author: Judge TAUBMAN.

text:
    Thomas BROWN, Plaintiff-Appellant, v. Steven SILVERN, Defendant-Appellee.
    No. 00CA1126.
    Colorado Court of Appeals, Div. V.
    June 21, 2001.
    Rehearing Denied Sept. 6, 2001.
    Certiorari Denied April 22, 2002.
    See also 989 P.2d 196.

      John L. Springer, Aurora, CO, for Plaintiff-Appellant.
    Treece, Alfrey, Musat & Bosworth, P.C., Michael L. Hutchinson, Carol Lynn Thomson, Denver, CO, for Defendant-Appellee.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.$.2000.

   Opinion by

Judge TAUBMAN.

In this legal malpractice action, plaintiff, Thomas Brown, appeals the trial court's summary judgment in favor of defendant, Steven Silvern. We reverse and remand for further proceedings.

In 1991, Brown was involved in an automobile accident. He hired Silvern to represent him for "all claims arising from the vehicular accident of 7/2/91." In 1992, Brown, through his attorney Silvern, settled the claim against the other driver, who was insured by Metropolitan Property & Casualty Co. (Metropolitan), for $77,500.

Brown owned an automobile insurance policy issued by American Family Insurance Group (American Family), which included underinsured motorist (UIM) coverage of $250,000. The policy contained a consent-to-settle exclusion, eliminating coverage if the policyholder settled a UIM claim without pri- or written consent from American Family. It is uncontested that neither Brown nor Silvern obtained consent from American Family before settling with Metropolitan.

In April 1994, Brown obtained the only copy of his case file from Silvern's office and signed a receipt confirming this action. In July 1994, Brown retained another attorney to represent him in an "insurance bad faith and/or PIP dispute." Eighteen months later, the second attorney made a written demand on American Family for UIM benefits pursuant to Brown's policy. In March 1996, American Family denied Brown's claim on the alternative grounds that: (1) American Family had never consented to the settlement between Brown and Metropolitan as required by the policy; and (2) the statute of limitations had expired.

In July 1996, Brown, through his second attorney, filed a declaratory judgment action against American Family, seeking UIM benefits. The trial court dismissed Brown's lawsuit on the ground that the statute of limitations had expired. The trial court's order was affirmed by a division of this court. See Brown v. American Fomily Insurance Group, 989 P.2d 196 (Colo.App.1999).

While his appeal was pending before this court, Brown filed this legal malpractice action against Silvern. He alleged that Siivern was negligent in failing to file a timely claim against American Family for UIM benefits, failing to obtain American Family's consent before settling with Metropolitan, and failing to advise him of the applicable statute of limitations.

Silvern moved for summary judgment, arguing that his actions were not the proximate cause of Brown's loss because the trial court dismissed Brown's claim against American Family solely on statute of limitations grounds. Silvern further argued that he was not responsible for failing to file that claim within the statute of limitations, because Brown had discharged him and retained a second attorney eighteen months before the statute of limitations had expired. The trial court granted Silvern's motion, concluding that the proximate cause of Brown's injuries was not Silvern's failure to obtain American Family's consent before settling with Metropolitan, but rather Browa's failure to file the declaratory judgment action within the applicable statute of limitations. This appeal followed.

Brown contends that the trial court erred in granting summary judgment because the proximate cause of his injury was Silvern's failure to obtain American Family's consent before settling with Metropolitan, and not the running of the statute of limitations. We agree in part.

Under CRCP. 56(c), summary judgment is proper only when the pleadings, affidavits, depositions, or admissions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Cissell Manufacturing Co. v. Park, 36 P.3d 85 (Colo.App.2001). Appellate review of a summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995). In determining whether summary judgment was appropriate, a reviewing court must view the facts and the inferences therefrom in the light most favorable to the non-movant. Colorado Civil Rights Commission v. North Washington Fire Protection District, 772 P.2d 70 (Colo.1989).

To succeed on a legal malpractice claim founded in negligence, the plaintiff must establish that: (1) the attorney owed a duty of care to the plaintiff; (2) the attorney breached that duty; and (8) the attorney's breach proximately caused damage to the plaintiff. Bebo Construction Co. v. Mattox & O'Brien, P.C., 990 P.2d 78 (Colo.1999).

Establishing proximate cause in a legal malpractice action requires two elements. First, the plaintiff must establish that but for the attorney's actions, the injury would not have occurred. North Colorado Medical Center v. Committee on Anticompetitive Conduct, 914 P.2d 902 (Colo.1996). Second, the plaintiff must establish the "case within a case," which requires proof that the claim underlying the malpractice action should have been successful if the attorney had acted in accordance with his or her duty. Bebo Construction Co. v. Mattox & O'Brien, P.C., supra.

Proximate cause is a question of fact that is properly decided by a fact finder. Ekberg v. Greene, 196 Colo. 494, 588 P.2d 375 (1978).

I. More Than One Proximate Cause

There may be more than one proximate cause of a plaintiff's injury. Rodriguez v. Healthone, 24 P.3d 9 (Colo.App.2000)(medical malpractice claim)(cert. granted June 4, 2001); Eckart v. Industrial Claim Appeals Office, 775 P.2d 97 (Colo.App.1989)(unemployment compensation claim).

Here, the trial court concluded that the proximate cause of Brown's injury was that the UIM claim was filed outside of the statute of limitations. This may be a proximate cause of Brown's injury because, but for his attorney's failure to file the claim timely, Brown would have had a viable claim against American Family for UIM benefits (unless his failure to comply with the consent-to-settle provision barred the claim).

However, the trial court did not consider that there could be more than one proximate cause for Brown's injury. See Rodriguez v. Healthone, supra. Specifically, the court did not consider whether Silvern's failure to obtain consent from American Family before settling with Metropolitan was also a proximate cause of Brown's injury. Had Silvern obtained consent from American Family before accepting Metropolitan's settlement offer, assuming such consent was required, Brown may have had a viable claim against American Family (unless his damages were less than the settlement with Metropolitan).

On remand, the trial court must consider whether there was more than one proximate cause of Brown's injury.

II. Statute of Limitations

Further, we conclude that the summary judgment was inappropriate because at least the statute of limitations issue presents a disputed issue of material fact. The dispute concerns the duration of the parties' attorney-client relationship, which is relevant to the proximate cause analysis. We note that, although the trial court recognized this disputed issue of fact in its order, it did not further address this issue because it determined that Brown's action was entirely barred by the statute of limitations. Because of our conclusion to the contrary discussed above, the fact finder must address this disputed factual issue on remand.

Although Brown presents this argument as an analysis of Silvern's duty of care, other courts addressing this issue have analyzed it in terms of causation. See Faulkner v. Ensz, 109 F.3d 474 (8th Cir.1997); Peters v. Barrett, Twomey, Morris & Broom, 190 Ill.App.3d 709, 138 Ill.Dec. 44, 546 N.E.2d 1099 (1989). Therefore, we will do likewise.

A plaintiff must prove the existence of an attorney-client relationship in order to prevail on a claim of legal malpractice. Mehaffy, Rider, Windholz & Wilson v. Central Bank, N.A., 892 P.2d 230 (Colo.1995). Conversely, when no attorney-client relationship exists between the plaintiff and the attorney, a court may properly dismiss a legal malpractice action. Schmidt v. Frankewich, 819 P.2d 1074 (Colo.App.1991). Further, we agree with the California Supreme Court that "an attorney cannot be held liable for failing to file an action prior to the expiration of the statute of limitations if he ceased to represent the client and was replaced by other counsel before the statute ran on the client's action." See Steketee v. Lintz, Williams & Rothberg, 38 Cal.3d 46, 210 Cal.Rptr. 781, 694 P.2d 1153, 1159 (1985).

Here, it is undisputed that in April 1994 Brown obtained his case file from Silvern and that two months later he retained a second attorney. What is disputed is whether an attorney-client relationship remained between Silvern and Brown after Brown took his case file and retained a second attorney.

In his affidavit, Brown stated that Silvern had recommended that he accept the settlement offer from Metropolitan, commenting that although the amount of the settlement was insufficient to compensate him fully for his injuries, Silvern could still file a UIM claim against American Family for additional compensation. According to Brown, he expected Silvern to file a claim on his behalf for UIM benefits from American Family, even after he obtained the only copy of his case file from Silvern.

Silvern refuted Brown's statement in his affidavit. Silvern stated that he did not agree to pursue UIM benefits for Brown, nor did he think that UIM benefits were "within the realm of possibility." Further, he thought Metropolitan's offer was an excellent settlement for Brown. Thus, Silvern did not believe that Brown wanted him to file a claim for UIM benefits.

Each party presented a different version of the facts,. Therefore, a disputed issue of material fact exists, and summary judgment was not proper on this issue.

III. Consent-to-Settle Clause

On remand, to establish that Sil-vern's failure to obtain American Family's consent before settling with Metropolitan was a proximate cause of his injury, Brown must show that American Family's consent to-settle clause was enforceable and would have been enforced by American Family. The question whether the consent-to-settle clause was enforceable is determined under the law applicable at the time of the alleged malpractice. Nee Jacobson v. Shine, 859 P.2d 911 (Colo.App.1993)(although relevant statute of limitations had been modified, court applied statute of limitations applicable at the time of the alleged malpractice).

Although they are not dispositive, two recent decisions of Colorado's appellate courts may bear on the enforceability of the consent-to-settle clause in 1992, when this aspect of the alleged malpractice occurred. Compare Estate of Harry v. Hawkeye-Security Insurance Co., 972 P.2d 279 (Colo.App.1998)(valid consent-to-settle clause is enforceable without a showing that an insurer has been prejudiced by an insured's settlement without consent), with Clementi v. Nationwide Mutual Fire Insurance Co., 16 P.3d 223 (Colo.2001)(casting doubt on Estate of Harry and applying the notice-prejudice rule to UIM cases).

