author: Judge CARPARELLI.

text:
    Phyllis KENNEDY and Orvin Kennedy, Plaintiffs-Appellants, v. GILLAM DEVELOPMENT CORPORATION, Defendant-Appellee.
    No. 02CA1427.
    Colorado Court of Appeals, Div. V.
    Oct. 9, 2003.

      Jorgensen, Motycka & Lewis, P.C., Mark A. Herber, Greeley, Colorado, for Plaintiffs-Appellants.
    Campbell, Latiolais & Ruebel, P.C., Colin C. Campbell, Brian E. Martin, Denver, Colorado, for DefendanL-Appellee.
   Opinion by

Judge CARPARELLI.

Plaintiffs, Phyllis and Orvin Kennedy (buyers), appeal portions of a judgment entered in their favor rescinding a contract with defendant, Gillam Development Corporation (seller), for the purchase of a home. We affirm in part, reverse in part, and remand for further proceedings as necessary.

Buyers bought a new home from seller for $160,264.05. Seller warranted that it would make repairs resulting from defective materials and workmanship, but disclaimed all other express and implied warranties. About four months after closing, buyers discovered water in the basement. Seven months after closing, buyers notified seller that they found seller’s repair proposal to be unacceptable and that they intended to seek rescission of the contract. Buyers then sued.

In their complaint, buyers elected not to assert breach of warranty or negligence. Instead, they alleged, in effect, frustration of the purpose of the contract and sought rescission and restitution based on the allegation that “there is no repair possible that would be reasonably consistent with the expectations of the contracting parties.” They also asked for costs incurred to improve the property and lost expected appreciation of the property. In a separate claim, they sought attorney fees under the contract.

After a bench trial, the court ruled that seller substantially breached the contract and that buyers were entitled to rescission, as well as damages in the amount of $12,000, closing costs, and attorney fees and costs pursuant to the contract. Accordingly, the court entered judgment in favor of buyers. The court’s order allowed buyers to submit their attorney fees affidavit and bill of costs in accordance with C.R.C.P. 121.

After buyers filed their attorney fees affidavit, seller responded and argued, for the first time, that based on Destination Travel, Inc. v. McElhanon, 799 P.2d 454 (Colo.App.1990), buyers should not be awarded attorney fees. The trial court agreed and vacated the award.

Buyers then filed a post-trial motion for reconsideration in which they requested, among other things, an award of prejudgment interest and damages for loss of appreciation in the value of the home. The court denied buyers’ motion and also determined that its award of attorney fees to buyers based on the provision in the contract was erroneous because buyers prevailed on their claim for rescission.

This appeal followed.

I. Attorney Fees

Buyers contend that the trial court erred when it ruled that they were not entitled to attorney fees. We disagree.

A.

We reject buyers’ threshold argument that the trial court lacked jurisdiction to rule on seller’s post-trial objection to the award of attorney fees.

Buyers assert that seller’s response to their attorney fees affidavit was, in effect, a C.R.C.P. 59(a)(4) motion for post-trial relief to amend the judgment and that it was untimely because it was not filed within fifteen days of the initial entry of judgment as provided in C.R.C.P. 6(e) & 59(a). Buyers argue that, because it was an untimely C.R.C.P. 59(a) motion, the trial court lacked jurisdiction to vacate the award of attorney fees. We are not persuaded.

A “judgment” includes a decree or order from which an appeal lies. C.R.C.P. 54(a). Moreover, an award of attorney fees is distinct and separately appealable from the judgment on the merits. Baldwin v. Bright Mortgage Co., 757 P.2d 1072 (Colo.1988). Such an award “is not final until the amount of fees is set by the trial court.” Axtell v. Park Sch. Dist. R-3, 962 P.2d 319, 322 (Colo.App.1998)(citing Ball Corp. v. Loran, 42 Colo.App. 501, 596 P.2d 412 (1979)).

Because in this case the trial court had not yet determined the amount of the fees, the time to seek to amend the attorney fees award under C.R.C.P. 59(a) did not begin to run.

Hence, we conclude that the trial court had jurisdiction to vacate the award of attorney fees. See, e.g., Bowman v. Songer, 820 P.2d 1110 (Colo.1991)(trial court retained jurisdiction to hear a motion to reconsider its order prior to a final judgment).

B.

Buyers also contend that the trial court erred when it relied on Destination Travel, which, they argue, has never been followed and is “illogical, unfair, and contrary to the strong trend in numerous jurisdictions allowing recovery of attorney’s fees pursuant to a rescinded contract.” In support of their contention, they cite Norwood v. Service Distributing, Inc., 297 Mont. 473, 994 P.2d 25 (2000); Mackintosh v. California Federal Savings & Loan Ass’n, 113 Nev. 393, 935 P.2d 1154 (1997); and Katz v. Van Der Noord, 546 So.2d 1047 (Fla.1989). We are not persuaded.

In Destination Travel, the plaintiff sought to avoid its obligation to perform under a joint operating agreement. A division of this court concluded that the plaintiff could not avoid its obligations by rescinding the contract and, at the same time, claim the benefit of the contract’s attorney fees provision. The division reasoned that the plaintiffs election to rescind “cancelled all of plaintiffs contractual rights to the benefits of the contract, including an award of attorney’s fees in the event of litigation.” Destination Travel, Inc. v. McElhanon, supra, 799 P.2d at 458 (quoting Pickinpaugh v. Morton, 268 Or. 9, 17, 519 P.2d 91, 95 (1974)).

