text:
    Laura E. UDIS, Executive Director, Colorado Collection Agency Board, Plaintiff-Appellant, v. UNIVERSAL COMMUNICATIONS COMPANY, Defendant-Appellee.
    No. 01CA0758.
    Colorado Court of Appeals, Div. V.
    April 11, 2002.
    Certiorari Denied Nov. 4, 2002.

      Ken Salazar, Attorney General, Paul Ches-sin, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellant.
    Hale, Hackstaff, Tymkovich & Erken-Brack, L.L.P., Richard W. Daily, Timothy M. Tymkovich, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge DAVIDSON.

In this action for injunctive relief for violations of the Colorado Fair Debt Collection Practices Act (Act), § 1214-101, et seq., C.R.S.2001, plaintiff, Laura E. Udis as administrator. of the Colorado Collection Agency Board, appeals from the judgment determining that defendant, Universal Communications Company, is not a "collection agency" for purposes of the Act. We reverse and remand.

The following facts are undisputed. Defendant's business offers a "Telegram Notification" service, by which it delivers messages to individuals targeted by its subscribers. Defendant mails the individual a notice, which is "uniquely designed" to obtain a high response rate, informing the individual that there is a voice telegram waiting for him or her. To retrieve the recorded message, the individual is directed to call a toll-free number and to enter an identification code, which is supplied by the subscriber and printed on the notice. Each of defendant's subscribers is assigned a different toll-free number, and when the individual calls the number and enters the identification code, he or she receives a recorded message, usually directing the individual to contact the subscriber directly. While defendant may provide sample messages to its subscribers, the written messages in the notification and the recorded messages are authored or approved by the subscribers.

In addition to delivering the notice and recorded message, defendant's business offers a "Tel-Scan" service by which it "captures" the individual's telephone number when the individual makes the toll-free call. The individual is not informed that the telephone number is being recorded, and the individual cannot block transmission of the telephone number. Defendant then provides the individual's telephone number, matched to the individual's identification code, to its subscriber. The combined service is marketed as a tool for debt collectors, law enforcement personnel, and others to contact hard-to-reach people, for example, those with unlisted, private, or nonpublished telephone numbers.

Plaintiff's complaint alleged that defendant's services violated the Act, and she sought injunctive relief. The parties filed a statement of stipulated facts, and plaintiff then filed a motion for judgment on the pleadings or, alternatively, summary judgment. Relying on Romine v. Diversified Collection Services, Inc., 155 F.3d 1142 (9th Cir.1998), which held that similar services constituted "debt collection" under the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq. (2001), plaintiff argued that she was entitled to judgment because the Act's definition of a "collection agency" is identical to the definition of a "debt collector" under the FDCPA. The court, citing the dissent in Roming, determined that defendant was not a "collection agency" and denied plaintiffs motion. It then entered judgment in favor of defendant, dismissing the case with prejudice. Plaintiff appeals.

I.

In Romine, supra, 155 F.3d at 1143, the Ninth Circuit determined that a service by which the defendant "obtains debtors' telephone numbers by eliciting responses to personal delivery telegrams, then disseminates the unlisted numbers to creditors and collection agencies" constituted the indirect attempt to collect a debt under the FDCPA. In its analysis, the Romine court noted that similar conduct, indistinguishable from defendant's here, was characterized as the indirect attempt to collect a debt by the Federal Trade Commission (FTC), the administrative agency charged with enforcement of the FDCPA.

Plaintiff contends that defendant's service is no different from that in Romine and that in light of the purposes of the Act and plaintiff's interpretation of it, the trial court erred when it determined that defendant is not a "collection ageney" under the Act. Defendant argues that Romine is distinguishable and that Colorado should follow the view expressed in the dissent that similar conduct is merely a messenger service rather than the "indirect" collection of a debt. See Romine, supra, 155 F.3d at 1150 (Fernandez, J., dissenting)(at most defendant used "a devious means to collect the debtor's telephone number, but telephone number collection is not debt collection" under the FDCPA). We agree with plaintiff.

A.

The issue here is a question of law and review is de novo. See Vail/Arrowhead, Inc. v. Dist. Court, 954 P.2d 608 (Colo.1998).

When analyzing a state statute, interpretation of an analogous federal statute is persuasive. See Furlong v. Gardner, 956 P.2d 545 (Colo.1998). The interpretation of the statute given by administrative officials charged with its enforcement is entitled to deference. Section 2-4-203(1)(f), Bluewater Ins., Ltd. v. Balzano, 823 P.2d 1365 (Colo.1992).

Under the Act, a "collection agency" is required to obtain a license and is subject to regulation. The Act's definition of a "collection agency" includes "any ... [plerson who engages in a business the principal purpose of which is the collection of debts; or ... [rlegularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." Section 12-14-108(2)(a), C.R.8.2001.

The Act is patterned on the FDCPA. See Commercial Serv. of Perry, Inc. v. Fitzgerald, 856 P.2d 58 (Colo.App.1998). The FDCPA contains language nearly identical to that in the Colorado statute, but uses the term "debt collector" rather than "collection agency." It defines a "debt collector" as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6) (2001). To the extent that a state statute provides less protection than the FDCPA, the federal statute preempts it. 15 U.S.C. § 1692n (2001).

Like its federal counterpart, the Act is a remedial consumer protection scheme that is designed to protect consumers from various abusive practices engaged in by "those in the business of collecting stale debts who are likely to have no further contact with the consumer and often are unconcerned with the consumer's rights or needs." Commercial Serv. of Perry, Inc. v. Fitzgerald, supra. Statutes that are remedial in purpose should be construed liberally. See Shapiro & Meinhold v. Zartman, 823 P.2d 120 (Colo.1992).

The definition of a "collection agency" contained in § 12-14-103(@2)(a)(ID(A), C.R.8.2001, includes one who "[rlegularly collects or attempts to collect, directly or indirectly, debts owed or due ... another." It is not necessary that one "gain possession of a debt, or personally benefit financially from the satisfaction of a debt" to be considered a "collection agency" under the Act. See Romine, supra, 155 F.3d at 1146. When determining whether a defendant is a "collection agency," the defendant's activity, rather than its formal status as a collection agency, is dispositive. See Trull v. Lason Sys., Inc., 982 F.Supp. 600 (N.D.Ill.1997).

Under the Act, the collection of personal information for use in the attempt to collect a debt is considered a part of the debt collection process. See § 12-14-107(1)(k), C.R.S. 2001 (prohibiting "[the use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer"). When communicating with a consumer in writing, even for the limited purpose of collecting a telephone number, a "collection agency" must disclose that it is attempting to collect a debt. See § 12-14-107(1)(4), C.R.8.2001 (prohibiting the "failure to disclose clearly, in the initial written communication made to collect a debt or obtain information about a consumer, that the debt collector or collection agency is attempting to collect a debt and that any information obtained will be used for that purpose"). Any communication with a consumer made by telephone in connection with the collection of a debt requires "meaningful disclosure of the caller's identity within the first sixty seconds after the other party to the call is identified as the debtor." Seetion 12-14-106(1)(f), C.R.S$.2001.

B.

Defendant argues that, by delivering messages from its subscribers to targeted individuals and gathering electronic information related to the telephones used by the targets to respond to the messages, it is only a "messenger service" for its collection agency subscribers. We do not agree.

As did the majority in Romine, we conclude that defendant's actions-marketing to collection agencies a service by which it gathers from consumers and identifies otherwise unknown telephone numbers to be used by the collection ageney for purposes of debt collection-bring it sufficiently close to the transaction to be "indirectly" attempting to collect a debt. Cf. People v. Blair, 195 Colo. 462, 579 P.2d 1133 (1978)(defining "indirect, Ty" for purposes of securities law).

Here, it is undisputed that defendant mails notices that are designed to look like telegrams to hard-to-reach debtors, urging them to call a toll-free number. It is further undisputed that when the debtors do so, their previously unavailable telephone numbers are captured, matched to the specific debtor, and provided to defendant's subscribers. This service constitutes seventy percent of defendant's business. Thus, it is clear that defendant is directly gathering personal information about consumers that its subserib-ers use to attempt to collect debts.

Importantly, defendant specifically markets its "Telegram Notification" service to collection agencies, informing them:

95% of collections are made by phone communications with the debtor. When this communication is established, the full balance is collected in one out of eight accounts. Therefore, Telegram Notification service is an extremely valuable tool in your collection effort. We will help you locate current phone numbers so you can talk with 10 to 80 percent of your skip accounts, depending on the type of notification you use. The Tel-Sean and Telegram Notification services offer the most cost effective and accurate method of obtaining non-published and unlisted phone numbers of debtors.

Defendant acknowledges that its subscribers are attempting to obtain " 'locate' or 'contact' information, as well as deliver a ... message, either of which will then lead to follow-up actions (collection efforts, repossessions, arrests, etc.)."

Moreover, the functions of the initial notification to deliver a message and capture a telephone number are distinct from one another. Defendant bills its subscribers separately for identifying telephone numbers and for mailing notifications. < Logically, more consumers read the initial notification than call to retrieve a recorded message. Thus, if message delivery were the ultimate goal, the subscriber's message could be included in the initial written notification. Instead, defendant's service requires the consumer to call defendant to retrieve a recorded message so that the consumer's telephone number can be captured in conjunction with the delivery.

