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Colorado Court of Appeals Opinions
January 24, 2008

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

No. 03CA1311. People v. Bachofer.
Destruction of Evidence—Confidential Records—Family Education Rights and Privacy Act—Self-Defense Instruction.

Defendant Bachofer appeals the judgment of conviction entered on jury verdicts finding him guilty of felony menacing, reckless endangerment, false imprisonment, and failure to leave premises. The judgment is affirmed and the case is remanded for resentencing.

Bachofer contends that the trial court erred in denying his motion to dismiss. He asserted that the police had removed tarps from the windows of his motor home, thereby destroying evidence, in violation of his due process rights. However, Bachofer did not show that the tarps were removed in bad faith, nor did he show that the placement of the tarps had an exculpatory value that was apparent when the tarps were removed. Moreover, any potential exculpatory value was nullified by the jury’s decision to acquit Bachofer of attempted first-degree murder.

Bachofer argues that the trial court erred in refusing to order the disclosure of school records and medical records of his girlfriend, who was present during the incident leading to defendant’s arrest. Pursuant to the Family Education Rights and Privacy Act of 1974 (FERPA), school records may be released in response to a grand jury subpoena or "any other subpoena issued for a law enforcement purpose." Because Bachofer’s subpoenas were not intended to advance the detection or punishment of any legal violation, the trial court properly declined to order disclosure under this FERPA exception. A court may order the release of confidential school records to a party in a criminal case with a proper showing of need. In this case, any error was harmless, because the school records contained no information that, if disclosed, would have led to a different outcome. Furthermore, Because Bachofer did not show that the witness had waived her privilege, her medical records were not discoverable.

Bachofer contends that his felony menacing and reckless endangerment convictions must be reversed because the jury instructions and the prosecutions closing argument suggested that self-defense applied only to the charges of attempted first-degree murder and not to the charges of felony menacing or reckless endangerment. Based on the evidence presented, however, no jury could have found that Bachofer acted in reasonable self-defense against the imminent use of unlawful physical force. Therefore, any error does not warrant reversal.

No. 04CA1816. People v. Jowell.
CRS § 19-1-307—Social Services—Records—Child Abuse—Neglect—In Camera Review—Disclosure—Expert Testimony—Pretrial Endorsement.

Jowell appeals the judgment of conviction entered on two counts of sexual assault on a child by a person in a position of trust, and one count of sexual assault on a child as part of a pattern of abuse. The judgment is affirmed.

Jowell contends that the trial court committed reversible error in failing to disclose social services records. For a defendant to obtain child abuse or neglect records, he or she must request an in camera review, identify the type of information sought, and explain why disclosure of that information is necessary. Also, if the prosecutor believes that child abuse or neglect records in its possession contains material exculpatory information, he or she must ask the court to review the records in camera and find that public disclosure is necessary. Defendant is not entitled to receive any child abuse or neglect records directly from social services or the prosecutor pursuant to statute. In this case, although Jowell did not request it, the court conducted an in camera review and disclosed to Jowell certain records it believed were relevant and necessary to the case.

Jowell also argues that the trial court erred in failing to disclose a particular report that Jowell’s attorney received during cross-examination of a social services case worker during trial. Because the report gave a detailed account of the alleged sexual abuse, which was necessary for the resolution of an issue in the case, the trial court abused its discretion in failing to disclose this report. However, Jowell failed to show that the nondisclosure caused prejudice to his case or that the result would have been different with the disclosed information.

Jowell contends that the trial court erred in allowing the prosecution to elicit expert testimony from a witness who had not been endorsed as an expert. However, the prosecution had no reason to inquire about the witness’s expertise until defense counsel raised the subject at trial. Therefore, the trial court property allowed the prosecution to pursue the line of questioning and to elicit expert testimony, despite the absence of a pretrial endorsement. The judgment is affirmed.

No. 06CA0246. BA Mortgage, LLC v. Quail Creek Condominium Association, Inc.
Slander of Title—Spurious Lien—Tortious Interference With Contract—Deed of Trust—Lien—Assessments—Subordination Agreement—Attorney Fees.

Plaintiff (lender) appeals from a judgment dismissing its claims of slander of title, spurious lien, and tortious interference with contract against defendant (association). The association cross-appeals the trial court’s conclusion that a subordination agreement that elevated the lender to holder of the first deed of trust was valid, and cross-appeals the denial of an award of attorney fees. The judgment is affirmed in part and vacated in part, and the case is remanded for further proceedings.