If Brown can show that the clause is enforceable, based on the law in effect in 1992, and would have been enforced by American Family, then the fact finder may determine whether Silvern's failure to comply with the consent-to-settle clause was a proximate cause of Brown's damages.

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

Judge ROTHENBERG and Judge STERNBERG, concur.


source: Caselaw Access Project

author: Judge RULAND.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lloyd A. BAKER, Defendant-Appellant.
    No. 00CA1134.
    Colorado Court of Appeals, Div. IV.
    Aug. 16, 2001.
    As Modified on Denial of Rehearing Nov. 1, 2001.
    Certiorari Denied April 22, 2002.

      Ken Salazar, Attorney General, Michelle L. Prince, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee,
    Darol C. Biddle, Pueblo, CO, for Defendant-Appellant.
   Opinion by

Judge RULAND.

Defendant, Lloyd A. Baker, appeals from the judgment of conviction entered upon a jury verdict finding him guilty of violating certain bail bond conditions. We affirm.

I.

Defendant first argues that the trial court was without jurisdiction because the information failed to charge an offense with sufficient specificity. We disagree.

As pertinent to this contention, the information alleged:

[Bletween the 13th day of June, A.D.1999 and the 14th day of June, A.D.1999, inclusive, ... LLOYD ANTHONY BAKER, having been released on bail bond ... was accused by information of a felony arising from the conduct for which he was arrested, did unlawfully, knowingly and felo-niously violate a condition of said bail bond, to-wit; LLOYD ANTHONY BAKER, did make contact with [the victim] and did harass, molest, intinudate and tamper with [the victim] and returned to her home as prohibited by bond .... (emphasis supplied)

An information is sufficient to invoke the jurisdiction of the district court if it advises the defendant of the charge so that he can adequately defend himself and so that he can be protected from further prosecution for the same offense. People v. Moore, 200 Colo. 481, 615 P.2d 726 (1980). If, however, the information fails to satisfy these requirements, the conviction is void. People v. Russell, 36 P.3d 92 (Colo.App.2001).

As pertinent here, the offense of violating bail bond conditions is a class six felony that results when the accused fails to comply with a valid condition imposed for the bond. See § 18-8-212(1), C.R.8.2000.

Contrary to defendant's contention, the information here was sufficient. It enumerated with particularity several different bail bond conditions relative to the victim, and it alleged that defendant had violated these conditions. As a result, defendant was able to prepare a defense and, if necessary, to use the information as a bar to multiple prosecutions for the same offense.

IL.

Defendant next contends that § 18-8-212(1) constitutes an unconstitutional delegation of authority to the district court to define a criminal offense and thus violates the separation of powers doctrine. We are not persuaded.

Only the General Assembly may declare specific conduct to be a crime. Further, although the power to enact a law may not be delegated, the power to determine a state of facts upon which the law depends may be. In this situation, the General Assembly must adopt appropriate safeguards by which the delegated power is exercised. People v. Holmes, 959 P.2d 406, 410 (Colo.1998). That is, the General Assembly must provide sufficiently precise standards to guide a judge or jury in deciding whether a crime has been committed. See People v. Smith, 638 P.2d 1, 3 (Colo.1981).

Here, the premise for defendant's constitutional challenge to § 18-8-212(1) is that the General Assembly has delegated to the district courts unfettered authority to craft bail bond conditions prohibiting any type of erim-inal or noneriminal conduct. However, this premise is incorrect.

District courts can only impose bail bond conditions that further the purposes of a bond as identified in the statute. As pertinent here, these conditions include:

A condition of every bail bond ... is that the released person appear to answer the charge against such person.... Further conditions of every bail bond shall be that the released person not commit any felony.... A further condition ... in cases of domestic violence ... shall be that the released person acknowledge the restraining order.... In addition, the judge may impose such additional conditions upon the conduct of the defendant as will, in the judge's opinion, render it more likely that the defendant will fulfill the other bail bond conditions.

Section 16-4-108(2), C.R.8.2000.

Thus, we conclude that § 16-4-108(2) sufficiently limits the court's authority to impose conditions on bail and that, therefore, § 18-8-212(1) does not unconstitutionally delegate authority to define a criminal offense.

TIL

Finally, defendant argues that, as applied to him, § 18-8-212(1) is void for vagueness. Again, we disagree.

To be unconstitutionally vague, a statute must forbid or require the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess as to its meaning and differ as to its application. People v. Lesslie, 24 P.3d 22 (Colo.App.2000).

Section 18-8-212(1) only applies to knowing violations of bail bond conditions, and, as discussed, we are satisfied that the information in this case adequately apprised defendant of the manner in which he had violated those conditions. The conditions are authorized in § 16-4-103(2), and there is no claim that the language in that statute is unconstitutionally vague. Further, the two statutes must be congidered together. See Stjernholm v. Colorado State Board of Chiropractic Examiners, 865 P.2d 853 (Colo. App.1993)(statutes addressing the same subject matter should be read together); see also People v. Schwartz, 678 P.2d 1000 (Colo.1984). Accordingly, we reject defendant's vagueness challenge to the statute.

The judgment is affirmed.

Judge ROTHENBERG and Judge VOGT concur.


author: Judge CASEBOLT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lawrence MYERS, Defendant-Appellant.
    No. 99CA1379.
    Colorado Court of Appeals, Div. II.
    Aug. 16, 2001.
    Rehearing Denied Nov. 1, 2001.
    Certiorari Denied April 29, 2002.

      Ken Salazar, Attorney General, Matthew S. Holman, Assistant Attorney General, Denver, Co, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.
   Opinion by

Judge CASEBOLT.

Defendant, Lawrence Myers, appeals the sentence imposed following his guilty plea to sexual assault on a child as part of a pattern of abuse. We affirm in part, reverse in part, and remand with directions.

Defendant's conviction stems from his sexual assault on his step-daughter by forcing her to have sexual intercourse with him two or three times each week for more than four years. The victim was between nine and thirteen years old when the assaults occurred.

Pursuant to a plea agreement, defendant pleaded guilty to sexual assault on a child as part of a pattern of abuse, and the prosecution agreed to dismiss the remaining charges. In addition, the parties agreed that defendant would be sentenced to between ten and sixteen years in prison.

Defendant was thereafter sentenced to a sixteen-year prison term. The trial court indicated at the sentencing hearing and on the mittimus that defendant would also be required to serve a mandatory parole period not to exeeed sixteen years.

I.

On appeal, defendant first contends that the trial court abused its discretion by sentencing him to the maximum allowable sentence in the presumptive range. More specifically, he maintains that the trial court overemphasized the nature of the offense and did not give sufficient consideration to arguably mitigating factors. We find no abuse of discretion by the trial court.

Here, as previously noted, the parties agreed that defendant would be sentenced to between ten and sixteen years in prison, which is the presumptive range of sentences applicable to defendant's offense. See §§ 16-11-8309, 18-1-105(1)(a)(V)(A), 18-1-105(9.7)(b)(1)(V), 18-8-405(8)(b), C.R.8.2000.

Sentencing is by its very nature a discretionary function, and because the trial court is more familiar with the defendant and the circumstances of the case, it is accorded wide latitude in its decisions on such matters. People v. Fuller, 791 P.2d 702 (Colo.1990). Thus, a trial court's sentencing decision will not be disturbed absent a clear abuse of discretion. People v. Watkins, 684 P.2d 234 (Colo.1984).

In exercising its sentencing discretion, a trial court must consider the nature and elements of the offense, the character and rehabilitative potential of the offender, any aggravating or mitigating cireumstances, and the public interest in safety and deterrence. The court may not place undue emphasis on any one of these factors to the exclusion of the others. People v. Piro, 701 P.2d 878 (Colo. App.1985).

The fact that a sentencing court finds aggravating factors to be more compelling than mitigating factors does not constitute an abuse of discretion or indicate that the trial court failed to consider evidence of mitigation. People v. Hernandez-Luis, 879 P.2d 429 (Colo.App.1994). Indeed, the circumstances of a crime alone may justify the imposition of a lengthy sentence. People v. Vigil, 718 P.2d 496 (Colo.1986). And, a lengthy sentence may be justified even in the absence of a prior eriminal record when the offense is particularly egregious. People v. Mattas, 645 P.2d 254 (Colo.1982).

Here, contrary to defendant's assertion, the record reflects that the sentencing court considered his evidence in mitigation, including his military service, employment history, and lack of a eriminal record. Indeed, the court expressly acknowledged these mitigating factors in its findings at the conclusion of the sentencing hearing.

However, the court also considered the serious nature of the offense, the fact that defendant forced the victim to have sexual intercourse with him "a hundred times or more," the length of time over which the abuse occurred, defendant's repeated threats to kill the victim and himself if she reported the assaults, the victim's age, and the impact of the crime on the victim and her mother. In its findings, the court indicated that the aggravating evidence was more compelling than defendant's evidence in mitigation and concluded that the sentence was justified primarily by the nature of the offense and its continuing effect on the victim.

We find no abuse of discretion in the sentence imposed. It is within the range required by law, based on appropriate considerations as reflected in the record, and factually supported by the circumstances of the case. See People v. Fuller, supra.

IL.

Defendant also contends that he is subject to discretionary, not mandatory parole, and that the trial court thus erred by imposing as part of his sentence a mandatory period of parole not to exceed sixteen years. We agree.

The supreme court's recent decisions in Martin v. People, 27 P.3d 846 (Colo.2001), and People v. Cooper, 27 P.3d 848 (Colo.2001), are dispositive of defendant's claims.