Defendant informs its subscribers that the consumer response rate is nearly doubled when no debt disclosures are made in the written notice. Because the subscriber would be required to include such disclosures on any correspondence it sent directly to the consumer, defendant's service clearly facilitates the subscriber's debt collection activities.

In Romine, in addition to electronically capturing the consumer's telephone number, a live operator also requested telephone number and address information directly from the consumer. The operator then read the subscriber's message aloud to the consumer before mailing a copy of the message to the consumer. Here, in contrast, defendant's system is entirely automated. Defendant argues that, because it can capture the consumer's telephone number and deliver the subscriber's message without live contact with the consumer, there is no potential for the kind of misconduct the Act was designed to prevent.

However, the fact that defendant delivers the message through an automated process rather. than live operators does not alter the fact that it obtains the consumer's telephone number without the consumer's knowledge or consent, through direct contact with the consumer, and for the purpose of providing it to its collection agency subscribers.

Defendant also cites several cases holding that a mailing service was a messenger rather than a debt collector and that marketing alone did not change the character of the business. However, none of these cases involved the critical practice here: the capture and subsequent sale of consumer telephone numbers obtained through interaction with the consumer. See Aquino v. Credit Control Servs., 4 F.Supp2d 927 (N.D.Cal.1998)(service is not debt collection where it delivers telegrams composed by third-party collection agency, which telegrams did not ask consumer to contact deliverer). See also Laubach v. Arrow Serv. Bureau, Inc., 987 F.Supp. 625 of defendant that printed and mailed collection letters for a collection agency did not constitute debt collection for purposes of the FDCPA); Trull v. Lason Sys., Inc., supra (same).

While the defendant in Laubach and Trull provided an additional service involving the consumer numbers, that service did not involve obtaining the telephone numbers directly from the consumers, electronically or otherwise. Here, in contrast, the consumer is instructed to contact defendant, and defendant then captures the telephone number directly from the consumer and provides the number to its subscriber for the purpose of facilitating debt collection.

Defendant argues that, nevertheless, it should be considered a messenger because the capture and distribution of consumer telephone numbers is a necessary incident to its message delivery service. It asserts that all users of toll-free services have access to a list of the telephone numbers from which individuals placed calls, either through billing statements or by use of appropriate equipment, and that because consumers have no privacy interest in their telephone numbers, capture and distribution should be permitted. According to defendant, the addition of an identification code that is matched to the captured telephone number is justified as a means to identify the caller as the intended recipient of the message.

Defendant contends that its "Tel-Scan" service is similar to Caller ID and that courts have found no constitutional privacy right against disclosure of telephone numbers by Caller ID services. However, the cases cited by defendant rely, at least in part, on a caller's ability to block transmission of the telephone number and on the recording of the number for legitimate purposes. See Ohio Domestic Violence Network v. Pub. Utils. Comm'n, 70 Ohio St.3d 311, 638 N.E.2d 1012, 1019 (1994)("a caller who does not activate that [blocking] feature would be deemed to consent to the disclosure of the telephone number and, thus, could not assert the privacy interests"); see also California v. FCC, 75 F.3d 1350 (9th Cir.1996)(preemption of state rule providing a per-line method of blocking Caller ID by FCC rule providing a per-call method did not violate constitutional privacy rights). Here, in contrast, the consumer is not able to block the capture of the telephone number. Moreover, the fact that defendant may be entitled to record the telephone numbers does not exempt it from the requirements of the Act.

In addition, defendant's capture of consumer telephone numbers and matching to the subscriber-provided identification code does not appear to have a legitimate business purpose tied to message delivery. To the contrary, in our view, the obvious purpose of linking the identification codes and captured telephone numbers is to provide the sub-sceriber with previously unknown telephone numbers to facilitate debt collection. The identification code does not confirm that the individual is the intended recipient because, as defendant acknowledges, anyone with a valid access code can retrieve the recorded message. See also Romine, supra, 155 F.3d at 1148. At most, the entry of the code indicates that the caller received the notification addressed to the intended recipient.

Furthermore, to the extent that the identification code is useful to allow defendant to bill its subscribers for completed delivery of voice telegrams, it is unnecessary to link that code to a captured telephone number or to forward the telephone number to the sub-seriber, because defendant bills its subscribers a flat rate for telephone number identification, which does not depend on the origin of the call.

We also disagree with defendant's argument that it is not "regularly" engaged in the collection of debts because the messages it transmits contain a reference to a debt only when the subscriber includes such language, and that therefore it is not a "collection agency".

To be considered a "collection agency," a person must "regularly" attempt to collect debts. Section 12-14-108@2)(a)(II)(A). Conduct is "regular" if its occurrence is not an isolated instance, but is done in the regular course of business. See Romine, supra. See also Tragiamese v. Blackmon, 993 F.Supp. 96, 99 (D.Conn.1997)(defendant who sent out "more than a handful" of letters engaged in "regular" debt collection activity).

Defendant admits that its "Telegram Notification" service accounts for seventy percent of its business, and its promotional materials clearly target the "Tel-Sean" service to collection agencies. Defendant does not argue that its capture of consumer telephone numbers and transmission to collection agencies is an isolated occurrence. Therefore, regardless of how often defendant transmits a message that includes reference to a debt, we conclude that it regularly engages in conduct that is indistinguishable from that addressed in Romine.

II.

Plaintiff contends that a determination that defendant is a "collection agency" resolves all issues and that she is entitled to judgment in her favor. We agree in part.

A.

We first reject defendant's argument that plaintiff is impermissibly attempting to appeal the denial of a motion for summary judgment. The denial of a motion for summary judgment is not an appealable interlocutory order because it is not a final determination on the merits, but decides only that the case should go to trial. Similarly, such an order may not be appealed after a full trial because it could lead to the absurd result that a party who had won after presentation of all the evidence could lose on appeal because he or she had not fully proved the case at the time of the motion for summary judgment. Feiger, Collison & Killmer v. Jones, 926 P.2d 1244 (Colo.1996).

Here, however, when the trial court denied plaintiff's motion for summary judgment, it granted summary judgment to defendant and then dismissed the case. It is this final judgment and the grant of summary judgment in favor of defendant that plaintiff appeals. Because we have concluded that the judgment is erroneous, we may reverse that judgment, and, to the extent that no factual issues remain, order the trial court on remand to enter judgment in plaintiff's favor. See C.A.R. 35(d)-(e).

B.

Plaintiff contends that the use of a telegram format by a "collection agency" is deceptive and that because defendant's telephone number collecting activity renders it a "collection agency," its "telegram notifications" violate the Act and she is entitled to judgment enjoining defendant's mailing activities. We disagree.

The Act and the FDCPA prohibit the use of any "false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer." 15 U.S.C. § 1692e(10) (2001); § 12-14-107(1)(k). The Act permits a "collection agency" to communicate with a consumer by means of a telegram. See § 12-14-108(1)(h), C.R.S.2001. However, the use of a simulated telegram format sent by regular mail has been held to be a deceptive means of communication under the FDCPA. See In re Scrimpsher, 17 B.R. 999 (Bankr.N.D.N.Y.1982).

Whether a particular method is deceptive is generally a question of fact. See Trans World Accounts, Inc. v. FTC, 594 F.2d 212 (9th Cir.1979)(FTC finding that simulated telegram misrepresented the nature, import, or urgency of the communication was supported by the evidence).

Here, because the trial court entered summary judgment, it did not determine whether the "telegram notification" format is deceptive. Thus, to the extent that plaintiff seeks to enjoin defendant from sending its "telegram notifications," additional proceedings are required in the trial court to determine whether the communications are deceptive.

C.

The parties have stipulated that defendant's subscribers are ultimately responsible for the content of the written and recorded messages. Thus, the fact that defendant provides sample messages or assists its sub-seribers in drafting messages does not render it a collection ageney on that basis. See Randle v. GC Servs. L.P., 48 F.Supp.2d 835 (N.D.Ill.1999); Powell v. Computer Credit, Inc., 975 F.Supp. 1034 (S.D.Ohio 1997).

However, defendant concedes that it not licensed as a collection agency, as required by §§ 12-14-115(1)(a) and 12-14-118, C.R.S. 2001, that it engages in the capture of telephone numbers directly from consumers, and that it sends out "telegram notifications" that do not include the consumer disclosures required by §§ 12-14-105 and 12-14-109, C.R.8.2001.

Thus, to the extent that plaintiff seeks to require defendant either to obtain a license or desist from collecting and transmitting consumer telephone numbers to collection agencies without proper consumer notifications, plaintiff is entitled to an injunction prohibiting defendant from so violating the Act.

Because of our disposition, we need not address the other issues raised by the parties.

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

Judge CASEBOLT and Judge NIETO concur.


source: Caselaw Access Project

author: Judge ROTHENBERG.

license: Public Domain

text:
    In re the Interest of A.M.D., a Child, and Concerning Susan K. Casteel, Appellee, and John M. Davidson, Appellant.
    No. 00CA1857.
    Colorado Court of Appeals, Div. I.
    April 11, 2002.
    Certiorari Granted Nov. 4, 2002.