Buyers rely on cases decided after Pickin-paugh v. Morton, supra, the case on which the division relied in Destination Travel. In Katz v. Van Der Noord, supra, the buyer repudiated his obligation to close a real estate purchase after the seller breached but before the sale closed. In Norwood v. Service Distributing Inc., supra, the buyer repudiated his obligation to continue to make installment payments after the seller allegedly failed to perform its obligations under the contract. There, the Supreme Court of Montana relied on the decisions in Katz and Mackintosh v. California Federal Savings & Loan Ass’n, supra.

The facts in Mackintosh are the most analogous to those here. There, the buyers discovered defects in a home they had purchased, and they sought rescission and damages. The trial court concluded that, because the seller was also the lender, in addition to its duties under the contract, it had a duty to disclose known defects and failed to do so. The trial court granted rescission of the contract and, although the contract of sale contained a fee shifting provision, ruled that the buyers were not entitled to attorney fees because the contract had been rescinded. The Supreme Court of Nevada relied on Katz and reversed the trial court, concluding “it would be unjust” to preclude the buyers from recovering attorneys fees when fees were contemplated by the contract.

In our view, these cases are distinguishable. In Katz and Norwood, the buyers repudiated and sought rescission of the contract to confirm their right to repudiate and to avoid future obligations, not to obtain remedies not provided for in a fully executed contract. In Mackintosh, the supreme court appears to have relied, with little discussion, on equitable principles and not on any Nevada precedent preserving selected provisions of a rescinded contact.

We conclude that these cases are not consistent with the legal principle that Colorado courts have consistently applied: remedies of rescission of a contract and enforcement of a provision of the same contract are inherently inconsistent. Destination Travel, Inc. v. McElhanon, supra; Aaberg v. H.A. Harman Co., 144 Colo. 579, 358 P.2d 601 (1960); Holscher v. Ferry, 131 Colo. 190, 280 P.2d 655 (1955); Arguelles v. Ridgeway, 827 P.2d 553 (Colo.App.1991). Moreover, this principle, which we view as the better rule, has also been applied in other jurisdictions. See Roadway Express, Inc. v. Jossy, 853 F.2d 736 (9th Cir.1988); Oral Roberts Univ. v. Anderson, 11 F.Supp.2d 1336 (N.D.Okla.1997); Fay E. Sams Money Purchase Pension Plan v. Jansen, 3 S.W.3d 753 (Ky.Ct.App.1999); Pickinpaugh v. Morton, supra; John Deere Co. v. Epstein, 91 Or.App. 195, 755 P.2d 711 (1988), aff'd, 307 Or. 348, 769 P.2d 766 (1989); BLT Inv. Co. v. Snow, 586 P.2d 456 (Utah 1978).

Thus, we conclude that buyers cannot obtain a benefit from a provision in the contract they succeeded in rescinding. See Destination Travel, Inc. v. McElhanon, supra; see also W. Cities Broad., Inc. v. Schueller, 830 P.2d 1074 (Colo.App.1991), aff'd, 849 P.2d 44 (Colo.1993). Once they elected the remedy of rescission and it was granted by the court, the option of obtaining the benefits of a provision in the rescinded contract was no longer available to them. See Destination Travel, supra.

Hence, we conclude that the trial court did not err when it ruled that plaintiffs were not entitled to attorney fees.

II. Prejudgment Interest

Buyers next contend that the trial court erred when it denied them prejudgment interest. We agree.

Buyers’ post-trial motion sought an award of prejudgment interest pursuant to § 5-12-102, C.R.S.2002. The court ruled that although an award of prejudgment interest is proper in a rescission action, any such award would be offset by the reasonable rental value of the home buyers possessed during the pendency of the action. However, because no evidence was presented and the issue of prejudgment interest was not raised at trial, the court concluded that “there is no basis now ... to award any amount of prejudgment interest.”

In Wall v. Foster Petroleum Corp., 791 P.2d 1148, 1151 (Colo.App.1989), a division of this court determined that when money is wrongfully withheld, such as when a contract for a home is rescinded, § 5-12-102 requires that prejudgment interest be awarded and “such an award must be incorporated in the court’s assessment of the equities.” See also § 5-12-102(l)(b), C.R.S.2002; C.R.C.P. 54(c); Town of Breckenridge v. Golforce, Inc., 851 P.2d 214, 217 (Colo.App.1992)(“if a court finds that a claimant is entitled to statutory interest under § 5-12-102, the court should award it, even in the absence of a prayer for such relief’).

Accordingly, we conclude that § 5-12-102 required the trial court to award prejudgment interest. See Wall v. Foster Petroleum Corp., supra.

In Wall, the division remanded the case and directed that the court determine the amount of interest due and offset the value of the plaintiffs use of the property against the claim for interest. Similarly here, because seller was not afforded an opportunity to present evidence regarding possible offsets, the court may, in its discretion, afford seller that opportunity on remand.

III. Appreciation Damages

Finally, buyers contend that the trial court erred when it ruled that they were not entitled to expected appreciation damages. We discern no error.

Buyers sought additional damages for the loss of expected appreciation on the value of the home and argued that they presented unrebutted evidence that similar houses had appreciated $50,000 during the period of their residency.

The trial court denied buyers’ request and ruled that because no evidence was presented on the “newly sought damages [including appreciation damages] and since those damages were not itemized in disclosure of the Trial Management Order, [buyers] cannot now come in and pray for recovery of the same.”

Buyers argue that this ruling constituted error because they, as opposed to seller, should get the benefit of the appreciation under a theory of unjust enrichment. We disagree.

In Earthlnfo, Inc. v. Hydrosphere Resource Consultants, Inc., 900 P.2d 113 (Colo.1995), the supreme court ruled that profit damages may be disgorged and made available to the nonbreaching party when a contract is rescinded based on breach because rescission of a contract is normally accompanied by restitution on both sides. The court held that “whether profits are awarded to a nonbreaching party shall be determined within the discretion of the trial court on a case by case basis.” Earthlnfo, Inc. v. Hydrosphere Res. Consultants, Inc., supra, 900 P.2d at 118.