In Martin and Cooper, the court recognized that the mandatory parole provisions of § 18-1-105(1)(a)(V)(A), C.R.8.2000, generally apply to offenses committed on or after July 1, 1998. However, in each case, the court held that a person convicted of a sex offense is subject to the more specific provisions of § 17-2-201(5), C.R.8.2000. The date of defendant's offense determines which subsection of that statute is applicable.

In Martin, the court held that a person convicted of a sex offense committed after July 1, 1998, but before July 1, 1996, is subject to a period of discretionary parole pursuant to § 17-2-201(5)(a), C.R.S$.2000, which vests the parole board with the sole discretionary authority to grant or deny parole to sex offenders and to set the length of the parole term. Under that statute, the length of any discretionary parole period granted by the parole board may not exceed the unserved remainder of the maximum sentence imposed by the court or five years, whichever is less. Martin v. People, supra.

In Cooper, the supreme court held that a person convicted of a sex offense committed between July 1, 1996, and November 1, 1998, is subject to a period of discretionary parole pursuant to § 17-2-201(5)(a.5), C.R.8.2000. Under that statute, the parole board is vested with the sole discretionary authority to grant or deny parole to sex offenders and to set the length of the parole term, but in no event may the term of parole exceed the undischarged portion of the maximum sentence imposed by the court. People v. Cooper, supra.

Thus, the length of any discretionary parole granted under § 17-2-201(5)(a.5), is not subject to the five-year cap that limits parole granted under § 17-2-210(5)(a). People v. Cooper, supra.

Here, the mittimus indicates that defendant's offense was committed between January 1, 1994, and July 6, 1998, a period to which both §§ 17-2-201(5b)(a) and 17-2-201(5)(a.5) apply. Accordingly, defendant is subject to discretionary, rather than mandatory parole. See Martin v. People, supra; People v. Cooper, supra.

Because defendant's crime was committed during a period covered by both statutes, we must next determine which subsection governs the length and terms of any discretionary parole period defendant is granted by the parole board.

A crime "is not committed until all the elements are complete." People v. Flagg, 18 P.3d 792, 794 (Colo.App.2000). Here, by pleading guilty, defendant admitted that he sexually assaulted the victim for a period up to and including July 6, 1998, the last date alleged in the charge. Accordingly, we must conclude that the elements of the crime were not complete, and the crime was not committed, until July 6, 1998.

Therefore, if the parole board releases defendant to a period of discretionary parole when he has more than five years of his prison sentence remaining, the length of the parole period may be up to the full amount of the unserved portion of his sentence and would not be subject to the five-year cap. See People v. Cooper, supra; see also People v. Flagg, supra (defendant was properly required to serve mandatory period of parole because, by pleading guilty, he admitted that the charged crime occurred between two dates, one of which was after the effective date of the mandatory parole statute); cf. People v. Glover, 893 P.2d 1311, 1315 (Colo.1995)(when a conviction must be vacated as duplicative, the trial court should select the "combination of offenses that produce[s] the most convictions and the longest sentences in order to maximize the effect of the juries verdicts").

The sentence is reversed as to the imposition of mandatory parole and is affirmed in all other respects. The case is remanded to the trial court with directions to issue an amended mittimus reflecting that defendant is subject to discretionary parole pursuant to § 17-2-201(5)(a.8).

Judge PLANK and Judge NEY concur.


author: Judge ROY.

text:
    FARMERS INSURANCE EXCHANGE, Applicant-Appellant and Cross-Appellee, v. Colleen TAYLOR, Respondent-Appellee and Cross-Appellant.
    No. 99CA2388.
    Colorado Court of Appeals, Div. A.
    Aug. 16, 2001.
    Rehearing Denied Nov. 1, 2001.
    Certiorari Denied April 29, 2002.

      Levy, Morse & Wheeler, P.C., Mare Levy, Jane E. Young, Englewood, CO, for Applicant-Appellant and Cross-Appellee.
    Kidneigh & Kaufman, P.C., Stephen C. Kaufman, Denver, CO, for Respondent-Ap-pellee and Cross-Appellant.
   Opinion by

Judge ROY.

Farmers Insurance Exchange (the insurer) appeals the trial court's order denying its motion to modify or correct an arbitration award and confirming that award in favor of Colleen Taylor (the insured). We affirm.

In October 1998, the insured was involved in an automobile accident in Tennessee while driving her daughter's vehicle. The insured settled with the underinsured tortfeasor for $25,000. She settled with her daughter's insurance carrier for $75,000, the limits of the daughter's policy less the settlement with the underinsured tortfeasor.

The insured also submitted an underin-sured motorist claim to her own carrier, the insurer here. While there is disagreement as to its applicability, it is undisputed that the insured's policy contained an uninsured or underinsured motorist claim limit of $100,000. The parties then entered into arbitration on the claim pursuant to the terms of the policy.

The policy provided for arbitration as follows:

If an insured person and we do not agree (1) that the person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle, or (2) as to the amount of payment under this part, either that person or we may demand that the issue be determined by arbitration.
The arbitrator shall determine (1) the existence of the operator of an uninsured motor vehicle, (2) that the insured person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle, and (8) the amount of payment under this part as determined by this policy or any other applicable policy. (underlining added)

It is also undisputed that the uninsured motorist coverage also includes underinsured motorists coverage and that at the arbitration the insurer did not submit any evidence establishing the policy limits or the insured's previous recovery from third parties. The arbitrator awarded the insured $513,960 in damages together with $270,968.98 in costs and interest.

The insurer did not file an application with the arbitrator pursuant to § 18-22-211, C.R.S$.2000, to modify or change the award. Instead, the insurer filed an application with the trial court pursuant to § 18-22-214, C.R.8.2000, to vacate the award and pursuant to § 18-22-215, C.R.8.2000, to modify or correct the arbitration award. The insured filed a counterclaim requesting confirmation of the award.

The trial court denied the insurer's application, confirmed the award, and stated in part:

[TJhe arbitration clause in this case placed "the amount of payment" [from the insurer] directly before the Arbitrator. Further, the arbitration clause in this matter does not state that the Arbitrator is to determine the amount of payment subject to the policy limitations. The court finds that in light of ... the fact that the Arbitrator in this matter was not presented with the policy limitations prior to or during the arbitration hearing, the plain meaning of the phrase "amount of payment," and the absence of any language qualifying the Arbitrator's power to determine the amount of payment within the arbitration clause, the Arbitrator had jurisdiction to determine the amount of payment that should be made, without qualification.

The trial court entered judgment against the insurer in the amount of $784,928.93. By subsequent order, the trial court granted the insured postjudgment interest from the date of the arbitration award, pursuant to § 5-12-102(4)(b), C.R.8.2000.

This appeal followed. Also, the insured filed a cross-appeal concerning the trial court's failure to strike the insurer's untimely reply to the amended counterclaim.

I.

The insurer contends that the trial court erred in not modifying the arbitration award because the arbitrator exceeded his authority. The insurer specifically claims that: (1) the arbitration clause did not empower the arbitrator to determine the amount of payment the insured was to receive from the insurer under the underin-sured motorist coverage; (2) the arbitrator impermissibly awarded the insured "damages against" the insurer; (8) the award, including the prejudgment interest, impermissibly exceeds the applicable policy limit; and (4) the arbitrator failed to subtract from the damages awarded the amounts the insured received from the tortfeasor and her daughter's insurer. We find no error in the trial court's ruling.

Colorado adopted the Uniform Arbitration Act (UAA), § 18-22-201, et seq., C.R.S.2000, to provide a uniform statutory framework for arbitration and to encourage the settlement of disputes through the arbitration process. To facilitate confidence in the finality of this process and to discourage piecemeal litigation, the role of the courts in evaluating an arbitration award is strictly limited, and there is a heavy burden on a party attacking an arbitration award. The arbitrator is the final judge of both fact and law. See generally Judd Construction Co. v. Evans Joint Venture, 642 P.2d 922 (Colo.1982).

In the absence of statutory grounds to vacate, modify, or change an arbitration award, a trial court may not review the merits of the award. McNaughton & Rodgers v. Besser, 932 P.2d 819 (Colo.App.1996). These statutory grounds include, as applicable here, that the court must vacate an award when an arbitrator exceeds his or her authority. Section 18-22-214(1)(a)(II1), C.R.8.2000.

To determine whether the arbitrator exceeded his authority here within the meaning of § 13-22-214(1)(a)(II1), we must determine the seope of the arbitration clause contained in the insurance policy.

When a contractual clause is clear and unambiguous, courts should neither rewrite it nor limit its effect by a strained construction. State Farm Mutual Automobile Insurance Co. v. Stein, 940 P.2d 384 (Colo.1997). Thus, in the absence of ambiguity, an insurance policy must be given effect according to the plain and ordinary meaning of its terms. Farmers Insurance Exchange v. Dotson, 918 P.2d 27 (Colo.1996).

The insurer argues that the arbitration clause is limited and empowers the arbitrator only to determine the "amount of payment" the insured is legally entitled to recover from the underinsured motorist, not from the insurer. Without admitting that the policy is ambiguous, the insurer urges us to consider that other states have construed similar provisions to limit the arbitration to the damages recoverable from the uninsured or un-derinsured motorist. See, e.g., Assicurazioni Generali, S.P.A. v. Clover, 195 F.3d 161 (3d Cir.1999); Allstate Insurance Co. v. Cook, 21 Ariz. App. 813, 519 P.2d 66 (1974); Liberty Mutual Insurance Co. v. Morgan, 138 Ill.App.3d 938, 93 Ill.Dec. 557, 487 N.E.2d 1 (1985); Selected Risks Insurance Co. v. Schulz, 136 N.J.Super. 185, 345 A.2d 349 (1975); but see, Zimmerman v. Illinois Farmers Insurance Co., 317 Ill.App.3d 360, 251 Ill.Dec. 57, 739 N.E.2d 990 (2000). Consequently, in the insurer's view, the arbitrator exceeded his authority by awarding "damages against" the insurer.