The lender’s deed of trust is senior to the association’s assessment lien except for those assessments accruing within six months prior to the commencement of the lender’s foreclosure proceedings. In that instance, the association has a super-priority lien over the lender’s otherwise senior deed of trust in the event of a foreclosure commenced by the association or the lender, which lien is limited to delinquent assessments accruing within six months of the initiation of foreclosure proceedings.

In its cross-appeal, the association asserts that its lien for assessments was superior to the lender’s first deed of trust because the subordination agreement was invalid for failure of the unit owners to sign it. However, the lack of signature on the subordination agreement by the owners does not invalidate the subordination agreement.

The lender asserts that the trial court abused its discretion in awarding the association all assessments during the period of the lender’s and the Department of Housing and Urban Development’s (HUD) ownership in equity. Because HUD is not a party to this case, and the owner of the unit is liable for the assessments, an award of assessments against the lender during that period is not sustainable.

The lender asserts that summary judgment was inappropriate as to its spurious lien, slander of title, and tortious interference claims because there were genuine issues of material fact as to each claim. However, the lien is created by both the declaration and the Colorado Common Interest Ownership Act, and the lender and HUD were, at all times, on notice of the association’s lien rights and the fact that the assessments were in arrears. Therefore, the lenders claims cannot stand.

The association asserts that the trial court erred in not awarding it attorney fees. In light of the statutory and declaration mandates, the association is entitled to reasonable attorney fees and the case is remanded to make that determination.

No. 06CA0733. Lobato v. State of Colorado.
Education Clause—Finance—School Districts—Political Subdivisions—Parents—Standing—Constitutionality—Local Control Clause—Political Question Doctrine.

Plaintiffs—taxpayers, and parents of children in various Colorado school districts (parents), and fourteen school districts—appeal the judgment in favor of defendants, dismissing the complaint for lack of standing and failure to state a claim. The judgment is affirmed.

Plaintiffs sought a declaration that (1) the Education Clause requires the General Assembly to "provide the financial resources necessary, sufficient, and appropriate to assure that all [school-age children] have an equal opportunity to obtain a constitutionally adequate, quality education"; (2) the school finance system fails to provide funding in an amount and manner to meet the mandate of the Education Clause; and (3) the school finance system violates the rights and authority of the school districts’ local boards of education as provided in the Local Control Clause. The trial court dismissed the claims.

The school districts contend that the trial court erred when it concluded that, as political subdivisions, they lack standing. A political subdivision lacks standing to challenge the constitutionality of a statute concerning its performance. A school district is a subordinate division of the state. Furthermore, the Local Control Clause does not give them authority to challenge how the General Assembly appropriates state funds to finance education. Therefore, the trial court properly dismissed the school districts for lack of standing.

The Court of Appeals addresses, sua sponte, whether the parents have standing, even though it was not raised by the parties. Although the Court finds that the parents have standing, their claims are barred by the political question doctrine. The parents base their claims on a "thorough and uniform" education; however, this language does not provide "manageable standards" for determining a qualitative educational guarantee, as the parents assert, with which a trial court could measure the constitutional adequacy of funding for education. Therefore, claims that present a political question must be dismissed. The judgment is affirmed.

No. 06CA1444. In re the Marriage of Cyr and Kay.
Contempt—Remedial—Willful—Separation Agreement—Attorney Fees—C.R.C.P. 107.

Husband appeals from the district court order finding him in contempt for violating the parties’ separation agreement (agreement). The order is affirmed.

Husband contends that the district court abused its discretion by finding him in contempt, because he did not willfully violate a court order. Remedial sanctions for contempt must be supported by findings of fact establishing the contemnor (1) did not comply with a lawful order of the court; (2) knew of the order; and (3) has the present ability to comply with the order. Proof of willfulness is not required before a court may impose remedial contempt sanctions. In this case, the record supports the trial court’s finding that husband had a present ability to comply with the agreement. Accordingly, even if husband did not willfully violate a court order, the district court acted within its discretion by finding him in contempt.

