had formed basis for a prior suspension of his provisional driver's license.

1. <bold>ACCOUNT, ACTION ON</bold> — <italic>Reasonableness — Stated Fee — Not Element of</italic><italic>Action.</italic> Reasonableness of the stated fees is not an element of an accountant's claim for account stated. 2. <italic>Elements of Action — Statement — Sums Due — Presented to Defendant —</italic><italic>— Agreement — Account Correct — Due.</italic> Elements necessary to establish a claim for an account stated are: a statement for sums due presented by plaintiff to defendant and an agreement between plaintiff and defendant that the account is correct and that the agreed amount is due from defendant to plaintiff. 3. <bold>CONTRACTS</bold> — <italic>Similar Characteristics — Attorney-client —</italic><italic>Accountant-client — Law of Attorney-client Contracts — Not Extended.</italic> However similar the fiduciary characteristics of accountant-client and attorney-client relationships might appear, the courts have no direct responsibility for monitoring the ethical standards of professions other than the legal profession, and the law governing contracts between attorneys and their clients will not be extended to accountant-client relationships.

1. <bold>TRIAL</bold> — <italic>Directed Verdict — Warranted — Only One Reasonable Inference —</italic><italic>Issue — Accord Satisfaction — Properly Submitted to Jury.</italic> A directed verdict is warranted only where evidence and legitimate inferences therefrom can lead a reasonable juror to reach but one conclusion, and whether there was an accord and satisfaction as to claimant's claims for labor and materials and for lost profits on balance of construction project once defendant terminated agreement following plaintiffs' installation of roofing on project was question for jury; thus, trial court's submission of the case to the jury was correct. 2. <bold>APPEAL AND ERROR</bold> — <italic>Defendants Appealed Judgment — Remittitur Accepted</italic><italic>by Plaintiffs — Cross-appeal Precluded — Dismissed.</italic> Although defendants appealed judgment entered for plaintiffs on trial court's order of a remittitur, since the plaintiffs accepted the remittitur, they were thereby precluded from challenging it, and thus, their cross-appeal must be dismissed.<page_number>Page 460</page_number>

1. <bold>APPEAL AND ERROR</bold> — <italic>Miscounting of Days — By Counsel — Not Excusable</italic><italic>Neglect — Notice of Appeal — Not Timely Filed — No Appellate Jurisdiction.</italic> Defendant's counsel's miscounting days within which to file notice of appeal did not constitute excusable neglect which would permit a late filing of the notice, and notice of appeal having not been timely filed, the appellate court was without jurisdiction to consider the matter.

1. <bold>CRIMINAL LAW</bold> — <italic>Defendant — Failed to Move — Suppress Evidence — Waived</italic><italic>Objection — Admission.</italic> By failing to move to suppress evidence on ground that arrest was illegal, defendant waived his objection to its admission. 2. <italic>Criminal Impersonation — No Evidence — Name Used — Benefit</italic><italic>Defendant — Evidence Insufficient — Sustain Guilty Verdict.</italic> In prosecution for criminal impersonation, the prosecution failed to present evidence that defendant's use of another name would result in benefit to him, and consequently, evidence was insufficient to sustain guilty verdict.

1. <bold>CRIMINAL LAW</bold> — <italic>Delay — 20 Months — Two Trials Aborted — Prosecutorial</italic><italic>Error — Defendant Prejudiced — Violation — Right to Speedy Trial.</italic> Where there was a delay of 20 months between time defendant was charged and his trial, during which time two trials were aborted because of prosecutorial error, and by virtue of which defendant was prejudiced by two key alibi witnesses being gone by the time trial was finally held, such delay violated defendant's constitutional right to speedy trial.

1. <bold>JUVENILE DELINQUENCY</bold> — <italic>Minor — Convicted of Traffic Offense — County</italic><italic>Court — Not Prohibited — Imposition of Jail Sentence.</italic> Where a minor is convicted of a traffic offense in a county court which has jurisdiction over that minor, the Colorado Children's Code does not prohibit the court from sentencing the minor to serve a term in the county jail. 2. <italic>Minor — Convicted in County Court — Jail Sentence Imposed — No</italic><italic>Denial of Equal Protection.</italic> The imposition of a jail sentence upon a minor convicted in county court of traffic offenses did not violate the minor's rights to equal protection on grounds that other minors tried in juvenile court for traffic offenses could not be subjected to a jail sentence.