author: Judge ROY.

text:
    Jack LANG; Kenneth Ellis, Sr.; and George Red Pennington, Plaintiffs-Appellants, v. BANK OF DURANGO, a Colorado corporation, and Jim Schoen, Defendants-Appellees.
    No. 02CA0701
    Colorado Court of Appeals, Div. III.
    March 27, 2003.
    Certiorari Denied Oct. 20, 2003.
    Abadie & Zimsky, LLC, William E. Zim-sky, Durango, Colorado, for Plaintiffs-Appellants.
    Crane, Leake, Ehlers & Eggleston, P.C., Duke Eggleston, Durango, Colorado, for Defendants-Appellees.
   Opinion by

Judge ROY.

Plaintiffs, Jack Lang, Kenneth Ellis, Sr., and George Red Pennington, appeal the trial court's judgment dismissing their complaint against defendants, Bank of Durango and Jim Schoen, an officer of the bank. We affirm.

In 1996, the bank made two Small Business Administration (SBA) loans totaling $750,000 to a borrower to finance the construction of a bar and dance hall. Later, when the borrower's needs exceeded the amount of the SBA loans, it applied for a Farmers Home Administration loan (refinance loan). While the refinance loan was pending, the borrower applied for several bridge loans from plaintiffs and others to pay contractors and subcontractors while it got approval and funding of the refinance loan. However, the refinance loan was never approved and funded. The borrower then defaulted on all the bridge loans after filing for bankruptcy.

Plaintiffs, in their first amended complaint, alleged negligent misrepresentation, fraud, and unjust enrichment. As a factual predicate, they alleged that they made the bridge loans based on the bank's assurances that the permanent refinancing loan had been approved and was to be funded within thirty to sixty days, at which time the bridge loans would be paid off.

Defendants moved to dismiss the claims under C.R.C.P. 12(b)(5), asserting that the credit agreement statute of frauds, § 88-10-124, C.R.S.2002, barred the action because it involved an oral credit agreement.

Shortly before plaintiffs brought this action, another lawsuit, Schoen v. Morris, 15 P.3d 1094 (Colo.2000), was commenced in the trial court against defendants. The case involved virtually identical allegations, but was brought by another lender. In Schoen, the claims for relief were based on oral representations made by defendants to the effect that the refinancing loan had been approved and would be funded within thirty to sixty days. In that case, the trial court dismissed the action based on the credit agreement statute of frauds.

These proceedings here were stayed pending the outcome of the appellate proceedings in Schoen. The supreme court there held that claims based on the oral representations made by defendants were barred by the credit agreement statute of frauds.

Plaintiffs' first amended complaint raised claims that were virtually identical to those raised in Schoen. Therefore, shortly after the supreme court's decision was issued, plaintiffs moved for leave to file a second amended complaint and then a third amended complaint adding additional claims for relief in an obvious effort to avoid the decision in Schoen.

After the parties fully briefed plaintiffs' motion for leave to file a third amended complaint, the trial court denied that motion and granted defendants' motion to dismiss, holding that plaintiffs' complaint was ultimately based on the oral representations from defendants and so was barred by the credit agreement statute of frauds. This appeal followed.

At the outset, we note that the court never granted leave to file the second and third amended complaints pursuant to C.R.C.P. 15(a), and plaintiffs' arguments on appeal center on the allegations in the proposed third amended complaint. However, in oral argument defendants invited us to consider the third amended complaint on appeal even though the trial court did not grant leave to file it. We accept that invitation and agree with defendants that the third amended complaint would not avoid, and would therefore be barred by, the credit agreement statute of frauds.

I.

Plaintiffs first assert that the trial court erred in concluding that the credit agreement statute of frauds, § 38-10-124, bars their claims of negligent misrepresentation and fraud. We disagree.

When reviewing a trial court's dismissal under C.R.C.P. 12(b)(5), we apply the same standards as the trial court and accept all averments of material fact as true in the light most favorable to the plaintiff. Coors Brewing Co. v. Floyd, 978 P.2d 668 (Colo.1999). Rule 12(b)(5) motions are viewed with disfavor and should not be granted unless it appears beyond doubt that the plaintiff cannot prove facts in support of the claim that would entitle the plaintiff to relief,. Dunlap v. Colorado Springs Cablevision, Inc., 829 P.2d 1286 (Colo.1992).

The credit agreement statute of frauds provides: "Notwithstanding any statutory or case law to the contrary ... no debtor or creditor may file or maintain an action or a claim relating to a credit agreement involving a principal amount in excess of twenty-five thousand dollars unless the credit agreement is in writing...." Section 88-10-124(@2), C.R.8.2002.

As relevant here, a credit agreement is a "contract, promise, undertaking, offer, or commitment to lend, borrow, repay, or forbear repayment of money, to otherwise extend or receive credit, or to make any other financial accommodation." Section 38-10-124(1)(a)(I), C.R.8.2002.

In their third amended complaint, plaintiffs asserted that the borrower, with the full knowledge of and participation by defendants, submitted a false or misleading financial statement to the SBA in obtaining the original financing through defendants and failed to disclose that fact to them. They asserted that the SBA loan was, therefore, voidable and that had they known this fact, they would not have advanced funds to the borrower. They further asserted that defendants had an interest in misleading or defrauding them in that the funds from the bridge loans were to be used to pay contractors and subcontractors with lien rights and those payments directly improved the value of the defendant bank's position.

In their search for a written instrument to avoid the credit agreement statute of frauds, plaintiffs settled on this false or misleading financial statement. Plaintiffs do not assert that they relied on the false or misleading financial statement in making their loans, but assert only that it jeopardized the underlying permanent financing.

In our view, Schoen v. Morris, supra, is dispositive. The supreme court there held that the credit agreement statute of limitations applied to relationships other than lender-borrower or creditor-debtor and applied to the relationship at issue here. Specifically, it held that the oral representations made by the bank to the bridge lender constituted credit agreements as defined under the credit agreement statute of frauds.

The supreme court concluded that the phrase "credit agreements" should have a broad definition. It applies not only to claims involving transactions, that are characterized exclusively as credit agreements, but also to claims that merely relate to credit agreements. The court held that the plain language of the statute indicates that the bank's assurances constituted a "commitment to lend" money to borrower and thus a "credit agreement" under the credit agreement statute of frauds. Schoen v. Morris, supra.

Here, plaintiffs initially alleged in their first amended complaint that the bank made oral assurances that the refinancing loan had been approved and was to be funded shortly and that it was upon these assurances that plaintiffs made their decision to make the bridge loan. We conclude that Schoen v. Morris is dispositive as to the first amended complaint.

As to the third amended complaint, plaintiffs alleged:

44. [Defendants] intentionally fwiled to disclose to the Plaintiffs that the financial statement used by [borrower] for [its] two SBA loans contained materially false information that put the viability of those SBA loans and [borrower's] ongoing viability in serious jeopardy.
58. The representation made by the Bank through its employee and Bank officer Jim Schoen was made with the intention that it would be acted upon by the Plaintiffs.
59. Plaintiffs acted on the representation that the SBA loans were in good standing

It is evident that the third amended complaint suffers from the same infirmities as the first amended complaint, that is, the failure to allege that plaintiffs relied on defendants' alleged oral misrepresentations. Therefore, Schoen is dispositive of the third amended complaint.

Moreover, the credit agreement statute of frauds requires that, to be actionable, the written credit agreement must be "signed by the party against whom enforcement is sought." Section 38-10-124(2). Here, the third amended complaint did not allege that defendants signed the false or misleading financial statement.

Accordingly, we agree with the trial court that the credit agreement statute of frauds bars plaintiffs' claims.

IL.

Plaintiffs next contend that the trial court erred in concluding that the credit agreement statute of frauds bars their claim of unjust enrichment. We disagree.

The credit agreement statute of frauds expressly bars all claims relating to a credit agreement unless the credit agreement is in writing. Section 88-10-124(2). Moreover, the statute expressly bars the equitable claims of part performance and promissory estoppel: "A credit agreement may not be implied under any civreumstances, including, without limitation, from the relationship, fiduciary or otherwise, of the creditor and the debtor or from performance or partial performance by or on behalf of the creditor or debtor, or by promissory estoppel." Section 38-10-124(8), C.R.98.2002. In addition, legislative history indicates that the statute is to be broadly applied. See Schoen v. Morris, supra. The general counsel for the Colorado Bankers Association, who sponsored the bill, testified: "[Such claims are barred] to make it absolutely certain that there are no exceptions to the statute of frauds as [it applies] to $25,000 ... loan agreements and above from financial institutions." Hearings on HB. 1116 before the House Business Affairs Committee, 57th General Assembly, First Session (Jan. 19, 1989); see also Schoen v. Morris, supra. Thus, the legislative history shows an intent to impose a broad ban on claims arising from oral representations made by financial institutions.

We, therefore, conclude that because legislative history and case law strongly disfavor any type of claim involving oral credit agreements, a claim for unjust enrichment that arises from an oral assertion regarding a credit agreement is barred by the credit agreement statute of frauds.

Here, the third amended complaint, as quoted above, directly relates to the oral representations made by the bank, and thus plaintiffs' claim of unjust enrichment is barred by the credit agreement statute of frauds.

Accordingly, the trial court properly concluded that plaintiffs' unjust enrichment claim is barred by the statute of frauds.

The judgment is affirmed.

Judge DAVIDSON and Judge WEBB concur.


source: Caselaw Access Project

author: Judge KAPELKE.

license: Public Domain

text:
    Charlene L. STEELE, PlaintiffAppellant, v. Mary L. LAW, Defendant-Appellee.
    No. 02CA0064.
    Colorado Court of Appeals, Div. IV.
    April 10, 2003.
    Certiorari Denied Nov. 17, 2003.