      Law Offices of Margaret L. Herdeck, Margaret L. Herdeck, Pueblo, Colorado, for Ap-pellee.
    Carolyn M. Kelly, P.C., Carolyn M. Kelly, Colorado Springs, Colorado, for Appellant.
   Opinion by

Judge ROTHENBERG.

John M. Davidson (father) appeals from the trial court's order increasing his child support obligation to Susan K. Casteel (mother) for the parties' minor child. The primary issue in this appeal is the treatment of a party's inheritance in calculating child support. Because we agree with the father that the trial court erred in this regard, we reverse and remand for further proceedings.

The parties were never married, but lived together for twelve years during which time the minor child was born. In January 1998, the mother filed this action for paternity, custody, child support, and a determination of parenting time. The parties resolved most of the issues by agreement, but could not agree on child support and parenting time.

In December 1998, the father received an inheritance from his mother. It was valued at $149,298 and included an Individual Retirement Account (IRA) belonging to her. He was required to report as income, for tax purposes, distributions from the IRA, and in April 1999, he reported a distribution of $47,379. After federal and state taxes were paid on that amount, he received $33,298.

In October 1999, after a hearing, the trial court reduced the father's parenting time and calculated his child support obligation. The court included as gross income the father's entire IRA distribution for 1999 of $47,879, and any future distributions from the inheritance, including withdrawals the father contemplated from the principal of the remaining inheritance. The court refused the father's request to deduct taxes that he was required to pay or would be required to pay in the future on the inheritance.

The court also imputed to the father interest income of $218 per month in 1999 and for each subsequent year for the purposes of calculating child support. The $218 figure was based on expert testimony that the $47,879 gross distribution would produce that monthly income. The court also found the father had sustained an injury in 1981 and because he had not been employed full time since that time, the court imputed to him an additional minimum monthly income of $898. The mother's monthly gross income was determined to be $2,212 in 1998 and $2,863 in 1999.

I. Calculation of Child Support

The father raises several contentions regarding the manner in which the trial court calculated child support. We agree the matter must be remanded for recalculation of child support.

A.

The father first contends the court erred in including as gross income the entire 1999 distribution he received from his mother's IRA and future distributions he will receive from the inheritance. He relies upon income tax rules that exclude inheritances from gross income and maintains that these tax rules should be determinative under the child support guidelines. While we reject the father's argument that tax rules are determinative in calculating child support, we agree the trial court incorrectly included as gross income the entire distribution received by him in 1999.

The basic child support obligation is determined by applying the schedule in § 14-10-115(10)(b), C.R.S.2001, to the parents' combined gross incomes. See § 14-10-115(10)(a), C.R.$8.2001.

Under § 14-10-115(7)(a)(D)(A), "gross income" includes "income from any source," including a long list of specific items such as "monetary gifts." The definition was recently amended to include large lottery winnings. See In re Marriage of McCord, 910 P.2d 85 (Colo.App.1995)(concluding lottery winnings were included as "income from any source," as used in § 14-10-115(7)(a)(I)(A), under pri- or version of statute, which included "gifts and prizes" in gross income, but did not exclude certain lottery winnings).

Inheritances are not specifically mentioned in the statute. "Gifts" are mentioned in the statute, but in In re Marriage of Nimmo, 891 P.2d 1002, 1007 (Colo.1995), the supreme court adopted the rule that a "gift" under the Uniform Dissolution of Marriage Act "may properly be used to determine the amount of a child support obligation" only if it is "regularly received from a dependable source." Applying that definition, the father's one-time lump sum inheritance from his mother does not constitute a "gift" under § 14-10-115(7)(@a)(I)(A) because it was not regularly received from a dependable source.

Nevertheless, the general phrase "income from any source," as used in § 14-10-115(7)(a)(I)(A), has been construed broadly to include payments that are received under a structured settlement in a personal injury claim, see In re Marriage of Fain, 794 P.2d 1086 (Colo.App.1990), as well as the interest included in payments received under a settlement reducing the return of an original investment, see In re Marriage of Laughlin, 932 P.2d 858 (Colo.App.1997).

In In re Marriage of Armstrong, 831 P.2d 501 (Colo.App.1992), a panel of this court also held that income an inheritance could generate should be included within "gross income." The panel reasoned that under the plain language of § 14-10-115(7)(a)(D(A), "gross income" includes "all payments from a financial resource, whatever the source thereof." In re Marriage of Armstrong, supra, 831 P.2d at 503.

There, the parties' marriage was dissolved in 1982, and child support was set at $400 per month. When the father later received a $395,000 inheritance, the mother sought an increase in child support. In granting the increase, the trial court ruled that "the income which the inheritance could be expected to generate, within a reasonable degree of accounting, must be considered as a financial resource or income for purposes of determining child support." In re Marriage of Armstrong, supra, 831 P.2d at 502.

On appeal, the father contended the trial court erred in finding that the income his one-time, postdecree inheritance could generate was a financial resource that constituted gross income for the purpose of calculating and modifying child support. There, as here, the father argued that because inherited funds were not considered gross income for federal or state tax purposes, they should not be so considered under the child support guidelines.

The panel in Armstrong rejected the argument that income tax rules were determinative of the definition of a source of income under the child support guidelines. In re Marriage of Armstrong, supra, 831 P.2d at 503; see In re Marriage of Nimmo, supra, 891 P.2d at 1006 n. 7 ("[A] source of income under the child support guidelines is not determined by other definitions which may be used for federal or state income tax purposes." (quoting In re Marriage of Armstrong, supra, 831 P.2d at 508)); In re Marriage of Fain, supra.

Similarly, we reject the father's contention here that federal or state tax laws are determinative of gross income and that his inheritance should not have been considered such for the purposes of calculating child support. In so holding, we note that while inheritances may not be treated as income for tax purposes, see 26 U.S.C. § 102 (2000), distributions from an inherited IRA are mandatory and fully taxable as income upon receipt. See 26 U.S.C. § 408(d)(1) (2000).

B.

However, we agree with the father that the trial court must reconsider the manner in which it calculated the child support.

In In re Marriage of Armstrong, supra, 831 P.2d at 503, the panel upheld that portion of the trial court's ruling which included "as part of [the father's] income, a sum that the inheritance could be expected to have yielded." The trial court treated the father's inheritance as a financial resource that would generate income, reasoning that:

[UJse of the income for determining the amount of child support without invasion of the principal allows the corpus to be used during the minority of the children and to be freed for use by [the father] onee the child support obligation is extinguished, either through emancipation or when the children reach the age of majority.

In re Marriage of Armstrong, supra, 831 P.2d at 502 (emphasis added).

On appeal, the panel in Armstrong cited that reasoning with approval. Although the panel did not directly address whether the entire corpus of the inheritance could be considered as gross income during the year it was received, the above-quoted language from Armstrong suggests it should not be so treated because, to do so, would necessarily invade the principal.

We recognize that in cases not involving inheritances, panels of this court have approved a different approach. In In re Marriage of Zisch, 967 P.2d 199, 201 (Colo.App.1998), after acknowledging "the lack of clear guidance on this issue," a majority of a division of this court held that for purposes of child support, the total amount of a large one-time capital gain should have been included in a party's gross income during the year it was received. The panel in Zisch concluded that, in subsequent years, the asset could be considered a financial resource of the parties that could reasonably be expected to generate income, and such income should be included for child support purposes. See also In re Marriage of Upson, 991 P.2d 341 (Colo.App.1999)(including as a capital gain in determining "gross income" the post-property division appreciation realized on the sale of a home acquired in a property division from a dissolution of marriage); In re Marriage of Bregar, 952 P.2d (Colo.App.1997)(addressing 788 gains). capital

Also, in In re Marriage of Bohn, 8 P.3d 539 (Colo.App.2000), a division of this court, relying on Zisch, upheld the trial court's determination that the entire lottery proceeds received by a party who chose the cash option should be treated as gross income in the year of their receipt.

These cases are difficult to reconcile. However, large lottery proceeds and capital gains are among the items specifically designated by the General Assembly as "gross income" in § 14-10-115(7)(a)(D)(A), whereas the statute has been judicially construed to include income from inheritances within the general category of "income from any source." See In re Marriage of Armstrong, supra. We also cannot discern whether the trial courts in Zisch and Bohn even addressed whether the capital gains or lottery proceeds should have been viewed only as a resource that would generate income. That issue was not addressed by either division on appeal.

We rely on Armstrong because it addressed the same type of asset as that before us now, a one-time inheritance. We are also persuaded that the rationale of the trial court and the panel there establishes a fair and reasonable manner of addressing inheritances consistent with the statutory language, "income from any source."

Accordingly, we conclude the trial court properly included as part of the father's 1999 gross income a sum his inheritance could be expected to generate, but erred in including as gross income for 1999 the entire distribution from the inheritance. See In re Marriage of Armstrong, supra.

In so holding, we recognize there may be cireumstances in which the yield from an inheritance is insufficient to meet the reasonable needs of the minor children. Nothing in this opinion should be read to preclude a trial court from deviating from the child support guidelines, if appropriate, see § 14-10-115(8)(a), or from considering the corpus of an inheritance for child support purposes, if otherwise permitted by law.