Here, the trial court declined to award buyers any appreciation on the house because they did not seek these damages until after judgment was entered.

Although buyers sought “loss of expected appreciation” in their complaint, they did not pursue these damages before or during trial. In this regard, we reject buyers’ assertion that their real estate expert’s testimony was sufficient to support an award of such damages. The expert’s appreciation testimony merely provided context for his opinion that the underlying drainage problem on the property was an “adverse material fact” and that, although the problem would detrimentally affect the value, it would be “almost impossible” to predict what the house would sell for.

Therefore, because the record supports the trial court’s ruling and reasoning, we find no abuse of discretion. See Earthlnfo, Inc. v. Hydrosphere Res. Consultants, Inc., supra.

The judgment is reversed to the extent it denied buyers’ claim for prejudgment interest, and the case is remanded for further proceedings on that claim as necessary. In all other respects, the judgment is affirmed.

Judge ROTHENBERG and Judge VOGT concur.


source: Caselaw Access Project

author: Judge ROY.

license: Public Domain

text:
    BLACK CANYON CITIZENS COALITION, INC., a Colorado nonprofit Corporation, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF MONTROSE COUNTY, Defendant-Appellee.
    No. 02CA1466.
    Colorado Court of Appeals, Div. III.
    Oct. 9, 2003.
    Golden, Mumby, Summers, Livingston & Kane, LLP, J. Richard Livingston, Patricia L. Cookson, Grand Junction, Colorado, for Plaintiff-Appellant.
    James R. Fritze, County Attorney, Mont-rose, Colorado, for DefendanG-Appellee.
   Opinion by

Judge ROY.

Plaintiff, Black Canyon Citizens Coalition, Inc. (the corporation), appeals the district court’s order dismissing a C.R.C.P. 106(a)(4) complaint filed against the Board of County Commissioners of Montrose County (the county). We affirm.

This is a case of first impression under C.R.C.P. 106(a)(4) with respect to the substitution of a plaintiff. It is also a case of first impression in Colorado on the effect of naming a nonexistent corporation as plaintiff.

According to the pleadings, an individual (the applicant) applied for a special use permit for a gravel mining operation on property adjacent to the Black Canyon National Park. In the fall of 2001, a group of landowners formed an unincorporated association, Black Canyon Citizens Coalition (the association), to oppose the application. The association appeared before the county planning commission and the county commissioners.

The county planning commission recommended that the application be denied, but the county commissioners ultimately approved the application on January 22, 2002.

On February 19,2002, counsel filed articles of incorporation with the Colorado Secretary of State, which the Secretary of State rejected. The articles were refiled on February 22, 2002 and accepted.

Meanwhile, on February 20, 2002, the corporation filed a complaint pursuant to C.R.C.P. 106(a)(4) seeking judicial review of the county’s decision. The jurisdictional time limit for commencing the action was thirty days from the date of the county’s decision, here February 20, 2002. See C.R.C.P. 106(a)(4); Baker v. City of Dacono, 928 P.2d 826 (Colo.App.1996).

The county answered and then moved to dismiss on the grounds that the corporation lacked capacity and failed to join the applicant. The corporation moved to amend the complaint to name the association as plaintiff and to add the applicant as a defendant. The trial court dismissed the action based on the named corporation’s lack of capacity, but indicated that it would allow amendment to add the applicant as a defendant.

The corporation now argues that although it was not incorporated when the complaint was filed, its members were organized as an unincorporated association, which had the power to participate in judicial proceedings. Accordingly, the corporation argues that it should be allowed to amend its complaint to substitute the unincorporated association as plaintiff. The county argues that because the named plaintiff did not exist, and therefore lacked capacity, when the complaint was filed, the action was not timely commenced. We agree with the county.

C.R.C.P. 106(b) expressly authorizes amendments “at any time with leave of the court, for good cause shown, to add, dismiss or substitute parties, and such amendment shall relate back to the date of filing of the original complaint.” This provision was added to remedy an existing trap for a plaintiff who named the governmental entity as defendant instead of its governing body from which the appeal is taken, or who failed to name another indispensable party, typically the applicant, and then was barred by C.R.C.P. 106(a)(4). See, e.g., Tri-State Generation & Transmission Co. v. City of Thornton, 647 P.2d 670 (Colo.1982)(city council); Thorne v. Bd. of County Comm’rs, 638 P.2d 69 (Colo.1981)(applicant); Norby v. City of Boulder, 195 Colo. 231, 577 P.2d 277 (1978)(applicant). However, the language of C.R.C.P. 106(a)(4) is not limited to the join-der of defendants.

In Bowers Building Co. v. Altura Glass Co., 694 P.2d 876 (Colo.App.1984), a division of this court held that under the business corporation code, specifically § 7-102-103, C.R.S.2002 (formerly § 7-2-104), corporate powers are not conferred until an entity is incorporated, which does not occur in Colorado until articles of incorporation are filed with the Secretary of State. In addition, the division concluded that Colorado no longer recognizes de facto corporations or corporations by estoppel, and thus, no corporate action may be taken by the entity before it is incorporated.

We conclude that Bowers Building should also apply to nonprofit corporations. Section 7-122-103, C.R.S.2002, which is substantially identical to § 7-102-103, deals with nonprofit corporations and provides: “A nonprofit corporation is incorporated when the articles of incorporation are filed by the secretary of state.... The corporate existence begins upon incorporation.” Therefore, the corporation had no corporate existence when this action was filed in its name.

