Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Aaron Plotner appealed the trial court’s order denying his motion for reconsideration of his sentence for second-degree assault while lawfully confined or in custody. When he was sentenced in this case, Plotner was serving two consecutive sentences from another case.
In his motion for reconsideration, Plotner contended that the trial court erred by determining that Section 18-3-203(1)(f) of the Colorado Revised Statutes required it to impose an assault sentence that was consecutive to both sentences he was serving, as opposed to consecutive to one of them and concurrent with the other.
According to the opinion, Section 18-3-203(1)(f) provides that a sentence for a second-degree assault while lawfully confined or in custody “shall run consecutively with any sentences being served by the offender.”
Plotner contends that, because he can only serve one consecutive sentence at a time, the inclusion of the words “being served” in the statute means that the trial court was only required to impose an assault sentence that was consecutive to one—but not both—of his consecutive sentences.
As a matter of first impression, the Colorado Court of Appeals concluded that when a defendant is serving multiple consecutive sentences, those sentences must be treated as one single sentence, such that they are both “being served” for the purposes of a later sentence imposed under Section 18-3-203(1)(f).
The appeals court affirmed.
Ralph L. Wadsworth Construction Company LLC v. Regional Rail Partners
In this contract dispute involving the design and construction of a transit rail line, Ralph L. Wadsworth Construction Company LLC sued Regional Rail Partners, Balfour Beatty Infrastructure Inc., Graham Contracting Ltd., Travelers Casualty and Surety Company of America, Balfour Beatty LLC and Graham Business Trust. Regional Rail brought counterclaims.
After a bench trial, the court entered a split verdict, entering judgment in favor of Regional Rail and against Wadsworth for $514,666.65 and in favor of Wadsworth and against Regional Rail for $5,718,135.
Wadsworth and Regional Rail appealed.
Regional Rail’s appeal required the Colorado Court of Appeals to interpret, for the first time, two aspects of the Colorado Public Works Act: whether an unliquidated breach of contract claim for delay damages can be included in a verified statement of claim and the effect of filing an excessive verified statement of claim.
The appeals court concluded the trial court erroneously found there was a reasonable possibility that the entire amount Wadsworth claimed was due at the time it filed its amended verified statement of claim.
The appeals court concluded that, as a matter of law, there was no such reasonable possibility and that Wadsworth knew its claim included amounts that were attributable to unliquidated breach of contract claims encompassing amounts other than those for “labor, materials, sustenance, or other supplies.” Because of this reasoning, the appeals court found Wadsworth’s amended verified statement of claim was excessive.
It also concluded that the unambiguous language of Section 38-26-110 of the Colorado Revised Statutes resulted in forfeiture of Wadsworth’s entire claim.
The appeals court reversed the judgment to the extent it awarded Wadsworth any amounts that were included in Wadsworth’s amended verified statement of claim. But it rejected Regional Rail’s challenges to the trial court’s resolution of its counterclaims for damages. It affirmed the judgment with respect to those counterclaims.
On Wadsworth’s appeal, the appeals court concluded that the trial court erroneously entered judgment in Regional Rail’s favor on its claim for liquidated damages because Regional Rail contributed to the delays on which the claim was based. It also reversed that portion of the judgment.
The appeals court affirmed in part and reversed in part, and it remanded the matter to the trial court to enter an amended judgment and to resolve both parties’ competing claims for attorney fees and costs.
No on EE— A Bad Deal for Colorado, Issue Committee, appealed the district court’s judgment that affirmed a final agency order by the Deputy Secretary of State Christopher Beall fining it for violating the Fair Campaign Practices Act.
As relevant in this case, the FCPA requires an “issue committee” such as No on EE to disclose certain information in or on a “communication” supporting or opposing a “ballot issue or ballot question… that is broadcast, printed, mailed, delivered; placed on a website, streaming media service, or online forum for a fee; or that is otherwise distributed.”
The information that must be disclosed includes the name of the “person” paying for the communication and the name of the “natural person who is the registered agent [of the entity paying for the communication] if [that entity] is not a natural person.”
The deputy secretary affirmed and modified the initial decision of an administrative law judge who had found that No on EE had failed to identify its registered agent on numerous communications during the 2020 election cycle.
On appeal from the district, No on EE raised several arguments for reversal. One—whether the registered agent disclosure requirement is constitutional—is dispositive.
The Colorado Court of Appeals held that this compelled speech requirement violated the Free Speech Clause of the First Amendment to the U.S. Constitution.
The appeals court vacated the district court’s judgment and the final agency decision.
City of Westminster v. R. Dean Hawn Interests
In this eminent domain action, the City of Westminster appealed the district court’s omnibus order admitting evidence at the valuation trial of three comparable sales and an executory contract for the purchase and sale of a parcel of real property adjacent to the condemned land.