We further conclude the trial court correctly imputed a reasonable investment return on the corpus of the inheritance. See In re Marriage of Bregar, supra (husband's sales proceeds were an asset that could reasonably be expected to generate income even if consumed prior to the support determination); In re Marriage of Armstrong, supra.

C.

Because it will arise on remand, we next address the issue of whether taxes should have been considered by the trial court in any manmer in calculating child support.. We conclude that, on remand, in calculating the sum the father's inheritance could be expected to yield, the trial court should consider the amount of the distribution the father actually received and will receive in the future after taxes are paid.

Section 14-10-115(7)(a) does not provide for the deduction of federal and state income taxes in computing gross income for the purposes of child support.

Nevertheless, in In re Marriage of Armstrong, supra, certain items had to be paid as a condition to the father's receipt of the inheritance. Because those amounts were unavailable to the father, the panel concluded the trial court erred to the extent it did not deduct such items in calculating the father's inheritance. Applying this reasoning, the father here contends that only the after-tax IRA distribution should be used to determine his gross income because taxes were owed and were immediately paid out of the distribution. We agree.

Armstrong did not involve taxes, but the father is correct that, as in Armstrong, only a net amount of $33,298 was actually available to him in 1999. The trial court's order reflects this reality regarding the amount of the IRA distribution and the income taxes that were paid, although the court did not make any adjustment for the taxes paid. The court here also imputed to the father interest income of $218 per month in 1999, and for each subsequent year, based on expert testimony that the $47,879 gross distribution would produce that income for the father. This calculation of interest income cannot be reconciled with the court's finding and the undisputed evidence that the father did mot have $47,879 because he had paid over $11,000 in taxes.

Contrary to the mother's contention, In re Marriage of Bohn, supra, does not preclude the trial court from considering the taxes paid by the father.

In Bohn, a panel of this court addressed the treatment of lottery proceeds in calculating child support and concluded that even though withheld taxes admittedly were unavailable to the recipient, they were still a component of gross income. But, in Bohn, the trial court issued its child support order "Iaifter considering the taxes the father would pay for 1998 income," the year in which he took his entire lottery proceeds. In re Marriage of Bohn, supra, 8 P.3d at 540 (emphasis added).

Here, the trial court issued its child support order without considering the taxes and, in doing so, imputed a stream of income to the father based on money that the father did not, in fact, have. See In re Marriage of Bregar, supra (amounts paid as tax cannot reasonably be expected to generate any income and, therefore, should be deducted from the amount imputed as income on the principal asset). We read Armstrong as requiring that the calculation of future income be based upon an actual sum.

Accordingly, on remand, the trial court should reconsider the child support calculation, and in determining the sum the father's inheritance may be expected to yield, it should consider the taxes shown to have been paid by the father for the IRA distribution. See In re Marriage of Armstrong, supra. We do not view this result as inconsistent with the panel's holding in Bohn. Again, the trial court has the discretion to deviate from the presumed amount of support under the child support guidelines, if appropriate. See § 14-10-115(8)(g).

D.

In view of our conclusions, we agree with the father's related contention that the trial court erred in determining the manner in which future distributions from his inheritance will be attributed to him for child support calculations. To the extent the father receives such distributions, the court should determine future child support based on the principles set forth above.

E.

We also agree with the father's contention that the trial court erred in crediting the mother for monthly daycare expenses in the amount of $245.

Job-related child care costs are to be added to the basic support obligation and divided between the parents in proportion to their income. Section 14-10-115(11)(a), C.R.S.2001. Only those costs actually incurred may be considered in the support calculation, In re Marriage of Mackey, 940 P.2d 1112 (Colo.App.1997), but the statute does not require that such expenses qualify for the federal income tax credit.

Here, however, the mother's financial affidavit does not support the amount of the credit given by the trial court. Although there was other evidence indicating the mother commonly used a babysitter five days a week, we cannot discern from this record a basis for crediting the mother for monthly daycare expenses in the amount of $245.

On remand, the trial court should reconsider this portion of its order as well and make additional findings regarding the appropriate credit for child care to which the mother is entitled. The court then should recalculate any arrearages accordingly.

F.

Given our conclusion that a remand for further proceedings is required for the recalculation of support, we need not address the father's argument that the court's income caleulation-which combines his imputed income, the interest income earned on the inheritance, and the income derived from the distributions he takes from the inheritance-results in an exorbitant and oppressive support obligation.

II. Worksheet Used

The father next contends, and the mother concedes, that the trial court erred by applying Worksheet A instead of Worksheet B to calculate child support arrearages from August 1998 to October 1999. Accordingly, we remand to the trial court for a recalculation of those arrearages using Worksheet B. Because the parties also dispute the number of overnights in excess of 104 that the father exercised during that time, on remand the trial court should resolve that issue as well.

The order is reversed, and the case is remanded to the trial court for further proceedings to recalculate child support and ar-rearages in accordance with the views expressed in this opinion. Until the new order is entered on remand, the father's support obligation shall remain at the level set by the trial court at the original permanent orders.

Judge METZGER and Judge KAPELKE concur.


author: Judge ROY.

text:
    C BAR H, INC., a Colorado corporation, and Ashley Miller, Petitioners-Appellants and Cross-Appellees, v. BOARD OF HEALTH IN AND FOR JEFFERSON COUNTY, State of Colorado, Respondent-Appellee and Cross-Appellant.
    No. 01CA0909.
    Colorado Court of Appeals, Div. III.
    April 25, 2002.
    Rehearing Denied June 20, 2002.
    Certiorari Denied Oct. 21, 2002.

      Larry F. Hobbs, P.C., Larry F. Hobbs, Lakewood, Colorado, for Petitioners-Appellants and Cross-Appellees.
    Stephen W. Miller, Golden, Colorado, for Respondent-Appellee and Cross-Appellant.
   Opinion by

Judge ROY.

Petitioners, C Bar H, Inc. (contractor) and Ashley Miller (owner), appeal from the judgment of the district court affirming a decision of the Jefferson County Board of Health (the board) denying them Individual Sewage Disposal System (ISDS) permits to construct two sewage disposal units. We reverse and remand.

Contractor applied for permits for the installation of two on-site ISDS's on two one-acre lots with a slope greater than forty percent. Contractor was listed as the applicant on both applications without the requested disclosure of owner.

Contractor appeared on behalf of owner at a board review hearing on the two applications. Each lot was an aggregation of fourteen smaller lots of a subdivision platted in 1922, and the applicable regulations required a one-acre minimum lot size for each aggregated lot. Both applications were recommended for approval by the board's staff because they met all appropriate regulatory requirements, and they were placed on the consent agenda for final approval by the board.

One member of the board objected to both applications, and they were removed from the consent agenda for further discussion. The objecting board member questioned, inter alia, whether the lots satisfied the minimum acreage requirements, asserting that the lot sizes should be reduced by private rights-of-way that traversed them.

Ultimately, both applications were denied without any stated reason. However, in response to contractor's request for reconsideration, the board stated that the applications were denied because the lots did not meet the minimum size requirements.

Petitioners sought judicial review pursuant to § 25-1-518, C.R.S8.2001. The district court affirmed.

I.

Because it is jurisdictional, we address the cross-appeal first. The board contends that, because the review of petitioners' applications was a quasi-judicial proceeding, petitioners' appeal is governed exclusively by C.R.C.P. 106(a)(4), that petitioners therefore failed to state a claim upon which relief could be granted, and that contractor had no standing in the trial court. We disagree.

The appropriate action for review of a quasi-judicial proceeding before an administrative body for which no procedure is otherwise provided, or for which there is no remedy at law, is pursuant to C.R.C.P. 106(a)(4). This appeal was brought pursuant to § 25-1-518, which expressly provides that any person aggrieved or affected by a decision of a board or a public health administrator may seek a review by filing an appropriate action in the district court. The Colorado Rules of Civil Procedure, including C.R.C.P. 106(a)(4), do not govern the practice and procedure in any statutory proceeding insofar as the rules are inconsistent or in conflict with an applicable statute. See C.R.C.P. 8l1(a); see Berry Properties v. City of Commerce City, 667 P.2d 247 (Colo.App.1983).

Pursuant to the statute, an action for review of the board's decision may be brought by any interested person. The language "appropriate action" in § 25-1-513 refers to a civil action brought under that statute. Because § 25-1-518, the statute under which this action was brought, provides a legal remedy, C.R.C.P. 106(2)(4) is inapplicable here. Petitioners, as owner and contractor, thus had standing to bring the action and are proper parties. For the same reasons, we reject the board's assertion that the complaint fails to state a claim because the proceedings were commenced under the statute and not the rule.

II.

The standard of review is provided by § 25-1-513. The board's decision may be reversed or modified if it prejudiced petition-erg substantial rights because it is: (1) contrary to constitutional rights or privileges; (2) in excess of the statutory authority or jurisdiction of the board; (8) affected by any error of law; (4) made or promulgated upon unlawful procedure; (5) unsupported by substantial evidence in view of the entire record as submitted; or (6) arbitrary or capricious.

Under § 25-1-518(2), C.R.8.2001, we normally would review the district court's decision, rather than the decision of the board. However, because the review in the district court was only of the transeript and exhibits presented before the board, we are in as good a position as the district court to review the record. See Lassner v. Civil Service Commission, 177 Colo. 257, 493 P.2d 1087 (1972).

