Opinion by JUDGE FOX 1 In this consolidated appeal, plaintiff, Wiley Long, challenges the district court's order dismissing his lawsuit against defendants, Loren Cordain, Paleo Diet Enterprises, LLC, and The Paleo Diet, LLC (collectively Cordain) for lack of subject matter jurisdiction (court of appeals case number 13CA1502). Cordain challenges the district court's order denying his request for attorney fees and costs incurred in defending the action (court of appeals case number...
Opinion by CHIEF JUDGE LOEB . 1 Plaintiff, Gail Gonzales, appeals the judgment for costs in favor of defendant, Kelli Windlan, in the amount of $15,253.77. We affirm. I. Background and Procedural History 2 This case arises from a car accident on September 20, 2009, in which Windlan drove through an intersection without the right-of-way and struck a car driven by Gonzales. Gonzales brought suit against Windlan, asserting claims of negligence and willful and wanton conduct and...
Opinion by JUDGE BERGER . 1 In this prescriptive easement case, defendant, Alexandra M. Butler, appeals the trial court's judgment confirming two prescriptive easements in favor of plaintiff, LR Smith Investments, LLC (Smith), across agricultural lands owned by Butler. 2 Butler contends that the trial court committed four errors that require reversal: (1) applying a presumption of adversity in favor of Smith; (2) holding that Butler was required to show the existence of an actual...
Opinion by JUDGE BERGER . 1 This case requires us to address the rules that determine when an interest in a general partnership or joint venture constitutes a security under the Colorado Securities Act (Act). 1 The trial court applied a "strong presumption" that general partnership interests are not securities. We reject the strong presumption because it is inconsistent with the economic realities test — the controlling test in Colorado for identifying securities — and hold that the...
Opinion by JUDGE DAILEY . 1 Defendant, Christopher Alexander Pernell, appeals the judgments of conviction entered on jury verdicts finding him guilty of violation of a restraining order, first degree burglary, menacing (two counts), second degree kidnapping, sexual assault, and commission of a violent crime (three counts). We affirm. I. Background 2 In violation of a restraining order, defendant went to his ex-wife's home one evening while she and her boyfriend were inside....
Opinion by JUDGE FOX . 1 Plaintiff Anthony Max Garcia, an inmate at Sterling Correctional Facility (Sterling), was convicted of assault under the Colorado Department of Corrections (CDOC) Code of Penal Discipline (COPD). He filed an action in district court challenging his COPD conviction, and the district court dismissed the action as not timely filed. Garcia now appeals the district court's order dismissing his claims. We affirm in part, reverse in part, and remand the case to the...
Opinion by JUDGE BOORAS 1 Appellant, Liberty Bankers Life Insurance Company (Liberty), appeals the judgment and dismissal with prejudice of its counterclaims against appellee, First Citizens Bank & Trust Company (FCBT). We affirm the judgment. I. Background 2 The underlying claims in this case relate to Liberty's participation in two loans with Colorado Capital Bank (CCB) for the purpose of funding the development of a townhome project, with one loan entered into on June 2, 2009, and...
Opinion by JUDGE ROM N 1 In this action under the Uniform Debt-Management Services Act (DMSA), sections 12-14.5-201 to -242, C.R.S.2014, we are asked to determine whether the legal services exception in the DMSA implicates subject matter jurisdiction. Plaintiff, the State of Colorado, appeals the district court's order dismissing its complaint against defendants, Johnson Law Group, PLLC, a Florida private limited liability company, and Clint L. Johnson, for lack of subject matter...
Opinion by JUDGE DAILEY . 1 A conservation easement (CE) "is a permanent restriction that runs with the land for the purpose of protecting and preserving the land in a predominantly natural, scenic, or open condition." Kowalchik v. Brohl, 2012 COA 25, 2, 277 P.3d 885 ; see also 38-30.5-101 to — 111, C.R.S.2014 (establishing the purposes and requirements for conservation easements). 2 In Colorado, a taxpayer may claim a state income tax credit, all or part of which is...
OPINION PREVIOUSLY ANNOUNCED AS "NOT PUBLISHED PURSUANT TO C.A.R. 35(f)" on August 28, 2014, IS NOW DESIGNATED FOR PUBLICATION. Opinion by JUDGE M RQUEZ * . 1 William Michael Johnson (father) appeals a district court order adopting a magistrate's ruling entering judgment against him for child support arrearages and interest. We affirm in part, reverse in part, and remand for further proceedings. I. Background 2 Father's marriage to Carolyn Sue Johnson, now known as Carolyn Sue...
