Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The Colorado Court of Appeals unanimously affirmed a judgment and remanded a case connected to waiver issues.
Kenneth Garcia was charged with second-degree burglary and forgery and a jury found him guilty as charged. A trial court sentenced Garcia to 14 years in the custody of the Department of Corrections for the burglary conviction and a consecutive term of two years on the forgery conviction.
On appeal, Garcia contended the trial court violated his right to a public trial and allowed a constructive amendment, claiming each was a structural error. Prosecutors argued the appeals court shouldn’t review the contentions because defense counsel waived them. Garcia also requested a remand so he could move the trial to court to waive his costs and surcharges. Prosecutors conceded a remand is appropriate for that limited purpose.
The Colorado Court of Appeals noted the case presented two distinct waiver issues. The first one is whether, pursuant to the 2015 Colorado Supreme Court case Stackhouse v. People, Garcia waived his right to a public trial by failing to object to a known closure. The second one is whether, pursuant to the 2018 Colorado Supreme Court case People v. Rediger, Garcia waived his right to be tried in conformity with the charging instrument by failing to object to a constructive amendment.
After reconciling Stackhouse and Rediger, the appeals court concluded Garcia waived the first right and forfeited the second. The appeals court also concluded Garcia’s claim of prosecutorial misconduct didn’t establish plain error, so the appeals court affirmed his convictions.
The appeals court agreed with the parties that remand is required so Garcia can move the trial court to waive his costs and surcharges.
The Colorado Court of Appeals affirmed the conviction and remanded the case for more proceedings related to the imposition of costs and surcharges.
Jansma v. Colorado Department of Revenue, Motor Vehicle Division
The Colorado Court of Appeals unanimously reversed a judgment and remanded a case related to a driver’s license.
According to the appeals court opinion, Maggie Jansma’s SUV “spun out” and struck another car. Two officers responded to the accident. The investigating officer arrived first and approached Jansma, speaking to her while she sat in the driver’s seat of her SUV. In his written report, he noted various indications of intoxication from Jansma’s behavior during the investigation.
The officer concluded she was intoxicated. Jansma admitted to drinking two margaritas, but refused to perform roadside maneuvers, according to the appeals court opinion. Jansma eventually agreed to get out of the SUV and, when she did, the officer noticed she was unsteady. Jansma was placed under arrest.
A transporting officer arrived and described her as being intoxicated in his written report.
Neither officer filled out or served Jansma with an “express consent affidavit and notice of revocation” form during the encounter, nor did they confiscate her driver’s license. Both officers filed detailed reports on their interactions with Jansma, but neither report mentioned either officer giving an express consent advisement to Jansma, one of them requesting she undergo chemical testing or her refusing to take such a test.
A few days after her arrest, Jansma contacted the Department of Revenue, Motor Vehicle Division to inquire whether it would issue an express consent revocation notice and to ask for a hearing if so. About two weeks from the day of the incident, the transporting officer filled out an express consent affidavit and delivered it to the department. The express consent affidavit was incomplete as the officer left the section of the form affidavit that asks “what did [the] officer see or hear” in connection with a refusal to take a chemical test blank.
The department served Jansma with a notice of revocation and she requested a hearing. Only Jansma’s counsel appeared at the revocation hearing. Without objection, the department’s Exhibit A was entered into evidence, according to the appeals court opinion. The exhibit consisted of the express consent affidavit and notice of revocation, a police report (which included both officers’ written reports), a custody report, an affidavit for warrantless arrest, two vehicle tow reports and a witness statement. The only evidence documenting “refusal” was in the express consent affidavit. In the affidavit, an image of which was included in the court’s opinion, a box to confirm the Colorado Express Consent Law was read or explained to the respondent was checked “yes” and the box for “refused” was also checked. What the officer saw or heard was left blank, right below the question of, was the “Colorado Express Consent Law read or explained to the respondent.”
Jansma’s counsel presented no evidence at the hearing but argued Exhibit A wasn’t sufficient evidence to establish an express consent advisement was given, that chemical testing was requested or that what Jansma said or did in response to any advisement or request constituted a refusal.
After relying only on the contents of Exhibit A, the hearing officer found Jansma was advised on the express consent law and she refused chemical testing. The hearing officer found Jansma refused to take a chemical test of her blood or breath “by acting uncooperative and combative with law enforcement.” Based on those findings, the hearing officer upheld the department’s one-year revocation of Jansma’s driver’s license.
Jansma sought judicial review in district court, arguing the evidence was insufficient to support administrative action because it only included legal conclusions without factual details to support them. The district court affirmed the department’s revocation. Jansma appealed, raising substantially the same arguments.
The appeals court considered whether a bare assertion by a law enforcement officer, made by checking boxes in a form affidavit, that a driver refused a chemical testing request, was sufficient evidence to support the department’s revoking a driver’s license under Colorado Revised Statute 42-2-126(3)(c).