      Killian & Guthro, P.C., J. Keith Killian, Joanna C. Jensen, James R. Angel, Grand Junetion, Colorado, for Plaintiff-Appellant.
    James R. Alvillar & Associates, James R. Alvillar, Rachelle Roberson, Grand Junction, Colorado, for Defendant-Appellee.

       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 KAPELKE.

In this personal injury action, plaintiff, Charlene L. Steele, appeals from the judgment entered upon a jury verdict in her favor and against defendant, Mary L. Law. Plaintiff challenges the trial court's denial of her motion for new trial on the issue of damages and her requests for an award of expert witness fees and for assessment of interest on the cost award from the date of her injury. We affirm.

Plaintiff alleged that she suffered injuries when her car was struck from behind by defendant's car. The jury found that defendant was negligent and awarded plaintiff $12,000 for permanent physical impairment, but no damages for economic loss or any other noneconomic logs. The trial court denied plaintiffs motion for new trial on the damages issues.

The court also denied plaintiff's request for an award of expert witness fees, concluding she had not shown they were reasonable. In addition, the court determined that plaintiff was not entitled to interest on the cost award from the date of injury.

I.

Plaintiff contends that the trial court erred in denying her motion for new trial on damages. We disagree.

A.

Initially, plaintiff asserts that the court applied the wrong standard in ruling on her motion for new trial Although we agree that the court used an incorrect standard, we nevertheless find no basis for reversal.

As plaintiff points out, the trial court apparently applied the standard governing motions for judgment notwithstanding the verdict (JNOV), rather than that for motions for new trial based on alleged inadequacy of the damages award.

The court stated in its order:; "The Court is not permitted to substitute its judgment for that of the jury, and in fact is required to view the evidence in a light most favorable to the jury's verdict," citing Tuttle v. ANR Freight System, Inc., 797 P.2d 825 (Colo.App.1990).

The Tuttle case involved a motion for JNOV, not a motion for new trial. Unlike with respect to a motion for JNOV under C.R.C.P. 59(a)(2), in ruling on a motion for new trial under C.R.C.P. 59(a)(1) and (d), a trial court is not required to view the evidence in the light most favorable to the nonmoving party and has discretion to grant a new trial even where some trial evidence supports the jury's verdict. Cissell Mfg. Co. v. Park, 36 P.3d 85 (Colo.App.2001).

Plaintiff correctly points out that the standard governing a motion for new trial based on alleged inadequacy of damages is whether it can be said with certainty that the verdict is grossly and manifestly inadequate or so small as to indicate clearly and definitely that the jury neglected to consider the evidence or was influenced by prejudice, passion, or other improper considerations. See Mince v. Butters, 200 Colo. 501, 616 P.2d 127 (1980); Lehrer v. Lorenzen, 124 Colo. 17, 233 P.2d 382 (1951); Martinez v. Shapland, 833 P.2d 837 (Colo.App.1992).

As discussed below, however, even under the proper standard, plaintiff failed to demonstrate an entitlement to a new trial on damages.

B.

Whether to grant a new trial for inadequate damages is within the discretion of the trial court, and its ruling will not be disturbed in the absence of abuse of discretion. Koch v. Dist. Court, 948 P.2d 4 (Colo.1997). If the court concludes that the verdict is contrary to the weight of the evidence, it may grant a new trial. However, unless the court determines there has been a miscarriage of justice, it should let the verdict stand. Anderson v. Watson, 929 P.2d 6 (Colo.App.1996), aff'd, 953 P.2d 1284 (Colo.1998).

A reviewing court should overturn a jury verdict on damages only upon a showing that the jury's action was arbitrary and capricious or that the jury was swayed by passion or prejudice. Lee's Mobile Wash v. Campbell, 853 P.2d 1140 (Colo.1993).

In Lee's Mobile Wash, the supreme court refused to upset a jury verdict awarding "zero" economic damages to an injured motorist, even though it was stipulated that the motorist had met the threshold for medical expenses and the jury had found both causation and injury. The court concluded that the jury could have found that the injuries, while severe enough to require medical attention, were nevertheless "de minimis."

Here, the jury's failure to award any economic damages or any noneconomic damages other than for permanent physical impairment reflects neither arbitrary action nor a disregard of the evidence. From the evidence presented, the jury reasonably could have found that any pain and suffering, inconvenience, emotional stress, or impairment of quality of life plaintiff suffered as a result of the accident was de minimis.

In this regard, the jury could have credited the testimony of the defense expert who opined that plaintiff's injury was similar to the strain a sedentary person would experience after raking leaves in the yard and that it quickly resolved without need for medical intervention. In addition, the jury could have reasonably found from the evidence that plaintiff had not incurred any allowable loss of earnings or medical expenses.

As the trial court noted, "From the evidence the jury could easily have concluded that the Plaintiff suffered only very minor injuries from a low impact collision and that many of her medical and pain and suffering damages were not at all caused by the accident, and those that were resolved within a year."

Under the cireumstances, the verdict was not shown to be grossly and manifestly inadequate or to have been influenced by passion, prejudice, or other improper considerations. See Mince v. Butters, supra.

Accordingly, we conclude that the trial court did not abuse its discretion in denying the motion for new trial on the issue of damages.

IL.

Plaintiff next contends that the trial court erred in refusing to award her claimed expert witness fees as costs. We disagree.

Following trial, plaintiff filed her bill of costs, which included a request for $8,849.75 in expert witness fees. The bill of costs set forth the total amount of fees claimed for each expert and a brief description of the nature of the services provided, such as "Trial Preparation, Trial Testimony." Plaintiff attached a document entitled "Detail Cost Transaction File," which was apparently a printout of a ledger of costs paid by the law firm. However, plaintiff did not submit copies of the expert witnesses' bills or provide any itemization of the fees charged.

Defendant objected to the request for expert witness fees, based on plaintiff's failure to itemize them or attach documentation demonstrating their reasonableness. Plaintiff responded that the fees were reasonable and expressly requested that the court deny defendant's request for a hearing.

In denying plaintiff's request for expert witness fees, the court found that, although the number of experts was reasonable and the experts' testimony was necessary, no showing had been made that the requested fees were reasonable. In its order, the court stated:

Nothing has been submitted to the Court regarding the hourly rate of each witness or the amount of time they spent on this case. While Plaintiff arguably could establish the hourly rate of each expert, the amount of time they spent on this case, and the reasonableness of their fees at a cost hearing, Plaintiff objects quite vociferously to a cost hearing. It is in fact the plaintiff's burden to establish entitlement to reimbursement for these costs. Plaintiff has not shouldered this burden with regard to these experts, despite being given the opportunity to file a reply after being put on notice of the basis of Defendant's objection, and despite also having filed an amended motion. The Court therefore disallows the reimbursement for Plaintiff's experts.

Plaintiff filed a motion for reconsideration, which included an itemization of the expert fees charged and copies of the bills The trial court denied the motion.

A.

Plaintiff asserts that the trial court erred in refusing to give her the opportunity to prove her entitlement to expert fees at a hearing on costs. We disagree.

A prevailing party is entitled to an award of reasonable costs pursuant to C.R.C.P. 54(d). Section 1316-122, C.R.S. 2002, sets forth the factors a trial court should consider in determining what costs to award. Whether to award expert witness fees and the amount, if any, to be awarded are matters within the sound discretion of the trial court, whose ruling will not be reversed on appeal absent a clear abuse of discretion. Only reasonable expert witness fees may be awarded. Trinity Universal Ins. Co. v. Streza, 8 P.3d 613 (Colo.App.2000).

When the reasonableness of expert fees is contested, the party challenging the fee request is entitled to an evidentiary hearing. Dunlap v. Long, 902 P.2d 446 (Colo.App.1995). However, the trial court has no obligation to order a cost hearing sua sponte, Schmidt Constr. Co. v. Becker-Johnson Corp., 817 P.2d 625 (Colo.App.1991), and a party requesting costs has no right to a hearing. Fed. Ins. Co. v. Ferrellgas, Inc., 961 P.2d 511 (Colo.App.1997).

Here, the trial court determined that plaintiff had failed to provide sufficient documentation and itemization to establish her entitlement to expert witness fees. The court was under no obligation to order a costs hearing, and, as noted, plaintiff had expressly requested that the court not hold such a hearing. Under these circumstances, we find no abuse of discretion in the trial court's denial of plaintiff's request for expert witness fees.

B.

Plaintiff next argues that the trial court erred in denying her motion to reconsider its ruling on the expert witness fees, which she alleged was based on mistake of fact. We disagree.

A trial court's decision on a motion to reconsider may not be reversed on appeal absent an abuse of discretion. Halter v. Waco Scaffolding & Equip. Co., 797 P.2d 790 (Colo.App.1990).

In denying plaintiff's motion for reconsideration here, the trial court found that there had been no mistake, "except perhaps the one committed by Plaintiff in failing to provide this information to the Court," and that no new evidence had been presented to justify reopening the issue. Notably, plaintiff has not asserted that the documentation necessary to establish the reasonableness of the expert witness fees was unavailable at the time she filed her bill of costs. Nor has she offered any other explanation for the lack of documentation and itemization.

Thus, we find no abuse of discretion.

TIL

Finally, relying on § 18-21-101(1), C.R.S$.2002, plaintiff contends that the trial court erred in failing to award her nine percent interest on her cost award from the date of her injury. We reject the contention.

Section 18-21-101(1) provides that the plaintiff in a personal injury action may claim interest on the damages sought from the date the action acerued and that the court shall add such interest to the amount of damages assessed by the jury or the court. Plaintiff maintains she is entitled to interest on the cost award because the costs were incurred as a result of the accident and were thus "damages," within the meaning of the statute. We are not persuaded.

