author: Judge DAILEY.

text:
    STATE of Colorado, DEPARTMENT OF NATURAL RESOURCES, WILDLIFE COMMISSION, DIVISION OF WILDLIFE, Plaintiff-Appellee, v. Daren CYPHERS, Defendant-Appellant.
    No. 01CA2553.
    Colorado Court of Appeals, Div, IV.
    Feb. 27, 2003.
    Certiorari Denied July 28, 2003.

      Ken Salazar, Attorney General, Bradley W. Cameron, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Kay Snider Coffman, P.C., Kay Snider Coffman, Grand Junction, Colorado, for Defendant-Appellant.

      Justice KOURLIS and Justice COATS would grant as to the following issues:
      Whether the court of appeals erred in finding that the Division of Wildlife was the real party in interest and had the requisite legal authority to bring the underlying claim.
      Whether the court of appeals erred in holding that the declaration of a "public highway" does not carry with it any obligation for maintenance or the expenditure of any public funds.

   Opinion by

Judge DAILEY.

Defendant, Daren Cyphers (landowner), appeals from an adverse judgment entered in an action brought by plaintiff, the Colorado Department of Natural Resources, Wildlife Commission, Division of Wildlife (DOW), to declare the existence of a public highway across landowner's property. We affirm.

Landowner owns property in a remote and rugged area of Garfield County near the Colorado-Utah border. Rock cliffs 300 to 400 feet high exist on the east and west sides of the property. Except for one other privately owned parcel, all the land to the north, west, and east of landowner's property is owned by the United States Bureau of Land Management (BLM).

Access through landowner's property to BLM land is effectively limited to travel within Prairie Canyon. Aerial photographs taken from the 1980s through the 1990s show a road traversing landowner's property in the canyon. The road had been enlarged and improved through the years, reaching its present condition in the 1970s, when it was used for oil exploration purposes. According to the evidence, the road had also been used for years by nearby ranchers chasing stray cattle, hunters going onto BLM land, and sightseers.

Landowner purchased his property in 1987. Sometime thereafter, he built a locked gate across the canyon road, which effectively prevented public access to thousands of acres of BLM land. After hunters complained, the BLM attempted to arrange a trade of property with landowner,. When those negotiations failed, the DOW instituted the present action, pursuant to C.R.C.P. 105, seeking to enjoin landowner from restricting access to Prairie Canyon Road and to have it declared a public road under § 48-2-201(1)(c), C.R.8.2002.

Following a bench trial, the trial court found for the DOW and declared the road a public highway. It subsequently denied defendant's motion for reconsideration and new trial,

I. DOW's Standing

Landowner first contends that the DOW is not a proper party or real party in interest and thus lacks standing to bring this action. We disagree.

An allegation that a party is not a proper party or real party in interest challenges a party's standing, see Ewy v. Sturtevant, 962 P.2d 991, 995 (Colo.App.1998), and standing is an issue that can be raised at any time. Anson v. Trujillo, 56 P.3d 114, 117 (Colo.App.2002).

We reject landowner's contention that the DOW may not bring this action because it may acquire property interests under § 33-1-105(1)(a)(D), C.R.S.2002, only by "gift, transfer, devise, lease, purchase, or long-term operating agreement."

The declaration of a public road under §$ 43-2-201(1)(c) does not result in the "acquisition" of property interests, including easements, for any particular party. It only makes available to the public a route through private land. See generally Board of County Comm'rs v. Flickinger, 687 P.2d 975, 980 (Colo.1984). Hence, the DOW's interest in and right to use the route recognized under § 43-2-201(1)(c) are no greater or lesser than those of any member of the general public.

Contrary to landowner's contention, the DOW has a legitimate and substantial interest in opening Prairie Canyon Road to public use. Because it is authorized to regulate the taking, possession, and use of wildlife, see § 33-1-106, C.R.S.2002, the DOW has an interest in providing hunters and fishers meaningful access to public lands and in gaining access to those lands to regulate the hunting and fishing there.

In our view, these interests are sufficient to confer upon the DOW standing, on behalf of the public, to seek a declaration that Prairie Canyon Road is a public highway and to obtain an injunction prohibiting interference with the public's use of that road. Cf. Leach v. Manhart, 96 Colo. 397, 400, 43 P.2d 959, 960 (1935)("[T]he county's interest was such that it had the right to have judicial determination as to the character of the road, and if found to be public, to have injunctive relief against those who would interfere with consistent use thereof.").

We also reject landowner's contention that this result will create prohibited maintenance obligations for the state. "[It is not necessary that a governmental subdivision maintain the road to retain its status as a public highway." Foley v. Terry, 532 P.2d 765, 766 (Colo.App.1974)(not published pursuant to CAR. 35(F)); see also Simon v. Pettit, 687 P.2d 1299, 1303 (Colo.1984)("section 48-2-201(1)(c) does not require the city to expend funds or otherwise demonstrate its willingness to accept highways established by prescription").

II - Public Highway Determination

Landowner also contends that the evidence was insufficient to support the trial court's finding that the road became a public highway through adverse use. Again, we disagree.

Pursuant to § 48-2-201(1)(c), "(alll roads over private lands that have been used adversely without interruption or objection on the part of the owners of such lands for twenty consecutive years" are declared public highways.

A party claiming a public highway by adverse use under § 48-2-201(1)(c) bears the burden of proving that: (1) the public used the road under a claim of right and in a manner adverse to the landowner's property interest; (2) such use has been without interruption for the statutory period of twenty years; and (8) the landowner had actual or implied knowledge of the use and made no objection. Littlefield v. Bamberger, 32 P.3d 615, 619 (Colo.App.2001).

Because the credibility of witnesses and the sufficiency, probative effect, and weight of the evidence are all within the province of the trial court, we may not disturb its determinations if they are supported by the record. Littlefield v. Bamberger, supra, 32 P.3d at 620.

Here, the trial court found that Prairie Canyon Road had been used adversely without interruption by the public for more than twenty consecutive years from the early 1940s to the mid-1980s; that the road was clearly visible and not blocked by fence or gate; and that the landowner's predecessors in interest knew of and did not oppose public use of the road until 1984. Further, the court found insufficient evidence to establish that the road had been abandoned by the DOW's failure to take prompt action after landowner effectively closed and posted the road in 1991.

Landowner points to the following items in the record, which in his view support a different conclusion: (1) testimony of neighbors that they received permission from one of landowner's predecessors to go onto the property for designated purposes; (2) testimony that landowner's predecessors in interest locked a gate on the property during 1966-1972, preventing continuous and adverse use of the road during that period; and (8) evidence that the land was unenclosed and unoccupied.

Landowner argues that his predecessors in interest did not have actual or implied knowledge of the public's use of the road and, in any event, the DOW and the public abandoned their rights to use the road. We are not persuaded.

Use of a road with the landowner's permission does not qualify as adverse use. See Williams v. Town of Estes Park, 43 Colo.App. 265, 267, 608 P.2d 810, 812 (1979). However, a number of witnesses testified that they had used the road, without asking permission of landowner's predecessors in interest, for a continuous period of over forty years. Some of these witnesses testified that the prior owners permitted them to use the property for certain purposes, such as gathering cattle. But, for the most part, they stated that they used the road for other purposes for which permission was not given. Landowner also relies on evidence of a locked gate at certain times between 1966 and 1972, but there is ample evidence supporting a contrary finding. It was the province of the trial court to determine which version of the conflicting evidence to believe, and we may not disturb its findings. See Littlefield v. Bamberger, supra, 32 P.3d at 620.

Landowner further argues that the nature of the land rendered it presumptively subject to permissive use because it was "unenclosed and unoccupied." See Durbin v. Bonanza Corp., 716 P.2d 1124, 1129 (Colo.App.1986). However, the record contains evidence that there was a fence close to landowner's property and that the property was occupied or regularly used by landowner's predecessors at various times throughout the prescriptive period.

Nor are we persuaded by landowner's contention that the road had been abandoned.

Abandonment of a public road requires proof of intent to abandon and proof of nonuse. Even occasional use of a public road for access purposes, in the absence of an alternative road, precludes a finding of abandonment. Heath v. Parker, 30 P.3d 746, 749 (Colo.App.2000).

The burden of establishing abandonment is on the party asserting it, and whether abandonment of a public road has occurred is a question of fact committed to the sound discretion of the trial court. EHeath v. Parker, swpra.

The record reflects that members of the public complained after landowner built the locked gate across the road and that thereafter, the DOW and BLM undertook various efforts to reopen the road on their behalf. From this evidence, the trial court could properly conclude that landowner had not established an abandonment because he had failed to prove that the public and the agencies representing its interests intended to abandon the right to use the road.

III, Reconsideration or New Trial

Finally, landowner contends that the trial court erred in denying his motion for reconsideration or new trial. Inasmuch as he asserts no grounds other than those we have already rejected, we reject this contention as well.

Accordingly, the judgment is affirmed.

