Colorado Court of Appeals Opinions
September 1, 2011

No. 09CA2422. Arnold v. Anton Cooperative Association.
Discrimination—Colorado Civil Rights Act—Jurisdiction—Breach of Contract.

April Arnold appealed the trial court’s judgment against her and in favor of defendants Anton Cooperative Association (Association), Chester Kenney, and Louanne Kenney. Arnold also appealed the orders awarding costs and fees to defendants. The orders were affirmed in part and reversed in part, and the case was remanded with directions.

Arnold was a member of the Association, which operates a general store. Chester Kenney is the Manager of the Association, and Louanne Kenney is his wife and an employee of the Association. The Association sent Arnold a notice that she was no longer permitted to enter or purchase from the Association’s store. Arnold then brought this action, alleging discrimination based on gender and disability, breach of the membership contract, and intentional interference with contract.

Arnold argued that the trial court erred in dismissing her claim for discrimination in a place of public accommodation under part 6 of the Colorado Civil Rights Act (CRA). The trial court concluded that only the county courts have jurisdiction to hear public accommodation claims under the CRA. However, district courts and county courts have concurrent jurisdiction over claims brought under part 6 of the CRA. Therefore, the trial court erred in dismissing Arnold’s CRA claim.

Arnold also argued that the trial court erred in dismissing her breach of contract claim. Specifically, she argued that the Association’s articles of incorporation and bylaws, when read together with the Cooperatives Act, provide her an express right to purchase goods and services from the Association’s store. However, these documents do not contain an enforceable promise that Arnold will be permitted to continue purchasing goods and services from the Association’s store. Therefore, the trial court did not err in granting the Association’s motion for summary judgment regarding her breach of contract claim.

Arnold further contended that, as an alternative to her express contract claim, the trial court should have put implied terms into the contract or proceeded under a quasi-contract theory to find that she had a right to purchase goods and services from the Association’s store. Arnold, however, did not preserve this issue for appeal. Further, Arnold’s argument would require the court to rewrite her contract with the Association, which it is not permitted to do.

Finally, because Arnold’s interference with contract claim was wholly dependent on her claim for breach of express contract, and the latter claim could not be sustained, the trial court did not err in granting the Association’s motion for summary judgment as to Arnold’s interference claim. The judgment dismissing Arnold’s claim under the CRA was reversed, and the case was remanded for further proceedings on that claim. In all other respects, the judgment was affirmed. The trial court’s order awarding costs to defendants was reversed given the resolution of the issues presented on appeal, and the order awarding attorney fees was affirmed.

No. 10CA1264. People v. Boles.
Internet Sexual Exploitation of a Child—Internet Luring of a Child—Obscenity—Constitutional—Dormant Commerce Clause—Evidence.

Defendant appealed the judgments of conviction entered on jury verdicts finding him guilty of criminal attempt to commit Internet sexual exploitation of a child, Internet luring of a child, and obscenity. The judgments were affirmed.

While online in an adult Internet chat room and using a screen name, defendant initiated a conversation with an undercover detective posing as a 14-year-old girl named Trista. For more than a month, defendant and “Trista” had numerous online, phone, and text conversations, the majority of which were sexual in nature. Defendant also asked “Trista” whether she wanted to meet him in person, at which point they discussed how she would travel from her supposed home in Denver to Colorado Springs, where defendant lived.

On appeal, defendant contended that the Internet luring and obscenity statutes under which he was convicted are unconstitutional. CRS § 18-3-306 is not overbroad because it is not content neutral and applies only if a communication describes “explicit sexual conduct.” The definition of “explicit conduct,” although narrow, is broader than the definition of obscenity as an exception to constitutionally protected speech. Further, the statute was not overbroad as applied to defendant’s explicit sexual and obscene communications. Finally, because a person of common intelligence would comprehend what conduct is prohibited by the statute, it is not unconstitutionally vague.

Defendant argued that the luring statute violates the dormant Commerce Clause. CRS § 18-3-306 does not discriminate against or unduly burden interstate commerce because it regulates the conduct of individuals who, through sexually explicit communications sent over the Internet, endanger the welfare of minors. Therefore, it does not violate the dormant Commerce Clause.

Defendant also contended that Colorado’s obscenity statute, CRS § 18-7-102(2.5)(a)(I), is unconstitutionally vague. However, a person of common intelligence would comprehend what conduct is prohibited by the statute. Therefore, it is not unconstitutionally vague.

Finally, defendant contended that there was insufficient evidence presented to prove that he took a substantial step toward the commission of Internet sexual exploitation of a child. “Trista” told defendant several times that she was 14 years old, defendant acknowledged her age, and defendant instructed “Trista” to touch her intimate parts. Therefore, there was sufficient evidence for a jury to convict defendant of this crime.