Under the well-established American rule, costs, like attorney fees, generally are not considered actual damages "because they are not the legitimate consequences of the tort or breach of contract sued upon." Bunnett v. Smallwood, 793 P.2d 157, 160 (Colo.1990)(quoting Taxpayers for Animas-La Plata Referendum v. Animas-La Plata Water Conservancy Dist., 739 F.2d 1472, 1480 (10th Cir.1984)). An exception to the American rule applies where the attorney fees or costs are the subject of the lawsuit, as for example, where the suit is brought by an attorney to enforce a fee agreement.

The exeeption does not apply here, however, because the costs were not an award of "damages" within the meaning of § 183-21-101(1). Therefore, the trial court did not err in denying plaintiff's request for interest on the cost award from the date of her injury.

The judgment is affirmed.

Judge DAILEY and Judge METZGER concur.


author: Judge VOGT.

text:
    BOARD OF COUNTY COMMISSIONERS OF ADAMS COUNTY, State of Colorado, Plaintiff-Appellant, v. CITY AND COUNTY OF BROOMFIELD, State of Colorado, Defendant-Appellee.
    No. 02CA0787.
    Colorado Court of Appeals, Div. I.
    April 24, 2003.
    Certiorari Denied Nov. 17, 2003.

      James D. Robinson, Adams County Attorney, Jennifer Wascak Leslie, Assistant Adams County Attorney, Brighton, Colorado, for Plaintiff-Appellant.
    Hahn, Smith & Walsh, P.C., David J. Hahn, John W. Smith, III, Edward J. Walsh, Cynthia A. Calkins, Denver, Colorado; Roy S. Howard, City Attorney, Tonya R. Haas, Deputy City Attorney, Broomfield, Colorado, for Defendant-Appellee.

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

   Opinion by

Judge VOGT.

In this declaratory judgment action to determine the allocation of property taxes, plaintiff, the Board of County Commissioners of Adams County, appeals the trial court judgment in favor of defendant, the City and County of Broomfield. We affirm.

I.

The City of Broomfield formerly encompassed portions of Jefferson, Adams, Bou-der, and Weld Counties, and city residents paid taxes to the county in which their property was located. Pursuant to a constitutional amendment enacted by Colorado voters, the City of Broomfield became the City and County of Broomfield (hereinafter, Broom-field) on November 15, 2001. See Colo. Const. art. XX, §§ 10-13.

In January 2001, the Adams County Assessor assessed all taxable property in the county, including that portion of the county that would later become Broomfield, for purposes of property taxes that would be payable in 2002. Broomfield subsequently declared its intention to collect and retain taxes on the property within its boundaries that was assessed by Adams County. Adams County then brought this action, seeking a declaration that it was entitled to these taxes. In December 2001, after the action was filed, Broomfield imposed a mill levy against all taxable property within its boundaries and, in 2002, began collecting those tax revenues.

The trial court granted Broomfield's motion for judgment on the pleadings. It concluded that the constitutional provisions ere-ating Broomfield unambiguously evidenced the intent of the electorate to terminate Adams County's responsibility for providing services for Broomfield residents and to establish Broomfield as a fully functioning governmental entity with the resources to provide the required services. Thus, Broomfield was entitled to collect, retain, and distribute all property taxes on property within its boundaries, including the property assessed by Adams County in January 2001.

IL.

Adams County contends on appeal that the statutory scheme governing assessment and collection of property taxes, including the statute giving it a perpetual tax lien on property it assessed in January 2001, entitles it to retain the taxes on that property; that the constitutional provisions creating Broomfield did not extinguish its right to those taxes; and that the trial court erred in ruling to the contrary. We disagree.

A.

We review de novo the trial court's construction of a constitutional amendment. See Colorado Department of Labor & Employment v. Esser, 30 P.3d 189 (Colo.2001); see also City of Wheat Ridge v. Cerveny, 913 P.2d 1110 (Colo.1996).

In interpreting a constitutional amendment, we must ascertain and give effect to the intent of the electorate in adopting the amendment. To determine intent, we first examine the language of the amendment, giving the words their plain and commonly understood meaning. If the intent of the electorate is not clear from the language of the amendment, we construe the amendment in light of the objective sought to be achieved. Zaner v. City of Brighton, 917 P.2d 280 (Colo.1996).

Colo. Const. art. XX, $ 10 provides, in pertinent part:

On and after November 15, 2001, all territory in the municipal boundaries of the city of Broomfield shall be detached from the counties of Adams, Boulder, Jefferson, and Weld and shall be consolidated into a single county and municipal corporation with the name "The City and County of Broom-field."

Colo. Const. art. XX, § 12 addresses the transfer of government and includes the following language relevant to the issue presented here:

[On and after November 15, 2001, the city of Broomfield and those parts of the counties of Adams, Boulder, Jefferson, and Weld included in the boundaries of said city shall be consolidated into the city and county of Broomfield. The duties and terms of office of all officers of Adams, Boulder, Jefferson, and Weld counties shall no longer be applicable to and shall terminate with regard to the city and county of Broomfield. _... The city council of the city and county of Broomfield ... shall perform the duties of a board of county commissioners .... The city and county of Broomfield shall have the power to continue to impose and collect sales, use, and property taxes that were imposed by the city of Broomfield and the counties of Adams, Boulder, Jefferson, and Weld within the areas where said taxes were imposed on November 14, 2001 ....

(Emphasis added.)

Sections 10 through 13 of article XX are intended to be "in all respects self-executing and shall be construed so as to supersede any conflicting constitutional or statutory provision that would otherwise impede the creation of the city and county of Broomfield or limit any of the provisions of those see-tions." Colo. Const. art. XX, § 13.

Under the statutory scheme governing the assessment and collection of property taxes, taxable property is listed, appraised, and valued for assessment in the county in which it is located at twelve noon on January 1. Seetion 39-1-105, C.R.S8.2002. Pursuant to § 89-1-107, C.R.98.2002, a tax lien attaches to all taxable property on the assessment date specified in § 39-1-105. Following opportunities for protest of the valuation, the county assessor must certify the assessments by August 25. See § 39-5-128, C.R.S8.2002.

Counties then prepare a proposed budget for the following fiscal year and must, no later than December 22, "levy against the valuation for assessment of all taxable property located in the county on the assessment date ... the requisite property taxes for all purposes required by law." Section 39-1-111(1), C.R.S$.2002; see also §§ 29-1-102(4), 29-1-105, 29-1-108, C.R.8.2002. By January 10 of the following year, the treasurer must commence collection of the levied property taxes, which are then available for expenditure by the county or other political subdivision that levied them. See §§ 39-1-112, 39-5-129, 39-10-101, C.R.98.2002.

B.

In Board of County Commissioners of Jefferson County v. City & County of Broomfield, 62 P.3d 1086 (Colo.App.2002)(Jefferson County ), a division of this court considered and rejected arguments made by Jefferson County that were essentially identical to those made by Adams County in this case.

In that case, the division reviewed the statutory scheme outlined above governing the assessment, levy, and collection of property taxes and rejected Jefferson County's argument that it was entitled to the money collected in 2002 for services it rendered in 2001. Rather, Broomfield, which had levied the taxes in December 2001 based on Jefferson County's previous assessments, was entitled to collect, retain, and use those taxes in 2002.

In so concluding, the division addressed the county's argument, similar to that raised by Adams County here, that it had a superior right to the taxes based on the lien created in § 89-1-107:

[Section 89-1-107] does not determine which entity is entitled to retain the property taxes assessed and levied in 2001. While a general tax lien attached to the property located in Jefferson County as of January 1, 2001, the statute does not indicate which entity, as between Jefferson County and the City and County of Broomfield, holds the lien. Further, the lien is inchoate until the taxes are levied, at which time the lien relates back and attaches as of the assessment date to give it priority over subsequently acquired liens.
Here, the entity imposing the levy is the City and County of Broomfield, not Jefferson County. Thus, we are not persuaded that the lien statutes give Jefferson County a superior right to the taxes that are collected in 2002.

Jefferson County, supra, 62 P.3d at 1091 (citation omitted).

The division also reviewed the language of the constitutional amendment creating Broomfield and the analysis of the Legislative Council of the General Assembly concerning the proposed amendment. It concluded that the constitutional provisions permitted Broomfield to retain and use property taxes payable in 2002 that were attributable to Jefferson County's 2001 assessment.

In reaching that conclusion, the division again rejected an argument similar to one made in this case by Adams County, namely, that the constitutional provision giving Broomfield the power to "continue to impose and collect" taxes is insufficient because it does not include the right to "keep" or "retain" the taxes:

As Jefferson County asserts, the language of § 12 does not expressly allow Broom-field to "retain" and "use" the property taxes it collects. However, the narrow reading Jefferson County advocates would defeat what we perceive to be the intent of the People. Because voters must have known that Broomfield would assume the duties and responsibilities formerly carried out by other counties with respect to property within the new city and county, they also must have intended that Broomfield would have the power to retain and use the property taxes that Jefferson County formerly assessed and imposed.

Jefferson County, supra, 62 P.3d at 1090.

We agree with the analysis and the result reached by the division in Jefferson County and conclude that it is largely dispositive of Adams County's contentions in this case.

C.

We are not persuaded to reach a contrary conclusion based on Adams County's argument-which appears not to have been specifically raised in Jefferson County-that, by analogy to certain special district and boundary adjustment statutes, a newly created taxing entity such as Broomfield does not have a right to collect taxes for property assessed prior to its creation.

In support of its argument, Adams County relies on § 32-4-408(4)@M), C.R.S.2002, regarding special districts, and §§ 30-6-109.7(6), 30-11-408(1), and 31-12-1188), C.R.8.2002, regarding boundary changes and annexations. These statutes generally provide that, for taxation purposes, the newly created entity is effective on the January 1 following its creation.

These provisions are inapplicable to Broomfield's right to collect and retain the property taxes at issue here.