For guidance as to the effect of naming a nonexistent corporation as plaintiff, we look to the jurisprudence developed under Fed. R.Civ.P. 25, which is identical to C.R.C.P. 25 in every material respect.

Both the state and federal rules permit the substitution of parties upon death, incompetency, or transfer of interest or upon vacancy in, and succession to, a public office. However, the rules apply to the death, incompetency, or succession occurring after the action has been properly commenced. 6 James Wm. Moore et al., Moore’s Federal Practice § 25.20(3) (3d ed.2003).

The federal court opinions limiting the application of the rule frequently state that the filing of a complaint in the name of a deceased or incompetent person is a nullity. Automated Info. Processing, Inc. v. Genesys Solutions Group, Inc., 164 F.R.D. 1 (E.D.N.Y.1995)(defunct corporation); Banakus v. United Aircraft Corp., 290 F.Supp. 259 (S.D.N.Y.1968)(named plaintiff died thirty-five minutes before action commenced); Schwartz v. Metro. Life Ins. Co., 2 F.R.D. 167 (D.Mass.1941)(guardian not permitted to substitute for ward who was incompetent when action was commenced by ward); 6 Moore, supra, § 25.20; Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1951 (2d ed.2003).

In Automated Information Processing, supra, an action was commenced in the name of Automated Information Processing, Inc. Defense counsel discovered that no such corporation existed. There had been a corporation named A.I.P., Inc., but it had been involuntarily dissolved for failure to pay franchise taxes. The principal later formed a new corporation, assigned all of his and the defunct corporation’s rights to the new corporation, and filed an amended complaint to substitute himself and the new corporation as plaintiffs and assert additional claims. The court rejected the amendment, stating:

Rule 25 sets out four specific situations in which substitution is permitted, none of which exists here. [Principal] has attempted to wriggle his way under the provisions of Rule 25(c) by “transferring” the plaintiffs interest to a new company.... The subsection contemplates, however, that there actually be an original party and that the original party have an interest to transfer. See 7C C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1951 at 522 (2d ed. 1986) (“The rule presupposes that substitution is for someone who was a party to a pending action.”). That is not the situation here. Here, there simply was no original party because it did not exist at the time the action was instituted. Nor did the named plaintiff [old corporation] exist at any time when the copyrights or contractual rights arose under which it asserted its claims for relief, and thus never had any interest to transfer. Accordingly, substitution is not permissible under Rule 25(c).

Automated Info. Processing, Inc. v. Genesys Solutions Group, Inc., supra, 164 F.R.D. at 3.

We recognize that C.R.C.P. 25 and its federal counterpart address the loss of capacity after the action is commenced, and that C.R.C.P. 106 does not include that limitation. However, the holding of federal cases applying Fed.R.Civ.P. 25 which address the filing of a complaint by a non-existent plaintiff are not sensitive to that distinction.

The corporation relies on C.R.C.P. 17, which requires that actions be commenced in the name of a real party in interest with capacity. Nonprofit corporations and unincorporated corporations have the capacity to sue in their own name. Section 7-123-102(l)(a), C.R.S.2002 (nonprofit corporations); C.R.C.P. 17(b)(unincorporated associations). However, the courts have construed and applied C.R.C.P. 17 to the substitution as plaintiff of a person or entity with capacity or the requisite interest for a person or entity without capacity, interest, or both. The cases do not deal with an initial plaintiff who did not exist when the action was commenced.

The issue here is not the effect of a lack of capacity or interest, but whether a nonexistent person or entity can have either the requisite capacity or interest to bring an action. The courts applying C.R.C.P. 17 have not addressed this question. However, to ask is to answer. We find no compelling reason to reach a result contrary to that reached under Fed.R.Civ.P. 25.

We are persuaded by the combination of § 7-122-103, Bowers Building, and the jurisprudence applying Fed.R.Civ.P. 25, that an action filed by a nonexistent person or entity is a nullity. Thus, here, no action was commenced on February 20, 2002. The complaint was void ab initio, jurisdiction over the dispute was never' conferred on the court, and the attempt to cure the defect after the expiration of the thirty-day period specified in C.R.C.P. 106(a)(4) failed as a matter of law.

Accordingly, the order of the trial court is affirmed.

Judge MARQUEZ and Judge DAILEY concur.


author: Judge MARQUEZ.

text:
    FREE SPEECH DEFENSE COMMITTEE, an unincorporated association; Ben Scribner, in his individual capacity; and Taryn Browne, in her individual capacity, Plaintiffs-Appellants, v. David J. THOMAS, as District Attorney for the First Judicial District, and Citizens Advisory Board for the Office of the District Attorney, First Judicial District, Defendants-Appellees.
    No. 02CA1692.
    Colorado Court of Appeals, Div. II.
    Oct. 9, 2003.

      Baker & Hostetler, LLP, Mark D. Flink, Holli L. Hartman, Denver, Colorado; Mark Silverstein, Denver, Colorado, for Plaintiffs-Appellants.
    William A. Tuthill, III, County Attorney, Patricia W. Gilbert, Assistant County Attorney, Golden, Colorado, for Defendants-Ap-pellees.
   Opinion by

Judge MARQUEZ.

Plaintiffs, Free Speech Defense Committee, Ben Sei'ibner, and Taryn Browne, appeal a judgment denying their request for injunc-tive relief and declaring that defendants, David J. Thomas and Citizens Advisory Board for the Office of the District Attorney, First Judicial District, did not violate the Colorado Open Meetings Law, § 24-6-402, C.R.S.2002. We affirm.