However, the authority relied upon by the insurer construes language similar to that in the first quoted paragraph, but does not concern the second paragraph. The second quoted paragraph specifies that the arbitrator is to determine "the amount of payment under this part as determined by this policy or any other applicable policy." The cases relied upon by insurer interpret policies that do not contain language similar to this see-ond paragraph. Further, the terms of the policy do not govern the extent of the liability of the underinsured motorist to the insured.

Thus, in our view, the arbitration provision unambiguously requires arbitration of the insurer's obligation to the insured under the policy. In other words, the arbitrator was clearly empowered to determine, and did not exceed his jurisdiction by determining, the amount of underinsured motorist benefits payable to the insured under the terms of the policy.

IL

We now consider whether the award is subject to judicial modification by the application of the policy limits and the amount of benefits the insured previously received from third parties We conclude that the award is not modifiable.

Unless an agreement or statute provides otherwise, the parties to an arbitration have an absolute right to be heard and present evidence before the arbitrator and to have a fair opportunity to rebut the evidence and arguments presented by the opposing party. See Dodge City, Inc. v. Chrysler Motors Corp., 780 P.2d 41 (Colo.App.1989). Because judicial review of an arbitration award is limited by the presumption favoring finality, the parties to an arbitration are obligated likewise to present all relevant arguments, defenses, and evidence during the arbitration. Fisher v. State Farm Mutual Automobile Insurance Co., 248 Cal.App.2d 749, 52 Cal.Rptr. 721 (1966)(where a party failed to produce evidence at arbitration on an issue properly before the arbitrator pursuant to a broad arbitration agreement, that party cannot subsequently seek modification if the only reason for the erroneous award is that party's failure to produce evidence on the issue).

The jurisdiction of the courts to modify an arbitration award is controlled by § 18-22-215(1), C.R.S.2000, which provides, in pertinent part:

Upon application made within thirty days after delivery of a copy of the award to the applicant, the court shall modify or correct the award where ...
(b) The arbitrators awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
(c) The award is imperfect in a matter of form, not affecting the merits of the controversy.

Here, the policy limits and setoff amounts were affirmative defenses to the insurer's obligation to pay benefits to the insured, because, if applicable, those limits and setoffs would have considerably reduced the arbitration award. CJ. C.R.C.P. 8(c)("In pleading to a preceding pleading, a party shall set forth affirmatively ... payment ... and any other matter constituting an avoidance or affirmative defense," and "[alny mitigating circumstances to reduce the amount of damage shall be affirmatively pleaded."); 2 Moore's Federal Practice § 8.07{[1]-{[2] (8d ed. 1997)("Affir-mative defenses, if accepted by the court, will defeat an otherwise legitimate claim for relief.").

The insurer asserts that the arbitrator was advised at the hearing that any award would be subject to policy limits and setoffs. However, there is nothing in the record to support the assertion that the arbitrator was so advised, and no evidence in that regard was submitted to the arbitrator. Even assuming that the insurer did not waive these defenses by failing to raise them during arbitration, it nevertheless failed to meet its burden of production and proof of the policy limits and the amount of any setoffs. Cf. Brooks v. Bank of Boulder, 891 F.Supp. 1469 (D.Colo.1995)(the party asserting the affirmative defense bears the burden of persuasion); Fidelity & Deposit Co. v. Colorado Ice & Storage Co., 45 Colo. 443, 108 P. 383 (1909)(burden of proof on appellant to sustain proffered affirmative defense); Tracz v. Charter Centennial Peaks Behavioral Health Systems, Inc., 9 P.3d 1168 (Colo.App.2000)(initial burden of production on party asserting affirmative defense).

Thus, we reject the insurer's argument that the policy limits and setoff amounts were neither relevant to nor probative of the issues submitted to arbitration. Moreover, contrary to the insurer's related argument, submission of such evidence would not necessarily place the policy limits or set-offs into dispute. However, even assuming otherwise, a dispute over the policy limits and setoffs would be an arbitrable issue. See State Farm Mutual Automobile Insurance Co. v. Cabs, Inc., 751 P.2d 61 (Colo.1988).

Finally, we are not persuaded by the insurer's reliance on Kutch v. State Farm Mutual Automobile Insurance Co., 960 P.2d 98 (Colo.1998), for the proposition that an arbitration award for uninsured or underinsured motorist coverage that exceeds the applicable policy limits must be vacated if a timely proceeding is commenced in court pursuant to the UAA. In Kutch, the insurer and insured proceeded to arbitration on an uninsured or underinsured motorist claim. The policy limits were not introduced during the arbitration, and the insurer did not seek to have the court vacate the award pursuant to § 18-22-214 or to modify or change the award pursuant to § 18-22-215(1) within the thirty-day limit required by both sections. The supreme court held that the insurer's failure to seek vacation or modification of the award based on policy limits in a timely manner barred it from raising the issue during later confirmation proceedings. The court indicated that the award would have been modifiable upon timely application. However, there, the arbitration provision limited the arbitrable issue to whether the insured was entitled to collect damages from the underin-sured owner or driver, and the amount of those damages. Here, as the insurance policy states, and we have held, the underin-sured motorist benefit payable to the insured was specifically arbitrable and was submitted to arbitration.

As the supreme court in Kutch recognized with respect to that result, we are not unmindful that this opinion may be perceived as producing an inequitable result. However, excusing procedural defaults during or following arbitration would undermine the use of arbitration as a method of resolving disputes efficiently, conclusively, and comprehensively. See Kutch v. State Farm Mutual Automobile Insurance Co., supra.

We conclude that the trial court did not err in confirming the arbitration award. Having so held, we need not address the insured's cross-appeal.

Judgment affirmed.

Judge PLANK and Judge TAUBMAN concur.


author: Judge NIETO.

text:
    Taylor HAWES and Colorado Health Care Conversion Project, Appellants, and Kelly/Haglund/Garnsey + Kahn, LLC, and Colorado Center on Law and Policy, Attorneys-Appellants, v. COLORADO DIVISION OF INSURANCE; William J. Kirven, III, in his capacity as Commissioner of Insurance; Rocky Mountain Hospital and Medical Service, Inc., d/b/a Anthem Blue Cross Blue Shield of Colorado, a Colorado insurance corporation, a continuation of Rocky Mountain Hospital and Medical Service, d/b/a Blue Cross Blue Shield of Colorado, a Colorado nonprofit hospital, medical-surgical health service corporation; Anthem Insurance Companies, Inc., an Indiana mutual insurance company; Anthem West, Inc., an Indiana stock insurance company; and Caring for Colorado Foundation, Appellees.
    No. 00CA1144.
    Colorado Court of Appeals, Div. IV.
    Sept. 13, 2001.
    Certiorari Granted April 22, 2002.

      Kelly/Haglund/Garnsey + Kahn LLC, Edwin S. Kahn, Christine L. Murphy, Denver, CO, for Appellant Taylor Hawes.
    Colorado Center on Law and Policy, Elisabeth D. Arenales, Denver, CO, for Appellant Colorado Health Care Conversion Project and for itself as Attorney-Appellant.
    Hamil Professional Corporation, J. Lawrence Hamil, Michelle W. Stern, Denver, CO, for Attorney-Appellant Kelly/Haglund/Garn-sey + Kahn, LLC.
    Ken Salazar, Attorney General, Robert M. Howard, Senior Assistant Attorney General, Denver, CO; Cantilo & Bennett, LLP., Patrick H. Cantilo, Special Assistant Attorney General, Austin, TX, for Appellees Colorado Division of Insurance and William J. Kirven, TII, Commissioner of Insurance.
    Sherman & Howard, LL.C., Frederick Y. Yu, Denver, CO, for Appellees Rocky Mountain Hospital and Medical Service, Inc., Anthem Insurance Companies, and Anthem West, Inc.
    Baker & Hostetler LLP, Alfred C. Chides-ter, Mare D. Flink, Denver, CO, for Appellee Caring for Colorado Foundation.

       Justice COATS does dot participate.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 53), and § 24-51-1105, C.R.$.2000.

   Opinion by

Judge NIETO.

Appellants, Taylor Hawes, Colorado Health Care Conversion Project (CHCCP) and their respective attorneys, Kelly/Ha-glund/Garnsey + Kahn, LLC, and Colorado Center on Law and Policy, appeal the order of William J. Kirven, III, the Colorado Commissioner of Insurance, denying their application for attorney fees and expenses in the matter of Rocky Mountain Hospital and Medical Service, d/b/a Blue Cross and Blue Shield of Colorado (Blue Cross), Plan of Conversion to a Stock Insurance Company and Application for Amended Certificate of Authority. We affirm.

In 1999, Blue Cross successfully applied to the Commissioner pursuant to § 10-16-8324, C©.R.8.2000, for conversion from a nonprofit corporation to a for-profit stock insurance company. The Commissioner granted Hawes and CHCCP full party status in the conversion proceedings where they were represented by their respective attorneys. As a result of the conversion process, Anthem West, Inc., a subsidiary of Anthem Insurance Companies, Inc. (collectively Anthem), acquired all the shares of Blue Cross. The business continued under the name Anthem Blue Cross Blue Shield of Colorado.

As a part of the conversion plan and in compliance with §$ 10-16-3824(4)(e), CRS. 2000, Anthem paid to Caring for Colorado Foundation (Foundation) the fair market value of Blue Cross. See Hawes v. Colorado Division of Insurance, 32 P.3d 571 (Colo.App.2001). The Foundation is a nonprofit corporation created to receive and use the funds to serve the health care needs of Colorado citizens.