Under the statutory scheme described above, a county pays for the services it provides in any given fiscal year with the tax revenues collected that same year, even though the revenues are based on assessments and levies made the previous fiscal year. See Jefferson County, supra. Further, applying the special district and boundary adjustment statutes to prevent Broom-field from collecting and using the disputed taxes would be contrary to § 13 of the constitutional amendment creating Broomfield, quoted above, which precludes interpreting statutory provisions applicable in other situations to limit the effect of the constitutional provisions creating Broomfield.

Accordingly, we conclude that the trial court did not err in entering judgment for Broomfield on Adams County's complaint for a declaratory judgment.

The judgment is affirmed.

Judge GRAHAM and Judge PIERCE concur.


author: Judge GRAHAM.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John R. SWEENEY, Defendant-Appellant.
    No. 01CA1109.
    Colorado Court of Appeals, Div. I.
    May 8, 2003.

      Ken Salazar, Attorney General, Anthony J. Navarro, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, Colorado, for Defendant, Appellant.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 53), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge GRAHAM.

Defendant, John R. Sweeney, appeals the judgment of conviction entered upon a jury verdict finding him guilty of two counts of aggravated robbery and one count of conspiracy to commit aggravated robbery. He also appeals his sentence. We affirm.

In April 1998, a hotel was robbed. Two hotel employees were ordered at gunpoint to the hotel back office by the masked robber. One employee testified that the robber demanded to be taken to the "manager on duty bank." He took cash from the hotel safe and two cash registers.

Defendant was convicted and sentenced to consecutive sentences of thirty-two years on each of the aggravated robbery convictions and to twelve years for the conspiracy conviction.

I.

Defendant argues the trial court erred and violated his constitutional right to confront witnesses by admitting a witness's hearsay statements. We conclude that the court cor-reetly ruled that defendant's conduct amounted to an adoptive admission.

When defendant and his accomplice, J.W., returned home after committing the robbery, they encountered J.W.'s roommate, C.N. In defendant's presence, J.W. showed C.N. a pillowease stuffed with money. At trial, C.N. explained, "[J.W.] ... told me ... they ... robbed the hotel." J.W. admonished C.N. to keep quiet about the incident, and then defendant raised his shirt to reveal a pistol, punctuating J.W.'s comments. Defense counsel lodged a hearsay objection to this testimony.

After a bench conference, the court admitted the evidence as an adoptive admission and as admissible hearsay because it included a statement against penal interest.

CRE 801(d)(2) states, in relevant part, that a statement is not hearsay if the statement is offered against a party and is "(A) the party's own statement in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth." In sum, a statement is not hearsay if it is offered against a party who has, by words or conduct, manifested a belief in the truth of the statement. See People v. Green, 629 P.2d 1098 (Colo.App.1981).

In determining whether a defendant has adopted another's incriminating statement, a trial court should consider whether: (1) the statement is such that an innocent defendant would normally be induced to respond; (2) the defendant heard and understood the statement made in his presence; and (8) he could have denied or objected to the statement without emotional or physical impediment. People v. Quintana, 665 P.2d 605 (Colo.1983).

Adoptive admissions are particularly troublesome in eriminal cases because of constitutional constraints against inferences to be made from a defendant's silence. People v. Green, supra. However, in a noneustodial setting, silence in the face of an accusation of wrongdoing gains probative weight when it occurs in cireumstances where the silent party could be expected to disagree with the statement. People v. Quintana, supra; see United States v. Aponte, 31 F.3d 86 (2d Cir.1994)(the defendant was deemed to have adopted accomplice's statement that accomplice had robbed a post office truck and that defendant was in the car); United States v. Jenkins, 779 F.2d 606 (11th Cir.1986)(the defendant's silence in the face of cohort's statement to a third person that the third person had to "get some money up" to pay for cocaine was adoptive and admissible as some proof of conspiracy).

Here, the following testimony was taken:

Prosecutor: [C.N.], what did [J.W.] tell you, regarding that-that pillowease filled with money?
C.N.: Basically said that we had done something, we, you know, robbed the hotel, and we can't let this get out.
Prosecutor: When he said we can't let this get out, did you take that as-as a threat?
Defense Counsel: Objection, leading.
Court: Overruled. Proceed.
C.N.; No.
Prosecutor: Were you threatened-when [J.W.] said we can't let this get out, did [defendant] do anything?
C.N.: Shortly after, [J.W.] said basically if you-if you say anything, you know what's going to happen, and points-didn't point at [defendant], but looked at [defendant], and at that time [defendant] lifted up his shirt, and tapped on his gun and said yeah that is what is going to happen.
Prosecutor: Did [defendant] say 1 didn't rob the Holiday Inn?
C.N.: No.

The conduct here was more than mere silence. There was active conduct by defendant demonstrating his adoption of JW 's statements. Defendant tapped his pistol while present in the same room with the stolen money when it was produced to the witness. This is the type of conduct CRE 801(d)(2) intended to remove from the category of hearsay. Defendant's conduct clearly indicated that he understood what was being said and the implication that remaining quiet about it was absolutely necessary.

Thus, the trial court properly admitted the statements and conduct as an adoptive admission, and there was no violation of defendant's right of confrontation. See United States v. Allen, 10 F.3d 405 (7th Cir.1993)(because adoptive admission is a statement the defendant has adopted as his own, the defendant himself is the declarant); Poole v. Perini, 659 F.2d 730 (6th Cir.1981)(no confrontation issue where a defendant adopts a statement as his own).

In light of our decision, we need not reach defendant's contention that the declarant's unavailability was a missing ingredient to a proper hearsay exception, and therefore, the statement was not admissible as a statement against penal interest.

IL.

Defendant contends that the trial court violated his right to confrontation by preventing him from cross-examining C.N. concerning specific instances of prior conduct for purposes of impeaching his credlbﬂlty We are not persuaded.

Whether to allow an inquiry into specific instances of prior conduct is within the discretion of the trial court. Absent a showing of an abuse of discretion, the trial court's rulings will not be disturbed on review. People v. Caldwell, 43 P.3d 663 (Colo.App.2001). Abuse of discretion occurs when the ruling is manifestly arbitrary, unreasonable, or unfair. People v. Banks, 983 P.2d 102 (Colo.App.1999), aff'd, 9 P.3d 1125 (Colo.2000).

The Confrontation Clause ensures that a defendant has the opportunity to engage in "effective cross-examination of witnesses against him." It does not provide the power to require the "disclosure of any and all information that might be useful in contradicting unfavorable testimony." "Effective cross-examination only requires that the trial judge not limit the seope of cross-examination so that it prevents the jury from having sufficient information to make a 'discriminating appraisal' of the relevant issue." People v. Dist. Court, 869 P.2d 1281, 1288 (Colo.1994)(quoting Tapia v. Tansy, 926 F.2d 1554, 1559 (10th Cir.1991)).

CRE 608(b) states, in relevant part, that "I[sIpecific instances of the conduct of a witness" may "in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness concerning his character for truthfulness or untruthfulness."

At a pretrial hearing, C.N. testified that he had committed one theft. In a police interview several months later, he admitted he had committed numerous thefts. Defendant sought permission to question C.N. about this instance of lying under oath and about another instance where C.N. had passed counterfeit money. The trial court denied both requests, stating, "(there are limits as to a person's prior criminal history, and those include felonies, or incidents which are pending during this proceeding or crimes which involve issues of truthfulness ... but as far as other incidents, that's beyond the scope of what you can ask this witness."

When defense counsel asked to clarify the record regarding this issue, the court stated, "I think that it's just-a way of getting into areas which are not recognized and valid impeachment areas dealing with misdemean- or convictions."

The court had discretion in applying CRE 608, and there is no evidence to suggest that defense counsel intended to use any prior felony for impeachment. See § 13-90-101, C.R.98.2002.

The pretrial hearing transcript is not included in the record. Thus, we are unable to evaluate C.N.'s testimony compared with his statements in the interview. Regardless, the jury heard sufficient information about C.N. to assess his credibility.

We find no abuse of discretion and no violation of defendant's confrontation right in the trial court's decision to limit eross-exami-nation.

III.

Defendant argues that the jury instructions do not distinguish between the two charged counts of aggravated robbery and, thus, only one conviction can stand. We find this contention unavailing.

The jury instructions stated that the elements of aggravated robbery included that the defendant knowingly "took anything of value from the person or presence of [V.B.] and/or [A.S.], by the use of force, threats, or intimidation against [V.B.] and/or [A.S.1, and ... put [V.B.] and/or [A.S.], or any other person, in reasonable fear of death or bodily injury."

The verdict form for Count I was captioned, "Jury Verdict, Count I, Aggravated Robbery: [A.S.]." The verdiet form for Count II was captioned: "Jury Verdict, Count II, Aggravated Robbery: [V.B.]."

Defendant contends that the use of "and/ or" could have led the jury to convict him of both counts based on the finding that he took property from only one of the named victims. We are not persuaded.

A defendant must make all objections he or she has to jury instructions before their submission to the jury. Crim. P. 30; People v. Stewart, 55 P.3d 107 (Colo.2002).

Defendant did not object to the instructions. Thus, we review for plain error. Plain error is grave error that seriously affects the substantial rights of the accused. It is an error that is "both obvious and substantial." In the context of jury instructions, plain error occurs when the entire record demonstrates a reasonable possibility that the improper instruction contributed to the defendant's conviction. People v. Stewart, supra, 55 P.3d at 120.

In his opening brief, defendant concedes, "Of course, it is possible that the jury's verdicts reflect what was charged-a taking from the person or presence of [A.S.] in Count I, and a taking from the person or presence of [V.B.] in Count II." We agree. In light of the evidence and the verdict forms, there was no reasonable possibility that the instruction contributed to defendant's conviction. Although the use of the "and/or" phrase made the instructions less than a model of clarity, a reasonable jury would not interpret the instructions to permit two aggravated robbery convictions where defendant took property from only one victim during a single episode. Therefore, we find no plain error.