The basic facts are undisputed. Thomas, the district attorney for the First Judicial District, established the advisory board in 1993. The board has about twenty to twenty-five members from Jefferson and Gilpin Counties. The members are chosen through a process of written application, telephone interviews, and background screening. They serve two-year terms and meet monthly.

Plaintiffs filed this action for declaratory and injunctive relief when defendants refused to allow them to attend meetings of the advisory board. Evidence was presented that the board has no formal structure or governing rules, and its members do not vote or provide written decisions or recommendations.

The court found that the evidence did not establish that board members give direction to Thomas regarding the operation of his office. According to the court, the activities of the board are to entertain and enlighten the members as to the function and accomplishments of the district attorney’s office. The court also found no evidence that Thomas was ever persuaded to take action by a member’s suggestion, and Thomas was not bound by anything the board told him.

Finding that the district attorney did not fit the definition of a “local public body” or a “state public body” that would be subject to the Colorado Open Meetings Law, the court denied plaintiffs’ request for injunctive relief and entered a declaratory judgment in favor of defendants.

Plaintiffs contend that the advisory board is either a local public body or a state public body under the Colorado Open Meetings Law. We disagree.

Issues involving statutory interpretation constitute matters of law. Therefore our review of those issues is de novo. Colantuno v. A. Tenenbaum & Co., 23 P.3d 708 (Colo.2001); Robles v. People, 811 P.2d 804 (Colo.1991).

A court must interpret a statute in a way that gives effect to the General Assembly’s purpose or intent in enacting it. To accomplish this objective, the court must begin with the plain language of the statute. If the statute is unambiguous and does not conflict with other statutory provisions, we need look no further. Only if the language is ambiguous do we look to legislative history, prior law, the consequences of a given construction, and the goal of the statutory scheme to ascertain the correct meaning of the statute. People v. Luther, 58 P.3d 1013 (Colo.2002).

Based on the evidence here, the court concluded that the district attorney did not fit any of the applicable definitions. We agree that the district attorney has not violated the statute.

Section 24-6-401, C.R.S.2002, provides: “It is declared to be a matter of statewide concern and the policy of this state that the formation of public policy is public business and may not be conducted in secret.”

Section 24-6-402(2), C.R.S.2002, describes the meetings that must be open, including, as relevant here, the following:

(a) All meetings of two or more members of any state public body at which any public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times.
(b) All meetings of a quorum or three or more members of any local public body, whichever is fewer, at which any public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times.

Section 24-6-402(1), C.R.S.2002, defines the entities subject to those open meeting requirements, including the following:

(a) “Local public body” means any board, committee, commission, authority, or other advisory, policy-making, rule-making, or formally constituted body of any political subdivision of the state and any public or private entity to which a political subdivision, or an official thereof, has delegated a governmental decision-making function but does not include persons on the administrative staff of the local public body.
(c) “Political subdivision of the state” includes but is not limited to, any county, city, city and county, town, home rule city, home rule county, home rule city and county, school district, special district, local improvement district, special improvement district, or service district.
(d) “State public body” means any board, committee, commission, or other advisory, policy-making, rule-making, decision-making, or formally constituted body of any state agency, state authority, governing board of a state institution of higher education including the regents of the university of Colorado, a [certain type of] nonprofit corporation ... or the general assembly, and any public or private entity to which the state, or an official thereof, has delegated a governmental decision-making function but does not include persons on the administrative staff of the state public body.

(Emphasis added.)

Plaintiffs argue, based on the definition of “local public body,” that the district attorney is a political subdivision that created an advisory body. Alternatively, plaintiffs argue that under the definition of “state public body,” the district attorney is a “state agency” or a “state authority” that created an advisory body. We reject both arguments.

We perceive no ambiguity in the statute. As relevant here, the first part of the definition of “local public body” includes any advisory body “of any political subdivision of the state.” A district attorney is not included in the definition of a “political subdivision of the state.” The district attorney is a state officer and a member of the executive branch of state government. See People v. Macrander, 828 P.2d 234 (Colo.1992); People v. Dist. Court, 186 Colo. 335, 527 P.2d 50 (1974).

Also, in contrast to the entities enumerated under the definition of “political subdivision,” the district attorney is elected by the electors of a judicial district. See Colo. Const, art. VI, § 13 (district attorneys); see also Colo. Const, art. XIV, § 1 (counties); § 31-2-101, et seq., C.R.S.2002 (cities and towns).

The second part of the definition of “local public body” includes any “entity to which a political subdivision, or an official thereof, has delegated a governmental decision-making function.” Even if the district attorney were such a political subdivision or official, the trial court here found that no governmental decision-making function had been delegated to the advisory board, and plaintiffs do not contest this finding on appeal.

Rather, plaintiffs argue that the district attorney’s advisory board falls within the group of bodies defined within the first part of the definition. They assert that because the definition of a “political subdivision of the state” includes the phrase “but is not limited to,” the fact that judicial districts are not listed within the definition is not determinative. We disagree.

The district attorney is not a member of the governing body of any county, city, or town, nor is the district attorney’s office a spending agency of any of those political subdivisions. People v. Losavio, 199 Colo. 212, 606 P.2d 856 (1980).

All of the entities included in the definition of a “political subdivision of the state” are locally governed, multi-member entities created pursuant to state authority. None of the entities listed is similar to a judicial district or a district attorney.

We therefore conclude that the district attorney is not a political subdivision under the statute, and thus, his advisory board is not a local public body.

Nor is the district attorney a state agency or state authority under the definition of a “state public body.”

The first part of the definition of a “state public body” includes an advisory body of any “state agency” or “state authority.” These terms are not defined by the statute.