After the Commissioner rendered his decision on the conversion request, counsel applied for an award of attorney fees and expenses to be paid from the funds paid to the Foundation. The Commissioner denied the application after determining that he lacked authority to make such an award. It is from this denial that counsel and their clients appeal.

Appellants contend the Commissioner erred in his determination that he lacked authority to make an award of attorney fees and costs under the common fund doctrine. We disagree.

Section 10-16-824 sets forth in detail the requirements for the conversion plan and grants the Commissioner authority to approve or disapprove it, Section 10-16-324(7), C.R.S.2000, provides that the Commissioner must hold a hearing pursuant to the State Administrative Procedure Act, § 24-4-101, et seq., C.R.8.2000, before making a final decision to approve or disapprove the conversion plan.

Review of the Commissioner's decision is by this court. Section 10-16-824(15), C©.R.S.2000. Upon review, we are to determine all questions of law and interpret the statutory and constitutional provisions applicable. Section 24-4-106(7) and (11), C.R.S. 2000. We may reverse an administrative decision if the agency made an erroneous determination of law. Committee for Better Health Care for All Colorado Citizens v. Meyer, 830 P.2d 884 (Colo.1992).

When the issue is a matter of law, our review is de movo. Ginny's Kids International, Inc. v. Office of the Secretary of State, 29 P.3d 333 (Colo.App.2000).

Colorado generally follows the American Rule regarding the recovery of attorney fees. That rule provides that attorney fees are not recoverable absent statutory authority, procedural rule, or contractual provision authorizing recovery. Waters v. District Court, 935 P.2d 981 (Colo.1997). The power to authorize an award of attorney fees in proceedings before administrative bodies is a fundamental legislative prerogative. Mountain States Telephone & Telegraph Co. v. Public Utilities Commission, 195 Colo. 130, 576 P.2d 544 (1978) (Mountain States II ).

The common fund doctrine is an equitable doctrine recognized in Colorado law and is an exception to the American Rule. It allows attorney fees of a party, incurred for the creation or protection of a fund that has benefited others similarly situated, to be recovered from that fund. "The common fund doctrine applies when a plaintiff, either as an individual or a class representative, creates, increases, or preserves a monetary fund for the benefit of an ascertainable class of persons similarly situated." Kuhn v. State of Colorado, 924 P.2d 1053, 1058 (Colo.1996).

We note that no constitutional or statutory provisions specifically authorized the Commissioner to consider counsel's application for attorney fees and expenses. Article IV, section 28 of the Colorado Constitution requires that the governor appoint the Commissioner of Insurance, but it does not specify the duties or powers of the Commissioner. Section 10-1-108, C.R.S8.2000, establishes the duties of the Commissioner, but it does not grant the Commissioner authority to award attorney fees under the common fund doctrine. Appellants do not argue that such specific authority exists. Rather, they rely on the Commissioner's inherent or implied power to grant their application pursuant to the common fund doctrine.

I.

Appellants first argue that § 10-1-101, C.R.9S.2000, should be read to empower the Commissioner to award attorney fees under the equitable common fund doctrine. We disagree.

Section 10-1-101 is a legislative declaration of policy and states in part:

Such policy requires that all persons having to do with insurance services to the public be at all times actuated by good faith in everything pertaining thereto, abstain from deceptive or misleading practices, and keep, observe, and practice the principles of law and equity in all matters pertaining to such business.

Appellants assert that the Commissioner is a "person having to do with insurance services to the public" and that he must "practice the principles of law and equity." Therefore, appellants argue, the Commissioner has authority to award attorney fees pursuant to the equitable common fund doctrine.

The legislative declaration in § 10-1-101 expresses the general legislative intent in enacting title 10 of Colorado Revised Statutes, but it cannot be read as a grant of authority to the Commissioner to award attorney fees, The power to authorize the award of attorney fees in proceedings before administrative bodies is "generally accepted as a fundamental legislative prerogative." Mountain States II, supra, 195 Colo. at 134, 576 P.2d at 547. We conclude that the General Assembly did not exercise this fundamental prerogative by the enactment of the legislative declaration in § 10-1-101. This conclusion is supported by the General Assembly's specification of the Commissioner's duties in § 10-1-108, which does not grant such authority.

IL.

Appellants next assert that, because the Commissioner has statutory authorization to exercise other powers that are equitable in nature, he must also have equitable authority to grant fees under the common fund doctrine. Again, we disagree.

An agency's powers are limited to those granted to it by the legislation that created the agency. Agency actions outside the grant of authority are not merely erroneous, but are void. Flavell v. Department of Welfare, 144 Colo. 203, 355 P.2d 941 (1960).

Appellants point out that § 10-1-111(4), C©.R.8.2000, grants the Commissioner authority to issue cease and desist orders to insurance companies under certain cireumstances. Section 10-83-1108, C.R.9$.2000, allows the Commissioner to order certain persons found to have engaged in unfair competition or deceptive practices to cease and desist from such acts. He is also authorized to order restitution to victims of reinsurance violations under § 10-2-911, C.R.S.2000.

While injunctions and restitution are equitable in nature, it does not necessarily follow that such specific grants of equitable authority imply a grant of other equitable powers to the Commissioner. Further, the statutory authorizations cited above are not grants of general powers. They are specific grants of authority to use equitable remedies in limited and carefully cireumseribed situations. Hence, we are not persuaded that these specific grants of equitable authority imply a grant of other equitable powers.

IIL.

Appellants also argue that the conversion statute, $ 10-16-824, and proceedings thereunder are equitable in nature and that by implication the Commissioner must have authority to apply equitable remedies. We do not agree.

The General Assembly has granted the Commissioner broad authority to carry out his dutics. Hartford Fire Insurance Co. v. Colorado Division of Insurance, 824 P.2d 76 (Colo.App.1991). A statutory grant of authority confers implied powers reasonably necessary for the proper exercise of the authority. Colorado State Board of Land Commissioners v. Colorado Mined Land Reclamation Board, 809 P.2d 974 (Colo.1991).

While the Commissioner assumed, and we have no reason to doubt, that counsel's efforts enhanced the value of the consideration paid to the foundation, we nevertheless conclude the authority to award attorney fees pursuant to the common fund doctrine is not reasonably necessary for the Commissioner to carry out his duties under § 10-16-8324.

Section 10-16-8324 provides the Commissioner with the means to see that the conversion plan did not prejudice the Blue Cross subscribers or the citizens of Colorado. Seetion 10-16-824(5), C.R.S.2000, permits the Commissioner to retain qualified experts such as attorneys, accountants, actuaries, and financial analysts to assist him in reviewing the proposed conversion plan. The Commissioner also has the Attorney General available as his legal counsel and advisor in carrying out his statutory duties. Section 24-81-101, C.R.$.2000.

Because the General Assembly has provided the Commissioner with the means to obtain assistance of the same nature as that provided by counsel, the assistance of counsel was not reasonably necessary for the Commissioner to perform his duties under § 10-16-824. Accordingly, we conclude that § 10-16-324 does not contain implied authority for the Commissioner to award fees and expenses under the common fund doctrine.

IV.

Finally, appellants assert that the authority of the Commissioner is fully analogous to the authority of the Public Utilities Commission (PUC) to award fees for services deemed to have produced a common fund or common benefit. Again, we are not persuaded.

The PUC has authority to award fees when the efforts of a party produce a common fund, Mountain States Telephone & Telephone Co. v. Public Utilities Commission, 180 Colo. 74, 502 P.2d 945 (1972), and when the efforts produce a common benefit, Mountain States II, supra. However, the authority granted to the PUC is more extensive than that granted to the Commissioner.

In Mountain States II, the supreme court stated that the power to authorize an award of attorney fees in cases before an administrative body is a legislative prerogative and that article XXV of the Colorado Constitution delegated legislative authority in public utility matters to the PUC. No similar grant of legislative authority to the Commissioner is provided by article IV, section 28, of the Colorado Constitution or by any act of the General Assembly. Thus, we conclude that the authority of the Commissioner is not analogous to that of the PUC in this respect.

Accordingly, we agree with the Commissioner that he lacked authority to award attorney fees and expenses here.

Because we have determined that the Commissioner did not have such authority, we need not decide whether the common fund doctrine applies in these particular circumstances.

The order is affirmed.

Judge ROTHENBERG and Judge CRISWELL, concur.


author: Judge NEY.

text:
    Leonard H. AINSWORTH, Petitioner-Appellant, v. COLORADO LIMITED GAMING CONTROL COMMISSION and Colorado Division of Gaming, Respondents-Appellees.
    No. 00CA1424.
    Colorado Court of Appeals, Div. I.
    Oct. 11, 2001.

      Certiorari Denied April 29, 2002.

      Baker & Hostetler, LLP., Phillip S. Lorenzo, Rebecca C. Alexander, Steven A. Klen-da, Denver, CO, for Petitioner-Appellant.
    Ken Salazar, Attorney General, Ceri Williams, Assistant Attorney General, Denver, CO, for Respondents-Appellees.

       Justice MULLARKEY would grant as to the following issues:
      Whether an alleged de facto determination of unsuitability by the Division of Gaming constitutes an appealable agency action subject to judicial review pursuant to section 24-4-106, 7 C.R.S. (2001).
      Whether a person is aggrieved and entitled to an adjudicatory hearing pursuant to Limited Gaming Regulation, 47.1-208, 1 Code Colo. Reg. 207-1, when it is alleged that the Division of Gaming rendered a de facto unsuitability determination that is not recognized by the limited gaming statutes and regulations, but the Commission has made no corresponding unsuitability determination.
      Whether the court of appeals impermissibly substituted its judgment for that of the Gaming Commission on matters within the sound discretion of the Commission and whether the Commission's order dismissing Ainsworth's petition for an adjudicatory hering for failure to state a claim upon which relief could be granted was a valid exercise of the Gaming Commission's sound discretion.
      Whether Ainsworth Petition failed to state a claim for declaratory relief absent a present, cognizable controversy and whether the court of appeals misapprehended the statutory scheme of the Colorado Limited Gaming Act.