Judge ROTHENBERG and Judge KAPELKE concur.


source: Caselaw Access Project

author: Judge TAUBMAN.

license: Public Domain

text:
    Glen ANSTINE, U.S. bankruptcy trustee for Builders Home Warranty, Inc., Plaintiff-Appellee, v. Michael CHURCHMAN, Defendant-Appellant.
    No. 02CA0271.
    Colorado Court of Appeals, Div. V.
    March 13, 2003.
    Rehearing Denied June 12, 2003.

      Kerr Brosseau Bartlett O'Brien, LLC, Dennis J. Bartlett, Mary Beth Taylor, Denver, Colorado, for Plaintiff-Appellee.
    Michael Churchman, Pro Se.
   Opinion by

Judge TAUBMAN.

In this action to recover damages for breach of fiduciary duty, aiding and abetting breach of fiduciary duty, and negligence, defendant, Michael Churchman, appeals the trial court's default judgment entered against him in favor of plaintiff, Glen Anstine. We reverse and remand.

Anstine is the appointed bankruptcy trustee for Builders Home Warranty, Inc. (BHW), a Colorado corporation currently in bankruptcy proceedings. Anstine filed a complaint against Churchman and six other parties based upon his alleged negligence while acting as an insurance intermediary and broker on behalf of BHW, for breach of fiduciary duties owed to BHW, and for aiding and abetting the breach of fiduciary duties by another defendant. The complaint alleged that Churchman was involved in a scheme to transfer more than $1,500,000 to offshore accounts.

After being served with a summons in his home state of Texas, Churchman filed a motion to quash service and to dismiss for lack of personal jurisdiction. The trial court denied Churchman's motion and ordered him to file an answer by December 31, 2001. The trial court denied Churchman's motion to reconsider.

On December 28, 2001, Churchman appealed the trial court's denial of his motion to quash service and dismiss for lack of jurisdiction. Anstine moved to dismiss Churchman's appeal because there was no final order. Churchman consented to Anstine's motion to dismiss, and the appeal was dismissed by an order entered on January 25, 2002. This court's mandate issued on March 18, 2002.

However, while Churchman's appeal was pending, Anstine filed a motion for default judgment against Churchman in the trial court because he had not filed an answer or other responsive pleading. On January 22, 2002, the trial court granted the motion and entered default judgment against Churchman in the amount of $1,795,127.90. This appeal followed.

Churchman contends the trial court lacked Jurisdiction to enter a default judgment against him while his appeal was pending before this court. We agree.

"A trial court retains jurisdiction to act on matters that are not relative to and do not affect the judgment on appeal." People v. Stewart, 55 P.3d 107, 126 (Colo.2002). In Stewart, the supreme court cited Molitor v. Anderson, 795 P.2d 266 (Colo.1990), and People v. Dillon, 655 P.2d 841, 844 (Colo.1982).

In Molitor, the supreme court analyzed in depth the relationship between trial and appellate court jurisdiction. Generally, once an appeal is taken, a trial court is divested of jurisdiction to determine substantive matters that directly affect the judgment being appealed unless the appellate court has issued a remand order. - Molitor v. Anderson, supra, 795 P.2d at 269. Further, a trial court's jurisdiction is not restored until the mandate from the appellate court issues. See Hrabczuk v. John Lucas Landscaping, 888 P.2d 367, 368 (Colo.App.1994)(one of the functions of a mandate is to restore jurisdiction to the court whose judgment is being appealed).

In Dillon, the supreme court stated:

Unless otherwise specifically authorized by statute or rule, once an appeal has been perfected, the trial court has no jurisdiction to issue further orders in the case relative to the order or judgment appealed from. Consequently, should it be necessary for the trial court to act, other than in aid of the appeal or pursuant to specific statutory authorization, the proper course would be for a party to obtain a limited remand from the appellate court.

People v. Dillon, supra, 655 P.2d at 844 (footnote omitted).

Here, the issue of personal jurisdiction over Churchman pending in the first appeal directly affected the default judgment entered by the trial court. If the trial court lacked personal jurisdiction over Churchman, it had no authority to enter a default judgment against him. See Rainsberger v. Klein, 5 P.3d 351, 353 (Colo.App.1999)(default judgment is void if entered when the trial court lacks personal jurisdiction over a defendant because of invalid service of process). The trial court entered a default judgment against Churchman on January 22, 2002, four days before this court dismissed his appeal.

Because an appeal was pending, Anstine should have either requested a limited remand from this court or waited until the appellate process had concluded. See People v. Dillon, supra.

Further, because Churchman's appeal challenged the trial court's authority over him, this default judgment did not fall within the limited cireumstances where the trial court retained jurisdiction. See Colo. State Bd. of Med. Exam'rs v. Lopez-Samayoa, 887 P.2d 8, 15 (Colo.1994).

Molitor is instructive in this case because, there, the supreme court concluded that even though the appeal was filed late, the court of appeals had jurisdiction from the time the notice of appeal was filed. The court of appeals also had jurisdiction to consider the timeliness of the appeal. - Molitor v. Anderson, supra, 795 P.2d at 270. Similarly, here, this court had jurisdiction over the appeal once the notice of appeal was filed, even though the appeal may have been improper because it did not involve a final judgment.

Therefore, when the trial court entered its order of default judgment, it lacked jurisdiction. See Molitor v. Anderson, supra; People v. Dillon, supra; Hrabesuk v. John Im-cas Landscaping, supra.

Anstine relies on Fiebig v. Wheat Ridge Reg'l Ctr., 782 P.2d 814 (Colo.App.1989), for the proposition that an appeal to a court without jurisdiction does not divest the trial court of jurisdiction to proceed with the action on the merits. He also relies on Arthur Andersen & Co. v. Finesilver, 546 F.2d 338 (10th Cir.1976), and Century Laminating, Ltd. v. Montgomery, 595 F.2d 563 (10th Cir.1979), for the proposition that an appeal of a nonappealable order does not divest the trial court of jurisdiction. We are not persuaded.

In Fiebig, a division of this court concluded, "Although as a general rule the filing of a notice of appeal seeking judicial review divests an administrative ageney of jurisdiction, an appeal to a court without jurisdiction does not divest the agency of jurisdiction to proceed with the action on the merits." Fiebig v. Wheat Ridge Regional Center, supra, 782 P.2d at 816.

In Molitor, the supreme court implicitly overruled Fiebig, to the extent it can be applied to a trial court as opposed to an administrative agency, by holding that unless a statute or rule provides otherwise, onee an appeal is taken, a trial court is divested of jurisdiction to determine substantive matters that directly affect the judgment being appealed. See Molitor v. Anderson, supra, 795 P.2d at 269. Here, no statute or rule confers jurisdiction on trial courts when an appeal has arguably been filed improperly.

Because it is not always clear whether an order is appealable, an exception for nonfinal orders would put trial courts in the problematic position of having to determine in advance whether an order was properly appealed. See generally Leonard P. Plank & Anne Whalen Gill, Colorado Appellate Law and Practice §§ 4.1-4.19 (1999)(dis-cussing final judgments). For example, the "denial of a motion for summary judgment is not a final determination on the merits and, therefore, is not an appealable interlocutory order." Feiger, Collison & Killmer v. Jones, 926 P.2d 1244, 1247 (Colo.1996). However, governmental defendants may file an interlocutory appeal of the denial of a motion for summary judgment in an action brought pursuant to 42 U.S.C. § 1983 (2002) when a qualified immunity defense is based on a question of law. Furlong v. Gardner, 956 P.2d 545, 550-51 (Colo.1998).

This case illustrates the complex question of jurisdiction between the trial and appellate courts. The trial court entered default judgment before this court issued its mandate dismissing Churchman's appeal. Had the trial court acted after the mandate issued, it would have had jurisdiction.

While federal courts have ruled that an appeal from a nonappealable order does not divest the trial court of jurisdiction, that is not the law in Colorado, and we are bound to follow precedent set by the supreme court. Bee Order of United Commercial Travelers v. Boaz, 27 Colo.App. 423, 429, 150 P. 822, 825 (1915)(decisions by supreme court are binding on the court of appeals).

In addition, "[the appellate process would indeed become a quagmire of uncertainty if parties could obtain trial court alteration of rulings subject to an appeal during the pen-dency of that appeal." Molitor v. Anderson, supra, 795 P.2d at 268. Therefore, policy considerations favor a rule that prohibits trial courts from exercising jurisdiction over Judgments and orders that are pending before an appellate court.

Accordingly, we reverse the default judgment entered against Churchman.

In light of our disposition, we do not address Churchman's remaining contentions.

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

Judge CASEBOLT and Judge NIETO concur.


author: Judge CASEBOLT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. George C. McDANIEL, Defendant-Appellant.
    No. 01CA2060.
    Colorado Court of Appeals, Div. V.
    March 13, 2003.
    Certiorari Denied Aug. 18, 2003.

      Ken Salazar, Attorney General, Catherine P. Adkisson, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    Stefani Goldin, Loveland, CO, for Defendant-Appellant.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge CASEBOLT.

Defendant, George C. McDaniel, appeals the trial court's order on remand finding that he validly waived his right to testify. We affirm.

