Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Isaac Mion appealed the trial court ruling that he was guilty of robbery, criminal mischief and misdemeanor menacing. He contended the court erred by not instructing the jury on his affirmative defense of involuntary intoxication. The appeals court reversed the judgment of the trial court and remanded for a new trial.
The events in question occured at around 11 p.m. on a summer night in 2019. A security guard found Mion sleeping on the grounds of the Denver City and County Building, the opinion explained. The guard told Mion the grounds were closed to the public and he couldn’t sleep there. The guard returned several minutes later, found Mion still sleeping there and told Mion he was going to call 911 if Mion wouldn’t leave. Mion then stood up and, while allegedly holding a screwdriver, grabbed the guard’s phone out of his hand, which formed the basis for the aggravated robbery charge. At trial, the security guard described Mion’s behavior during the encounter as “agitated” and “erratic.”
A second security guard approached and called 911. Mion knocked her phone out of her hand, causing the screen to crack, which formed the basis for the criminal mischief charge.
Mion eventually left the grounds of the building but later began yelling at a third victim. When that victim got in his truck, Mion verbally threatened him and hit the truck with a club-like object, which formed the basis of the felony menacing charge. At trial, that victim described Mion’s “rage” and “erratic” behavior during the incident, the opinion noted.
Police officers arrested Mion after he tried to evade them by, among other things, submerging himself in a creek. During the arrest, Mion yelled at the officers to shoot him and that he wanted to die. At trial, one of the officers testified that he was most concerned about Mion’s “really loud, erratic behavior” that evening.
The jury at the trial court found Mion guilty of robbery, criminal mischief and misdemeanor menacing, but rejected the people’s contention that he used or threatened the use of a deadly weapon.
The appeal was based on Mion’s claim the trial court erred by not instructing the jury on his affirmative defense of involuntary intoxication. The basis of this defense was Mion’s assertion that before he committed the crimes for which he was found guilty, he smoked a joint that he thought contained only marijuana, but which actually contained a stimulant that deprived him of the capacity to conform his conduct to the requirements of the law, the opinion added.
In taking on this case, the court addressed the issue of first impression in Colorado, and held the affirmative defense of involuntary intoxication is legally cognizable when a defendant knowingly ingested what he believed to be a particular intoxicant; in so doing, he unknowingly ingested a different intoxicant; and it’s the different intoxicant that deprived him of the capacity to conform his conduct to the requirements of the law, the opinion explained
Because that was the essence of Mion’s involuntary intoxication claim, his defense was legally cognizable. The court also held that Mion presented sufficient evidence — a low threshold — at trial to entitle him to a jury instruction on involuntary intoxication.
Because the trial court refused Mion’s requested involuntary intoxication instruction, and because the court can’t conclude the error was harmless beyond a reasonable doubt, the court reversed the judgment and remanded for a new trial.
John Nicola appealed the district court’s dismissal of the wrongful death claims John Nicola brought on behalf of his daughter Danielle Nicola against the City of Grand Junction and Xcel Energy. He also appealed the judgment that dismissed his claims for negligence and premises liability. The court affirmed the district court’s dismissal of the wrongful death claims, but reversed the part of the judgment’s dismissal of the negligence and premises liability survival claims and remanded the case for further proceedings on those claims.
In November 2018, Danielle Nicola was crossing a street in Grand Junction when a vehicle struck her. According to John Nicola’s complaint, the streetlights in the vicinity were not working at the time of the accident. Danielle Nicola sustained serious injuries and never regained full consciousness or the ability to speak, communicate or make decisions prior to her death 19 days later, the opinion noted. The parties agree that Danielle Nicola’s injuries made her a “person under disability” as that term is defined in section 13-81-101(3) of the Colorado Revised Statutes. No conservator, guardian or legal representative was appointed for Danielle Nicola before her death.
In May 2019, John Nicola filed a lawsuit against the driver of the vehicle that hit Danielle Nicola, asserting two wrongful death claims. In March 2020, John Nicola settled that first lawsuit and filed a notice of voluntary dismissal under Colorado Rules of Civil Procedure 41(a)(1).
In December 2020, John Nicola filed a second lawsuit against Xcel Energy and Grand Junction, asserting wrongful death claims and survival claims for negligence and premises liability. John Nicola alleged Xcel Energy and Grand Junction each had duties to maintain adequate street lighting for the area, that Grand Junction had a duty to warn of dangerous conditions on its property and the defendants’ breach of those duties was a cause of Danielle Nicola’s death.
