Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
On May 14, 2021, Matthew Perez and his girlfriend drove from New Mexico to their home in Kansas. The pair decided to stop in La Junta, Colorado. While in La Junta, they stopped at an apartment complex looking for the victim, E.A., according to the opinion.
Perez eventually parked his car at the apartment complex, where he waited for E.A. A witness testified that when E.A. drove up, Perez got out of his own car and shot E.A. “instantaneously” while E.A. was seated in his car. But according to Perez’s girlfriend, E.A. pulled a gun on Perez before Perez shot him.
The jury found Perez guilty of first-degree murder.
Perez challenged his conviction on four grounds and contended that cumulative error required reversal. His first contention—that the trial court’s admission of jail phone calls between him and his mother, F.P., violated his constitutional right of confrontation because the statements were testimonial and he had no opportunity to cross-examine F.P.—raised a novel issue, according to the opinion.
The Colorado Court of Appeals concluded F.P.’s statements were not testimonial and that no confrontational clause violation occurred. It also rejected Perez’s contentions that the trial court erroneously instructed the jury on the provocation exception to self-defense, that it erred by refusing to define provocation, that it erred by denying his mistrial motion and that he was denied a fair trial by virtue of the cumulative effect of these errors.
The appeals court affirmed.
In this dissolution of marriage case between Sarah Smith and James Butterworth, Butterworth appealed the district court’s allocation of the marital estate.
He contended that the court erred by determining that Smith’s beneficiary interest in an irrevocable family trust was neither property nor an economic circumstance.
To resolve this issue, the Colorado Court of Appeals had to determine, as a matter of first impression, whether Smith’s father’s power of appointment, as the primary beneficiary of the trust, rendered Smith’s discretionary trust interest revocable.
The appeals court found that it did, precluding Smith’s trust interest from the court’s consideration. It also rejected Butterworth’s additional contentions.
The appeals court affirmed.
This case required the Colorado Court of Appeals to address, for the first time in Colorado, one aspect of borrowing plausibility. It arises from the 2017 merger of CenturyLink, Inc. and Level 3 Communications, Inc.
Dean Houser filed a lawsuit against the corporation on behalf of himself and a proposed class of former Level 3 stockholders who acquired stock through the merger.
The original complaint was dismissed, and Houser appealed. A division of the appeals court affirmed in part and reversed in part, remanding the case so Houser could file an amended complaint on one claim.
On remand, Houser filed an amended complaint and CenturyLink filed a motion to dismiss it. The motion argued that the amended complaint included several allegations copied from a different lawsuit against the corporation, that these allegations were based on interviews with confidential witnesses, that Houser’s attorney had not interviewed the confidential witnesses and that Houser’s complaint had violated Colorado Rule of Civil Procedure 11.
Although the motion didn’t use the phrase “borrowed plausibility,” that concept was the motion’s focus, according to the opinion.
The trial court granted CenturyLink’s motion, and it dismissed the amended complaint. The court ruled that because Houser’s counsel didn’t personally speak with “the unnamed former employees who made the allegations against [the corporation] in the [other] complaint,” counsel had not conducted a “reasonable inquiry” into the amended complaint’s factual basis for the purposes of C.R.C.P. 11(a).
The court then disregarded those allegations and decided that the remaining allegations were insufficient to state a claim.
Houser again appealed.
The appeals court concluded that if a plaintiff takes investigative steps, such as those that Houser took in this case, the plaintiff may borrow plausibility by incorporating allegations from confidential witnesses cited in another complaint, and C.R.C.P. 11(a) doesn’t require plaintiff’s counsel in such circumstances to speak directly with the confidential witnesses.
The appeals court reversed and remanded for further proceedings.
Bennett v. Colorado Department of Revenue
In this interlocutory appeal, the Colorado Court of Appeals considered whether Section 24-4-106(4) of the Colorado Revised Statutes authorizes service of process by mail in an action for judicial review of an agency decision.
In concluding that it doesn’t, the appeals court held that service of process for a judicial review action under Section 24-4-106(4) is governed by the Colorado Rules of Civil Procedure.
It then determined that Misty Bennett has failed to properly serve the Division of Motor Vehicles of the Colorado Department of Revenue, but that her failure is excused for good cause.
The appeals court reversed with instructions to extend the time for service of process for an appropriate period.