Following trial, a jury found defendant guilty of first degree murder,. The court sentenced him to life in prison without parole.

On appeal, a division of this court conelud-ed that the trial court's advisement pursuant to People v. Curtis, 681 P.2d 504 (Colo.1984), was deficient because it did not advise defendant that any felony convictions he had sustained could be used only for impeachment. The division remanded the case for an evi-dentiary hearing in accordance with People v. Blehm, 983 P.2d 779 (Colo.1999), to determine whether this omission affected the validity of his waiver. See People v. McDaniel, (Colo.App. No. 96CA1314, July 29, 1999)(not published pursuant to C.A.R. 85(f)).

Following the hearing, the trial court found that defendant's waiver of his right to testify was knowing, voluntary, and intelligent despite the omission. This appeal followed.

Defendant contends he was not sufficiently advised of the salient consequences of exercising his fundamental constitutional right to testify and therefore his waiver was not voluntary, knowing, and intelligent. We disagree.

A defendant in a criminal case has the constitutional right to testify in his or her own defense. Thus, any waiver of the right to testify must be voluntary, knowing, and intelligent. In determining the validity of the waiver, courts indulge every reasonable presumption against waiver. People v. Curtis, supra.

As pertinent here, a defendant must be advised that any felony convictions he or she has sustained may be used only to impeach credibility. People v. Deskins, 927 P.2d 368 (Colo.1996); People v. Gray, 920 P.2d 787 (Colo.1996); People v. Chavez, 853 P.2d 1149 (Colo.1993).

Upon a claim of deficient advisement, the defendant is entitled to an eviden-tiary hearing in postconviction proceedings at which the prosecution bears the burden of proving that the right to testify was in fact knowingly, voluntarily, and intelligently waived. The inquiry should focus upon whether the defendant was aware of: (1) the fact that he or she had the right to testify; (2) the consequences of testifying; and (3) the fact that he or she could testify notwithstanding the contrary advice of counsel. If the trial court determines that the waiver was invalid, then the defendant is entitled to a new trial. People v. Blehm, supra.

Here, as pertinent concerning the omitted Curtis element, at trial the court expressed its understanding that defendant had no felony convictions. The prosecutor agreed with the court's assessment, defendant and defense counsel remained silent, and the court gave no further advisement on the effect of a felony conviction. When the court completed its advisement, defendant declined to testify. The court found that defendant's decision was knowing, voluntary, and intelligent.

That afternoon, during an off-the-record conference at which defendant was present, the issue of defendant's prior criminal history arose. The prosecutor stated that, even if defendant had a prior felony conviction, she would not use it. At the close of the day's proceedings, the court again queried defendant concerning his choice not to testify. Defendant reaffirmed his decision.

The next morning, before the defense rested, defense counsel informed the court of his understanding that defendant had a prior, out-of-state felony conviction. Defense counsel further stated that the existence of the conviction "did not change anything" and that defendant was still not going to testify. The prosecutor reaffirmed her promise not to use the conviction for any purpose.

Following this court's remand, the trial court found, with record support, that the prosecutor had made a formal, on-the-record promise not to use defendant's prior conviction for any purpose. The court stated that it would have enforced that promise as a matter of due process. Hence, defendant was aware that he could testify and would not be confronted with his prior felony conviction.

In addition, while acknowledging that defendant did not have the burden to prove an invalid waiver, the court noted that defendant had not testified at the remand hearing, And it took that factor into account. It also noted defense counsel's testimony that he had discussed the possible consequences of the felony conviction with defendant, notwithstanding the prosecution's promise. Finally, it noted that defendant could have changed his mind about testifying at any time before counsel rested the defense case and he was advised of that option, but he did not do so.

Based on its findings, the court ruled that the failure to advise defendant concerning the use of a prior felony conviction did not prevent him from making a knowing, voluntary, and intelligent waiver. The court also concluded that any error was harmless.

The record supports the court's findings, and we will therefore not disturb them. See Kailey v. Colo. State Dep't of Corr., 807 P.2d 563 (Colo.1991); People v. Sickich, 935 P.2d 70 (Colo.App.1996)(it is within the province of the trial court, as trier of fact, to determine the credibility of the witnesses and the weight to be given their testimony; if the evidence supports the findings and judgment of the trial court, they will not be disturbed on review).

Here, defendant was fully advised and acknowledged his understanding of all the Curtis elements, except the element that a prior felony conviction could be used only to impeach his credibility. However, because of the prosecutor's promise not to use defendant's prior conviction and the court's intent to enforce the promise, there was no possibility the previous conviction could have been used. Therefore, because no adverse consequences could arise from the felony convietion, defendant was not left to speculate, nor was he misled, as to the consequences of testifying. Hence, defendant was fully aware of the relevant consequences of testifying.

For the same reasons, we reject defendant's alternative contention that a defect in a Curtis advisement renders a waiver ineffective as a matter of law. A deficient advisement does not, ipso facto, render such a waiver invalid. See People v. Blehm, supra. Indeed, in Blehm the court remanded one case for a hearing under Crim. P. 85 even though the court found the advisement there was defective. Had the court intended to hold that a defect makes a waiver ineffece-tive as a matter of law, there would have been no need for a remand in that case.

We therefore necessarily reject defendant's related assertion that "the only cure for a defective advisement is evidence that the defendant was in fact advised of the missing element." When, as here, the "missing element" is irrelevant, and the balance of the advisement is correct, a waiver without that element is nevertheless voluntary, knowing, and intelligent.

Defendant argues that this analysis requires us to speculate whether he would have chosen to testify, in violation of the warning to avoid such speculation in People v. Milton, 864 P.2d 1097 (Colo.1993). He asserts that no court can know whether a defendant would have testified absent a complete and accurate Curtis advisement. We disagree.

We are not speculating or deciding whether, had he been advised concerning the use of the felony conviction, defendant would have testified. We are merely concluding that defendant was aware of the salient consequences of testifying in his case.

Thus, the court did not err in finding that defendant's waiver was knowing, voluntary, and intelligent, and there was no violation of defendant's constitutional right to testify.

In view of this disposition, we need not address defendant's contention that waiver of the fundamental constitutional right to testify eannot be subject to harmless error analysis.

The order is affirmed.

Judge NIETO and Judge METZGER, concur.


author: Judge RULAND.

text:
    Lucy I. CANTERBURY, a/k/a Ima J. Mount, a/k/a Lucy Imigean Canterbury, Plaintiff-Appellee, v. Frank J. KOVACICH and Carolyn A. Kovacich, Defendants-Appellees, and Estate of Terrell Taylor, Defendant-Appellant.
    No. 02CA0197.
    Colorado Court of Appeals, Div. II.
    March 27, 2003.

      Dufford & Brown, P.C., Joanne Herlihy, Denver, Colorado, for Plaintif{-Appellee.
    No Appearance for Defendants-Appellees.
    Fredrickson & Johnson, P.C., Bryan T. Fredrickson, Canon City, Colorado, for Defendant-Appellant.
   Opinion by

Judge RULAND.

The personal representative for defendant, the estate of Terrell Taylor (decedent), appeals from the judgment determining that the estate does not hold any title in certain real property. We affirm.

The relevant facts are not in dispute. The property at issue consists of approximately 666 acres that are used for producing hay and grazing livestock. In 1991 decedent was the sole owner of the property, and he conveyed the title by warranty deed to himself and plaintiff, L. Canterbury, as joint tenants.

In 1997, decedent signed a quitclaim deed that purported to transfer the property to himself and plaintiff as tenants in common. The deed stated: "It is my intention by this deed to sever the joint tenancy ereated by the 1991 deed and to create a tenancy in common."

Based upon these facts, the trial court concluded that the 1997 deed failed to terminate the joint tenancy as a matter of law. The personal representative contends that this ruling was error. We disagree.

The ownership of real property in the form of joint tenancy is authorized and controlled by statute. Section 38-81-101, C.R.S. 2002; Smith v. Greenburg, 121 Colo. 417, 218 P.2d 514 (1950). This form of ownership is different from tenancy in common primarily because of the right of survivorship. See Bradley v. Mann, 34 Colo.App. 135, 525 P.2d 492 (1974), aff'd, 188 Colo. 392, 535 P.2d 213 (1975). That is, if one joint tenant dies, his or her interest is transferred to the surviving tenant or tenants by operation of law. See Mangus v. Miller, 35 Colo.App. 115, 532 P.2d 368 (1974).

A joint tenancy can be created if the owner of real estate conveys the title to himself and a third person as joint tenants. See § 38-31-101(1), C.R.8.2002. Conversely, under certain cireumstances, the joint tenancy form of ownership can be terminated as between the tenants if one tenant conveys his or her interest to a third party. See Carmack v. Place, 188 Colo. 303, 535 P.2d 197 (1975). In that event the third party and the other tenants become tenants in common. See Alden v. Alden, 155 Colo. 51, 393 P.2d 5 (1964).