No. 10CA1316. Draper v. DeFrenchi-Gordineer.
Personal Injury—Loss of Consortium—Derivative Claim—Settlement Release—Negligent Infliction of Emotional Distress—Statute of Limitations—Negligent Entrustment.

Plaintiff Robert Draper (husband) appealed the summary judgment dismissing the tort claims he filed on behalf of his wife, Jean Draper (wife), who was seriously injured in a car accident. The judgment was reversed and the case was remanded.

After wife was severely injured in a car accident, husband and wife signed a settlement agreement releasing wife’s claims against the parents who owned the vehicle that struck wife; the son who borrowed the car that struck wife; and the friend who, without a license, drove the vehicle that struck wife. Husband subsequently filed suit, naming all four as defendants. He alleged claims of loss of consortium, negligent infliction of emotional distress, and negligent entrustment. The trial court granted summary judgment in favor of defendants on all of husband’s claims.

Husband argued that the trial court erred in finding that his claim for loss of consortium was derivative of wife’s personal injury claim and thus was barred. A claim for loss of consortium is a derivative claim, but it also is a separate claim that creates a distinct cause of action. Further, an agreement settling an injured person’s personal injury claims does not necessarily bar the spouse’s loss of consortium claim. Here, the settlement agreement resolving wife’s claims against defendants, signed by both wife and husband, did not expressly release defendants from liability for any claims in husband’s lawsuit. Additionally, the settlement agreement awarded wife compensation for her injuries. Because husband’s separate derivative claim for loss of consortium depends on wife’s right to recover, and because wife didrecover, husband’s loss of consortium claim was not barred by the settlement agreement.

Husband also contended that the trial court erred when it granted summary judgment to defendants on his claim for negligent infliction of emotional distress on the ground that it was derivative of wife’s previously settled personal injury claims. The claim of negligent infliction of emotional distress is an independent claim, not a derivative claim. Thus, an agreement settling the claims of an injured person does not necessarily bar the spouse’s claim for negligent infliction of emotional distress. Accordingly, this was not a proper ground for summary judgment.

Husband contended that the trial court erred by ruling that his claim for bodily injury was barred by the statute of limitations. Husband’s complaint was filed one day less than three years after the collision. Fourteen months later, the trial court allowed husband to amend his complaint to add the claim for bodily injury. Husband’s alleged bodily injury arose from the same conduct set forth in the original complaint. The parties were the same, and the same negligence was pleaded as the proximate cause of husband’s injuries. Therefore, the amendment related back to the date of the original pleading. Thus, the trial court erred by dismissing that claim as time-barred.

Husband further argued that the trial court erred by granting summary judgment in favor of defendants as to his claim of negligent entrustment. Because there was a disputed question of material fact concerning whether the parents and the son knew or should have known that the friend was an unsafe driver, the trial court’s order granting summary judgment on this claim was reversed.

No. 11CA0665. Norman v. Industrial Claim Appeals Office.
Unemployment Compensation Benefits—Appeal—Notice—Hearing—Good Cause.

In this unemployment compensation benefits case, claimant sought review of a final order of the Industrial Claim Appeals Office (Panel) denying his request for a new hearing. The order was set aside and the case was remanded.

On January 10, 2011, claimant was awarded unemployment compensation benefits in a deputy’s decision based on his separation from employment with GMRI, Inc. (employer). Employer timely appealed the deputy’s decision to the Division of Employment (Division) on January 25, 2011. Employer’s appeal was not served on claimant.

The first notice sent to claimant that employer had appealed the deputy’s decision was the Division’s notice of hearing sent to him on February 3, 2011. This notice informed claimant that the hearing on employer’s appeal was set for February 15, 2011. Because claimant was on vacation from February 1, 2011 through February 17, 2011, he was unaware of the hearing until it had already taken place. He requested a new hearing as soon as he received the hearing officer’s decision disqualifying him from benefits. The Panel denied claimant’s request for a new hearing, ruling that good cause had not been shown to excuse his absence from the February 15 hearing.

Claimant argued that the Panel abused its discretion in denying his request for a new hearing. The Court of Appeals agreed. Claimant showed good cause for his failure to attend the hearing. He left on his trip after employer’s appeal deadline had expired and without awareness of employer’s notice of appeal. Further, the notice of appeal rights would not give a reasonable and prudent person any reason to expect a hearing to be set and held within days of that deadline. Therefore, the Panel abused its discretion in denying claimant’s request for a new hearing under these circumstances.

Colorado Court of Appeals Opinions

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