Further, the question whether the district court or the board correctly interpreted the applicable regulations is a question of law, subject to de novo review. See Sohocki v. Colorado Air Quality Control Commission, 12 P.3d 274 (Colo.App.1999); see also In re Estate of Moring v. Colorado Dep't of Health Care Policy & Financing, 24 P.3d 642 (Colo.App.2001){(standard of review for statutory or regulatory construction is de novo) In re Estate of DeWitt, 32 P.3d 550 (Colo.App.2000)(cert. [granted Oct. 15, 2001)(when issue on appeal concerns only legal issues, decision of trial court subject to independent de novo review); Massachusetts Co. v. Evans, 924 P.2d 1119 (Colo.App.1996)(when only evidence considered was will and trust documents, court of appeals not bound by trial court's interpretation of those documents). '

If there is a reasonable basis for the board's application of the rules or interpretation of the law, the decision may not be set aside. See Lee v. State Board of Dental Examiners, 654 P.2d 839 (Colo.1982); Save Park County v. Board of County Commissioners, 969 P.2d 711 (Colo.App.1998), aff'd, 990 P.2d 85 (Colo.1999).

We therefore review the decision of the board. Its findings must be supported by substantial evidence. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and the evidence must be enough to justify a refusal to direct a verdict if the trial were to a jury. See City of Colorado Springs v. Givan, 897 P.2d 753 (Colo.1995). Substantial evidence does not mean, as the district court concluded, the same as any competent evidence. See Lassner v. Civil Service Commission, supra.

IIL

The contractor and the owner contend that the board improperly determined that private rights-of-way should be subtracted from building sites in calculating lot size for purposes of ISDS permits. We agree.

Board regulation 4.2.A provides that installation of an ISDS shall be permitted only on building sites that conform to the acreage requirements set forth in an included table. The regulations define a "building site" as "a lot(s) or parcel(s) of real property that complies with applicable lot size standards as set forth in these Regulations and applicable statutes and Regulations pertaining to zoning and planning."

The zoning and planning regulations provide that private rights-of-way within a lot that are the functional equivalent of public roads shall be deducted from the lot size to determine compliance, subject to certain criteria and limitations contained in the ordinance. It is undisputed that the lots at issue satisfied the minimum size requirements for the installation of an ISDS if the private rights-of-way were included in the lot size measurement.

The issue of whether private rights-of-way must be excluded when calculating the lot size of a building site for purposes of construction of an ISDS was one of first impression before the board. The board relied on the ISDS regulation defining building sites and requiring that they comply with both the ISDS regulations and the zoning and planning regulations, which in turn require the exclusion of private rights-of-way that are essentially the equivalent of public roads from the minimum lot size calculation.

In our view, this reliance was misplaced. In construing a regulation, courts first look at the plain language of the regulation and interpret its terms in accordance with their commonly accepted meanings. See City of Colorado Springs v. Securcare Self Storage, Inc., 10 P.3d 1244 (Colo.2000); In re Estate of Moring v. Colorado Dep't of Health Care Policy & Financing, supra.

The definition of building sites in the ISDS regulations requires only that a lot must comply with the standards set forth in that regulation and independently comply with the applicable zoning and planning statutes and regulations. The regulation defining building sites does not authorize the board to use the zoning and planning regulations to determine lot size for ISDS purposes.

While both regulatory schemes concern spacing, the zoning regulations address different concerns and serve different purposes than do the ISDS regulations. What may be a reasonable regulation for one purpose is not necessarily reasonable for another. The board here had no authority to import and rely upon the zoning and planning regulations. The minimum lot size for zoning and planning, apparently 6250 square feet, is considerably smaller than the one-acre requirement for ISDS, and therefore eliminating rights-of-way from the computation of lot size may well be appropriate in a zoning context.

The board relies, in part, on Lidke v. Martin, 31 Colo.App. 40, 500 P.2d 1184 (1972), to support its use of the zoning and planning regulations to exclude private rights-of-way in calculating acreage. In our view, that case is inapposite. There, subdivision restrictive covenants limited the use of the lots to single family dwellings. A developer had some subdivision lots reszoned to permit multi-family dwellings. The restrictive covenants provided that they were to be construed in a manner so as not to conflict with the county zoning ordinances and incorporated by reference the present and future ordinances. Developer there argued that under the rule of construction contained in the covenants and by virtue of the incorporation of the zoning ordinances, his rezoned lots could be used for multi-family dwellings. A division of this court disagreed, holding that the covenants must be read as a whole and that to interpret them as urged by the developer would render the covenants meaningless and permit their civeumvention.

In our view, the case is of no assistance to the board. There, an incorporation by reference did not amend or supplement the covenants. Here, there is no incorporation by reference, merely a requirement that the lot conform to both the zoning and the health regulations.

Under these cireumstances, a provision in one regulatory scheme requiring compliance with another does not, without more, incorporate the standards and criteria of the other. The board's application of the zoning regulation criteria to calculate lot size for ISDS or sanitation purposes was arbitrary and capri-clous.

Accordingly, the judgment of the district court is reversed, and the case is remanded for further proceedings by the board consistent with the views expressed in this opinion.

Judge NEY and Judge DAILEY concur.


author: Judge JONES. Judge WEBB

text:
    Randolph L. QUINTANA, Plaintiff-Appellant, v. CITY OF WESTMINSTER and Timothy Torres, Defendants-Appellees.
    No. O1CA0999.
    Colorado Court of Appeals, Div. II.
    April 25, 2002.
    Certiorari Denied Oct. 21, 2002.

      Fasing Law Firm, P.C., Gregory J. Fasing, Denver, Colorado, for Plaintiff-Appellant.
    Martin R. McCullough, City Attorney, Jeffrey M. Betz, Deputy City Attorney, Westminster, Colorado; Senter Goldfarh & Rice, L.L.C., Thomas S. Rice, Erie M. Ziporin, Denver, Colorado, for Defendants-Appellees.
   Opinion by

Judge JONES.

Plaintiff, Randolph L. Quintana, appeals the dismissal of his complaint alleging negligence by defendants, the City of Westminster and police officer Timothy Torres, on grounds of lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (GIA), § 24-10-106, and § 424-108, C.R.8.2001. We affirm.

Plaintiff sued the City and Torres after plaintiff was seriously injured in a collision with a suspect's speeding vehicle, which Torres was pursuing in his police cruiser. Defendants moved to dismiss for lack of subject matter jurisdiction under the GIA. After a hearing, the trial court granted defendants' motion to dismiss.

In Quintana v. City of Westminster, 8 P.3d 527 (Colo.App.2000)(Quintana I), a panel of this court vacated the trial court's judgment and remanded the case, directing the trial court to determine, pursuant to § 42-4-108@)(c), C.R.S.2001, whether Torres's conduct endangered life or property while exceeding the lawful speed limit.

Upon remand, and on additional briefs but without a further hearing, the trial court found that "although Torres did not follow certain [of the City's pursuit] procedures ... [and] exceeded the posted legal speed limits, that act of speeding did not endanger life or property." This second appeal followed.

L.

Plaintiff first contends that the trial court erred by failing to apply the proper legal standard to determine whether Torres, as he pursued the suspect, endangered life or property while exceeding the speed limit. We perceive no error.

Pursuant to the GIA, a public entity and its employees are immune from tort liability unless, under the cireumstances, the claim is within certain statutorily specified exceptions. Bertrand v. Board of County Comm'rs, 872 P.2d 223 (Colo.1994). Issues of governmental immunity are determined under C.R.C.P. 12(b)(1) concerning motions to dismiss for lack of subject matter jurisdiction. Fogg v. Macaluso, 892 P.2d 271 (Colo.1995).

Decisions of a trial court regarding factual disputes are accorded great deference and, therefore, a reviewing court applies the clear error standard of review. Walton v. State, 968 P.2d 636 (Colo.1998). The plaintiff bears the burden of proving subject matter jurisdiction, and the trial court's findings of fact supporting a determination under the GIA will not be reversed unless clearly erroneous. Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993). A finding is clearly erroneous, and, therefore, lacking support of competent evidence, when, "although there [may be] evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948); see St. James v. People, 948 P.2d 1028 (Colo.1997).

However, while the exceptions to the GIA waivers of immunity are to be construed narrowly, the waiver provisions themselves are to be construed deferentially in favor of injured persons. See Corsentino v. Cordova, 4 P.3d 1082 (Colo.2000); State v. Nieto, 993 P.2d 493 (Colo.2000); Walton v. State, supra.

A.

Plaintiff first argues that the trial court erred on remand by not applying the proper standard for construing the GIA because it did not refer to Walton v. State, supra, in its order. We disagree.

In Walton, the supreme court determined that the GIA's waiver provisions are to be construed deferentially in favor of injured persons. As plaintiff points out, Walton was decided after the trial court's original findings were entered here. However, following the Walton decision, the supreme court in Corsentino v. Cordova, supra, established the legal standard by which courts must consider governmental immunity cases involving emergency vehicles. In doing so, the supreme court reiterated its holding in Walton concerning interpretation in favor of infured persons.