However, those courts that have addressed the issue are not in agreement whether a joint tenant can terminate the joint tenancy by simply signing a deed that purports to convey title to that individual as a tenant in common. See Wendy Evans Lehmann, Annotation, Severance or Termination of Joint Tenancy by Conveyance of Divided Interest Directly to Self, 7 A.L.R Ath 1268 (1981). We conclude that such a deed does not terminate the joint tenancy in this jurisdiction.

As noted, the principal feature of joint tenancy ownership is the survivorship aspect. If the tenants mutually agree to eliminate that feature, proof of the agreement is sufficient, and other formalistic requirements are not imposed. See Bradley v. Mann, supra; see also Camack v. Camack, 62 P.3d 1097 (Colo.App.2002). Indeed, mutual acts of the joint tenants that are inconsistent with the right of survivorship may be sufficient. See Mangus v. Miller, supra.

We find no such trend, however, in the Colorado appellate decisions when one joint tenant acts alone and without the agreement of the other. Instead, in Estate of Lee v. Graber, 170 Colo. 419, 462 P.2d 492 (1969), the Colorado Supreme Court described the rights of each joint tenant as "fixed and vested" at the time the joint tenancy is created, and the court noted that the grantor in a joint tenancy deed who is named as one of the grantees no longer has the power to exercise absolute dominion over the property.

If this court were to uphold the unilateral effort here by one joint tenant to terminate the joint tenancy, we would approve a form of dominion over plaintiff's rights as a surviving joint tenant. We would also ignore the general conveyancing rule that a deed in which the grantor and the grantee are the same person transfers no title or interest to the grantee different from that already held by the grantor. See Krause v. Crossley, 202 Neb. 806, 277 N.W.2d 242 (1979). We view that result as inconsistent with the rationale of Estate of Lee v. Graber.

Contrary to the personal representative's contention, we do not read First National Bank v. Energy Fuels Corp., 200 Colo. 540, 618 P.2d 1115 (1980), as support for his contention. There the supreme court addressed the rights of joint tenants when a judgment lien against one tenant is foreclosed and other liens created by both tenants are outstanding. The court acknowledged in dictum that a joint tenancy can be terminated if one tenant conveys his or her interest to a third party. The court did not suggest, however, that the tenant could convey to himself and obtain the same result.

Under these cireumstances, we agree with the trial court's ruling.

The judgment is affirmed.

Judge NEY and Judge MARQUEZ concur.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.$.2002.


author: Judge MARQUEZ.

text:
    Timothy O. HALL, M.D., provider, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE of Colorado, American Manufacturers Mutual Insurance Company, and Nancy Glass, Respondents.
    No. 01CA1570.
    Colorado Court of Appeals, Div. II.
    April 10, 2003.
    Certiorari Denied July 28, 2003.

      Spencer & Spencer, P.C., Patrick C.H. Spencer, II, Colorado Springs, Colorado, for Petitioner.
    Ken Salazar, Attorney General, Laurie Rottersman, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
    White & Steele, P.C., John M. Lebsack, Denver, Colorado, for Respondent American Manufacturers Mutual Insurance Company.
    No Appearance for Respondent Nancy Class.
   Opinion by

Judge MARQUEZ.

In this workers' compensation proceeding involving a request for medical utilization review (MUR), Timothy O. Hall (provider) seeks review of the final order of the Industrial Claim Appeals Office (Panel) upholding the change of physician order entered by the director of the Division of Workers' Compensation and the administrative law judge (ALJ). We affirm.

On August 22, 1996, Naney Glass (claimant) sustained an industrial injury to her tailbone and hip area. She subsequently developed low back pain and anterior pelvic pain.

On March 22, 1999, the division received the request of the insurance company for a review of provider's treatment. The members of the MUR panel unanimously agreed that the provider's care was not reasonably appropriate according to professional standards to cure and relieve the claimant of the effects of her on-the-job injury. They also unanimously agreed that the provider's treatment plan did not follow the medical treatment guidelines and that the deviations were not reasonable and necessary. The members unanimously recommended that the provider should not continue to treat the patient. Thus, on July 22, 1999, the director entered an order changing claimant's provider in accordance with the MUR panel's recommendations and $ 8-43-501(4), C.R.8.2002.

Both the ALJ and the Panel upheld the director's order on review.

I.

The provider first contends that the MUR panel erroneously relied on the division's medical treatment guidelines to determine that his medical care of claimant was not reasonably appropriate. We disagree.

The division's medical treatment guidelines, which are contained in Dep't of Labor & Employment Rule XVII, 7 Code Colo. Regs. 1101-8, were established by the director pursuant to an express grant of statutory authority. See § 8-42-101(8.5)(a)(II), (to be repealed effective July 1, 2003). The guidelines are to be used by health care practitioners when furnishing medical aid under the Workers' Compensation Act. Section 8-42-101(8)(b), C©.R.8.2002. Further, Dep't of Labor & Employment Rule XV (H)(2), 7 Code Colo. Regs. 1101-8, specifically provides that MUR panel members must consider all applicable medical treatment guidelines and authorizes the division to provide copies of the guidelines to panel members upon request.

Given the foregoing authority, we are convinced that the statutory and regulatory scheme for a MUR contemplates that the division's medical treatment guidelines are to be regarded as the accepted professional standards for care under the Workers' Compensation Act.

The provider, however, asserts that the guidelines specifically state that they are not to be considered the legal standard of professional care and, therefore, claims that the MUR panel members incorrectly used the guidelines to determine whether the provider's treatment was reasonably appropriate according to accepted professional standards. We disagree.

The provider relies upon the introduction included in each treatment guideline, which states:

The Division recognizes that acceptable medical practice may include deviations from these guidelines. Therefore, these guidelines are not relevant as evidence of a provider's legal standard of professional care. E.g. Dep't of Labor & Employment Rule XVII, Exhibit A, Low Back Pain Medical Treatment Guidelines, 7 Code Colo. Regs. 1101-8.

However, contrary to the provider's position, we agree with the Panel that the proviso included in the introductions does not prohibit consideration of the guidelines as "accepted professional standards" for purposes of an MUR review under § 8-48-501, C.R.S.2002. Rather, by addressing permissible deviations, the provision simply recognizes that certain cases may require treatment modalities that differ from those generally prescribed in the guidelines, We further agree with the Panel that the introductory limitation does not prohibit consideration of the guidelines as an "accepted professional standard" of care. Instead, the limitation restricts the use of the guidelines to workers' compensation cases and not to other legal proceedings where the propriety of a physician's care may be relevant.

Accordingly, we reject the provider's contentions that the director was not authorized to question the MUR panel members regarding whether the provider had adhered to the treatment guidelines and whether his medical care of claimant complied with accepted professional standards. Also, the provider refers to State Board of Medical Examiners v. McCroskey, 880 P.2d 1188 (Colo.1994), and argues that it requires that he be held to the professional standards utilized in medical malpractice claims. However, McCroskey concerned a disciplinary action under the Colorado Medical Practice Act, § 12-86-101, et seq., C.R.8.2002, and it made no mention of either the Workers' Compensation Act or the MUR process. Consequently, we do not regard it as authority for the proposition that the professional standards used in medical malpractice actions and in disciplinary actions under the Colorado Medical Practice Act must be applied in the MUR process in lieu of the treatment guidelines. Similarly, we reject the provider's claim that his treatment was to be assessed under a national standard because he is a specialist.

IL

The provider also contends that he was denied due process because the MUR process does not afford him the opportunity to present evidence. Again, we disagree.

The provider argues that an adverse decision will impact his reputation and his ability to pursue his chosen occupation. He also asserts that his professional license and his Level I and II accreditation will be threatened. He essentially asserts that these ef-feets amount to imposition of a sanction without any meaningful opportunity to address the questions given to the panel members or otherwise present evidence to rebut the findings of the panel members.

In Carlson v. Industrial Claim Appeals Office, 950 P.2d 663 (Colo.App.1997), a division of this court determined that a provider's interest in his or her reputation and the ability to pursue prospective employment do not qualify as liberty interests within the context of the MUR proceeding and, therefore, are not subject to constitutional protection. The division also found that an acered-ited provider possesses no statutory right, either express or implied, to treat any claimant for his or her work-related injury or to continue to provide treatment. Therefore, the division also determined that a provider lacks a recognized property interest that would require the protections of due process.

We conclude that Carlson is dispositive of the provider's due process claim.

The order is affirmed.

Judge NEY and Judge CARPARELLLI concur.


author: Judge GRAHAM.

text:
    Michael C. BLACK, James Decker, Susan L. Kimbler, and Jerry Swingle, Taxpayers for the Animas River, Plaintiffs-Appellants, v. SOUTHWESTERN WATER CONSERVATION DISTRICT, and Frank (Sam) E. Maynes, Fred V. Kroeger, and Mary K. Fenswick, custodians of records, Defendants-Appellees.
    No. 02CA0468.
    Colorado Court of Appeals, Div. I.
    May 8, 2003.
    Rehearing Denied Aug. 21, 2003.