Opinion by JUDGE FOX . 1 On remand from the Colorado Supreme Court, we review our previous holding reversing Defendant Max Anthony Maestas's criminal convictions in light of our supreme court's recent decision in People v. Novotny, 2014 CO 18, 320 P.3d 1194 . We reverse the convictions and remand the case for a new trial. I. Procedural Background 2 A jury found Maestas guilty of aggravated robbery, menacing, and eluding police. Maestas appealed, arguing that the trial court had...
Opinion by JUDGE BERNARD . 1 The general rule in Colorado is that automobile liability insurance policies must contain coverage for bodily injury damages caused by uninsured or underinsured motorists (UM/UIM). 10-4-609(1)(a), C.R.S. 2014. The sole exception to this rule is when "the named insured" waives such coverage in writing. Id. 2 This appeal presents the question of what happens when more than one person is listed on the policy as a "named insured," but only one of them...
Opinion by JUDGE WEBB . 1 This medical negligence case raises a novel question in Colorado — may nurses be included in a jury instruction derived from the pattern exercise-of-judgment instruction given concerning physicians Here, after having been so instructed, a jury returned a verdict against plaintiff, Mary Catherine Gasteazoro, and in favor of defendants, Catholic Health Initiatives Colorado, d/b/a Centura Health-Penrose-St Francis Health Services (the hospital), and Leticia...
Opinion by JUDGE HAWTHORNE . 1 In this land dispute concerning the validity of two treasurer's deeds, defendant, Bradley Klingsheim, appeals the declaratory judgment setting aside the deeds as void. We affirm. I. Facts and Procedural History 2 The following facts are undisputed. Plaintiffs, Carl A. Cordell and Wanda M. Cordell, were record owners of a tract of land in La Plata County (Tract 1). Carl Cordell was also the record owner of an adjoining tract (Tract 2). The Cordells...
Opinion by JUDGE BERNARD 1 A jury convicted defendant, Mark Steven Brown, of two counts each of stalking, invasion of privacy, and unlawful sexual contact. He appeals the judgment of conviction. We reverse and remand for a new trial. I. Background 2 In September 2010, defendant asked a woman he knew if she wanted to "housesit" in his apartment for six months while he worked in South Korea. She agreed. 3 Before he left, and without the housesitter's knowledge, defendant set up...
Opinion by JUDGE RICHMAN 1 Defendant, Robert Omondi Omwanda, appeals the judgment of conviction entered after a jury found him guilty of possession of a controlled substance. We remand the case for further proceedings. I. Background 2 Before trial, defendant sought to suppress evidence that police recovered from his cell phone. At the suppression hearing, an officer testified that he stopped a car carrying six people, including defendant. With the driver's permission, the officer...
Opinion by JUDGE GABRIEL . 1 In this dispute between the members of four limited liability companies (the LLCs), defendant, Paula Gagne, appeals the district court's declaratory judgment, and plaintiff, Richard Gagne, cross-appeals that same judgment as well as the district court's rulings (1) granting partial summary judgment to Paula Gagne on his judicial dissolution claim, (2) denying his request to require Paula Gagne to disgorge the attorney fees that the LLCs paid on her behalf,...
Opinion by JUDGE ROTHENBERG * . 1 Defendant, Jose Sabino Espino-Paez, appeals the district court's denial of his motion for post-conviction relief pursuant to Crim. P. 35(c) and Crim. P. 32(d). We affirm the order denying relief under Crim. P. 35(c), and we dismiss that portion of the appeal challenging the order denying relief under Crim. P. 32(d). I. Background 2 In August 1996, defendant pleaded guilty to the use of a schedule II controlled substance and received a deferred...
Opinion by JUDGE TAUBMAN . 1 Defendant, Mark Alton Friend, appeals the trial court's judgment of conviction entered on jury verdicts finding him guilty of (1) first degree murder — victim under the age of twelve, position of trust; (2) child abuse causing death; (3) child abuse causing death — pattern of conduct; (4) two counts of child abuse causing serious bodily injury; and (5) child abuse causing serious bodily injury — pattern of conduct. We affirm in part, vacate in part, and...
Opinion by JUDGE ASHBY 1 Plaintiffs, Deborah Mackall and Herbert Hutchins, appeal the district court's judgment dismissing their complaint pursuant to C.R.C.P. 12(b)(5). As an issue of first impression in Colorado, we first address whether a debtor who fails to disclose a state court claim to the bankruptcy court lacks standing to assert that claim after the bankruptcy case is dismissed. Because we conclude that a debtor has standing in this situation, we proceed to address two...