Here, upon remand, the trial court applied the standard set forth in Corsentino v. Cordova, supra. We conclude that the trial court was aware of its obligation narrowly to construe immunity and to construe the waiver provisions of the GIA broadly. Therefore, we perceive no error.

B

Plaintiff specifically contends that the trial court erred by not applying the standards of Corsentino v. Cordova, supra, for determining endangerment. We disagree.

In Corsentino, the supreme court first established an objective standard from the perspective of a reasonable emergency vehicle operator for determining whether an emergency vehicle operator was responding to an emergency call under § 42-4-108(2), C.R.S.2001. "Under this standard, courts must decide whether the emergency vehicle operator reasonably believed that she was responding to an emergency based on information she knew or should have known." Corsentino v. Cordova, supra, 4 P.3d at 1088. Noting the competing interests of the injured party and the public concerning such inquiry, the supreme court then stated, "[TIhe standard for determining whether an emergency exists should not be so deferential as to prevent legitimate recovery. Conversely, it should give enough deference to emergency vehicle operators' decisions so that there is no chilling effect on their responses to emergencies." Corsentino v. Cordova, supra, 4 P.3d at 1088.

Additionally, the supreme court in Corsentino determined that, in resolving these issues, courts should consider whether the emergency department has a policy concerning response to emergencies and that "lilt is reasonable to assume that an emer-geney vehicle operator is or should be aware of her department's policy." Corsentino v. Cordova, supra, 4 P.3d at 1089. Response by an emergency vehicle operator that is in line with the department's policy raises "a strong likelihood that her response is reasonable under the cireumstances," but "if the emergency vehicle operator proceeds against the established policy ..., there is a strong likelihood that her response is not reasonable." Corsentino v. Cordova, supra, 4 P.3d at 1089.

The courts must then determine whether immunity is waived under the circumstances. In this regard, the supreme court stated that "the pertinent question is whether the emergency vehicle operator's speed created an unreasonable risk of injury or damage to life or property." Corsentino v. Cordova, supra, 4 P.3d at 1093. In contemplating this question, the courts "must not consider the accident or actual damage" resulting from the speeding, nor should they consider "whether the emergency vehicle operator was responding to an actual emergency"; instead, "courts should limit their inquiry to the relationship between the conduct of the emergency operator prior to the accident and the circumstances surrounding the conduct," including "the legal speed limit in the area, the speed at which the operator was driving, the conditions of the road, and the type of area in which she was driving." Corsentino v. Cordova, supra, 4 P.3d at 1093. Thus, "the officer's driving must be evaluated in the context of all relevant cireamstances." Quintana I, supra, 8 P.3d at 530.

Here, the trial court considered each factor set out in Corsentino, listing those considerations and stating that the list was not exclu-give. The trial court properly determined that, from an objective standpoint, Torres had a reasonable belief that he was, and ought to be, responding to an emergency. The trial court also properly considered Torres's failure to follow certain pursuit policies of his department. Although he failed to apprise the department of his speed, the record reflects that he was in constant contact with his dispatcher and other officers in the area of the pursuit; he advised that he was in pursuit of an automobile; he de-seribed the vehicle, its location, and the direction in which it was traveling; and he described the appearance and the clothes of one of the vehicle's occupants, who fled from the accident scene, and gave the direction of the suspect's flight. All of these actions were taken in accordance with the department's pursuit policies, as the trial court found.

Thus, we agree with the trial court's implied finding that Torres's failure to follow certain procedures did not, under the cireum-stances, render his response unreasonable. See Corsentino v. Cordova, supra.

Upon an examination of the entirety of the record, we conclude that the trial court appropriately applied the rubric of Corsentino and that its finding that Torres did not endanger life or property is well supported by the record.

C.

Plaintiff next contends that the trial court erred in not adhering to the Quintana I remand instructions and, specifically, in not following Zapp v. Kukuris, 847 P.2d 150 (Colo.App.1992). We disagree.

The law of the case established by an appellate court must be followed on remand in subsequent proceedings before a trial court. The doctrine of law of the case applies "not only to the conclusive effect of appellate rulings on remand, but also to the binding force of trial court rulings during later trial court proceedings." Kuhn v. Dep't of Revenue, 897 P2d 792, 795 n. 5 (Colo.1995)(quoting People v. Roybal, 672 P.2d 1003, 1005 n. 5 (Colo.1983)).

'In Quintana I, the division of this court determined that the Zapp v. Kukuris standard regarding whether the driver operated with reckless disregard of others was not applicable under the supreme court's decision in Fogg v. Macaluso, supra.

Accordingly, the trial court applied the appropriate legal standard in determining whether Torres endangered life or property while exceeding the speed limit.

IL.

Plaintiff next contends that the trial court erred in finding and concluding that Torres did not endanger life or property in exceeding the speed limit. We disagree.

A.

Plaintiff first argues that the trial court erred in failing to mention in its order the testimony of any eyewitness, including eyewitnesses whose statements were attached to police reports. We disagree.

We review a trial court's eviden-tiary decisions for abuse of discretion. Quintana I, supra (citing Bonser v. Shainholtz, 983 P.2d 162 (Colo.App.1999), rev'd on other grounds, 3 P.3d 422 (Colo.2000)). The trier of fact may reject uncontroverted expert or lay testimony as unreliable. See Hock v. New York Life Ins. Co., 876 P.2d 1242, 1253 (Colo.1994); West Denver Feed Co. v. Ireland, 38 Colo.App. 64, 551 P.2d 1091 (1976); Thiele v. State, 30 Colo.App. 491, 495 P.2d 558 (1972). The reviewing court will presume that the trial court disregarded incompetent evidence. See In re Marriage of Peterson, 40 Colo.App. 115, 572 P.2d 849 (1977). A trial court's findings of fact will not be disturbed on appeal if they are supported by competent evidence in the record. St. James v. People supra.

1.

In Quintana I, the division affirmed the trial court's exclusion of lay opinion testimony from one eyewitness because it lacked the proper foundation. In addition, regarding the testimony of the traffic control supervisor in charge of the road construction project, the division stated that "(tlhe record indicates that the eyewitness who was not initially allowed to opine whether the officer was 'reckless,' in fact, ultimately testified concerning that issue." Quintana I, supra, 8 P.3d at 580. Therefore, we do not reconsider the validity of these witnesses' testimony here. See Kuhn v. Dep't of Revenue, supra.

2.

Here, plaintiff refers to statements made to police by individuals who were not called to testify under oath and were not subject to cross-examination. Plaintiff submitted the statements to prove the matter each witness asserted, namely, that during the chase, Torres greatly exceeded the speed limit. The trial court properly disregarded each of these statements as incompetent evidence because each is hearsay, not within an exception to the rule. See CRE 801. Additionally, even if such statements were admissible, the court could exclude them under CRE 403.

3.

The record reveals that the trial court, pursuant to CRE 708, received the testimony of plaintiff's expert concerning the speed of Torres's vehicle, based upon the eyewitness reports. Under CRE 703, an expert may base an opinion upon facts and data made known to the expert before or during the hearing, even if those facts and data are not admissible into evidence.

In Quintana I, supra, 8 P.3d at 531, the division stated: "[OJn remand, the trial court may consider the expert's testimony as it relates to the officer's endangerment of life or property" (emphasis added). In addition, the division indicated that the trial court might choose to conduct additional pretrial evidentiary hearings to consider the expert's testimony, but this was not compulsory.

We cannot conclude that, merely because the court did not specifically refer to the expert's testimony in its order, the court ignored that evidence.. Indeed, the trial court found that the pursuing officer violated certain department procedures, a point made by the expert.

In sum, competent evidence in the record supports the findings that Torres drove his vehicle to avoid colliding with others; he slowed his vehicle before entering the construction zone where the collision occurred between the suspect vehicle and plaintiff; he maintained visual contact with the suspect vehicle during the pursuit; and although he violated some of the City's police pursuit procedures during the chase, these violations did not affect his operation of the vehicle. As we concluded above, these findings and the entire record support the trial court's ultimate conclusion that, while speeding, the officer "did not endanger life or property."

B.

Plaintiff also argues that the trial court erred in failing to take judicial notice of a mathematical calculation offered to determine the speed of Torres's vehicle. We disagree.

Facts subject to the judicial notice rule are those "not subject to reasonable dispute" and must be either "generally known within the territorial jurisdiction of the trial court" or "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." CRE 201(b).

Traditionally, the rule has been used cautiously because its purpose is to bypass the usual factfinding process. Thus, such notice should be taken only when the facts are of such common knowledge that they cannot reasonably be disputed. Prestige Homes, Inc. v. Legouffe, 658 P.2d 850 (Colo.1983). For example, unquestioned laws of mathematics are judicially noticeable. Winterberg v. Thomas, 126 Colo. 60, 246 P.2d 1058 (1952). However, conclusions reached by application of mathematical principles cannot be judicially noticed unless such conclusions are irrefutable. See Anderson v. Lett, 150 Colo. 478, 374 P.2d 355 (1962).

Here, plaintiff reached a conclusion concerning Torres's speed based upon a calculation of the speed of the suspect vehicle at the moment of impact combined with the estimated distance between Torres's cruiser and the suspect vehicle. Defendants disputed this conclusion.