      Michael C. Black, Pro Se.
    James Decker, Pro Se.
    Susan L. Kimbler, Pro Se.
    Jerry Swingle, Pro Se.
    Hill & Robbins, P.C., David W. Robbins, Jennifer H. Hunt, Denver, Colorado, for Defendants-Appellees.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.$.2002.

   Opinion by

Judge GRAHAM.

Plaintiffs, Taxpayers for the Animas River, Michael C. Black, James Decker, Susan L. Kimbler, and Jerry Swingle (collectively, Taxpayers), appeal the trial court's orders (1) determining that defendants, Southwestern Water Conservation District, Frank E. Maynes, Fred V. Kroeger, and Mary K. Fen-swick, custodians of records (collectively, SWCD), properly refused to allow inspection of certain 'documents on the basis of the attorney-client privilege; (2) finding that the research and retrieval fee charged by SWCD was an appropriate regulation under the Open Records Act, § 24-72-201, C.R.8.2002; and (3) denying Taxpayers' request for attorney fees and court costs. We affirm.

The Animas-La Plata Project (ALP) was initiated to provide water to members of the Ute Mountain Ute and Southern Ute Indian tribes, as well as to businesses and farms in southwestern Colorado and northwestern New Mexico. The ALP has been the subject of substantial public interest and environmental review since it was authorized in 1968.

SWCD organizes special assessment districts, such as the Animas-La Plata Water Conservancy District (ALPWCD), to secure funds, resources, and operating expertise to manage the water resources within their specific river basins. ALPWCD is responsible for building the ALP. ALPWCD and SWCD have spent significant amounts of money on lawyers and lobbying fees to promote the ALP.

The individual plaintiffs are members of Taxpayers for the Animas River, a local, nonprofit, unincorporated citizens group concerned with the expenditure of tax dollars related to the ALP. Pursuant to the Colorado Open Records Act, Taxpayers sought access to SWCD documents related to the ALP. Although SWCD provided access to certain nonprivileged public records located in its office, it denied the existence of other doeu-ments, including billing records from SWCD's attorneys.

Taxpayers filed an application under § 24-72-204(5), C.R.8.2002, for an order directing SWCD to show cause why inspection of withheld information should not be permitted. Taxpayers asserted that relevant documents were kept in either SWCD's offices, the offices of SWCD's attorneys, or some other location within control of SWCD. The trial court treated the show cause application as a complaint.

SWCD moved for summary judgment, contending that it provided Taxpayers access to all relevant documents in its possession. Taxpayers responded by filing two C.R.CP. 56(h) motions, seeking a declaration that the following documents were public records: (1) a memo prepared by SWCD's attorney regarding SWCD's open records policy (G.C.memo); and (2) itemized billing records from SWCD's attorneys.

SWCD asserted that the G.C. memo and attorney bills were protected by the attorney-client privilege and that, in any event, because it does not maintain copies of attorney bills in its offices, Taxpayers had no right to inspect them.

The court denied SWCD's motion for summary judgment, noting that letters and billing statements from attorneys and lobbying firms indicated the existence of certain documents responsive to Taxpayer's requests and that "[alny lobbyists or law firm performing services on behalf of [SWCD] is undisputably an agent of [SWCD], and such records in their possession would be subject to disclosure." The trial court determined that SWCD's disclosure of all documents in its office did not satisfy the obligations under the Open Records Act and that SWCD raised a question of fact whether documents were in custody of an agent or employee.

As to Taxpayers' C.R.C.P. 56(h) motions, the trial court determined that attorney billing records were public records, but that the G.C. memo was protected by the attorney-client privilege, which was not waived. The trial court ordered SWCD to submit privilege logs identifying documents and the basis on which the privilege was being asserted.

SWCD produced a large number of documents determined by the court to be public records and provided Taxpayers with privilege logs. The letters and memoranda claimed by SWCD to be privileged included: (1) advice by attorneys regarding drafts of letters to government officials or third parties regarding SWCD's position on legislation, amendments, negotiations, and project revisions; (2) analysis of the effect of legislative drafts proposed by legislators, opponents, or project participants; (8) analysis and recommendations regarding proposed legislation; and (4) analysis of the effect of negotiations in requiring amended legislation and further environmental review.

Taxpayers filed a motion to compel under C.R.C.P. 87, contending, among other things, that SWCD was estopped from asserting a claim of privilege because it denied the existence of documents for five years instead of asserting a privilege claim; that the attorney-client privilege was not absolute and was outweighed by the public's right to know; and that lobbying activities by attorneys could not give rise to a claim of privilege.

The court determined that SWCD was not estopped from asserting the attorney-client privilege and that "the correspondence and memoranda, with limited exceptions, contain legal advice concerning the legislation, negotiations, litigation, and meetings which are the subject of the documents." The court noted that "SWCD had an expectation of privacy in such documents; almost without exception, they are clearly identified as privileged communications."

The trial court also found a common legal interest existed between certain proponents of the ALP, which entitled the proponents to exchange documents without waiving the attorney-client privilege.

The following documents were determined to be unprotected by the attorney-client privilege: (1) public documents attached to memos or correspondence; (2) transmittal letters, scheduling memos, and lists of meeting participants containing no discussion of legal issues; (8) letters to and from third parties, who shared a common legal interest, seeking to enlist their support for the ALP or advising them of SWCD's position; (4) a contract between SWCD and a lobbying firm and bills and activity reports from that lobbying firm; and (5) a letter from another lobbying firm, responding to audit issues.

Taxpayers filed an amended and supplemental complaint, alleging that SWCD's responses to requests for documents under the Open Records Act were insufficient and not made in a reasonable time and that the research and retrieval fee was invalid under the Open Records Act.

The only issues presented at trial were whether SWCD's failure fully to comply with the mandates of the Open Records Act was arbitrary or capricious and whether SWCD was justified in charging a research and retrieval fee. Taxpayers stated that they had inspected all the records requested and that "there's nothing else to look at." The trial court affirmed its previous decisions regarding attorney-client privilege and found that SWCD's failure to comply fully with the requirements of the Open Records Act was not arbitrary or capricious and that the research and retrieval fee was a valid regulation under the Open Records Act.

I

Taxpayers contend that the trial court erred in finding that certain documents were protected by the attorney-client privilege and therefore were not available for inspection under the Open Records Act. We disagree.

The Colorado Open Records Act contains a broad legislative declaration that all public records shall be open for inspection unless specifically excepted by law. Section 2472-201. Consonant with that policy mandate, a public official has no authority to deny any person access to public records absent a specific statute permitting the withholding of the information requested. Denver Publ'g Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974).

Section 24-72-204, C.R.S.2002, sets forth numerous statutory exemptions for denying inspection of records, including "[t]rade secrets, privileged information, and confidential commercial, financial, geological, or geophysical data furnished by or obtained from any person." - Section 24-72-204(8)(a)(IV), C.R.S. 2002.

The privileges for attorney-client communication and attorney work product established by common law have been incorporated into the Open Records Act. City of Colo. Springs v. White, 967 P.2d 1042 (Colo.1998); Denver Post Corp. v. Univ. of Colo., 739 P.2d 874 (Colo.App.1987).

The attorney-client privilege is codified in Colorado by statute and operates to protect communications between attorney and client relating to legal advice. Wesp v. Everson, 33 P.3d 191 (Colo.2001); Gordon v. Boyles, 9 P.3d 1106 (Col0.2000). The privilege extends only to matters communicated by or to the client in the course of gaining counsel, advice, or direction with respect to the client's rights or obligations. Gordon v. Boyles, supra. Furthermore, "the privilege applies only to statements made in cireum-stances giving rise to a reasonable expectation that the statements will be treated as confidential." Lanari v. People, 827 P.2d 495, 499 (Colo.1992).

The burden of establishing the applicability of the attorney-client privilege rests with the claimant of the privilege, and the burden of establishing a waiver is on the party seeking to overcome the claim of privilege. Clark v. Dist. Court, 668 P.2d 3 (Colo.1983).

A.

We first reject Taxpayers' contention that the trial court erred in ruling that SWCD was not estopped from asserting the attorney-client privilege.

The burden of establishing estop-pel falls on the party asserting it, and all elements of equitable estoppel must be shown. The party to be estopped must know the facts and must intend that its representation be acted on so that the other party is justified in relying upon the represented facts. Also, the party asserting estoppel must be ignorant of the actual facts and must have reasonably relied, to its own detriment, on the other party's conduct or misrepresentation. Cont'l W. Ins. Co. v. Jim's Hardwood Floor Co., 12 P.3d 824 (Colo.App.2000).

Whether the cireumstances of a particular case reveal a representation and reasonable reliance giving rise to equitable estoppel is a question of fact. Findings of fact must be accepted on review, unless they are so clearly erroneous as not to find support in the record. Cont'l W. Ins. Co. v. Jim's Hardwood Floor Co., supra.

Here, the trial court found that Taxpayers did not change their position as a result of SWCD's delay in asserting the attorney-client privilege, and so there was no showing of reasonable reliance resulting in a detrimental change in position. Because the trial court's finding is supported by the record, we will not disturb it on appeal.

B.