   Opinion by

Judge NEY.

Petitioner, Leonard H. Ainsworth, appeals from an order of the Colorado Limited Gaming Control Commission (the Commission) dismissing his petition for an adjudicatory hearing or, in the alternative, request for declaratory judgment against the Colorado Division of Gaming (the Division). We affirm in part, set aside in part, and remand for an adjudicatory hearing.

Aristocrat, Inc., is an Australian slot machine manufacturer doing business in Colora do. In July 1997, the Commission issued a Notice of Denial against Aristocrat's manufacturer/distributor license. One of the grounds for the denial was an allegation of influence by persons, including petitioner, not approved for association with the company. This allegation was made pursuant to § 12-47.1-801(2), C.R.S.2001, which requires that those persons associated with an applicant must be persons of integrity, whose prior activities do not pose a threat to the control of gaming or enhance the danger of improper practices or acts.

Petitioner filed a motion to intervene in the denial proceedings, which was denied. His appeal of that denial was pending when he entered into a Stipulation and Agreement (the agreement) with the Division, "in leu of other proceedings by which [petitioner] might seek to prove his suitability for association with [Aristocrat], including a hearing before the Commission to determine the merits of such allegations, and his appeal of the denial of intervention." As part of the agreement, petitioner agreed to "withdraw his petition for standing to intervene in this matter, and ... waive[d] any right to appeal or otherwise challenge any rulings related to him in these proceedings." The Commission approved the agreement and entered it as a consent order.

Subsequently, petitioner filed a Petition for an Adjudicatory Hearing and, or in the Alternative, Request for Declaratory Judgment with the Commission, pursuant to Dep't of Revenue Regs. 47.1-208, -601, 1 Code Colo. Regs. 207-1. In the petition he alleged that the Division "had either formally restricted one or more Colorado gaming licensees from associating with him, or suggested that asso-clating with him might adversely affect ... future licensing decisions." Petitioner also alleged that the Division improperly continued to supply other jurisdictions with adverse information regarding his suitability. Petitioner alleged that the Division breached the agreement and that its "de facto" finding that he was unsuitable was contrary to the holding in In re Aristocrat, Inc., 978 P.2d 727 (Colo.

The Commission, without a hearing, dismissed the petition for failure to state a claim upon which relief could be granted under Dep't of Revenue Regs. 47.1-601, -602. As a basis for its dismissal, the Commission found that the agreement related to the matter of Aristocrat's license application, which had been concluded, and that issues pertaining to petitioner's "suitability or to the status of licenses or application for licenses are beyond the seope of the Aristocrat proceedings from which the ... agreement arose." This appeal followed.

I.

The Commission is charged with establishing procedures to determine the suitability or unsuitability of persons, acts, or practices. Section 12-47.1-302(2)(m), C.R.S.2001. Suitability, in relation to a person, is the ability to be licensed by the Commission. Section 12-47.1-108(29), C.R.S.2001. In contrast, unsuitability means the inability to be licensed by the Commission because of prior acts, associations, or financial conditions. Section 12-47.1-108(80), C.R.8.2001.

A person found unsuitable by the Commission may not directly or indirectly own any voting security of a licensee. Dep't of Revenue Reg. 47.1-509(6), 1 Code Colo, Regs. 207-1.

Our review is limited by the standard set forth in § 24-4-106(7), C.R.8.2001, which requires that the agency action be affirmed unless the court finds that the agency exceeded its constitutional or statutory authority, made an erroneous interpretation of law, acted in an arbitrary or capricious manner, or made a determination that is unsupported by the evidence in the record. Wildwood Child & Adult Care Program, Inc. v. Colorado Dept of Public Health & Environment, 985 P.2d 654 (Colo.

"In sum, the courts may not overturn agency actions unless such actions are arbitrary, capricious, legally impermissible, or an abuse of discretion." Colorado Real Estate Comm'n v. Hanegan, 947 P.2d 933, 935 (Colo.1997).

IL.

Initially, we address the Division's assertion that petitioner has no standing to seek a declaratory order. We disagree.

The Commission, in its discretion, chose to treat the petition as a request for a declaratory order. See Dep't of Revenue Reg. 47.1-208. The primary purpose of a declaratory judgment is to provide a remedy, in cases of actual controversy, "for determining issues and adjudicating the legal rights, duties, or status of the respective parties, before controversies with regard thereto lead to the repudiation of obligations, the invasion of rights, and the commission of wrongs." American Family Mutual Insurance Co. v. Bowser, 779 P.2d 1376, 1380 (Colo.App.1989)(quoting People ex rel. Inter-Church Temperance Movement v. Baker, 133 Colo. 398, 297 P.2d 273 (1956)). "It provides an early relief from uncertainty as to the future obligations for one who would normally be a defendant and who otherwise would not have his questions adjudicated until his adversary takes the initiative." American Family Mutual Insurance Co. v. Bowser, supra, 779 P.2d at 1380.

To have standing to bring a declaratory judgment action, a petitioner must assert a legal basis on which a claim for relief can be grounded and must allege an injury in fact to a legally protected or cognizable interest. Farmers Insurance Exchange v. District Count, 862 P.2d 944 (Colo.1993).

Here, petitioner alleged that as a result of informal actions by the Division, implemented without notice to him or a hearing for his benefit, he was injured by the loss of business. We conclude that this allegation is sufficient to provide him with standing to seek declaratory relief.

TIL

The Division also asserts that the petition failed to challenge timely a specific appealable agency action. We again disagree.

The petition alleged that after the parties entered into the agreement, petitioner's attorneys met with the Division's director, counsel, and others. The petition also alleged that at that meeting, petitioner was informed that the Division was advising its licensees that associating with him might adversely affect their ability to retain their Colorado gaming licenses and, furthermore, that the Division would continue to so advise its licensees in the future.

The Division now asserts that this "courtesy meeting" resulted in no agency action, in that the Division's director did not make a formal determination upon which the petition could be based. In support of its argument, the Division refers us to Moore v. District Court, 184 Colo. 68, 518 P.2d 948 (1974). In that case, a pharmacy chain informed the state pharmacy board of its intention to advertise drug prices. In response, the board passed a resolution indicating that it intended to enforce its rules prohibiting such advertising if the pharmacy went ahead with its plan. The Moore court specifically found that the pharmacy board had not instituted any administrative action attempting to restrain the pharmacy from carrying out its advertising program, that the pharmacy's intention to advertise was prospective only, and that the board's announcement "was advisory only as a statement of its intention to enforce its rules." Moore v. District Court, supra, 184 Colo. at 68, 518 P.2d at 951.

We find the instant case to be distinguishable. Here, the action complained of was a "de facto" determination of petitioner's suitability. This determination was questioned by petitioner at the meeting with the Division, and the Division allegedly confirmed that it already had advised its licensees that associating with petitioner might jeopardize their gaming licenses, and also that it would continue to do so in the future.

We conclude that, under the circumstances presented here, the Division's alleged refusal to discontinue advising its licensees that associating with the petitioner might adversely affect their ability to maintain their licenses is an appealable agency action. Additionally, because the petition was filed within thirty days of the date of the meeting, we also conclude that it was timely filed pursuant to § 24-4-106(4), C.R.S.2001, and Dep't of Revenue Reg. 47.1-208.

Finally, we note that the Division argues that petitioner now refers to a letter that was not part of the record on appeal. We have not considered that letter in our determination. See Loomis v. Seely, 677 P.2d 400 (Colo.

IV.

Petitioner's first claim for relief asserted that the Division breached its agreement not to make any determination as to his suitability or association with the gaming industry. Petitioner asserted that the Division took actions that amounted to a "de facto" determination of unsuitability, and he argues that it thus breached its agreement. We agree with the Commission's ruling that this contractual claim failed to state a claim upon which relief can be granted.

A petition should not be dismissed for failure to state a claim upon which relief can be granted if the allegations contained in the petition provide for relief on any possible theory. Dunlap v. Colorado Springs Cablevision, Inc., 829 P.2d 1286 (Colo.1992).

The record reveals that the agreement pertains only to the Aristocrat matter. The agreement provides that petitioner may not seek a determination of his suitability for association with Aristocrat, but it does not address petitioner's suitability as to other Colorado licensees. In fact, the agreement further provides that it should not be construed as an admission of suitability findings. As such, the agreement only relates to petitioner's association with Aristocrat in Aristocrat's application for license.

Thus, we conclude that the Commission properly ruled that petitioner's allegation of a "de facto" unsuitability determination was not within the seope of the agreement and, as such, that petitioner's breach of contract claim did not state a claim upon which relief could be granted.

v.

Petitioner's second claim for relief asserted that the Division's "de facto" determination of unsuitability was contrary to the ruling of In re Aristocrat, Inc., supra. Specifically, petitioner alleged that the Division's efforts to restrict his association with other Colorado licensees amounted to conditions not contained in the agreement. We remand for an adjudicatory hearing on this claim.

In In re Aristocrat, Inc., supra, petitioner's son, as an intervenor, challenged Aristocrat's agreement with the Division. Specifically, the son argued that the terms of the Aristocrat agreement amounted to a "de fac-to" determination of his own unsuitability, for which he was never given an opportunity to be heard. A panel of this court agreed and ruled that the son's agreement with the Division, when read together with Aristocrat's agreement with the Division, resulted in conflicting terms as to the son's suitability. Thus, both agreements, in the form of consent orders, were set aside as to the son.