Thus, we conclude that the trial court did not abuse its discretion in declining to take judicial notice of this mathematical calculation because plaintiff did not show that the equation and its application lead to an irrefutable result. See CRE 201(c).

Accordingly, we conclude that the trial court applied the proper legal standard, did not abuse its discretion in determining matters of evidence, and did not err in weighing the evidence to arrive at its findings of fact and conclusions of law.

The judgment is affirmed.

Judge PLANK concurs.

Judge WEBB dissents.

Judge WEBB

dissenting.

With respect, and mindful of the great deference accorded the trial court's factual findings, I dissent. In my view, both the trial court and the majority have failed to address plaintiff's singular theory: that Torres "endangered life or property while exceeding the lawful speed limit" within the meaning of § 42-4-108(2)(c), C.R.S8.2001, when, according to the complaint, "Officer Torres chased [the suspect's vehicle! eastbound on West 72nd Avenue into a congested construction zone at rush hour, during heavy traffic, when [the suspect's vehicle] crossed into the westbound lanes of West TZnd Avenue and smashed head-on into [plaintiffs car}."

The facts relevant to plaintiff's theory can be found in Torres's testimony. Torres began his pursuit in the vicinity of Tist Place and Sheridan Boulevard. He turned on his lights and, seconds later, his siren. He then followed with lights and siren during the entire episode.

The suspect vehicle turned from Sheridan Boulevard east onto West 72nd Avenue. Torres continued the pursuit for approximately sixteen blocks east to the intersection of West 72nd Avenue and Lowell Boulevard. Torres estimated his speed along West 72nd Avenue at fifty to sixty miles per hour, despite the thirty-five miles-per-hour speed limit.

Torres knew that one block beyond Lowell Boulevard, a construction zone narrowed West 72nd Avenue from four lanes to two lanes. He acknowledged that the suspect vehicle "was fleeing from [his] lights and siren patrol car." During the pursuit down West 72nd Avenue, the suspect vehicle "never made any indication [it] was going to make any kind of turn."

At the Lowell Boulevard intersection, Torres slowed and then stopped briefly, but still did not break off his pursuit. At that point he was about 150 feet behind the suspect vehicle, although previously he had been following only three car lengths behind. One block further east, the construction zone began. Three blocks into the construction zone, the suspect vehicle, traveling at an accident reconstruction expert's estimate of sixty-seven miles per hour, crossed into the single oncoming traffic lane and struck plaintiff's car.

The trial court's factual findings address how Torres conducted the "high-speed pursuit," not why he continued the chase into the construction zone, which I see as a key factor in the necessary calculus of risk. The majority correctly concludes that the record supports those findings. However, none of those findings speaks to the question of endangerment arising solely from Torres's (or his supervisor's) decision to chase the suspect vehicle into the narrowed construction zone.

The majority also notes that the trial court's findings support its ultimate legal conclusion that Torres did not "endanger life or property." I agree that all the factual findings about the police chase bear some relevance to the endangerment inquiry, but the findings simply do not address plaintiffs specific theory of endangerment.

Moreover, several of the trial court's factual findings indicate that Torres's continued pursuit could have endangered oncoming traffic because the two-lane construction zone made a head-on collision more likely if the driver of the suspect vehicle lost control at that point. For example, "Torres exceeded the posted speed limits while on 72nd Avenue." Although "Torres reduced his speed prior to entering the construction zone," at the intersection of 72nd Avenue and Lowell Boulevard "the suspect vehicle was [then] approximately 150 feet ahead of the Torres vehicle." With the start of the construction zone now only one block ahead, the distance of 150 feet behind the suspect vehicle shows that Torres was still in hot pursuit.

In the prior appeal, a panel of this court remanded "because the trial court did not make any finding resolving whether the officer's actions endangered life or property" and noted that "the officer's driving must be evaluated in the context of all relevant circumstances." Quintana v. City of Westminster, 8 P.3d 527, 530 (Colo.App.2000)(emphasis supplied). Under Corsentino v. Cordova, 4 P.3d 1082, 1098 (Colo.2000), "courts should limit their inquiry to the relationship between the conduct of the emergency operator prior to the accident and the cireumstances surrounding the conduct." Here, the trial court's findings fail to address what I see as the most significant surrounding cireum-stance: the particular hazard of the suspect vehicle being chased into the narrowed construction zone.

Corsentino also noted with approval the trial court's careful analysis of the accident location, including "line-of-sight problems caused by the overgrowth of trees and bushes on the median at the intersection" where the accident occurred. 4 P.3d at 1093. Here, a similar analysis could have, and in my view should have, been performed of the construction zone. The trial court's omission cannot be exeused by its sole focus on operation of Torres's vehicle, because liability under the GIA extends to collisions involving the vehicle being chased. See Zapp v. Kukuris, 847 P.2d 150 (Colo.App.1992).

This early stage of the proceeding presents only the threshold question of whether endangerment creates jurisdiction under the GIA. The emergency vehicle exception to the motor vehicle waiver of immunity should be narrowly construed for the benefit of injured persons. Corsentino v. Cordova, supra. Whether Torres drove his vehicle recklessly or appropriately during the lengthy high-speed chase, the necessity of which the trial court assumes but does not address, presents a different question.

Colorado law on appellate review of trial court factual findings includes no civil case concerning trial court findings that are both supported by the record and consistent with the ultimate legal conclusion, but which nevertheless fail to address a plaintiff's particular theory. Cf. St. James v. People, 948 P.2d 1028, 1082 (Colo.1997)(remanding: "Because no determination was made by the trial court, the appellate function is hindered. The clearly erroneous standard of review cannot be applied. ...").

With reluctance to protract litigation further that arose from an accident on July 17, 1996, I would again remand the case, this time with express direction that the trial court make specific findings on whether the mere fact of continuing to pursue the suspect vehicle for sixteen blocks, until its entry into the construction zone became inevitable, "endangered life or property."


author: Judge MARQUEZ.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Alexander WHIDDEN, Defendant-Appellant.
    No. 01CA1155.
    Colorado Court of Appeals, Div. V.
    June 6, 2002.
    Certiorari Granted Nov. 4, 2002.

      Ken Salazar, Attorney General, Christine C. Brady, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Philip A. Cherner, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge MARQUEZ.

Defendant, Alexander Whidden, appeals from the trial court's order denying his Crim P. 35(c) motion. We affirm.

On October 29, 2000, defendant began serving three years of mandatory parole. Defendant provided urine samples on October 3 and December 6, 2000, both of which tested negative for controlled substances. On December 29, 2000, defendant was placed on the Intensive Supervision Program (ISP), which required that he provide additional urine samples as directed. The urine sample defendant submitted on January 1, 2001 tested positive for cocaine. Based on this positive sample, the parole officer filed a complaint to revoke defendant's parole.

At the revocation hearing, defendant argued that pursuant to § 17-2-201(5.5)(d)(D, C.R.S.2001, his parole could not be revoked for a single positive urine analysis and, alternatively, that if it were revoked, he could only be sentenced to a facility other than prison. The hearing officer found that § 17-2-201 did not apply, but under § 17-2-102(8.5)(b)(I1), C.R.8.2001, the parole division had authority to seek revocation when a parolee submits a second or subsequent positive test for controlled substances. The hearing officer referred to § 17-2103, C.R.S.2001, as giving the parole board authority regarding revocation proceedings. Based on those findings, the hearing officer revoked defendant's parole and returned him to the Department of Corrections for the remainder of his sentence.

The appellate body of the Colorado Board of Parole upheld the hearing officer's decision, finding that the parole hearing was properly conducted under the existing statutes and that the decision was within the hearing officer's discretion.

Defendant sought relief in the trial court pursuant to Crim. P. 35(c)(2)(VII) and § 18-1-410, C.R.S.2001. Defendant again asserted that § 17-2-201(5.5)(d)(I) does not authorize parole revocation for a first positive urine test. The People argued that a parole officer could seek revocation of defendant's parole pursuant to §$ 17-2-102@8.5)(b), and that because defendant was on ISP, the parole officer had additional authority under § 17-27.5-101, et seq., C.R.8.2001.

The trial court determined that the parole board always has the discretion to revoke parole when a condition of parole is violated. The court further concluded that § 17-2-201(5.5)(d) is a permissive statute that gives additional discretion and authority to the parole board to find conditions that would mitigate against revocation of parole and a parolee's return to the Department of Corrections. The trial court then denied defendant's motion. Defendant appeals from that order.

I. Parole Legislation

Before addressing defendant's contentions on appeal, we first review the pertinent legislation.

The article governing parole and probation includes part 1, which governs the division of adult services, and part 2, which governs the state board of parole. See §§ 17-2-101, 17-2-201, C.R.9.2001.

