Mike & Jim Kruse Partnership v. Cotton
A direct appeal from the District Court for Water Division 3 required the Colorado Supreme Court to decide whether certain creek water is a decreed source for a ditch and whether the water court improperly consulted extrinsic evidence when it answered that question. The water court conducted a four-day trial with thousands of pages of exhibits and clashing experts to decide the meaning of a decree finalized in April 1933. Grasping for guidance, the water court seized upon a 1936 photograph and declared the decree ambiguous. Then, to cure the ambiguity, the court consulted additional evidence extrinsic to the original proceedings.
Ultimately, it found that the water is decreed to the ditch.
The Supreme Court reversed. A conflict exists in case law as to which materials a court may rely on when deciding whether a decree is ambiguous. Some cases say that a court may look beyond the four corners of a decree only when the words on the page are ambiguous. Other cases state that courts may review the statements of claim and transcripts of testimony from the original proceedings to expose latent ambiguities infacially unambiguous decrees. Still others suggest that courts may look at an even greater range of materials from the proceedings that produced the decree.
Each method leads to the same result here: The creek water at issue is not decreed to the ditch. And, since the photograph was extrinsic to the proceedings that birthed the decree, the water court erred by relying on it to characterize the decree as ambiguous. Under any of the three interpretive approaches, evidence extrinsic to the underlying proceedings is admissible only after a finding of ambiguity, not to create the ambiguity.
People v. Zachariah Abad
A jury convicted Zachariah Abad of nine counts of sexual exploitation of a child. On appeal, he contended the district court erred by admitting unauthenticated evidence from a Dropbox account and two cell phones, admitting hearsay testimony from two cell phone extraction reports and entering multiple convictions in violation of double jeopardy.
In resolving Abad’s third contention, a division of the Colorado Court of Appeals needed to apply the Colorado Supreme Court’s recent decision in People v. Bott and decide two related matters of first impression. Consistent with Bott II, the division concluded simultaneous possession of more than 20 items of sexually exploitative material constitutes a single offense under section 18-6-403(3)(b.5) of the 2020 Colorado Revised Statutes. Extending the rationale of Bott II, the division also concluded simultaneous possession of multiple sexually exploitative videos constitutes a single offense under section 18-6-403(3)(b.5). And it concluded that the fact that sexually exploitative material was found on three different electronic devices or storage sites, standing alone, does not establish factually distinct offenses justifying multiple convictions and punishments.
Consequently, the division concluded Abad’s convictions violate double jeopardy. The division merged his convictions and remanded for resentencing, if necessary. The division otherwise affirmed the judgment.
Patricia Johnson v. Rowan Incorporated
Randall and Patricia Johnson were handed a stack of forms when they admitted their seriously ill adult daughter, Christal, to Rowan Community, a long-term care facility. The Johnsons signed a number of those documents that day at the request of Rowan Community’s social services director. One of those documents was an arbitration agreement.
Following Christal’s death less than two months later, the Johnsons, individually and as Christal’s heirs, sued Rowan Community’s owner — Rowan Incorporated — and two other defendants, Jay Moskowitz and QP Health Care Services LLC for wrongful death, among other causes of action. Rowan moved to compel arbitration based on the language of the agreement. The Johnsons argued that the agreement was unenforceable for two reasons — because a Rowan Community representative had not countersigned it and because Rowan Community had allegedly not provided them with a written copy of the agreement, in violation of provisions of the Health Care Availability Act. In a written order, the district court agreed with the Johnsons and held that the agreement was unenforceable. Rowan filed an interlocutory appeal.
A division of the Colorado Court of Appeals decided that, under the Act, Rowan Community cannot enforce the agreement because it did not substantially comply with the Act’s requirements that a healthcare provider give the patient a written copy of any arbitration agreement he or she signs and itself sign the arbitration agreement. For these reasons, the division affirmed the district court’s order.
Defend Colorado v. Gov. Jared Polis
This case concerned a certification of air quality data — specifically, ozone levels recorded in the Denver Metropolitan/North Front Range area — that Colorado must annually submit to the U.S. Environmental Protection Agency. The central question is whether the Colorado Air Quality Control Commission has the authority to require that the certification include supplemental information intended to show the EPA that the recorded ozone levels would have been lower if not for emissions from foreign countries and “exceptional” events such as forest fires.
A division of the Colorado Court of Appeals concluded the Commission does not have the authority to require supplemental information on the certification; the Commission is not required to hold a public hearing before either the submission of the certification to the EPA or the withdrawal of a request to the EPA for an extension of a deadline to attain the national ambient air quality standards; and the district court did not err in dismissing certain claims by Defend Colorado without first receiving and considering the entire certified administrative record. The division affirmed the district court’s judgment dismissing Defend Colorado’s claims against the Commission and Gov. Jared Polis for lack of standing and failure to state a claim on which relief can be granted.
People v. Emily Pennington
This appeal involves a new twist on the issue decided in People v. Gregory. There, a division of the Colorado Court of Appeals held that newly amended section 18-8-208(11) of the 2020 Colorado Revised Statutes, which originated as part of the Prison Population Reduction and Management Act, applies retroactively to cases being prosecuted as of the effective date of the new statute.
In this case, the prosecution appealed the district court’s order of June 19, 2020, that sua sponte amended the charge against Emily Pennington from felony escape under a section in the 2019 Colorado Revised Statutes, to a charge of unauthorized absence under a provision of the Prison Reduction Act, and effectively dismissed the escape charge. According to the prosecution, the court’s order violated the separation of governmental powers and improperly applied the 2020 statute retroactively to Pennington.
The division concluded the district court did not err by retroactively applying the Act to Pennington. But it concluded that the district court did err by amending Pennington’s charge to a charge under the 2020 statute, because that action violated the separation of powers. The division affirmed the court’s order dismissing the escape charge against Pennington, but reversed the court’s amendment of the charge, and remanded for further proceedings.