The latter evidentiary ruling presents a novel issue, as no Colorado court has decided whether an executory contract for the purchase and sale of land is admissible as evidence of the value of condemned property, according to the opinion.
Consistent with other jurisdictions that have considered this issue, the Colorado Court of Appeals held that such a contract is admissible at the district court’s discretion.
Dean Hawn Interests requested an award of its appellate attorney fees.
The appeals court affirmed the omnibus order and remanded for the district court to determine the amount of and award RDHI its reasonable appellate attorney fees and costs.
In this contempt proceeding arising from an allocation of parental responsibilities order, Eric Matheny appealed a district court’s order reviewing a magistrate’s order. The magistrate had dismissed the request of Kristine Matheny for a contempt finding against Eric Matheny because she hadn’t proved that he violated the APR on the specific dates or instances alleged in her motion.
Kristine Matheny filed a petition for review, and the district court reversed the magistrate’s dismissal and remanded the case so that the magistrate could conduct further proceedings.
The Colorado Court of Appeals concluded that the district court improperly remanded the case to the magistrate. According to the opinion, when a district court rejects a magistrate’s order, it cannot remand the case for the magistrate to reconsider his ruling or conduct further proceedings. The district court must enter a ruling that constitutes a final appealable order, meaning it must fully adjudicate the rights and liabilities of the parties on the specific issue or claim that had been presented to the magistrate.
Because the district court reversed the magistrate’s finding that Eric Matheny wasn’t in contempt of the APR order, it was required to resolve Kristine Matheny’s request for contempt on the merits, which it didn’t do.
Because the appeals court lacked a final appealable order, it dismissed the appeal without prejudice.
HCPI/CO Springs Ltd. Partnership v. El Paso County Board of Commissioners
The El Paso County Board of Commissioners appealed an order of the Board of Assessment Appeals classifying Encompass Health Rehabilitation Hospital of Colorado Springs, owned by HCPI/Co Springs Ltd. Partnership, as a residential property.
The county and its supporting amicus curiae, the Colorado property tax administrator, argue that the BAA erred by classifying the rehabilitation hospital as residential property.
Because a rehabilitation hospital is “designed for use predominantly” to provide rehabilitative services and not “as a place of residency,” the Colorado Court of Appeals concluded that the BAA erred by classifying the rehabilitation hospital as residential property for tax purposes.
The appeals court reversed and remanded.
Jacobs Investments, LLC d/b/a Colorado Boring Company v. Fort Collins-Loveland Water District
In December 2022, Colorado Boring was excavating an area when its boring equipment struck and ruptured an underground water line owned by the Fort Collins-Loveland Water District, causing flooding.
Before excavating, Colorado Boring gave notice of its intent to excavate to the Utility Notification Center of Colorado, which notified the district. The district located and marked its underground water line, but it mismarked the line’s location.
Colorado Boring filed a complaint against the district alleging negligence, negligence per se and violation of the excavation requirements statute. The complaint alleged that the district had a duty to mark the water line with specificity and that Colorado Boring’s damage to the water line was caused by the district’s failure to properly locate and mark the line.
The district argued the claims were barred by the Colorado Governmental Immunity Act and filed a motion to dismiss the complaint for lack of subject matter jurisdiction.
The trial court disagreed and denied the motion to dismiss.
The district argued the trial court misapplied the CGIA and reversibly erred by finding that the district’s marking of the water line was part of the operation and maintenance of a public water facility, rather than ancillary to it, and concluding that the district waived immunity under the CGIA.
The Colorado Court of Appeals agreed the trial court misapplied the CGIA, but declined to address the district’s other argument that the trial court erroneously created “an additional waiver of immunity” under the ERS.
The appeals court concluded that, because marking the water line in response to Colorado Boring’s notice of intent to excavate wasn’t part of the district’s primary purposes, the district didn’t waive immunity.
The appeals court also agreed with the district’s argument that the trial court erroneously found that locating and marking its water line constituted maintenance of its public water facility.
Because marking the water line wasn’t part of the district’s maintenance obligations, the appeals court found the trial court erred in concluding that the district waived its immunity under the CGIA.
Colorado Boring conceded that it is liable for reasonable attorney fees if the appeals court reversed the trial court’s order. Because it concluded the trial court erred, it granted the district’s request and remanded to the trial court to determine the district’s reasonable attorney fees, and to award such fees to the district.
And because the district prevailed on appeal, it denied Colorado Boring’s request for an award of attorney fees.
The appeals court reversed the order and remanded the case for dismissal of Colorado Boring’s complaint and calculation of the district’s reasonable attorney fees.