IV.

Defendant contends that he was improperly convicted of two counts of aggravated robbery because he took property owned by a single entity, the hotel, and thus his sentence must be vacated. In light of People v. Borghesi, 66 P.3d 93 (Colo.2003), we disagree.

In Borghesi, the supreme court held that "a robber may be convicted of more than one count of robbery by taking commonly-owned property from more than one person." People v. Borghesi, supra, 66 P.3d at 95. The supreme court relied on the common law definition of robbery to determine that the assaultive nature of the crime indicates that robbery statutes are primarily intended to protect persons rather than property. The supreme court further held that "[clharging, convicting, and sentencing a robber on multiple counts of robbery based upon the number of persons in control of the property taken does not offend multiplicity principles because each person who is subject to force and intimidation constitutes a victim of a separate offense under our robbery statutes." Thus, "a robber may be convicted of more than one count of robbery for a single taking of property from more than one person." Borghesi, supra, 66 P.3d at 95.

Similar to the facts in Borghesi, here, both hotel employees at the front desk had sufficient control over the hotel's property when defendant brandished a gun and demanded to be taken to the safe. Although only one employee handed the money to defendant, the cash was taken from the presence of both employees. Because the common property taken from the first employee was taken from the second employee's presence, defendant's acts constitute separate offenses as to each victim.

Therefore, defendant was punished for two separate offenses, and the conviction is not multiplicitous.

v.

Defendant contends that the trial court erred in imposing consecutive rather than concurrent sentences. We are not persuaded.

Section 18-1-408(8), C.R.S.2002, provides, in relevant part, that "[wlhen two or more offenses are ... supported by identical evidence," "the sentences imposed shall run concurrently; except that, where multiple victims are involved, the court may, within its discretion, impose consecutive sentences."

Here, the evidence of defendant's participation in the robberies consisted of his postrobbery confessions to P.F. and V.D. and evidence showing that J.W. forcibly took property from the victims.

The primary evidence supporting the conspiracy charge was V.D.'s description of defendant's prerobbery telephone discussions in which he planned the crimes with J.W. During closing argument, the prosecution emphasized this separate conspiracy evidence.

The conspiracy conviction was not based on the same evidence as the robbery convictions. Thus, the trial court did not abuse its discretion in imposing consecutive sentences. See People v. Madonna, 651 P.2d 378 (Colo.1982)(conspiracy conviction considered a separate and distinet offense from the object of the conspiracy and thus may be punishable by consecutive sentence); People v. Zamora, 13 P.3d 813 (Colo.App.2000).

The judgment and sentence are affirmed.

Judge VOGT and Judge STERNBERG concur.


author: Judge PIERCE.

text:
    NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, a Pennsylvania corporation, and AIG Aviation Insurance Services, a Georgia corporation, Petitioners-Appellees, v. M. Marjorie PRICE, duly appointed Personal Representative of the Estate of Macy Joseph Price, Jr., and the Estate of Macy Joseph Price, Jr., Respondents-Appellants.
    No. 02CA0736.
    Colorado Court of Appeals, Div. I.
    May 8, 2003.
    Rehearing Denied July 3, 2003.
    Certiorari Granted Nov. 17, 2003.

      Montgomery, Kolodny, Amatuzio & Dusa-bek, LLP., Joel A. Kolodny, David C. Faw-ley, Denver, Colorado, for Petitioners-Appel-lees.
    Dickinson, Everstine & Prud Homme, L.L.P., Gilbert A. Dickinson, Denver, Colorado; Cronin, Fried, Sekiya, Kekina & Fairbanks, L. Richard Fried, Jr., Honolulu, Ha-wail, for Respondents-Appellants.
   Opinion by

Judge PIERCE.

Respondents, M. Marjorie Price, personal representative of the estate of Macy Joseph Price, Jr., and the estate of Macy Joseph Price, Jr. (collectively Price), appeal the trial court's judgment enforcing an oral agreement to settle allegedly reached in mediation with National Union Fire Insurance Company of Pittsburgh and AIG Aviation Insurance Services (collectively the insurers). We reverse and remand for further proceedings.

Price asserted tort claims against the insurers over the death of Macy Joseph Price, Jr., in a private airplane crash.

A mediation session took place before a private mediator, and each party was represented by counsel. The insurers later asserted that Price orally accepted an alleged settlement during the mediation. Price asserted that no agreement had been finalized and refused to perform the alleged oral agreement.

The insurers asserted that the parties had reached a final oral settlement agreement and petitioned the court to enforce it. Price maintained that Colorado's Dispute Resolution Act, § 18-22-3801, et seq., C.R.S.2002 (the Act), prohibited the court from enforcing the alleged oral agreement because the statute permits the enforcement of a mediated agreement only if the parties produce a signed, written agreement and present it to the court for approval. In addition, Price objected that testimony from the mediator, Price, and the insurers about whether an oral settlement had been reached violated the provisions of the Act making mediation communications confidential and inadmissible in court.

The court concluded that the parties had reached a final oral agreement during mediation and that such an agreement was enforceable by the court.

Raising a question of first impression, Price contends that the Act does not permit the compelled enforcement of an oral agreement reached in mediation and that the trial court, therefore, erred in enforcing the alleged agreement. We agree.

Statutory interpretation is a matter of law, which we review de novo. Colo. State Bd. of Accountancy v. Paroske, 39 P.3d 1283 (Colo.App.2001).

When interpreting a statute, we must determine the intent of the General Assembly. People v. Cooper, 27 P.3d 348 (Colo.2001). If statutory language is clear and unambiguous, we must construe the statute as written, giving the ordinary meaning and the full effect to the words chosen. City of Lakewood v. Mavromatis, 817 P.2d 90 (Colo.1991).

We presume the General Assembly intended the entire statute to have effect and intended a just and reasonable result. Section 2-4-201(1)(b)-(c), C.R.S.2002; People v. Luther, 58 P.3d 1013 (Colo.2002). We must interpret a statute as a whole to give a consistent, harmonious, and sensible effect to all of its parts. If separate clauses within a statute can be reconciled using one interpretation, but would conflict under another, we adopt the interpretation that allows for consistency. People v. Dist. Court, 713 P.2d 918 (Colo.1986). And in ascertaining legislative intent, we examine all statutes or statutory provisions that apply to the subject matter. R.E.N. v. City of Colorado Springs, 823 P.2d 1359 (Colo.1992).

Only if the statute is ambiguous or portions of the statute may conflict do we look beyond the plain language of the statute to legislative history and other extrinsic factors. People v. Cooper, supra.

The Colorado Dispute Resolution Act governs the use of mediation as an alternative to litigation. It was enacted in 1988 and comprehensively amended in 1991. The Act applies to all mediation services or dispute resolution programs conducted in the state, including those conducted by a private mediator. See §§ 13-22-3083, 13-22-3812, C.R.S. 2002.

I.

Most relevant to this dispute is § 18-22-308(1), C.R.S.2002, which sets forth how a mediated settlement agreement may become a court order:

If the parties involved in a dispute reach a full or partial agreement, the agreement upon request of the parties shall be reduced to writing and approved by the parties and their attorneys, if any. If reduced to writing and signed by the parties, the agreement may be presented to the court by any party or their attorneys, if any, as a stipulation and, if approved by the court, shall be enforceable as an order of the court.

Here, the trial court interpreted this provision to mean that presenting a written agreement to the court for approval is just one way to obtain court enforcement of a settlement agreement. The court stated, "A fair reading of the statute does not ... prohibit the enforcement of clear, final oral agreements." We conclude otherwise.

We interpret the first sentence of § 13-22-308(1) to set out the initial requirements for a settlement agreement to be enforceable by a court. First the parties must reach some full or partial agreement. See-ond, all parties must agree to reduce the agreement to writing. Third, all parties must approve the writing.

The second sentence sets out still more conditions precedent to court enforcement. The written agreement must be signed by all parties. In addition, it must be presented to the court. Finally, the agreement shall become enforceable as an order of the court only after the court approves it.

Section 18-22-808(1) is the only provision in the Act that addresses settlements, and it provides detailed instructions about how to obtain court enforcement of a settlement agreement. The legislature chose to describe only one method for obtaining a court order, and we assume the omission of any other methods was intentional. Using the standard rule of statutory construction that the inclusion of one is the exclusion of others, see City of Arvada v. Colo. Intergovernmental Risk Sharing Agency, 19 P.3d 10 (Colo.2001), we conclude that § 13-22-808(1) describes the only method for obtaining court enforcement of a mediated settlement agreement. As such, court enforcement of an oral settlement agreement is necessarily barred.

This interpretation of § [ XXX-XX-XXXX ](1) is consistent with the stated goals of the 1991 amendment to the Act, which brought § 183-22-808(1) to its current form. The meaning of § 183-22-808(1) is plain. Our interpretation of it gives a consistent, harmonious, and sensible effect to all parts of the Act and accomplishes the legislature's stated goal of strengthening the confidentiality afforded to the mediation process.

IL

Finally, we reject the trial court's conclusion that the Act bars admission of mediation communication to the same extent that the rules of evidence prohibit the admission of settlement discussions to prove negli-genee or lability. See CRE 408. At the conclusion of the hearing, the court stated that it read the Act "not to prevent proof of the existence of a settlement, but, rather, in the event of a failed settlement, to permit the use of statements or admissions that were made in the course of mediation negotiations."

The 1991 amendment struck from the Act the language that would have supported the trial court's conclusion. Before 1991, § 13-22-307(1) stated: "Mediation proceedings shall be regarded as settlement negotiations...." Colo. Sess. Laws 1983, ch. 166 at 625. In its place, the General Assembly enacted § 13-22-307(2), which reflects the legislature's intent to distinguish mediation communication from general settlement negotiations by creating even stronger protections for mediation communication.