We also reject Taxpayers' contention that the trial court erred in determining that certain documents constituted legal advice rather than lobbying activities and were therefore protected by the attorney-client privilege.

We review the trial court's conclusions pursuant to an abuse of discretion standard. City of Colo. Springs v. White, supra; see also In re Sealed Case, 121 F.3d 729, 740 (D.C.Cir.1997)(noting that appellate court ordinarily reviews trial court's ruling that privilege applies to documents "only for arbitrariness or abuse of discretion"); cf. Bond v. Dist. Court, 682 P.2d 33, 40 (Colo.1984)(holding that, so long as trial court applies correct legal standard, "[dliscovery rulings are ordinarily within the discretion of the trial court").

Because lawyers sometimes act as lobbyists, the issue has arisen as to whether the attorney-client privilege protects communications made in the course of a lawyer's lobbying efforts. The inquiry is fact-specific. In re Grand Jury Subpoenas, 179 F.Supp.2d 270 (S.D.N.Y.2001).

A lawyer who occasionally acts as a lobbyist is not precluded from acting as a lawyer and having privileged communications with a client who is seeking legal advice. Many lawyers "have expertise in special areas of knowledge that enhances their skill as lawyers, and that does not diminish their legal status." In re Grand Jury Subpoenas, supra, 179 F.Supp.2d at 285 (quoting Montgomery Co. v. MicroVote Corp., 175 F.3d 296, 302 (3d Cir.1999)).

However, "Hlf a lawyer happens to act as a lobbyist, matters conveyed to the attorney for the purpose of having the attorney fulfill the lobbyist role do not become privileged by virtue of the fact that the lobbyist has a law degree or may under other cireumstances give legal advice to the client, including advice on matters that may also be the subject of lobbying efforts." In re Grand Jury - Subpoenas, - supra, 179 F.Supp.2d at 285 (quoting Edna Stein Epstein, The Attorney-Client Privilege & the Work Product Doctrine 289 (2001)). Summaries of legislative meetings, progress reports, and general updates on lobbying activities do not constitute legal advice and therefore are not protected by the attorney-client privilege or work product doctrine. In re Grand Jury Subpoenas, supra.

Lobbying is defined as "communicating directly, or soliciting others to communicate, with a covered official for the purpose of aiding in or influencing" the drafting of or action on any bill. Section 24-6-801(8.5)(a), C.R.Y.2002. Lobbying does not include "communications made by an attorney-at-law when such communications are made on behalf of a client whose name has been identified and when such communications constitute the practice of law subject to control by the judicial branch of the state of Colorado." Section 24-6-801(8.5)(e), C.R.8.2002.

Because Taxpayers broadly refer to categories of documents they assert have been improperly included in SWCD's privilege logs, we decline to address Taxpayers' concerns absent concrete controversies over specific documents. Thus, our review is limited to three memoranda addressed to ALPWCD that Taxpayers specifically identified as being wrongfully withheld.

Here, the trial court conducted an in camera review and determined that some doeu-ments related to lobbying activities and were therefore public records, including letters and memoranda to and from state and national public officials, records of Senate hearings, Senate bills, comments of Colorado's Attorney General, and SWCD's policy for access to public records. Documents containing legal advice on how to proceed with lobbying efforts or how to respond to Taxpayers' Open Records Act requests were deemed to be protected by the attorney client privilege. The trial court specifically found that the three memos were records of ALPWCD, not of SWCD, and thus not the subject of this action, and that the memos constituted attorney-client privileged communications.

Like the trial court, we have conducted our own examination of the three memos and agree that they represent legal advice regarding ALP negotiations and lobbying efforts and are not communications made to a public official for the purpose of influencing legislation.

Thus, we decline to disturb the trial court's finding that the three memos contained legal advice and were therefore protected by the attorney-client privilege.

C.

Taxpayers also contend that the trial court erred in finding that certain privileged documents exchanged with third parties remained protected by the common interest privilege. We are not persuaded.

The common interest privilege is not an independent basis for privilege, but an exception to the general rule that the attorney-client privilege is waived when privileged information is disclosed to third parties. Wesp v. Everson, supra.

-It is well established that not every disclosure of attorney-client communications constitutes a waiver of the privilege. Communications shared with third persons who have a common legal interest with respect to the subject matter thereof will be deemed neither a breach nor a waiver of the confidentiality surrounding the attorney-client relationship. - Metro Wastewater Reclamation Dist. v. Cont'l Cas. Co., 142 F.R.D. 471 (D.Colo.1992).

The common interest doctrine does not require existing or impending litigation. Metro Wastewater Reclamation Dist. v. Cont'l Cas. Co., supra. It includes preexisting confidential communications and documents that are shared during a common enterprise. In re Grand Jury Subpoenas, 902 F.2d 244 (4th Cir.1990). Accordingly, when a party invokes the common interest privilege, the court must focus on the cireum-stances surrounding the disclosure of the communications or documents rather than on when the communications or documents were generated. - Transmirra Prods. Corp. v. Monsanto Chem. Co., 26 F.R.D. 572 (S.D.N.Y.1960).

The privilege applies only to communications given in confidence, United States v. Weissman, 195 F.3d 96 (2d Cir.1999), and intended and reasonably believed to be part of an on-going and joint effort to set up a common legal strategy. United States v. Schwimmer, 892 F.2d 237 (2d Cir.1989); In re Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120 (3d Cir.1986).

Here, in finding that the common interest doctrine applied, the court stated: "[The following parties entered into a 'Binding Agreement' a/k/a an Agreement in Principle (or AIP) in June 1986, agreeing among other things, to share the costs for the [ALP]: Southern Ute Tribe, Ute Mountain Tribe, San Juan Water Commission, [ALPWCD], State of Colorado (through the AG's office), and the United States Government." The court stressed that "neither Public Service Co. nor the Navajo Nation were signatories to the AIP; thus, the common interest would not apply to correspondence to or from those entities or their representatives."

Although Taxpayers assert that the trial court based its findings on facts not in evidence, namely, the AIP, they attach a copy of the AIP to their opening brief and argue that, because SWCD was not a signatory to the agreement, the common interest doctrine does not apply to documents exchanged between SWCD and other proponents of the ALP. However, because the AIP is not dis-positive of whether the common interest doctrine applies, and because there is ample evidence in the record to support the trial court's findings, we conclude that Taxpayers' argument is misdirected.

The AIP represents only a portion of the entire ALP project. Therefore, it cannot be the sole basis for determining which parties share a common legal interest in the implementation of the ALP.

It is undisputed that SWCD is a proponent of the ALP. It shares an office and legal counsel with the ALPWCD, and there is an agreement among SWCD, ALPWCD, and the Ute Indian tribes pursuant to which they will all be represented by the same public relations and lobbying firm.

Furthermore, ALPWCD was specifically created by SWCD for the purpose of seecur-ing funds and operating expenses to manage the ALP. SWCD's role is to help ALPWCD promote the ALP. This relationship clearly establishes a common legal interest not only between SWCD and ALPWCD, but also between SWCD and the other ALP proponents. The trial court found, with record support, that the Navajo Nation and Public Service Company were not part of the common interest because they opposed certain aspects of the ALP and, thus, their interests were not aligned with those of the ALP proponents.

Thus, there is sufficient evidence that, because SWCD shared a common interest with other proponents of the ALP, documents exchanged among those interested parties were protected by the common interest privilege.

D.

Taxpayers also argue that the trial court erred in finding that the G.C. memo was protected by the attorney-client privilege. They argue that it was disclosed in a public meeting and, thus, the attorney-client privilege was waived. We disagree.

Communications between an attorney and client that are disclosed to third parties outside of the attorney-client relationship are not protected. Gordon v. Boyles, supra; see also People v. Tippett, 733 P.2d 1183 (Colo.1987)(because information at issue was known to third parties and not confidential, it was not protected by the attorney-client privilege).

Here, the G.C. memo was a presentation to SWCD's board of legal analysis regarding the "Colorado Open Meetings Law and Open Records Law." Although the existence of the memo was disclosed at a public meeting, there is no evidence in the record that a public discussion of its contents occurred or that it was disseminated to anyone other than board members. Minutes from the public meeting indicate that the memo was distributed to SWCD's board by its attorneys during an executive session, when no members of the public were present. Taxpayers failed to present contrary evidence to show that the privilege attached to the G.C. memo was waived.

Taxpayers alternatively assert that the G.C. memo was presented at an illegally convened executive meeting in violation of the Open Meetings Law. However, because they did not raise this argument in the trial court, we do not address it on appeal. See Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718 (Colo.1992)(arguments never presented to, considered, or ruled upon by a trial court may not be raised for the first time on appeal).

E.

We also reject Taxpayers' contention that the trial court applied the wrong legal standard when assessing the attorney-client privilege claims.

In its January 2002 order the trial court stated:

And as I said in my earlier order, I'm inclined to think that the attorney/client privilege should be at a minimum carefully construed, and I declined to adopt [Taxpayers'] suggestion that I have to construe it as narrowly as possible. In order to give effect to the privilege and make it meaningful, I think it has to be given some latitude.