The Division contends that In re Aristocrat, Inc., supra, is not applicable because, in that case, the son's agreement provided that he was suitable for association with Aristocrat. Here, petitioner's agreement provided that he was not currently approved for association with Aristocrat. Moreover, petitioner was not granted intervenor status.

Regardless of the applicability of In re Aristocrat, Inc., supra, we conclude that the Commission erred in ruling that petitioner failed to state a claim upon which relief could be granted. Petitioner asserted that the Division was acting informally against him, resulting in a "de facto" determination of unsuitability, without notice and without giving him an opportunity to be heard on the matter. He specifically alleged that because of the Division's action, an Australian subsidiary of a Colorado licensee had severed its business relationship with him. Thus, he asserted that due process mandates that he be entitled to an adjudicatory hearing to contest the conditions allegedly imposed upon him by the Division without his consent.

Colorado Gaming Regulation 47.1-208 describes the procedure for contesting an action taken without a hearing and provides, as relevant here:

A person aggrieved by an action of the Commission or the Director that was taken without a hearing may, within 30 days following the date of the action, petition the Commission for a hearing. The Commission may in its discretion, disallow the petition, determine that it be treated as one for a declaratory order, or it may grant a hearing to consider the matter alleged in the petition.

In this case, the Commission first ruled that it was treating petitioner's request as one for a declaratory order and then dismissed the petition without granting petitioner an opportunity for an adjudicatory hearing. We conclude that the Commission abused its discretion in failing to grant a hearing.

Individual license or permit decisions involving adjudicative facts are subject to basic due process guarantees under the United States and Colorado Constitutions. Procedural due process requires adequate advance notice and an opportunity to be heard prior to state action resulting in deprivation of a significant property interest. U.S. Const. amend. XIV; Colo. Const. art. 11, § 25; § 24-4-105, C.R.S.2001; City & County of Denver v. Eggert, 647 P.2d 216 (Colo.1982).

Here, petitioner alleged that the Division made an informal determination as to his suitability to associate with Colorado licensees. He claimed that as a result, his business relationships had suffered. Thus, we conclude that due process requires that he be given an opportunity to be heard. Therefore, although generally the Commission is not required to hold an evidentiary hearing before ruling on a petition for a declaratory order, see Purcell v. Colorado Division of Gaming, 924 P.2d 1203 (Colo. App.1996); Dep't of Revenue Reg. 47.1-602, we conclude the Commission abused its discretion in failing to provide petitioner with an adjudicatory hearing under the facts alleged here to meet due process requirements.

VL.

The Division also asserts that the Commission correctly dismissed the petition because petitioner improperly sought relief under the inapplicable agreement instead of taking the proper "regulatory path"-Lie., to be investigated as a person who wishes to associate with a Colorado licensee-to seek redress. See, eg., Dep't of Revenue Reg. 47.1-210(4), 1 Code Colo. Regs. 207-1.

We agree that the agreement does not govern petitioner's grievance in that it does not bar the Division from making a suitability determination of petitioner. However, we cannot conclude that petitioner is prohibited here from seeking review of his claim that the Division has informally deemed him unsuitable to associate with Colorado licensees without due process.

Thus, although we have determined that petitioner does not state a claim for relief under the agreement, we conclude that he has the right to an adjudicatory hearing on his claim of a "de facto" suitability determination.

The order is affirmed as to petitioner's first claim for relief and set aside as to the second claim for relief, and the case is remanded for further proceedings consistent with this opinion.

Judge METZGER and Judge TAUBMAN concur.


author: Judge ROTHENBERG.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carol SHERMAN, Defendant-Appellant.
    No. 98CA2254.
    Colorado Court of Appeals, Div. III.
    Oct. 11, 2001.
    Certiorari Denied May 13, 2002.

      Ken Salazar, Attorney General, Esteban A. Martinez, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.
   Opinion by

Judge ROTHENBERG.

Defendant, Carol Sherman, appeals the judgment of conviction entered on a jury verdict finding her guilty of two counts of theft. We affirm.

Defendant was the treasurer and a sales person for a mobile home company. According to the prosecution's evidence, she stole money borrowed by two customers in connection with their attempted purchases of mobile homes. -

I..

Defendant first contends 'the trial court denied her a fair trial by granting the prosecution's challenge for cause to a potential juror. We disagree. j

To ensure a fair trial, the trial court must excuse jurors who demonstrate bias or prejudice. People v. Young, 16 P.3d 821 (Colo.2001).

Section 16-10-108(1)(j), C.R.S.2001, provides that the court must sustain challenges for cause where: |

[tlhe existence of a state of mind in the juror evinces] enmity or bias toward the defendant or the state; however, no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from examination of the juror or from other evidence, that he will render an impartial verdict according to the law and the evidence submitted to the jury at the trial

See also People v. Young, supra.

When reviewing the trial court's ruling on a challenge for cause, we examine the ruling for an abuse of discretion. See Carrillo v. People, 974 P.2d 478 (Colo.1999). The trial court is in a unique position to evaluate demeanor and body language of jurors. The abuse of discretion standard discourages appellate courts from interfering with such rulings based on a cold record. Carrillo v. People, supra; see Morgan v. People, 624 P.2d 1331, 1332 (Colo.1981) (where juror repeatedly indicated he would have difficulty applying the proper burden of proof, trial court abused its discretion by refusing to excuse him).

During voir dire, the prosecutor questioned one of the potential jurors regarding her understanding of the reasonable doubt instruction that the court had read to the panel. The prosecutor first asked the juror whether there was a distinction between reasonable doubt and "beyond all doubt." She responded that she thought they could mean the same thing. The prosecution next asked whether she thought the prosecution had to prove a crime beyond "any and all doubt in your mind." The juror replied affirmatively.

After further clarifying the meaning of reasonable doubt, the prosecution again asked the juror whether she would require the People to "prove a crime was committed beyond any and all doubt," and the juror again replied affirmatively.

At the prosecution's request, the trial court excused this juror for cause. The court gave more than one rationale for its decision to exeuse her, including that she "remained firm in her belief that the evidence had to be proved beyond any and all doubt" (emphasis added)

The trial court had the benefit of viewing the juror and assessing her demeanor under all the circumstances, and we view its ruling as a determination that this juror was unwilling or unable to follow the court's reasonable doubt instruction. Accordingly, looking at the record as a whole and applying the standard established in Carrillo v. People, supra, we perceive no abuse of discretion by the trial court in excusing this juror.

IL.

Defendant next contends the trial court erred in denying her motion for mistrial because the court impermissibly elaborated on the model jury instruction regarding reasonable doubt. Although we agree part of the court's oral instruction was erroneous, we conclude reversal is not required.

At the beginning of the voir dire, the court read the model instruction on reasonable doubt to the jury panel as follows:

Reasonable doubt means doubt based upon reason and common sense which arises from a fair and rational consideration of all the evidence, or the lack of evidence, in the case. It is a doubt which is not vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.

CJI-Crim. 3:04 (1988).

After the trial court dismissed one potential juror because of her misapprehension of reasonable doubt, as discussed earlier, the court attempted to clarify any confusion in the other jurors' minds by orally instructing them as follows:

You realize that the proof or the burden on the People is to prove beyond a reasonable doubt not beyond any doubt at all. And one way to look at this is that a reasonable doubt is a doubt for which you could give a reason. It's a rational, objective statement of why you feel that something hasn't been proven, or why you have a doubt. As opposed to speculating about it or just guessing that gee, I just-I don't know, I just feel like they didn't prove it. That is not good enough. The proof needs to be beyond a reasonable doubt as I defined it earlier. (emphasis added)

Defendant did not object when the court gave this oral instruction. Later, however, after the jury was sworn, she moved for a mistrial, contending that the emphasized portions of the court's oral instruction were erroneous.

A.

We conclude that the trial court erred in elaborating on reasonable doubt. Counsel have not cited, and we are unaware of, any reported Colorado case addressing the pro-priecty of an instruction describing a reasonable doubt as "a doubt for which you could give a reason." However, this issue has been addressed by other jurisdictions. There is a split of authority whether this or a similarly worded definition of reasonable doubt is error, and if so, whether it mandates reversal of the defendant's conviction.

We have found only one jurisdiction that has held such an instruction is not erroneous. See State v. Whipple, 324 S.C. 43, 476 S.E.2d 683, 687 (1996)(court found no error in an instruction defining reasonable doubt as doubt "for which you could give a reason"; court did not refer to a "moral certainty"). But see State v. Manning, 305 S.C. 413, 409 S.E.2d 372, 374 (1991) (reversing a conviction based on three errors, including an instruction defining reasonable doubt as "a doubt for which you can give a real reason" and as a "moral certainty").

A number of other jurisdictions, in reported cases dating from 1891 to 1922, have expressly disapproved such an instruction and have concluded that defining reasonable doubt in these terms is an error requiring reversal. See Gilcoat v. State, 155 Ark. 455, 244 SW. 723 (1922); Morgan v. State, 48 Ohio St. 371, 27 N.E. 710 (1891); Gibbons v. Territory, 21 Okla. 340, 1 Okla.Crim. 198, 96 P. 466 (1908). In holding such an instruction "inherently erroneous," these jurisdictions have explained that a juror "should not be under any legal compulsion to have to give or be able to formulate and state the reason which may raise a reasonable doubt in his mind and conscience." Gilcoat v. State, supra, 155 Ark. at 465, 244 S.W. at 727 (quoting Klyce v. State, 78 Miss. 450, 454, 28 So. 827, 828 (1900)).