As defendants note, the terms “state agency” and “state authority” generally refer to state departments and other bodies of the state that, unlike the district attorney, are governed by boards, commissions, or other multi-member bodies. See Laivley v. Dep’t of Higher Educ., 36 P.3d 1239 (Colo.2001)(state personnel board is a state agency); T.L. v. Colo. Dep’t of Health Care Policy & Fin., 42 P.3d 63 (Colo.App.2001)(Colorado Department of Health Care Policy and Financing is a state agency); see also § 8-45-101, C.R.S.2002 (creating Colorado Compensation Insurance Authority); § 12-47-304, C.R.S.2002 (state liquor licensing authority).

The second part of the definition of “state public body,” like the second part of the definition of “local public body,” refers to the term “official,” and thus distinguishes “officials” from a state agency or state authority. Had the General Assembly intended to include officials with the enumerated entities in the first part of the definition, it could have done so. See James v. Bd. of Comm’rs, 200 Colo. 28, 611 P.2d 976 (1980)(observing that nowhere in statute is an urban renewal authority described as a state agency or authority).

We thus conclude that the advisory board of the district attorney is not a “state public body” under the first part of the definition of that term.

Plaintiffs rely on Zubeck v. El Paso County Retirement Plan, 961 P.2d 597 (Colo.App.1998), in which a division of this court determined that a county retirement plan was an agency or instrumentality of the county subject to the Colorado Open Meetings Law and the Colorado Open Records Act. There, however, the division did not address whether the district attorney is a state agency, a state authority, or a political subdivision of the state.

Nor does Costilla County Conservancy District v. Board of County Commissioners, 64 P.3d 900 (Colo.App.2002) (cert. granted Feb. 3, 2003), compel a different conclusion. There, a division of this court held that a meeting organized by other government entities, and attended by two of the three county commissioners as well as other private citizens and county officials, fell under the Colorado Open Meetings Law, even though the commissioners made no presentation and did not participate in discussiohs. However, there the issue was whether the meeting was governed by the statute. The division did not address whether the board of county commissioners was a local public body covered by the statute.

Plaintiffs also cite cases from other jurisdictions holding that certain individuals were public entities and that the individuals’ advisory boards were covered by the sunshine laws of those states. See Krause v. Reno, 366 So.2d 1244 (Fla.Dist.Ct.App.1979); MacLachlan v. McNary, 684 S.W.2d 534 (Mo.Ct.App.1984); S. Harrison Township Comm. v. Bd. of Chosen Freeholders, 210 N.J.Super. 370, 510 A.2d 42 (App.Div.1986); Thomas v. White, 85 Ohio App.3d 410, 620 N.E.2d 85 (1992); Quality Towing, Inc. v. City of Myr tle Beach, 345 S.C. 156, 547 S.E.2d 862 (2001). However, all these cases involved appointed municipal officials or committees appointed by multi-member public bodies. They did not involve elected officials and, thus, are distinguishable.

Finally, plaintiffs argue that the statute should be broadly construed because as originally enacted, it included only state agencies or authorities, see James v. Board of Comm’rs, supra (citing an earlier version of § 24-6-402), and the General Assembly later expanded the statute to include any “local” or “state” public bodies. See § 24-6-402, C.R.S.2002. We conclude such a broad construction is unwarranted where, as here, the General Assembly was very specific in defining the entities whose meetings were to be open to the public. The district attorney’s advisory board is not within those definitions.

Because of our disposition, we do not address plaintiffs’ additional contentions.

The judgment is affirmed.

Judge ROTHENBERG and Judge GRAHAM concur.


author: Judge NEY.

text:
    In re the Marriage of Christine KNISKERN, n/k/a Christine Dewitt, Appellant, v. Duane KNISKERN, Appellee.
    No. 02CA2374.
    Colorado Court of Appeals, Div. I.
    Oct. 23, 2003.

      Drew Johnroe, P.C., Drew Johnroe, Steamboat Springs, Colorado, for Appellant.
    Oliphant, Hammond, Atwell & Combs, LLC, Christopher D. Atwell, Janne G. Siegel, Steamboat Springs, Colorado, for Appellee.
   Opinion by

Judge NEY.

In this post-dissolution proceeding, Christine Kniskern, now known as Christine Dewitt (mother), appeals the trial court order that the parties’ two children are to reside primarily with Duane Kniskern (father). We affirm.

The 2001 permanent orders incorporated a separation agreement. The parenting plan in the separation agreement provided for joint decision-making responsibility and the adoption of the evaluator’s recommendations concerning parenting time, and the plan specified that this provision was in the children’s best interests.

The evaluator concluded that because of the “severe parental alienation” that had occurred in the past, alienation was a primary factor to consider in determining parenting time. She recommended that the children reside with mother in Colorado, provided that, inter alia, “mother cease alienating the children from their father and from his significant other.” The evaluator recommended that if mother continued the alienation, the children were to reside with father in New York. The evaluator noted that a parenting coordinator should be appointed to make recommendations as to mother’s compliance with this condition.

Upon father’s motion, a parenting coordinator was appointed in 2002 “with all the powers and responsibilities of an arbitrator pursuant to ... [§ ] 14-10-128.5 [C.R.S. 2002,] and with the specific duties contemplated by [the evaluator’s recommendation].” The parenting coordinator, to determine whether mother had met the alienation condition, proceeded to interview the parties and their significant others, the children, and the therapists for mother and the children.

Based on his observations and responses from the participants, the parenting coordinator determined that “it is clear that [mother] has not complied with the [evaluator’s] recommendation to cease alienating the children from their father.” Therefore, the parenting coordinator recommended that the children reside with father. Relying on this report, father filed a motion requesting that the court change the children’s residence.

The trial court found that mother continued to engage in parental alienation. Accordingly, the court determined that pursuant to the parties’ court-approved agreement, the children were to reside with father in New York.