Husband also contends the trial court should have dismissed wife’s motion for contempt citation because (1) the motion did not specifically allege that he violated the agreement; (2) an audit by the Internal Revenue Service did not determine he was obligated to pay the 1998 taxes; (3) the agreement did not contain a specific date by which he was required to pay all taxes, penalties, and interest for 1998; and (4) the agreement did not prohibit him from challenging the award of innocent spouse relief. Husband’s arguments fail because (1) wife’s contempt motion was sufficient, as she alleged that husband had not paid all taxes, which the agreement required; (2) the agreement required husband to pay all of the parties’ 1998 income taxes, regardless of any audit; (3) the agreement did not need to contain a specific date by which husband was to pay the taxes to be enforceable; and (4) husband was found in contempt because he failed to pay the taxes, not because he challenged the award of innocent spouse relief.

Husband also contends that the trial court abused its discretion in awarding wife attorney fees because her attorney failed to confer with opposing counsel before she filed the motion for contempt. C.R.C.P. 107 expressly permits a party to file an ex parte motion alleging indirect contempt. Accordingly, C.R.C.P 107(c) does not mandate a conference with opposing counsel before filing a motion for an indirect contempt citation. The order is affirmed.

No. 06CA1731. Kane v. County Court of Jefferson County.
C.R.C.P. 106(a)(4)—Recusal on Basis of Bias Toward Attorneys.

In this C.R.C.P. 106(a)(4) action, plaintiffs Kane, Grilly, and Kirk appeal the district court’s judgment affirming the orders of defendant, a county court judge. The judgment is affirmed.

Plaintiffs were represented in county court criminal cases by two attorneys who worked for the same law firm. In those cases, the attorneys moved for substitution of judge pursuant to Crim.P. 21(b) and CRS § 16-6-201, alleging that the county court judge was biased against the attorneys and their firm. The alleged bias arose from a 2002 complaint about the judge’s conduct filed by one of the attorneys with the Judicial District’s Judicial Performance Commission (Commission). Prior to the cases at issue here, the judge recused herself from seven other cases in which the law firm filed motions requesting this relief.

In plaintiffs’ cases, the county court judge denied the motions for substitution of judge after conducting a hearing on each motion. Plaintiffs filed C.R.C.P. 106(a)(4) actions in district court, challenging the judge’s rulings. The district court upheld the denials. On appeal, plaintiffs contend that the district court erred in not finding that the county court judge exceeded her jurisdiction and abused her discretion. The Court of Appeals disagrees.

The county court judge noted that after the complaint was filed by the attorney with the Commission, she met with the Commission, the Commission recommended she be retained, and the voters retained her in the next election. She also explained that she did not think she was required to recuse herself in the previous seven cases but had done so voluntarily.

The Court concludes that recusal is not required. The motions and affidavits simply allege she was biased, but there is no evidence the judge ever expressed any actual bias against the attorneys through her conduct or otherwise. Moreover, to require recusal based on the filing of a complaint with the Commission would allow counsel to engage in impermissible judge-shopping. The judgment is affirmed.

No. 06CA2332. McDaniels v. Laub, MD.
Summary Judgment—Medical Malpractice—Supporting Affidavits.

Plaintiffs Douglas and Barbara McDaniels appeal the trial court’s summary judgment in favor of defendant Dr. Robert Laub. The judgment is affirmed.

In May 2005, plaintiffs filed a complaint alleging defendant had committed medical malpractice. In August 2006, defendant filed a motion for summary judgment supported by an affidavit that his treatment met or exceeded the applicable standard of care. Plaintiffs filed a motion for extension of time to respond and disclose their expert witness. The due date was extended to September 22.

On September 21, plaintiffs filed their expert witness’s report without an affidavit. They did not respond to the motion for summary judgment.

On September 29, defendant’s motion for summary judgment was granted. Plaintiffs moved for reconsideration and submitted a reply brief, attaching an affidavit from their expert. The trial court denied the motion for reconsideration, stating it could not consider the affidavit.

On appeal, plaintiffs contend it was error to grant summary judgment, because there were genuine issues of material fact. The Court of Appeals disagrees.

When a motion for summary judgment is submitted and supported by affidavit, the party opposing the motion cannot rely on mere allegations but must, by affidavit or otherwise, set forth specific facts showing a genuine issue of material fact. In this case, defendant’s motion was supported by his affidavit and plaintiffs failed to respond to the motion and failed to file a timely counter-affidavit to demonstrate a genuine issue of material fact.

The expert report filed pursuant to C.R.C.P. 26 is not a "pleading" under C.R.C.P. 7(a) and is not available for consideration under C.R.C.P. 56(c). The affidavit was filed too late to be considered by the trial court. Therefore, the Court affirms the grant of summary judgment for defendant.

Colorado Court of Appeals Opinions

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