Board of Nursing v. Trujillo

• Court: Colorado Court of Appeals
• Decided: October 3, 2024
• Docket: 24CA0135
• Status: Unknown

Opinion

24CA0135 Board of Nursing v Trujillo 10-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0135 Colorado State Board of Nursing Case No. 20228640

State Board of Nursing, State of Colorado,

Petitioner-Appellee,

v.

Latisha C. Trujillo, RN, License No. RN-1653574,

Respondent-Appellant.

APPEAL DISMISSED

Division VII Opinion by JUDGE TOW Pawar and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 3, 2024

Phillip J. Weiser, Attorney General, Wesley Parks, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

Germer Beaman & Brown, Franklin Hopkins, Austin, Texas, for Respondent- Appellant ¶1 Respondent, Latisha C. Trujillo, appeals the revocation of her

nursing license, contending that petitioner, the State Board of

Nursing for the State of Colorado (the Board), denied her due

process. Because we lack jurisdiction, we dismiss the appeal.

I. Background

¶2 After Trujillo was charged with driving under the influence, the

Board ordered her to undergo an evaluation through the Board’s

peer assistance services program. The evaluator concluded that

Trujillo was only safe to practice if she underwent treatment and

monitoring.

¶3 Trujillo agreed to undergo regular urinalysis testing, call a

drug test management system daily, and provide various status

reports to keep her nursing license (the treatment agreement).

Trujillo also agreed that violating the treatment agreement would

constitute grounds for further discipline.

¶4 Eventually, Trujillo’s urinalysis tests came back positive for

alcohol and unprescribed Clonazepam. She also began missing

scheduled urinalysis tests and failed to comply with her other

reporting requirements. The Board suspended Trujillo’s license and

offered to extend the treatment agreement by two years. Trujillo,

1 however, never signed the extension and ceased communication

with the Board.

¶5 The Board then sent a letter, by first-class mail, and an email

to Trujillo informing her that a complaint had been filed against her

privilege to practice nursing. The correspondence also contained a

notice that Trujillo was required to file an answer and set a hearing

within thirty days; otherwise her license was subject to termination

by default. Trujillo did not respond, and the Board moved for a

default decision from the administrative court.

¶6 In an initial decision, the administrative court revoked

Trujillo’s nursing license. The Board then mailed Trujillo a

procedural order, which said that Trujillo could file exceptions to

the initial decision within thirty days and that the failure to file

exceptions would waive her right to judicial review. Trujillo did not

file any exceptions, and the Board entered a final order revoking her

license. The final order said that Trujillo could seek judicial review

before the court of appeals within forty-nine days after the

revocation became effective. She did so.

2 II. Standard of Review

¶7 We review de novo whether a court has jurisdiction to review

an agency action. Peabody Sage Creek Mining, LLC v. Colo. Dep’t of

Pub. Health & Env’t, 2020 COA 127, ¶ 9. We also review de novo

whether a defaulting party’s due process right was violated by a

lack of notice. Klingsheim v. Cordell, 2016 CO 18, ¶ 14.

III. Analysis

¶8 “Failure to file the exceptions prescribed in [section 24-4-

105(14), C.R.S. 2024,] shall result in a waiver of the right to judicial

review of the final order of [an] agency . . . .” § 24-4-105(14)(c).

Trujillo did not file exceptions to the Board’s final order, and thus

she waived her right to judicial review. “Where a statute provides a

right of review of an administrative decision, the statute is the

exclusive means to secure review,” and failure to comply with the

statute deprives this court of jurisdiction. Associated Gov’ts of Nw.

Colo. v. Colo. Pub. Utils. Comm’n, 2012 CO 28, ¶ 8. Because Trujillo

did not file exceptions, we lack jurisdiction and must dismiss her

appeal.

¶9 Trujillo responds that she failed to file exceptions because of

the Board’s inadequate notice. She contends that her due process

3 rights were violated because she did not have the capacity to receive

either the mailed or emailed notice of the proceedings. Specifically,

she asserts that she was experiencing domestic abuse, had lost her

home and job, and was at a rehabilitation treatment center that

completely disconnected her from internet and telephone

communications when the notice was sent.

¶ 10 Initially, we note that the facts Trujillo alleges are not

contained anywhere in the record, and “evidentiary facts not in the

record may not be supplied by appellate briefs.” Colo. State, Auraria

Higher Educ. Ctr. v. Korin, 876 P.2d 103, 105–06 (Colo. App. 1994)

(citing Laessig v. May D & F, 402 P.2d 183, 185 (Colo. 1965)).

¶ 11 Even assuming, however, that Trujillo’s factual assertions are

true, the Board provided Trujillo with sufficient notice. “Due

process principles are satisfied as long as the notice is reasonably

calculated to reach the intended party.” Bd. of Educ. v. Wilder, 960

P.2d 695, 705 (Colo. 1998). The Board sent notice to Trujillo’s

home by first-class mail and emailed it to her, both of which are

reliable communication methods. Moreover, mailing notice of a

license revocation has been held to satisfy due process

requirements — even if the intended recipient claims they did not

4 receive the notice — so long as the statutory notice requirements

are followed. Cf. Ault v. Dep’t of Revenue, 697 P.2d 24, 28 (Colo.

1985) (holding notice by certified mail under section 42-2-117(2),

C.R.S. 1984, met due process requirements). The State

Administrative Procedure Act (APA), section 24-4-105(2)(a), (16)(a),

requires notice to be sent “by first-class mail to the last address

furnished the agency by such party,” which, here, the Board did.

¶ 12 Next, Trujillo argues that the Board violated her due process

right by providing misleading information about her right to appeal

the final order. The final order said Trujillo could appeal within

forty-nine days of the final order, and Trujillo claims that it is a

gross injustice for the final order to state this if her rights to appeal

had already been extinguished.

¶ 13 However, Trujillo had been told that she was required to file

exceptions in the Board’s procedural order. Moreover, the APA

states that filing exceptions is necessary for judicial review. § 24-4-

105(14)(c). And our supreme court has established that this is a

jurisdictional requirement. Colo. Pub. Utils. Comm’n, ¶ 8. There

was thus plenty of information provided to Trujillo informing her

that exceptions had to be filed to seek judicial review of her nursing

5 license’s revocation. Id. Even if this information was confusing,

Trujillo provides us with no authority, and we are aware of none,

holding that a due process violation occurs when navigating

administrative law is confusing.

¶ 14 Trujillo also responds that she did not receive the procedural

order, but this response repeats the due process arguments that we

have already considered. Accordingly, we reject it.

IV. Disposition

¶ 15 The appeal is dismissed.

JUDGE PAWAR and JUDGE SCHUTZ concur.