I.

Based on the premise that father was attempting to modify parenting time and residential placement of the children, mother contends that the trial court erred in failing to apply the best interests and endangerment standard in determining father’s motion. We perceive no error.

We agree with mother’s general proposition that determinations of parental responsibilities are based upon the best interests of the child. In re Marriage of Martin, 42 P.3d 75 (Colo.App.2002). Mother is also correct that the best interests or endangerment standard applies to various modifications of parental responsibilities. In re Marriage of Stewart, 43 P.3d 740 (Colo.App.2002)(endangerment standard applies to modifications affecting both parenting time and the party with whom the child resides a majority of the time, and to modifications of custody or decision-making responsibilities; best interests standard applies to modification of parenting time, including geographic relocations of the parent).

However, father did not request a modification of parental responsibilities. The separation agreement already addressed the consequences of mother’s continued alienation of the children from father. Thus, father’s motion was in the nature of enforcement, rather than modification. See In re Marriage of Sinkovich, 830 P.2d 1101 (Colo.App.1992)(enforcement of dissolution decree is separate and distinct from a modification of decree); In re Marriage of Meisner, 807 P.2d 1205 (Colo.App.1990)(enforcement of provision in separation agreement incorporated into decree does not constitute retroactive modification of decree).

The trial court recognized this distinction. Noting that the scope of the hearing was limited to the “factual decision about whether there has been compliance” with the evaluator’s alienation condition, the court found that this case did not involve a request for modification or change of parenting time. Instead, the court treated the proceeding as one for the enforcement of a court-approved separation agreement providing for the automatic change in residence in the event of mother’s alienation.

Given that there was no modification, the court correctly ruled that the endangerment or removal standard was inapplicable. And, as the court noted, the parenting plan in the decree had already been reviewed under the best interests standard. Indeed, the parties explicitly stated in the separation agreement that the evaluator’s recommendation for conditional residential placement with mother was in the children’s best interests.

Furthermore, because there was no modification, we reject mother’s related contention that the trial court erroneously failed to require father to file an affidavit in support of the motion. See In re D.R.V-A., 976 P.2d 881 (Colo.App.1999)(under § 14-10-132, C.R.S.2002, party seeking modification of parenting time must file affidavit setting forth factual basis for same).

II.

Next, mother contends that because the parenting coordinator was appointed to act as an arbitrator, the trial court erred in failing to grant her a trial de novo pursuant to arbitration procedures. We disagree.

Section 14-10-128.5 authorizes the court to appoint an arbitrator to resolve disputes between the parties regarding their minor or dependent children. In re Marriage of Eggert, 53 P.3d 794 (Colo.App.2002). When arbitration occurs under this statute, the trial court retains jurisdiction to decide all issues relating to the children de novo upon the request of either party. In re Marriage of Popack, 998 P.2d 464 (Colo.App.2000).

Here, however, even though the order of appointment clothed the parenting coordinator with arbitration power, the court found no arbitration occurred. Thus, because there was no arbitration award issued pursuant to § 14-10-128.5, mother was not entitled to a trial de novo under this statute. And, contrary to mother’s argument, the parenting coordinator’s failure to arbitrate did not constitute an impermissible exercise of authority that exceeded the scope of his appointment. Instead, he merely completed his task of making a recommendation without exercising all the powers afforded him.

Nor are we convinced that mother was denied due process because she had inadequate time to prepare for the hearing. Few areas of the law require more expeditious resolution than those involving the residential custody of a minor child, and therefore shortened timeframes for the resolution of such post-decree matters are allowed. In re Marriage of Woolley, 25 P.3d 1284 (Colo.App.2001). And because mother was in fact afforded a hearing, her reliance on In re D.R.V-A., supra, is misplaced.

III.

Mother also contends that the permanent orders conditioning parenting time and removal on the recommendation of a third party is unconscionable because such matters cannot be delegated. We need not address this contention.

Mother did not appeal the permanent orders, and therefore that judgment is now final. See Rodriguez v. Schutt, 914 P.2d 921 (Colo.1996)(C.A.R. 4 requires that a party seeking appellate review of a final judgment file a notice of appeal with the appellate court within forty-five days of the entry of judgment). Accordingly, mother may not, at this juncture, complain of the procedure she agreed to, and which the court approved, in 2001. See People v. Ovalle, 51 P.3d 1073 (Colo.App.2002)(onee time for appeal has expired, order becomes final).

IV.

Mother also contends that the court’s interpretation of the permanent orders, as authorizing an automatic change in residence in the event of noneompliance, is unconscionable and unsupported by credible evidence. She argues that the information the parenting coordinator received about her alienation was obtained under the guise of his status as a therapist and arbitrator, even though he was, in effect, acting as a custody evaluator without mother’s knowledge. Furthermore, mother asserts that the parenting coordinator misrepresented the remarks made by her and the children’s therapists. Thus, she asserts that the trial court erred in denying her motion in limine to exclude the report and testimony of the parenting coordinator. We disagree.

The issue of the exclusion of evidence is within the sound discretion of the trial court. People v. Rodriguez, 914 P.2d 230 (Colo.1996); Loza v. State Farm Mut. Auto. Ins. Co., 970 P.2d 478 (Colo.App.1997).

The record contains conflicting evidence regarding the actions and report of the parenting coordinator. While mother assei’ts that his report and testimony should be excluded because she did not understand the function of the parenting coordinator in this case, the trial court was not persuaded and found her testimony incredible. Furthermore, the testimony of the two therapists partially supports the parenting coordinator’s interpretation of their stance, which was that although mother had made progress, she continued to alienate the children from father.