In more recent cases, several jurisdictions have criticized the use of such language in the reasonable doubt instruction, but have held reversal was not automatically required. See Ex parte McWilliams, 640 So.2d 1015 (Ala.1993) (criticizing instruction that defines reasonable doubt as a "doubt for which you can give a reason," but determining that the instruction as a whole was not infirm); Sulie v. State, 269 Ind. 204, 379 N.E.2d 455 (1978) {accepting such an instruction when not coupled with other erroneous instructions, and distinguishing Siberry v. State, 133 Ind. 677, 33 N.E. 681 (1893), which reversed defendant's conviction based on several improper instructions); State v. Hudson, 286 N.J.Super. 149, 668 A.2d 457, 459 (1995) (stressing that "portions of a charge alleged to be erroneous cannot be evaluated in isolation," court disapproved judge's comments but was con-vinceed "the remarks were not capable of producing an unjust result").

We are persuaded by those jurisdictions that have disapproved instructions advising the jury that a reasonable doubt is a doubt for which one could give a reason, because it imposes on jurors the requirement that they not only maintain a reasonable doubt regarding a defendant's guilt, but also articulate a reason for that doubt. Further, Colorado's model jury instruction does not contain such a requirement. See CJI-Crim. 3:04.

B.

However, we reject defendant's contention that the oral instruction violated her constitutional right to due process.

In support of this contention, defendant relies on Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), in which the United States Supreme Court held that a Louisiana jury instruction on reasonable doubt violated the Due Process Clause of the United States Constitution because it lowered the threshold of doubt necessary to convict the defendant. The reasonable doubt instruction there equated reasonable doubt with "grave uncertainty" and "actual substantial doubt," and the Court concluded the instruction, when considered in reference to "moral certainty," violated the defendant's right to due process. See also Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (erroneous reasonable doubt instruction was structural error mandating reversal).

Although the holding in Cage remains intact, the standard for reviewing jury instructions enunciated in Cage was later disapproved by the Court in Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). There, the Court clarified that the appropriate standard of review for an ambiguous instruction was as set forth in Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316, 329 (1990), namely, "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution. Estelle v. McGuire, supra, 502 U.S. at 72, 112 S.Ct. at 482, 116 L.Ed.2d at 399.

The Court in Estelle also stated that:
It is well established that the instruction "may not be judged in artificial isolation," but must be considered in the context of the instructions as a whole and the trial record.

Estelle v. McGuire, supra, 502 U.S. at 72, 112 S.Ct. at 482, 116 L.Ed.2d at 399 (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368, 378 (1978)).

Applying that standard here, we conclude that even assuming the oral instruction given by the trial court was ambiguous because it departed from the language of the model instruction, it nevertheless did not violate defendant's right to due process.

The Connecticut Supreme Court has rejected a constitutional challenge to a similar instruction about giving a reason for the doubt. State v. Jeffrey, 220 Conn. 698, 601 A.2d 993 (1991). There, the trial court instructed the jury that a reasonable doubt is "a doubt for which if necessary you can give an explanation of to your fellow jurors in the jury deliberation room." State v. Jeffrey, supra, 601 A.2d at 1004.

The Connecticut Supreme Court concluded such an instruction was improper, but declined to hold it constitutionally deficient when considered in the context of the entire charge. State v. Jeffrey, supra, 601 A.2d at 1004 ("such an articulation requirement, although improper, did not render an otherwise adequate instruction on reasonable doubt constitutionally defective").

We reach a similar conclusion. While the trial court here incorrectly advised the jury that a reasonable doubt was a "doubt for which you could give a reason," it contrasted such doubt with mere "speculating" or "guessing." Further, the court advised the jury that the proof needed to be "beyond a reasonable doubt as I defined it earlier," and its earlier definition was correct.

Accordingly, when the objectionable language in the court's oral instruction is considered in the context of the entire charge, we conclude the trial court did not lower the reasonable doubt standard. We therefore reject defendant's contention that her constitutional right to due process was violated by the trial court's elaboration of the reasonable doubt instruction.

C.

We also conclude that the court did not abuse its discretion in denying defendant's motion for mistrial.

A mistrial is a drastic remedy that is warranted only when prejudice to the accused is so substantial that its effect on the jury cannot be remedied by any other means. People v. Laurson, 15 P.3d 791 (Colo.App. 2000). Absent a gross abuse of that discretion and prejudice to the defendant, we will not disturb a trial court's decision to grant or deny a motion for a mistrial. People v. Peoples, 8 P.3d 577 (Colo.App.2000).

We are required to consider the instructions as a whole, and there is no error if the instructions, taken together, adequately inform the jury of the law. People v. Manier, 184 Colo. 44, 518 P.2d 811 (1974); see also Chambers v. People, 682 P.2d 1178 (Colo. 1984) (requiring analysis of all relevant factors when reviewing jury instructions).

We conclude that reversal is not required where, as here, the jury instructions as a whole were adequate and not coupled with other erroneous instructions on reasonable doubt.

Here, the trial court gave the jury the correct reasonable doubt instruction at the inception of the case and gave it again in writing at the end of the case. The court also advised the jury in its oral comments that reasonable doubt should be contrasted with mere "speculating" or "guessing" and added that this instruction was "one way to look at" reasonable doubt, implying there were other ways to perceive it. The court also referred back to the model instruction already given, which defendant concedes was proper.

In addition, defendant failed to make a contemporaneous objection to the trial court's elaboration of the reasonable doubt instruction. Had such an objection been made, the court would have had the opportunity either to correct itself and to refer the jury to the model instruction, or in its discretion, to bring in a new jury panel.

Under these circumstances, we conclude the trial court's error in elaborating on the reasonable doubt instruction did not affect defendant's substantial rights. See Crim. P. 52(a); Ex parte McWilliams, supra (instruction as a whole was not infirm); Sulie v. State, supra; State v. Hudson, supra, 668 A.2d at 459. Hence, the court did not abuse its discretion in denying a mistrial.

IIL

In a related argument, defendant maintains that the elaboration on the model instruction evinced partiality by the trial court, violating her constitutional right to a fair trial. Her argument hinges on the impro-pricty of the instruction's substance tainting the jury deliberations, and not the motives of the trial court in giving the instruction. However, given our conclusion that the reasonable doubt instruction did not substantially affect defendant's rights, we reject this contention.

IV.

Defendant next contends the trial court erred by denying her motion for a new trial in which she alleged juror misconduct and violation of the court's sequestration order. We disagree.

A.

Defendant maintains that the trial court applied the wrong standard in addressing her allegations of juror misconduct. She further asserts that a person observing the trial had inappropriate contact and communications with a juror. We perceive no basis for reversal.

In referring to the burden of proving juror misconduct, the trial court stated:

It is improper for either side to contact a juror and try to ascertain exactly how they arrived at their verdict. And jurors are not supposed to be asked to comment on that particular point. But they can be asked about what is referred to ... as extraneous prejudicial information, which I think this case is concerned with.
And it is my understanding of the law that when this issue is raised about the jury's relying on extraneous prejudicial information, there has to be a showing that they actually did hear or see or whatever, they learned about this kind of information, and that simply has not been demonstrated today.
The law cited by the People I think is correct in that the Court is not to presume that the statements that were made here actually did cause a prejudicial effect to the defendant.

People v. Hayes, 923 P.2d 221 (Colo.App. 1995), discussed the standard to be applied where a motion for new trial is based on juror misconduct. It instructs the trial court to evaluate the allegation of juror misconduct to determine whether there is a reasonable possibility that the verdict was tainted by the introduction of outside information into the deliberations. Hayes further requires that the defendant show prejudice arising from the misconduct.

~If a juror was exposed to outside information that might taint the verdict in the slightest, it is within the court's discretion to grant a new trial. People v. Moore, 701 P.2d 1249 (Colo.

The trial court's determination of such a motion will be overturned only when it constitutes an abuse of discretion. People v. Hayes, supra.

Here, the thrust of the trial court's commentary was accurate. It recognized that a defendant must show both that the jurors actually heard or saw the extraneous information and that the misconduct prejudiced the defendant. This standard is substantially similar to that set forth in Hayes and Moore.

Contrary to defendant's contentions, a different result is not required because one of the jurors waved and smiled at a court observer during the trial, and the court observer reportedly called defendant a "crook" outside the courtroom in the presence of the jurors. The record indicates that the trial court was aware of these cireumstances when it denied defendant's motion for a new trial, and it was in the best position to evaluate the degree of prejudice to defendant.

We therefore perceive no abuse of discretion in the trial court's denial of defendant's motion for a new trial based on juror misconduct.

B.

Defendant next contends the trial court abused its discretion in denying her motion for new trial motion based on a violation of the sequestration order. Defendant also characterizes this as "witness tampering." We are not persuaded. ‘

Despite the trial court's standard sequestration order, the court observer reportedly left the courtroom, conversed with witnesses, and made comments to them disparaging defendant's character. However, there was no evidence that the court observer discussed any of the court proceedings with the witnesses, and when the trial court was informed of her conduct, it instructed her not to bave any further contact with the witnesses. © '

The determination whether a sequestration order has been violated is within the sound discretion of the trial court,. People v. Brinson, 739 P.2d 897 (Colo.App.1987). The defendant must show that the violation caused prejudice in order to establish an abuse of discretion. People v. Wood, 743 P.2d 422 (Colo.1987).

Here, the trial court specifically instructed the court observer that while she had a right to watch the proceedings, she was not to have any contact with the witnesses. She advised the court that she would comply with the court's order.

The trial court found that the comments about defendant's deficient character that reached the witnesses, while improper, were insignificant in that they did not relate to the testimony offered by the witnesses. Nor does the record reflect that defendant was prejudiced by the court observer's comments.

Under these cireumstances, we conclude the trial court did not abuse its discretion in denying the motion for a new trial based on the violation of the sequestration order.

Judgment affirmed.

Judge JONES and Judge NIETO concur.