The general powers, duties, and functions of the division of adult parole and its officers are described in § 17-2-102, C.R.S8.2001. Section 17-2-102(8.5)(a) describes the division's options if a parolee tests positive when "initially tested," and subsection (b) describes the options when a "second or subsequent test" is positive:

(a) Any parolee, on parole as a result of a conviction of any felony, who is under the supervision of the division of adult parole pursuant to this part 1 and who is initially tested for the illegal or unauthorized use of a controlled substance and the result of such test is positive shall be subject to any or all of the following actions:
(I) An immediate warrantless arrest;
(II) An immediate increase in the level of supervision, including but not limited to intensive supervision;
(III) Random sereenings for the detection of the illegal or unauthorized use of a controlled substance, which use may serve as the basis for any other community placement;
(IV) Referral to a substance abuse treatment program.
(b) If any parolee described in paragraph (a) of this subsection (8.5) is subjected to a second or subsequent test for the illegal or unauthorized use of a controlled substance and the result of such test is positive, the parole officer shall take one or more of the following actions:
(I) Make an immediate warrantless arrest;
(II) Seek a parole revocation in accordance with section 17-2-103;
(III) Immediately increase the level of supervision, including but not limited to intensive supervision;
(IV) Increase the number of drug sereen-ings for the illegal or unauthorized use of controlled substances;
(V) Refer the parolee to a substance abuse treatment program.

(Emphasis added.)

The arrests of parolees and parole revocation proceedings are described in § 17-2-103. Whenever a parole officer has reasonable grounds to believe that a condition of parole has been violated, the officer may issue a summons requiring the parolee to appear before the state board of parole. See § 17-2-108(8)(a), C.R.8.2001. If the parole board determines that a violation of a condition or conditions of parole has been committed, the board shall either revoke the parole, continue it in effect, or modify the conditions of parole "if cireumstances then shown to exist require such modifications." See § 17-2-108(11)(a), C.R.98.2001.

Section 17-2-201 governs the state board of parole. Section 17-2-201(5.5), C.R.8.2001, describes in subsection (a) the testing program; in subsection (d)(I) the board's options if "a chemical test" is positive; and in subsection (d)(II) the options if "any subsequent chemical 'test" is positive:

(a) As a condition of parole, the board shall require every parolee at his own expense to submit to random chemical testing of his urine to determine the presence of drugs or alcohol. Such testing shall take place as follows:
(I) Immediately upon the parolee's release from incarceration in order to establish a baseline sample;
(II) Within the first thirty days from the date of parole;
(III) On or after sixty-one days but not later than six months from the date of parole; and
(IV) Annually on or after one year from the date of parole for the duration of parole.
(d)(I) If a chemical test administered pursuant to the requirements of this subsection (5.5) reflects the presence of drugs or alcohol, the parolee may be required to participate at his own expense in an appropriate drug or aleohol program, community correctional nonresidential program, mental health program, or other fee based or nonfee based treatment program approved by the parole board.
[ (IDJ(B) A parolee may be arrested and a proceeding for revocation may be initiated pursuant to the provisions of section 17-2-103 if any subsequent chemical test reflects the presence of drugs pursuant to subpara-graph (I) of paragraph (b) of this subsection (5.5).

(Emphasis added.)

An offender whose parole is modified may be required by the state board of parole to participate in an ISP as a condition of such parole. See § 17-27.5-106, C.R.8.2001. The Department of Corrections has the power to establish and enforce standards and criteria for administration of ISPs, which shall require, as relevant here, drug and aleohol screening. See § 17-27.5-102(1), (2), C.R.S. 2001.

II. Defendant's Contentions

Defendant contends that § 17-2-102(8.5) provides that when an individual is initially tested for an illegal controlled substance and the result is positive, the parole officer can arrest the individual, increase the level of supervision, or refer the individual to treatment. According to defendant, only upon the individual's second positive test may the parole officer also seek a parole revocation. He argues that, read together, §§ 17-2-102(8.5) and 17-2-201(5.5)(d)(I) limit the board's discretion, so that for a first positive urine test the offender may not be sent to prison, and only upon a second positive test may parole be revoked. We disagree.

The interpretation of a statute presents a question of law that we review de novo. Our primary task in construing a statute is to give effect to the intent of the General Assembly by looking first at the language of the statute. People v. Merchant, 983 P.2d 108 (Colo.App.1999).

When interpreting more than one statute, appellate courts favor a construction that avoids potential conflict between the relevant provisions. People v. Smith, 971 P.2d 1056 (Colo.1999); see McIntosh v. Board of Education, 999 P.2d 224 (Colo.App.2000)(conflicts between relevant provisions are to be avoided by reconciling or harmonizing statutes if possible).

If the language is clear and the intent appears with reasonable certainty, there is no need to resort to other rules of statutory construction. People v. District Court, 713 P.2d 918 (Colo.1986).

A.

Defendant first asserts that § 17-2-201(5.5)(d)(I) is mandatory, rather than permissive, so that the parole board had no authority to revoke parole and imprison him for a single positive urine test. Defendant points out that the parole board's general authority to revoke or modify parole pursuant to § 17-2-103(11)(a) predates the enactment of § 17-2-201(5.5)(d). Therefore, in defendant's view, if the provisions of § 17-2-201(5.5)(d) are merely permissive, they add nothing to the statutory scheme. We reject this interpretation.

Section 17-2-108(11)(a) was enacted in 1977. See Colo. Sess. Laws 1977, ch. 223 at 911. Section 17-2-201(5.5) was enacted in 1987, and § 17-2-102(8.5) was enacted in 1989. See Colo. Sess. Laws 1987, ch. 126 at 660-61; Colo. Sess. Laws 1989, ch. 153 at 877.

As a threshold matter, there is some question whether the requirements of § 17-2-201(5.5) apply to defendant. Subsection (5.5)(a) requires chemical tests of every parolee at his or her own expense and at designated intervals, and subsection (5.5)(d) refers to a chemical test "administered pursuant to the requirements of this subsection (5.5)."

Here, it does not appear that defendant's test was administered pursuant to the guidelines in § 17-2-201(5.5). There is no evidence that defendant was tested at his own expense. One test appears to have occurred prior to his release from incarceration, and there was not a test within the first thirty days from the date of parole. Further, defendant's test in January 2001 was administered after he was required to submit to weekly chemical testing under a specific directive outlined in his ISP.

Nevertheless, even assuming the requirements of § 17-2-201(5.5) apply to defendant, we interpret both §§ 17-2-102(8.5) and 17-2-201 to prohibit revocation upon initial testing even if the result is positive, but to allow revocation upon any subsequent positive test for drugs even if the initial test was not positive.

Under § 17-2-201(5.5)(a)(I) defendant was subject to testing to establish a baseline sample. Section 17-2-201(5.5)(d)(I) only limits the authority of the board to require a parolee to participate in appropriate programs approved by the board upon initial testing that reflects the presence of drugs or alcohol. This limitation is evidenced by § 17-2-201(5.5)(d)(ID(B), which authorizes the board to initiate revocation proceedings if "any subsequent chemical test" reflects the presence of drugs. The use of the term "any subsequent chemical test" indicates that the General Assembly intended that revocation could occur only upon a subsequent test that was positive. Thus, revocation could not occur upon the initial test even if it were positive. However, there is nothing in this statute that states that there must be at least two positive tests before revocation may occur or that revocation of parole may occur only upon a second positive test.

Although lacking the provisions that testing be at the parolee's expense and at specified intervals, the later enacted § 17-2-102(8.5) provides a similar range of authority. This statute states that a parolee who is "initially tested" with a positive result is subject to a number of alternatives, but not including revocation. See $ 17-2-102(8.5)(a). However, if a parolee is subjected to a subsequent test and the result is positive, the parolee is subject to revocation. See § 17-2-102(8.5)(b). The statute does not require that the subsequent test be the second positive test.

This reading is consistent with the earlier enacted § 17-2-103(11)(a). Under that statute, if the parole board determines that a condition of parole has been violated, the board must either revoke the parole, continue it in effect, or modify the condition of parole "if cireumstances then shown to exist require such modifications." However, the statute does not require revocation upon an initial positive testing. Further, it must be read in conjunction with §§ 17-2-201(5.5) and 17-2-102(8.5), where it is apparent that the General Assembly intended to address specifically the consequences of drug testing. See People v. Smith, supra.

Contrary to defendant's assertion, such a construction does not render the provisions of § 17-2-201(5.5) meaningless. As noted, § 17-2-201(5.5)(d) authorizes the board to require a parolee to enter a treatment program at his or her own expense and to be tested at specific intervals. It also allows revocation of parole only upon a second or subsequent chemical test.

Here, the record reflects that a condition of defendant's parole required him to refrain from possessing or using illegal drugs and that defendant passed an initial test in December 2000. Defendant violated this condition by submitting a positive urine sample in a subsequent test on January 1, 2001. While the parole board could have required defendant to participate in a treatment program at his own expense, the parole board also had the authority to revoke defendant's parole based on this single violation when it occurred in a subsequent test.

Because we conclude that the statutory language in 17-2-201(5.5) is unambiguous, we need not address defendant's contention that the legislative history of that statute compels a contrary result. See People v. District Court, supra.

B.

For the foregoing reasons, we also reject defendant's contention that because § 17-2-102(8.5)(a) uses the word "shall," that statute is not permissive and restricts the board's authority to revoke a defendant's parole unless a second or subsequent test is positive.

Therefore, we reject defendant's contention that § 17-2-102(8.5) restricts the parole board's authority to revoke his parole for a single violation based on a positive test for use of illegal drugs. See People v. Merchant, supra.

The order is affirmed.

Judge ROY and Judge NIETO concur.