The 1991 addition of a definition of mediation communication further reinforces the legislature's intent to keep all stages of mediation confidential. "Mediation communication" is defined as:

any oral or written communication prepared or expressed for the purposes of, in the course of, or pursuant to, any mediation services proceeding or dispute resolution program proceeding, including, but not limited to, any memoranda, notes, records, or work product of a mediator, mediation organization, or party; except that a written agreement to enter into a mediation services proceeding or dispute resolution proceeding, or a final written agreement reached as a result of a mediation service proceeding or a dispute resolution proceeding, which has been fully executed, is not a mediation communication unless otherwise agreed upon by the parties.

Section 18-22-302(2.5), C.R.S.2002 (emphasis added).

We note that § 13-22-302(2.5) harmonizes with § 13-22-8307 in that both allow disclosure of mediation communication when the parties consent in writing. More important ly, the definition expressly excludes a "final written agreement" that has been "fully executed," which § 18-22-808(1) similarly recognizes as the only form of a mediated settlement agreement that a court can enforce.

Taken together, these sections express the legislature's intent to create a blanket prohibition against disclosing mediation communication, whether or not the communication concerns a settlement, unless the parties consent or an exception applies. Taking into consideration the bar against admitting mediation communication into evidence, it is logical, therefore, that the existence and terms of a settlement agreement could not be proved without a signed writing that reflects those terms.

We adopt the interpretation of the statute that allows for consistency, and we reconcile all three provisions by reading § 13-22-308(1) to prohibit court enforcement of oral settlement agreements. See People v. Dist. Court, supra.

Finally, we do not agree that South Carolina Insurance Co. v. Fisher, 698 P.2d 1369 (Colo.App.1984), and In re Custody of Nugent, 955 P.2d 584 (Colo. relied on by the insurers, require a contrary conclusion. Those cases did not involve settlements mediated pursuant to the Act.

Thus, we conclude that the trial court erred in enforcing the alleged oral agreement between Price and the insurers.

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

Judge VOGT and Judge GRAHAM coneur.

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


author: Judge MARQUEZ.

text:
    Dylan Michael STELL, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF HEALTH CARE POLICY AND FINANCING, Defendant-Appellee.
    No. 02CA1811.
    Colorado Court of Appeals, Div. II.
    May 8, 2003.
    Rehearing Denied June 19, 2003.
    Certiorari Granted Nov. 17, 2003.

      Sagrillo, Hammond & Dineen, LLC, Robert L. Sagrillo, Lana L. Steven, Denver, Colorado; William L.E. Dussault, P.S., William L.E. Dussault, Seattle, Washington, for Plaintiff-Appellant.
    Ken Salazar, Attorney General, Ann Hause, First Assistant Attorney General, Laurie A. Schoder, Assistant Attorney General, Denver, Colorado, for Defendant-Appel-lee.
   Opinion by

Judge MARQUEZ.

In this Medicaid trust case, Dylan Michael Stell, appeals the district court's judgment affirming the final agency decision issued by the Colorado Department of Health Care Policy and Financing (Department). The Department held that Stell's disability trust failed to meet federal and state statutory requirements and that the county department correctly considered assets in the trust to be countable resources for determining Stell's medical assistance eligibility. We af-

Stell was disabled in a construction accident and received a large sum of money as a result of his personal injury claim. This money was placed in a trust for his benefit. He was receiving Medicaid benefits when he submitted this proposed disability trust for review by the Department.

The Department recommended termination of his benefits because it objected to the trust provisions requiring that (1) burial expenses and taxes be paid before the Department is reimbursed for the cost of medical care and (2) the Department file a ereditor's claim upon termination of the trust.

Stell appealed the proposed termination. The administrative law judge (ALJ) determined that under certain state statutes, the Department's "objections to the trust were not well founded." The ALJ further determined that the trust assets should not be counted for purposes of determining Stell's Medicaid eligibility and that Stell's Medicaid benefits should not be discontinued.

However, the Department's Office of Appeals rejected the ALJ's interpretation of the statutes and concluded that the trust assets were countable. In affirming this decision, the trial court concluded that the trust failed to meet the requirements of state and federal statutes, under which the Department "is to receive any amount remaining in the Trust upon the death of the beneficiary without any condition and with absolute priority."

1.

Stell contends that the decision regarding the trust exclusively involves the Department's interpretation of existing statutes and regulations, which are based upon questions of law, and that thus our review is de novo. The Department contends that the judicial review statute prescribes review of the Department's action under an arbitrary and capricious standard. Because the underlying facts are not contested, the determinative issues require interpretation of statutes and regulations. 'To that extent, our review is de novo.

A reviewing court may reverse an administrative agency's determination if the court finds that the agency acted in an arbitrary and capricious manner, made a determination that is unsupported by the evidence in the record, erroneously interpreted the law, or exceeded its constitutional or statutory authority. Section 24-4-106(7), C.R.S.2002; Ohison v. Weil, 953 P.2d 939 (Colo.App.1997).

Interpretation of a regulation by the agency charged with its enforcement is generally entitled to great deference. The agency interpretation is to be accepted if it has a reasonable basis in law and is warranted by the record. Ohlson v. Weil, supra.

The interpretation of statutes is a question of law that is reviewed de novo. In construing a statute, a court must ascertain and give effect to legislative intent, looking primarily to the statutory language employed by the General Assembly. See Colorado Department of Revenue v. City of Aurora, 32 P.3d 590 (Colo.App.2001).

IL.

Stell contends the state probate law permits the payment of burial expenses and taxes before the Department is reimbursed for medical expenses. Conversely, the Department contends that federal and state law require that it be reimbursed upon termination of the trust prior to any other expenditure. We agree with the Department.

Title XIX of the Social Security Act, 42 U.S.C. §§ 1896-18396v (19983), commonly known as the Medicaid Act, is a joint federal-state funding program designed to provide medical assistance to persons whose income and resources are insufficient to meet the costs of medical care. Although a state's participation is voluntary, onee a state chooses to participate in the program, it must comply with federal statutory and regulatory requirements. See Ohlson v. Weil, supra; see also Ramey v. Reinertson, 268 F.3d 955 (10th Cir.2001).

Section 1896p governs the treatment of trust amounts for the purpose of determining an individual's eligibility for Medicaid benefits. The statute provides for an exelusion of trust amounts from the countable assets of a disabled individual under age sixty-five "if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan." 42 U.S.C. § 18396p(d)(4)(A); see Norwest Bank v. Doth, 159 F.3d 328 (8th Cir.1998).

Federal law thus permits a state to allow applicants to exclude their income from the Medicaid eligibility calculation by establishing a trust. See Colorado Department of Health Care Policy & Financing v. Estate of Roberts, 18 P.3d 813 (Colo.App.2000).

Colorado participates in Medicaid through the Colorado Medical Assistance Act, § 26-4-101, et seq., C.R.S.2002. See Ohlson v. Weil, supra; Alberico v. Health Management Systems, Inc., 5 P.3d 967 (Colo.App.2000).

A disability trust for an individual under sixty-five years of age who is disabled as that term is defined in the Medicaid Act may be established under § 15-14-412.8, C.R.S.2002, of the Colorado Probate Code. Under § 15-14-412.8(2), C.R.S.2002, a disability trust is not valid unless, as pertinent here, it meets all the following criteria:

(b) The trust provides that, upon the death of the beneficiary or termination of the trust during the beneficiary's lifetime, whichever occurs sooner, the [Department] receives any amount remaining in the trust up to the total medical assistance paid on behalf of the individual.
(c) The sole lifetime beneficiaries of the trust are the individual for whom the trust is established and the state medical assistance program. After the death of the person for whom the trust is created or after the trust is terminated during the beneficiary's lifetime, whichever occurs sooner, no person is entitled to payment from the remainder of the trust until the state medical assistance agency has been fully reimbursed for the assistance rendered to the person for whom the trust was created.

Further, no disability trust is valid unless the Department has reviewed it and determined that it conforms to the requirements of the statute and any rules adopted by the medical services board pursuant to § 26-4-506.6, C.R.S.2002. See § 15-14-412.8(4), C.R.9.2002.

The medical services board rules additionally require that "Inlo expenditures may be made after the death of the beneficiary" and "the amount remaining in the trust and an accounting of the trust shall be due to the [Department] within three months after the death of the individual or termination of the trust." See Medical Services Board Rule 8.110.52B.4.b.11i & j, 10 Code Colo. Regs. 2505-10.

A.

Contrary to Stell's position, a disability trust cannot allow for payment of taxes and burial expenses prior to reimbursement of the Department upon termination of the trust. The Department has the highest priority with respect to the remainder in a disability trust and must be compensated in full upon termination of the trust prior to any other expenditures. See 42 U.S.C. § 18396p(d){(4)(A); § 15-14-412.8(2)(c);, Rule 8.110.52B.4.b.1.1.

Stell, however, relies on § 15-12-805(1), C.R.8.2002, to support his contention that the law permits the payment of other expenses. Specifically, Stell notes that the Department's claims, if any, are listed in priority after payment of funeral and burial expenses and taxes. We conclude that this statute does not apply here.

Section 15-12-805(1) provides, in relevant part, that claims against the estate of a decedent shall be paid by the personal representative in the following order:

(b) Other costs and expenses of administration;
(c) Reasonable funeral and burial, interment, or cremation expenses;
(d) Debts and taxes with preference under federal law;
(£.5) The claim of the department of health care policy and financing for the net amount of medical assistance, as defined in section 26-4-408.8(5), C.R.S., paid to or for the decedent ....