In its "earlier order" the trial court, relying on a California case, explained that:

The - apparent - contradiction - between whether the attorney-client privilege should be strictly construed or liberally construed appears to be that in attempting to establish an attorney-client relationship, or where the relationship is not clearly established, the privilege is to be strictly construed.... But where the relationship has been established, the basic policy behind the attorney-client privilege to promote the relationship by safeguarding the confidential disclosures of the client and the advice given by the attorney, then the policy supports a liberal construction in favor of the exercise of the privilege.

See People v. Velasquez, 192 Cal.App.3d 319, 328, n. 4, 237 Cal.Rptr. 366, 371 n. 4 (1987).

When the trial court's January 2002 statement is read in conjunction with its earlier order, it is clear that the trial court properly differentiated between the legal standard used to determine whether an attorney-client relationship has been established in the first instance and the legal standard used to determine the reach of the attorney-client privilege onee established. Furthermore, the trial court expressly relied on Gordon v. Boyles, supra, to determine the ambit of the attorney-client privilege.

Based on the entire record, we conclude that the trial court applied the proper legal standard in assessing the attorney-client privilege claims and, despite its ambiguous reference to a double standard, adhered to the principles espoused in Gordon v. Boyles, supra.

IL.

Taxpayers next contend that the trial court erred in finding that the research and retrieval fee-$15.00 per hour and $20.00 per hour for exceptionally voluminous requests-was an appropriate regulation under the Open Records Act. Again, we disagree.

Section 24-72-208(1)(a), C.R.S.2002, permits the records custodian to make such rules and regulations "as are reasonably nee-essary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or the custodian's office."

Statutory construction involves a question of law. Fogg v. Macaluso, 892 P.2d 271 (Colo.1995). In interpreting a statute, we must give effect to the intent of the General Assembly. Dawson v. Reider, 872 P.2d 212 (Colo.1994). To discern that intent, we look to the language employed in the statute. Applehans v. Farmers Ins. Exch., 68 P.3d 594 (Colo.App.2003). If the words used are plain and unambiguous, our task is accomplished by giving effect to the commonly accepted meaning of those words. Brock v. Nyland, 955 P.2d 1037 (Colo.1998).

If the statutory language does not clearly establish the General Assembly's purpose, or if the statute appears to conflict with other provisions, then we may determine the meaning of the statute by considering other factors, such as legislative history, prior law, the consequences of a given construction, and the end to be achieved by the statute. Section 2-4-2038, C.R.S.2002; Martin v. People, 27 P.3d 846 (Colo.2001).

Taxpayers urge us to apply the canon of construction expressio unius est exclusio al-terius-the inclusion of one thing implies the exclusion of another. Taxpayers argue that, because § 24-72-306(1), C.R.S.2002, specifically permits criminal justice agencies to "assess reasonable fees, not to exceed actual costs, including but not limited to personnel and equipment, for the search, retrieval, and copying of criminal justice records," absence of such language in the Open Records Act indicates that no research and retrieval fee is allowed. However, because it is not entirely clear from § 24-72-203(1)(a) whether a research and retrieval fee may be charged, we elect to examine legislative history and intent.

The Open Records Act strikes a balance between the statutory right of members of the public to inspect and copy public ree-ords and the administrative burdens that may be placed upon state agencies in responding to such requests. Pruitt v. Rockwell, 886 P.2d 315 (Colo.App.1994).

Although the Open Records Act does not expressly require the payment of a fee to exercise the right of inspection, legislative history reflects that this omission was intentional. An earlier draft contained a provision for inspection "without charge," but this language was deleted because "it was felt that in some cases the custodian's rules and regulations might include the establishment of nominal fees." Tax Data Corp. v. Hutt, 826 P.2d 353, 357 (Colo.App.1991)(quoting Colorado Legislative Council, Research Publ. #126, Open Records for Colorado (1967). Nominal is defined as "trifling, esp{ecially] as compared to what would be expected." Black's Law Dictionary 1071 ({th ed.1999).

Here, the trial court found that the specific legislative history allowed assessment of a nominal research and retrieval fee. We conclude that the trial court's finding is supported by the legislative history and aim of the Open Records Act.

There is support in the legislative history to suggest that there was no legislative intent to prohibit charging some fee, albeit nominal. Therefore, we cannot conclude that the express allowance of research fees in the context of criminal records by implication forecloses a custodian from charging a nominal fee for retrieving or compiling other noncriminal public data for inspection. Thus, although the trial court's conclusion that the research and retrieval fee was reasonably necessary for the protection of the records and the prevention of unnecessary interference with the discharge of the custodian's duties may not be warranted by the language and history of the Act, the statute supports the court's finding that the research and retrieval fees were nominal in comparison to the time spent responding to the volume of requests and court orders and did not constitute a burden contrary to the spirit of the Open Records Act.

IIL

We also reject Taxpayers' contention that the trial court erred in finding that SWCDs failure fully to comply with the mandates of the Open Records Act was neither arbitrary nor capricious and that they were not entitled to an award of attorney fees and costs under the former version of § 24-72-204(5).

Section 24-72-204(5) formerly provided:

"[UJpon a finding that the denial [of the right of inspection] was arbitrary or capricious, [the trial court] may order the custodian personally to pay the applicant's court costs and attorney fees in an amount to be determined by the court." This provision was deleted in 2001. Colo. Sess. Laws 2001, ch. 286 at 1074.

A court considering whether an act is arbitrary or capricious must determine whether the conduct in question "reflects a conscientious effort to reasonably apply legislative standards." Daniels v. City of Commerce - City, - 988 - P.2d 648, - 652 (Colo.App.1999)(quoting Comm. for Better Health Care v. Meyer, 830 P.2d 884, 896 (Colo.1992)).

Although the trial court used the word "conscious" instead of "conscientious," the entirety of the record reflects that the trial court properly relied on the standard articulated in Damiels v. City of Commerce City, supra, to determine whether SWCD's conduct was arbitrary or capricious. Using the Damiels standard, the trial court conducted a thorough analysis of SWCD's conduct, including SWCD's concerns about unauthorized access to records; the ability of the office manager to respond effectively to Taxpayers' voluminous requests; SWCD's good faith attempts to comply with requests, including notifying Taxpayers when further responsive documents were found; and SWCD's claim of the attorney-client privilege.

The trial court's detailed analysis mirrors the controlling case law, and we agree that SWCD's conduct "reflects a conscientious effort to reasonably apply legislative standards." Thus, the trial court did not abuse its discretion in denying Taxpayers' request for attorney fees and costs. See Lacy v. Rotating Prods. Sys., Inc., 961 P.2d 1144 (Colo.App.1998)(the credibility of witnesses and the sufficiency, probative effect, and weight of the evidence, as well as any inferences and conclusions to be drawn from the evidence, are all within the province of the trial court when it sits as the trier of fact).

IV.

Last, Taxpayers contend that the trial court committed several "structural errors," including treating their show cause action as a complaint and not issuing a trial management order. We disagree.

- Structural error applies to "structural defects" in a criminal trial that affect "the entire conduct of the trial from beginning to end" such that the "criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence." People v. - Price, - 969 - P.2d - 766, - 768-69 (Colo.App.1998)(quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460, 470 (1986)). We have found no civil ease that applies structural error analysis. In any event, we find no basis for concluding that Taxpayers were deprived of a fair trial.

The orders are affirmed.

Judge VOGT and Judge STERNBERG concur.


author: Judge NEY.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John Paul CLAY, Defendant-Appellant.
    No. 02CA0928.
    Colorado Court of Appeals, Div. II.
    May 8, 2003.
    Certiorari Denied Aug. 18, 2003.

      Ken Salazar, Attorney General, Karen E. Lorenz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S8. Kaplan, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge NEY.

Defendant, John Paul Clay, appeals the order of restitution imposed as part of his sentence to probation. We affirm.

Pursuant to a plea agreement, defendant pled guilty to amended counts of attempted first degree aggravated motor vehicle theft and driving while ability impaired. The court sentenced him to two years probation and six months house arrest. The court also ordered him to pay restitution to the towing company that had impounded the stolen vehicle. However, the court deferred ruling on the amount of restitution owed.

When the prosecution requested $1480 in restitution, defendant objected, and a hearing on the matter was held. At the hearing, the owner of the towing company testified that he had picked up the stolen vehicle at the police department's request and had stored it on his lot for ninety-two days before releasing it under court order to the vehicle's owner. He testified that the total charges incurred were $1480: $100 for towing, and $1380 for storage ($15 per day for ninety-two days). However, because the court had subsequently paid him $80, the balance due was $1400.

The owner of the towing company also testified that the owner of the vehicle had contacted him approximately three to five days after the vehicle was impounded and that he told her at that time she could pick up the vehicle if she paid the charges incurred and obtained a release form from the police department. The owner of the vehicle declined to pay any impound charges, stating that it "wasn't her place" to do so.