The appeals court held 42-2-126(5)(a) required the department to present evidence sufficient to support a factual finding the law enforcement officer had probable cause to believe the driver should be subject to driver’s license revocation.
The appeals court reversed the district court’s judgment and remanded the case with directions to reverse revocation.
City and County of Denver v. Monaghan Farms, Inc.
The Colorado Court of Appeals unanimously affirmed a judgment involving eminent domain.
The appeal concerned Monaghan Farms, Inc.’s attempt to recover land ceded to the City and County of Denver via eminent domain more than 30 years ago.
Monaghan Farms appealed a district court’s orders denying its motion to dismiss for failure to join an indispensable party under Colorado Rule of Civil Procedure 12(b)(6); granting summary judgment for Denver, on its first (quiet title) and second (release of claims) claims; denying Monaghan Farms’ Rule 56(f) motion for a denial or continuance on Denver’s summary judgment motion; and entering a final judgment and decree quieting title in favor of Denver.
The appeals court affirmed the judgment of the district court. The appeals court wrote it holds when a city acquired private land through eminent domain, it acquired those parcels in fee simple absolute despite other factors in play at the case.
Alderman v. Board of Governors of the Colorado State University
The Colorado Court of Appeals affirmed a judgment in part, reversed in part and remanded a case involving a Colorado university.
Renee Alderman, individually and on behalf of all others similarly situated, appealed two district court orders that dismissed her claims in a putative class action seeking damages for breach of contract, or alternatively unjust enrichment, from the Board of Governors of the Colorado State University in connection with the closures of CSU campuses in response to the COVID-19 pandemic.
As alleged in the consolidated complaint, in the spring of 2020, CSU canceled in-person classes, changed all classes to online learning, closed most campus buildings and required students to leave the campuses as a result of the pandemic. The campuses remained closed at least through the end of the 2020 spring semester. CSU didn’t provide reimbursement to students for any tuition or fees paid for the spring 2020 semester, according to the appeals court opinion.
Alderman alleged she and similarly situated students chose to attend CSU on an in-person basis, paid substantial tuition and fees for the use of campus facilities for the spring 2020 semester and were precluded from getting in-person learning and the use of the facilities because of the closure.
The complaint alleged, in four separate claims, CSU breached its contracts to provide in-person learning for which the plaintiff paid tuition and to make available the facilities for which she paid fees. Alderman alternatively alleged CSU’s failure to refund her tuition and fees resulted in unjust enrichment.
The district court granted CSU’s motion to dismiss the breach of contract claims. In a subsequent order, the district court granted CSU’s motion for judgment on the pleadings for the unjust enrichment claims, thus terminating the case.
Alderman appealed both orders. The appeals court affirmed in part and reversed in part, and remanded for further proceedings.
The order dismissing Alderman’s breach of contract claims was affirmed by the appeals court. The order granting judgment on the unjust enrichment claims was reversed and the case was remanded for further proceedings.
In entering the judgment, the appeals court noted it doesn’t opine in any way on whether it was unfair for CSU to retain all, or any of the tuition or fees Alderman paid. The appeals court explained that decision must be determined by the fact finder. The appeals court held Alderman had stated claims for unjust enrichment.
Colorado Court of Appeals Judge Ted Tow concurred in part and dissented in part.
“I agree that the contract in this case necessarily included the statutory term permitting defendant, the Board of Governors of the Colorado State University (CSU), to suspend the university under the circumstances presented by the COVID-19 pandemic. Consequently, I agree that plaintiff, Renee Alderman, has not stated a breach of contract claim,” Tow wrote. “But for the very same reason — that the contract between Alderman and CSU explicitly permitted the latter’s actions — Alderman cannot pursue a claim for unjust enrichment. Accordingly, I dissent from the portion of the opinion that reinstates such claims.”
Rosten v. Industrial Claim Appeals Office of the State of Colorado et al.
The Colorado Court of Appeals unanimously affirmed an order involving a doctor’s report.
According to the appeals court opinion, Keith Rosten was injured at work in January 2020 when he slipped and fell on ice in his employer’s parking lot. Rosten claimed to have suffered a traumatic brain injury and neck injury as a result.
In a workers’ compensation action, Rosten sought review of a final order of the Industrial Claim Appeals Office (panel). The panel affirmed the determination of an administrative law judge that the final admission of liability filed by Rosten’s employer, the City of Durango and its insurer Colorado Intergovernmental Risk Sharing Agency, was valid.
The Colorado Court of Appeals affirmed the panel’s order. In doing so, the appeals court determined a doctor’s failure to examine a claimant in-person doesn’t render the doctor’s report finding no impairment, or the FAL premised on the report, invalid.