Here, the trust provides that the "following shall be paid as priority debts of the Trust estate ... (1) the costs of funeral, burial, cremation, or other disposal of beneficiary's remains ... [and] @) all income or other taxes owed by the trust." The trust also provides that:

[Stell] shall have no interest in either the principal or income of this Trust.... [Nlo part of the corpus, whether principal or undistributed income, shall be construed as part of the beneficiary's "estate" or be subject to the claims of voluntary or involuntary creditors for the provision of goods, care, and services, including residential care, by any public entity, office, department or ageney of the State of Colorado or any other state, county, municipal, federal or other governmental entity, department or agency, except specifically provided for otherwise in this instrument.

Stell's reliance on § 15-12-805(1) is misplaced because under this trust provision, the trust funds would not be included in his estate and thus would not be subject to that statute.

Further, the qualification of the trust for exemption from the Medicaid calculation, as opposed to its eventual distribution, is determined by the criteria set forth in § 15-14 (412.8, not § 15-12-805(1). Section 15-14-412.8 does not refer to § 15-12-805(1), and § 15-12-805(1) does not refer to disability trusts. As pertinent here, a reasonable interpretation of § 15-12-805(1) is that it would apply to the Department's claims against assets of the estate, but not against the funds in a disability trust.

/ Finally, even if the remaining trust funds were considered part of the estate, § 15-12-805(1)(f.5) refers to claims for medical assistance as defined in § 26-4-408.8(5). The latter statute expressly makes § 15-12-805(1) subordinate to any limitation concerning estate recovery in the Medicaid Act:

Subject to any limitations concerning estate recovery in [§ ] 1896p, as jamended, the amount of any medical assistance paid pursuant to the provisions of this article is a claim against the estate pursuant to the provisions of section 15-12-805(1), C.R.S.

Nothing in § 26-4-403.8(5) refers to disability trusts or indicates that its provisions cover the distribution of the assets of such trusts.

Given the clear language of the federal and state statutes, as well as the rules adopted by the medical services board, we agree with the Department that this trust does not meet the terms of § 15-14-412.8.

B.

The Department further asserts that a disability trust is not subject to the claims filing requirements of § 15-12-808, C.R.S. 2002. We agree.

The trust requires that:

Upon any termination of the trust, if the Trust Advisory Committee has knowledge that [Stell] has received local, state or federal medical or long term care assistance funded either directly or indirectly pursuant to [the Medicaid Act], the Committee shall so advise the Trustee, and the Trustee shall notify the appropriate agency or agencies ... and request that the agency submit to the Trustee in writing its claim for Medicaid services rendered to the beneficiary. The time for submitting such a claim shall be the same as the period for submitting creditor's claims as established in that jurisdiction for purposes of probate.... The Trustee shall confirm the validity of the claim and pay such claim from the assets remaining in the Trust prior to distribution of the remaining Trust assets. PROVIDED, HOWEVER, that if the remaining Trust assets are insufficient to fully satisfy claims made by more than one state agency, such claims shall be reimbursed on a pro-rata basis.

Again, Stell relies on a general probate statute, § 1512-808, regarding limitations on presentation of claims. However, as discussed above, the Department has a first priority right to all amounts remaining in the trust and is not required to file a claim against Stell's estate. See generally Alberico v. Health Management Systems, Inc., supra (as lenholders under statutory scheme, defendants not required to file claim). Further, Rule 8.110.52B.4,b.1.j places the burden on the trustee to submit the amount remaining in the trust, along with an accounting, to the Department within three months after termination of the trust. Therefore, Stell's reliance on the statute is misplaced.

Because of our disposition, we do not address Stell's contentions that: (1) he should not be prejudiced by the Department's inability to settle on a final position regarding the trust; (2) the Department failed to take exception to any specific findings of fact or conclusions of law set forth in the initial decision; (8) the Department waived the tax issue; and (4) there is no statutory authority for the position that the trustee of a disability trust shall not review the state's claim for reimbursement.

Consequently, the Department properly considered the trust assets as countable resources in determining Stell's eligibility for Medicaid benefits.

The judgment is affirmed.

Judge NEY and Judge CARPARELLI concur.


text:
    Frank T. ALFARO, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Vari-L Company, Inc., Respondents.
    No. 03CA0165.
    Colorado Court of Appeals, Div. V.
    Aug. 28, 2003.
    Ewing & Ewing, P.C., Mary Ewing, Lisa R. Sahli, Englewood, Colorado, for Petitioner.
    Ken Salazar, Attorney General, Y.E. Scott, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
    No Appearance for Respondent, Vari-L Company, Inc.
   Opinion by

Judge VOGT.

Petitioner, Frank T. Alfaro (claimant), seeks review of a final order of the Industrial Claim Appeals Office (Panel) that affirmed a hearing officer's decision disqualifying him from receiving unemployment benefits. We set aside the Panel's order and remand with directions.

L.

Claimant was separated from his employment as a design engineer for Vari-L Company, Inc. (employer). Initially, a deputy determined that claimant was disqualified from receiving benefits because of insubordination. Claimant appealed the deputy's decision. Following a hearing, the hearing officer determined that claimant was not at fault for the separation and was entitled to an award of benefits.

Employer then sought review of the hearing officer's decision. Upon receiving employer's appeal, the Panel issued a "Notice of Transcript," in which it noted that a portion of the hearing had not been recorded and was, therefore, not included in the transcript. It directed the parties to review the transcript, determine whether they considered it sufficient, and submit written objections by a specified date. The notice stated that, if no objections were received, the Panel would assume the transcript was satisfactory to the parties.

The parties did not object and proceeded to file briefs addressing the merits of the appeal. However, the Panel subsequently issued an order determining that the existing transcript, which did not include any of claimant's testimony, was inadequate to permit review of employer's contentions. The Panel vacated the hearing officer's decision and remanded the matter for an additional hearing. Its order stated: "At that hearing, the parties may present any relevant evidence, but it is not necessary to repeat evidence that has already been transcribed and is reflected in the record. The hearing officer shall then issue a new decision based on the entire record."

On remand, the parties participated in a supplemental hearing conducted by a different hearing officer. The hearing officer clarified at the outset that, in accordance with the Panel's order, witnesses who had not testified at the first hearing would now be allowed to testify. Employer then presented testimony by a witness who had not previously testified, a witness who had previously testified but whose testimony was not recorded or transcribed, and a witness whose testimony at the first hearing had been recorded and transcribed. Claimant testified on his own behalf.

The second hearing officer concluded, "after having reviewed the entire record in this case," that claimant had deliberately disobeyed employer's reasonable instructions and that employer had discharged claimant for insubordination. Thus, claimant was disqualified from receiving unemployment benefits pursuant to § 8-78-108(5)(e)(VI), C.R.S.2002.

Claimant appealed the second hearing officer's decision, and the Panel affirmed.

IL

Claimant contends that at the Panel exceeded its authority by vacating the decision of the first hearing officer and allowing the parties to present additional evidence at the supplemental hearing. We agree.

A.

We acknowledge at the outset that, although claimant questioned employer's right to put on a new witness at the second hearing and subsequently argued to the Panel that the purpose of the second hearing was only to record the part of the original hearing that had not been recorded, he did not present to the Panel the specific legal arguments regarding its authority that he makes on appeal.

Although we generally decline to consider arguments not made to the Panel, see, eg., Hart v. Indus. Claim Appeals Office, 914 P.2d 406 (Colo.App.1995), we elect to address claimant's contentions in this case. The procedure at issue here implicates the fundamental rights of both parties, see Allchurch v. Project Unicorn, Ltd., 33 Colo.App. 173, 516 P.2d 441 (1978)(procedure for dealing with insufficient record poses risk of either depriving original prevailing party of his vie-tory or depriving losing party of right to a meaningful appeal), and claimant, who was proceeding pro se, made a reasonable attempt to raise the issue at and after the second hearing.

B.

Section 8-74-104(2), C.R.8.2002, authorizes the Panel to affirm, modify, reverse, or set aside any decision of the hearing officer "on the basis of the evidence in the record previously submitted in the case." See Voisinet v. Indus. Claim Appeals Office, 757 P.2d 171, 172 (Colo.App.1988)(noting in dictum that 1986 amendment to § 8-74-104(2) "denied the Panel the right to take, or order the taking of, additional evidence").

Section 8-74-104(4), C.R.S.2002, gives the Panel "the power to issue such procedural orders as may be necessary to carry out its appellate review under [§ 8-74-104(2) ]."

Entering a procedural order to attempt to remedy an insufficient record is well within the Panel's authority under § 8-74-104(4). See Movite v. Div. of Employment & Training, 820 P.2d 1153 (Colo.App.1991)(transeript is required for appeals to Panel under § 8-74-101, et seq., C.R.S.2002); cf. Goodwill Industries v. Indus. Claim Appeals Office, 862 P.2d 1042 (Colo.App.1983)(remand not required where transcript was defective, but was sufficient to permit review). Further, given the deficiencies in the transeript here, the Panel had ample basis for concluding that, even though no party had objected, the transcript was insufficient to permit meaningful review.

We do not agree with claimant that § 24-4-105(15)(b), C.R.S.2002, requires a contrary construction of § 8-74-104(4). Although § 24-4-105(15)(b) precludes an agency from setting aside a hearing officer's findings if those findings are not contrary to the weight of the evidence, the agency-in this case, the Panel-has no way of determining whether the findings are contrary to the evidence if the evidence is not available for its review.

However, we are aware of no authority that would permit the Panel to include, in its order, a provision allowing the presentation of new evidence that was not presented to the hearing officer whose decision is being appealed. Such a provision is contrary to the requirement of § 8-74-104(2) that the Panel review the hearing officer's decision "on the basis of the evidence in the record previously submitted in the case."