Following this testimony, defense counsel argued that the towing company was not a victim for purposes of restitution because it did not fall within the specific examples cited in the restitution statute. Counsel argued further that, even if the towing company was a victim for purposes of restitution, defendant was not responsible for the entire $1400. Counsel acknowledged that defendant was responsible for the $100 towing charge and up to $75 in storage fees for the first five days of storage, but that he was not responsible for any charges beyond that because he was not the cause of those additional charges.

The court rejected defendant's arguments and ordered him to pay the towing company $1400 in restitution.

On appeal, defendant reasserts his contention that the towing company is not a victim for purposes of restitution. He also contends that he was not the "proximate cause" of the towing company's alleged losses because there were other intervening causes: (1) the police department's use of a private company to impound the vehicle; (2) the vehicle owner's refusal to pay the impound charges and retrieve her vehicle after the first five days of impoundment; and (8) the vehicle owner's failure to obtain a timely court order to release the vehicle. We disagree.

Section 18-1.8-205, C.R.S.2002 (formerly § 16-11-204.5), provides that the trial court is required, as a condition of every sentence to probation, to order the defendant to "make full restitution" pursuant to the provisions of §§ 18-1.3-601, et seq., and 16-18.5-101, et seq., C.R.8.2002.

"Restitution," as defined in § 18-1.3-602(8)(a), C.R.S.2002 (formerly § 16-18.5-102(3)(a)), is "any pecuniary loss suffered by a victim ... [that is] proximately caused by an offender's conduct and that can be reasonably calculated and recompensed in money."

The term "victim" is defined in § 18-1.3-602(4)(a), C.R.S.2002 (formerly § 16-18.5-102(4)(a)), as "any person aggrieved by the conduct of an offender."

"Proximate cause" is "a cause which in natural and probable sequence produced the claimed injury" and "without which the claimed injury would not have been sustained." People v. Stewart, 55 P.3d 107, 116 (Colo.2002); CJI-Crim. 9:10, 9(3) (1983). However, unlawful conduct that is broken by an independent intervening cause cannot be the proximate cause of an injury. People v. Stewart, supra.

An independent intervening cause "is an act by an independent person or entity that destroys the causal connection between the defendant's act and the victim's injury and, thereby becomes the cause of the victim's injury." See People v. Saavedra-Rodriguez, 971 P.2d 223, 225-26 (Colo.1998). To qualify as an independent intervening cause, an event must be unforeseeable and one in which the accused does not participate. People v. Stewart, supra.

Here, the evidence presented at the restitution hearing shows that defendant abandoned the stolen vehicle and that the police, upon finding it, properly undertook to safeguard it. 'To do so, they hired the towing company to move and store the vehicle. Defendant's theft and abandonment of the vehicle was a proximate cause of these efforts and the attendant expenses. Under these cireumstances, in our view, this evidence establishes that the towing company is a "victim" for purposes of restitution because it sustained a pecuniary loss as a result of defendant's criminal conduct and is therefore a person aggrieved by the offender's conduct. See § 18-1.3-602(8)(a), (4)(a); of People v. Acosta, 860 P.2d 1376 (Colo.App.1998)(under appropriate cireumstances, victim's loss of use of money can be pecuniary damage under the restitution statute, and interest may be awarded as compensation for such damage).

We also conclude that defendant's act of stealing the vehicle was the proximate cause of the towing company's losses because, without it, such losses would not have been sustained. See People v. Stewart, supra. While the police department's failure to impound the vehicle on its own lot and the vehicle owner's failure to retrieve the vehicle earlier may have contributed to the company's losses, there is no evidence that these events were not reasonably foreseeable.

The restitution order is, therefore, affirmed.

Judge MARQUEZ and Judge CARPARELLTI concur.


author: Judge KAPELKE.

text:
    The PEOPLE of the State of Colorado, In the Interest of J.M., R.M., and M.M., Children, Upon the Petition of the El Paso Department of Human Services, Petitioner-Appellee, and Concerning V.M., Respondent-Appellant.
    No. 02CA1318.
    Colorado Court of Appeals, Div. IV.
    May 8, 2003.
    Certiorari Denied Aug. 4, 2003.

      No Appearance for Petitioner-Appellee.
    Davide C. Migliaccio, Colorado Springs, Colorado, for Respondent-Appellant.
    William G. Webb, Colorado Springs, Colorado, Guardian Ad Litem.
   Opinion by

Judge KAPELKE.

V.M. (mother) appeals from a judgment terminating the parent-child legal relationship between her and her children, J.M., R.M., and M.M. We affirm.

L.

Mother contends that the trial court's finding that the children were adjudicated dependent or neglected cannot be sustained because the dispositional order approving the treatment plan had not been reduced to writing, dated, and signed and therefore was not final, We perceive no basis 'for reversal.

Dependency and neglect proceedings are bifurcated into an adjudicatory phase and a dispositional phase. E.O. v. People, 854 P.2d 797 (Colo.1993). An appeal may be taken after entry of the initial dispo-sitional order following an adjudication of dependency or neglect and again after entry of the final order of termination. People in Interest of C.L.S., 934 P.2d 851 (Colo.App.1996).

To terminate the parent-child legal relationship, clear and convincing evidence must establish, among other things, that "the child is adjudicated dependent or neglected". Section 19-8-604(1)(c), C.R.S.2002; People in Interest of A.M.D., 648 P.2d 625 (Colo.1982).

Here, the adjudicatory order was reduced to writing, dated, and signed by the trial court, but the trial court's order made at the conclusion of the dispositional hearing of March 15, 2001, was not. Therefore, the adjudicatory order was not final for purposes of appeal at that time. See § 19-1-109(2), C.R.S.2002; CRCP. 58(@q); CAR. 4(a); People in Interest of E.A., 638 P.2d 278 (Colo.1981); People in Interest of C.L.S., supra.

However, the issue here is not whether the order of adjudication was appealable at the adjudicatory stage, but instead, whether a dispositional order approving a treatment plan has to be reduced to writing, dated, and signed in order to support a finding under § 19-8-604(1)(c) that the child has been adjudicated dependent or neglected. We conclude that it does not.

The record here includes a written adjudicatory order, a minute order reflecting the approval of a treatment plan, and a copy of the treatment plan. These documents are sufficient to establish for purposes of § 19-3-604(1)(c) that the children were adjudicated dependent or neglected. That the adjudicatory order did not become appealable until the judgment of termination was entered, see § 19-3-508(8), C.R.S.2002; People in Interest of A.M.D, supra, does not undermine or affect either its validity or its probative value as evidence that there was in fact an adjudication of dependency or neglect.

Accordingly, we will not disturb the trial court's finding on review. See People in Interest of C.A.K., 652 P.2d 603 (Colo.1982).

IL

Mother also contends that the trial court erred in finding that the department of social services made reasonable efforts to rehabilitate her. She argues that services to address her developmental disabilities were not provided in a timely manner, thereby denying her a real opportunity to comply with the treatment plan. We disagree.

The state must make reasonable efforts to prevent out-of-home placement of abused or neglected children and to reunite the family. Sections 19-1-108(89), 19-3-100.5, 19-3-604(2)(h), C.R.8.2002. Among the efforts required of the department are an assessment of the family and the development of a case plan for the provision of necessary services, which may include home-based counseling and referrals to public and private assistance resources. Section 19-8-208(2)(b), C.R.S. 2002. Additional services may be provided if the state has sufficient funding. Section 19-3-208(2)(d), C.R.8.2002.

Here, shortly after the petition in dependency or neglect was filed, the department made a referral to the Resource Exchange, a private agency that facilitates programs and funding for individuals with developmental disabilities. Two months later, having failed to secure contact information, the Resource Exchange closed mother's file.

In the meantime, the court approved a treatment plan, which considered mother's developmental disabilities The plan required, as pertinent here, that mother eoop-erate with the family preservation program and that she access the Resource Exchange.

Within a month of the filing of the petition, mother began to receive intensive in-home family preservation services, which included hands-on, repetitive instruction about parenting skills, nutrition, budgeting, and basic life skills. Those services continued for eleven months. When the children were placed with mother, the family received up to forty-four hours of in-home services a month. After mother and the children were placed with the maternal grandparents, services were decreased to about twenty-eight hours a month.

The family preservation services worker and the caseworker were aware of mother's developmental disabilities and adjusted their services to accommodate them and to facilitate compliance with the treatment plan. Mother, however, was resistant to their suggestions and instruction, and she insisted throughout the proceeding that she was a good parent with appropriate skills.

After mother and the children were placed with the maternal grandparents, a second referral was made to the Resource Exchange because of a deterioration of the relationship between the family preservation services worker and mother. Within one month, the Resource Exchange began working with mother. Despite mother's resistance, funding for services was secured, and mother was eventually placed in a host home.

Even though services specifically designed for individuals with developmental disabilities were not provided to mother for almost one year, intensive in-home family preservation services adapted to meet her special needs were provided immediately. Thus, the record supports the trial court's finding that the department made reasonable efforts to rehabilitate mother. Accordingly, we will not disturb that finding on review. See People in Interest of CA.K., supra.

The judgment is affirmed.

Judge ROTHENBERCG and Judge DAILEY concur.