Xcel Energy and Grand Junction moved to dismiss under Rule 12(b)(5) for failure to state a claim upon which relief can be granted, arguing in relevant part that the wrongful death claims were precluded under the “one civil action” rule set forth in section 13-21-203(1)(a) of the Wrongful Death Act and the survival claims were barred by either a one-year statute of limitations under section 13-81-103(1)(b), calculated from the date of Danielle Nicola’s death, or a two-year statute of limitations under section 13-80- 102(1)(h), calculated from the date of the accident. The district court granted the motions to dismiss, concluding the Wrongful Death Act barred John Nicola’s second suit.
Because the district court appeared to have erroneously dismissed the survival claims under the Wrongful Death Act, John Nicola filed a Rule 59 motion to amend the judgment as to those claims. The district court acknowledged it had erred by dismissing Nicola’s survival claims under the Wrongful Death Act, but nonetheless concluded the survival claims were untimely under section 13-81- 103(1)(b) and 13-80-102(1)(h). Thus, the district court dismissed John Nicola’s complaint.
John Nicola contended the district court erred by concluding his wrongful death claims against Xcel Energy and Grand Junction are barred by the “one civil action” rule. Under the circumstances presented by this case, the court disagreed.
John Nicola contended the district court erred by applying the “one civil action” rule to bar his wrongful death claims because his first lawsuit was not a “civil action” barring a second suit since he voluntarily dismissed it without prejudice, and his settlement with the tortfeasor driver shouldn’t bar him from bringing a second suit against other, non-settling parties.
It’s undisputed that John Nicola filed and voluntarily dismissed a prior lawsuit asserting wrongful death claims against the driver of the vehicle that struck and ultimately killed Danielle Nicola. The question before the court was whether that lawsuit, which ended in a voluntary dismissal without prejudice after settlement with the driver, was a “civil action” barring subsequent actions for Danielle Nicola’s wrongful death, the opinion explained. The court concluded that it was.
Under these circumstances, the court concluded John Nicola’s first lawsuit, in which he asserted wrongful death claims against the driver, was a civil action and the district court correctly concluded that section 13-21-203(1)(a) bars the wrongful death claims asserted in his second lawsuit against Xcel Energy and Grand Junction.
John Nicola contended the district court erred by concluding that his survival claims are time-barred under section 13-81- 103(1)(b). The court agreed.
To resolve this contention, the court examined how statutes of limitation apply to survival actions. Then the court explored when statutes of limitation are tolled and when they begin to run against persons under a disability. Finally, considering these principles together, the court concluded that section 13-81-103(1)(b) applies only when a person under a disability had a legal representative and died after the expiration of the applicable statute of limitations, but less than two years after the legal representative was appointed. Because neither condition applied to Danielle Nicola, the opinion added, section 13-81- 103(1)(b) doesn’t bar John Nicola’s survival claims. And because John Nicola filed his complaint within the applicable statute of limitations, the district court erred by concluding that his survival claims were untimely.
Under section 13-80-112, John Nicola had the longer of the applicable statute of limitations, which began to run on the date Danielle Nicola’s disability was removed by her death, or one year after the date of Danielle Nicola’s death to bring a survival action. Xcel Energy and Grand Junction argue the two-year statute of limitations in section 13-80-102(1)(h) applied, while John Nicola argued the three-year statute of limitations in section 13-80-101(1)(n)(I), applied.
But the court didn’t need to resolve that dispute, the opinion noted. John Nicola filed the survival action within two years of Danielle Nicola’s death, making it timely under the shorter of the two statutes of limitation. Thus, the court concluded the district court erred by dismissing John Nicola’s survival claims as untimely.
Xcel Energy and Grand Junction each requested attorney fees and costs pursuant to section 13-17-201. Under section 13-17-201(1), a defendant is entitled to recover reasonable attorney fees when any tort action is dismissed before trial under Rule 12(b). But because the court determined John Nicola’s survival claims should be reinstated, the court concluded Xcel Energy and Grand Junction aren’t entitled to attorney fees.
The court affirmed the part of the district court’s judgment dismissing John Nicola’s wrongful death claims but reversed the part of the judgment dismissing John Nicola’s negligence and premises liability survival claims and remanded the case for further proceedings on those claims.