Claimant suggests that, by analogy to the procedure followed in civil appeals, the Panel's proper course was to remand for the limited purpose of reconstructing the record. See C.A.R. 10 (prescribing methods for reconstructing record on appeal if transcripts are unavailable); Allchurch v. Project Unicorn, Ltd., supra.

We agree that this procedure may be appropriate in many cases, and it does not appear that the parties were given the opportunity to attempt such reconstruction here, either with or without the participation of the first hearing officer. Further, while it would seem preferable to have the original hearing officer conduct any hearing that may be nee-essary to reconstruct the original record, the record does not indicate whether that was an available option in this case.

We recognize the Panel's authority to enter procedural orders that will enable it to carry out its appellate function, and we defer to its expertise in deciding initially how to exercise that authority. We decline to hold that the Panel must apply the procedures in the civil and appellate rules, which do not apply to review of unemployment compensation orders, see Huddy v. Indus. Claim Appeals Office, 894 P.2d 60 (Colo.App.1995), and we do not otherwise dictate specific procedures that must be followed in every case. However, in light of the statutory requirement that the Panel decide appeals based on the existing record, we conclude that the procedural order entered here exceeded the Panel's authority and that its final order arising out of that procedural order must therefore be set aside. See § 8-74-107(6)(a), C.R.98.2002.

C.

In light of our resolution of this issue, we do not address claimant's additional challenges to the Panel's orders. We do, however, deny his request that he be allowed to present additional evidence on remand to support his racial discrimination claim. He was permitted to offer documentary evidence bearing on that issue at the first hearing. Permitting him to introduce further evidence would infringe on employer's right, under § 8-74-104(2), to have the first hearing officer's decision reviewed based on the evidence previously submitted.

The Panel's order is set aside, and the case is remanded with directions to the Panel to review and decide employer's appeal of the first hearing officer's decision on the basis of the evidence in the record before that hearing officer. The Panel may enter such procedural orders as may be necessary to enable it to carry out its review, but it may not authorize the taking of additional evidence beyond what was before the first hearing officer.

Judge ROTHENBERG and Judge CARPARELLI concur.


text:
    Sherry L. MOSLEY, Petitioner and Cross-Respondent, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE of Colorado, Respondent, and Asphalt Paving Company and Colorado Insurance Guaranty Association, Respondents and Cross-Petitioners.
    No. 02CA1788.
    Colorado Court of Appeals, Div. II.
    Sept. 11, 2003.
    As Modified on Denial of Rehearing Oct. 9, 2003.

      Wilcox & Ogden, P.C., Ralph Ogden, Denver, Colorado; Larry D. Lee, Boulder, Colorado, for Petitioner and Cross-Respondent.
    No Appearance for Respondent.
    Clifton, Hook & Bovarnick, P.C., Harvey D. Flewelling, Denver, Colorado, for Respondents and Cross-Petitioners.
   Opinion by

Judge PIERCE.

Sherry L. Mosley (claimant) seeks review of a portion of a final order of the Industrial Claim Appeals Office (Panel) denying her request for attorney fees. Asphalt Paving Company and its insurer, Colorado Insurance Guaranty Association (collectively employer), seek review of the final order insofar as it determined permanent medical impairment. We affirm in part, set aside the order in part, and remand with directions.

Claimant reached maximum medical improvement (MMT) in January 2000 from injuries sustained in an admitted work-related automobile accident in 1998, and the treating physician rated her total permanent medical impairment at thirty percent of the whole person. The treating physician's rating was based on sixteen percent impairment for the cervical spine, eight percent for the thoracic spine, and ten percent for mental impairment.

Employer requested a division-sponsored independent medical examination (DIME), and the DIME physician gave claimant a permanent medical impairment rating of thirty-six percent of the whole person. This rating was based upon seventeen percent cervical spine impairment, fifteen percent lumbar spine impairment, and ten percent mental impairment.

Employer contested the DIME physician's rating and obtained another independent medical examination (IME). That physician initially opined that claimant suffered eleven percent whole person impairment based upon six percent thoracic impairment and five percent mental impairment. Later, after viewing videotapes of claimant performing certain activities, the IME physician opined that claimant had normal function of the thoracic spine and suffered only mental impairment, which he also questioned.

The administrative law judge (ALJ) concluded in 2000 that claimant's permanent medical impairment totaled thirty-one percent, based upon a combination of the adjusted twenty-five percent rating of the DIME physician and the eight percent thoracic spine impairment assigned by the treating physician. Employer petitioned for review, and the matter was remanded to the ALJ. After a three-day hearing in 2002, the ALJ determined that the DIME physician's opinion regarding claimant's lumbar impairment was overcome, and adjusted his whole person impairment rating from thirty-six percent to twenty-five percent. The ALJ also interpreted the DIME physician's silence regarding thoracic impairment as implicating a rating of zero percent, and found that such opinion had been overcome by clear and convincing evidence. The ALJ finally determined that the treating physician's opinion that claimant suffered eight percent impairment of the thoracic spine was more credible than the opinion of employer's IME physi-clan. Employer again sought review. The Panel affirmed the impairment rating in the 2002 order and denied claimant's request for attorney fees.

L

Claimant asserts that employer was precluded from challenging the ALJ's finding that she sustained a twenty-five percent non-thoracic impairment because employer did not challenge that finding in its petition to review the ALJ's 2000 order. We agree.

When an amendment to a judgment substantially affects the rights of the parties, they must be given a new opportunity to appeal, and the time for appeal commences to run from date of entry of the amended judgment. However, if the rights of the appealing party are not materially affected by the amendment and the relief from judgment could have been sought prior to the amendment, the time for appeal is not extended. In re Marriage of Everhart, 636 P.2d 1321 (Colo.App.1981).

Here, in its petition to review the ALJ's 2000 order, employer contested only the finding that claimant sustained eight percent impairment to the thoracic spine. It did not contest the entire thirty-one percent rating until it sought review of the ALJ's 2002 amended order. Hence, employer could, and should, have raised the latter issue in the earlier petition to review the 2000 order. Accordingly, by failing to do so then, employer waived the right to do so later.

JLE

Employer asserts that claimant is not entitled to permanent partial disability benefits based upon a rating of thirty-one percent of the whole person. It argues that the ALJ erred in considering whether the DIME physician's nonrating of the thoracic spine was overcome by clear and convincing evidence because neither party disputed his opinion that claimant had no impairment of the thoracic spine. According to employer, the ALJ's sua sponte action denied it due process. We disagree.

A.

First, we reject claimant's argument that employer does not have standing to argue a violation of due process. Even if employer lacked standing, any error in addressing the issue is harmless because we conclude that employer was not denied due process.

B.

As a matter of diagnosis, the assessment of permanent medical impairment requires a rating physician to identify and evaluate all losses and restrictions that result from the injury. Qual-Med, Inc. v. Indus. Claim Appeals Office, 961 P.2d 590 (Colo.App.1998).

Thus, we agree with the Panel that onee employer indicated that the rating of neither the treating physician nor the DIME physician was correct, it could not be surprised that the ALJ adjudicated the existence of permanent impairment to the tho-racie spine. This is so even though claimant did not contest the DIME physician's rating.

The DIME physician's finding concerning a claimant's impairment rating is binding on the parties unless overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.98.2002; Whiteside v. Smith, 67 P.3d 1240 (Colo.2008). Whether the DIME physician's rating has been overcome is a question of fact for determination by the ALJ. See Wackenhut Corp. v. Indus. Claim Appeals Office, 17 P.3d 202 (Colo.App.2000).

Here, the ALJ specifically found that the DIME physician's explicit opinion concerning impairment to claimant's lumbar spine and implicit opinion regarding the thoracie spine was overcome by clear and convincing evidence. Thus, as the Panel stated, the ALJ was free to consider the other medical evidence concerning claimant's permanent medical impairment. Cf. Monfort Transp. v. Indus. Claim Appeals Office, 942 P.2d 1358 (Colo.App.1997)(if a factual issue arises as to the attainment of MMI, then the ALJ must resolve that issue).

Finally, we agree with the Panel that substantial evidence supports the ALJ's finding that the DIME physician erred in failing to include a rating for permanent medical impairment to the thoracic spine.

Prior to viewing the videotapes, the IME physician rated elaimant's thoracic spine impairment at six percent and conceded that his rating was similar to the rating assigned by the treating physician. Thus, the ALJ was not required to accept the IME physician's later changed opinion concerning claimant's impairment. See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App.1996)(where authorized treating physician issues conflicting opinions concerning MMI, it is for the ALJ to resolve the conflict). Instead, the ALJ could reject even uncontroverted evidence, and we are bound by the ALJ's factual determinations even when the evidence is conflicting and would have supported a contrary result. Pacesetter Corp. v. Collett, 38 P.3d 1280 (Colo.App.2001). We decline to address claimant's argument that employer does not have standing to argue a violation of due process. Our holding here makes any consideration of the standing issue irrelevant.

IIL.

Claimant also asserts that the Panel erred in denying her request for attorney fees. We agree that this issue must be reconsidered.

Section 8-48-801(14), C.R.S8.2002, provides that the signature of an attorney on a petition to review constitutes a certificate that "it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass, cause delay, or unnecessarily increase the cost of litigation."

Here, we have concluded that in contesting the thirty-one percent rating, employer raised a new argument. Hence, we reject the Panel's finding that employer did not raise new arguments in its petition for review of the 2002 order which it should have raised in the first review. Therefore, there is no support for the Panel's denial of attorney fees under § 8-48-801(14).

Accordingly, it is necessary to remand this issue to the Panel to reconsider claimant's request for attorney fees under § 8-48-301({14).

The portion of the Panel's order determining permanent medical impairment is affirmed. The portion of the order denying claimant's request for attorney fees is set aside, and the case is remanded to the Panel for reconsideration of that request.

Judge NEY and Judge WEBB concur.

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