On this record, we find no factual basis for the exclusion of the evidence. As the case unfolded, it became clear that mother was simply attempting to exclude relevant evidence that conflicted with her evidence. The determination of the admissibility of that conflicting evidence was for the trial court. See In re Marriage of Garst, 955 P.2d 1056 (Colo.App.1998)(determination of the credibility of witnesses and the weight, probative force, and sufficiency of the evidence, and the inferences and conclusions to be drawn therefrom, are matters within the sole discretion of the trial court; where evidence supports the trial court’s determination, court’s resolution of conflicts is binding).

The order is affirmed.

Judge DAILEY and Judge LOEB concur.


text:
    The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of P.C., Juvenile-Appellant.
    No. 02CA2133.
    Colorado Court of Appeals, Div. I.
    Oct. 23, 2003.

      Ken Salazar, Attorney General, Jess A. Redman, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee.
    Mark S. Davis, Lamar, Colorado, for Juvenile-Appellant.
   Opinion by

Judge NEY.

P.C., a juvenile, appeals the judgment of delinquency entered upon a jury verdict finding that he committed acts which would constitute the offense of second degree assault if committed by an adult. P.C. also appeals the sentence imposed upon the delinquency adjudication. We affirm.

I.

P.C. first argues that the evidence is insufficient to support the jury’s verdict and that the trial court erred in denying his motion for judgment of acquittal. We disagree.

The allegations of a delinquency petition must be proved beyond a reasonable doubt. Section 19-2-804(1), C.R.S.2002. As relevant here, a person commits second degree assault if, with the intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon. Section 18 — 3—203(1)(b), C.R.S.2002.

The standards for reviewing the sufficiency of evidence supporting a judgment of juvenile delinquency are the same as those applied in a criminal case. The reviewing court must determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable, person that the defendant is guilty of the crime charged beyond a reasonable doubt. People in Interest of J.M.N., 39 P.3d 1261, 1265 (Colo.App.2001).

The assault in this case occurred during a melee involving multiple participants. One witness testified that he saw P.C. running toward the victim with a broken beer bottle in his hand. The witness next saw P.C. make a “swinging” motion and then saw P.C. standing over the victim with the broken beer bottle just as the victim’s arm began to bleed. Undisputed evidence established that the victim sustained a deep cut to his forearm.

Based on our review of the entire record, we are satisfied that this evidence is sufficient to support the jury’s verdict. While we acknowledge that there were significant conflicts in the evidence, we cannot say that the primary eyewitness was incredible as a matter of law. See People v. Ramirez, 30 P.3d 807, 809 (Colo.App.2001)(testimony is incredible as a matter of law if it conflicts with nature or fully established or conceded facts, such as testimony as to facts which the witness physically could not have observed or events that could not have happened under the laws of nature; testimony that is merely biased, inconsistent, or conflicting is not incredible as a matter of law).

II.

P.C. next argues that his sentence must be vacated because the trial court misunderstood the available sentencing options. Again, we disagree.

Section 19-2-908(l)(c)(I)(A), C.R.S.2002, provides, in relevant part, that “[u]pon adjudication as a violent juvenile offender, as described in section 19-2-516(3), the juvenile shall be placed or committed out of the home for not less than one year.”

Although P.C. admits that he was adjudicated a violent juvenile offender, he contends the trial court erred by refusing to interpret the phrase “placed or committed out of the home” so as to include placement in the home of the natural parent with whom P.C. had not previously been living. We are not persuaded.

P.C. relies, in part, on § 19-2-912, C.R.S. 2002, which provides, subject to an exception not applicable here, that “the court may place the juvenile in the legal custody of a relative or other suitable person under such conditions as the court may impose, which may include placing the juvenile on probation, as provided in section 19-2-913, or under protective supervision.” See also § 19-2-907(l)(d), C.R.S.2002 (authorizing a sentencing court to enter a decree of placement of legal custody of the juvenile with a relative or other suitable person, as provided in § 19-2-912).

Our primary task in construing a statute is to ascertain and give effect to the intent of the General Assembly. To discern legislative intent, a court should look first to the statutory language. Statutory words and phrases should be given effect according to their plain and ordinary meaning. And the statute must be read and considered as a whole. People in Interest of M.M.O.P., 873 P.2d 24, 26 (Colo.App.1993). When it appears that statutes pertaining to the same subject matter may conflict, we are obligated to avoid inconsistency if possible and construe the statutes in harmony to give effect to each and thereby ensure that legislative intent is fulfilled. People v. Lowe, 967 P.2d 177, 180 (Colo.App.1998).

Here, the custodial placement sentencing option of § 19-2-907(l)(d) referencing § 19-2-912 is not available for violent juvenile offenders such as P.C. because the plain language of § 19-2-907(2) specifically states that “[t]he judge shall sentence any juvenile adjudicated as a special offender as provided in section 19-2-908.” Thus, the availability of a custodial placement sentence for a violent juvenile offender depends entirely on whether such a sentence is authorized by § 19 — 2—908(l)(c)(I) (A).

By its terms, § 19 — 2—908(l)(c)(I)(A) requires that the juvenile be “placed or committed out of the home for not less than one year.”

“Placement out of the home” means placement for twenty-four-hour residential care in any facility or center operated or licensed by the department of human services, but the term does not include any placement that is paid for totally by private moneys or any placement in a home for the purposes of adoption in accordance with section 19-5-205. “Placement out of the home” may be voluntary or court-ordered. “Placement out of the home” includes independent living.

Section 19-1-103(85), C.R.S.2002.

“Independent living” means a form of placement out of the home arranged and supervised by the county department of social services wherein the child is established in a living situation designed to promote and lead to the child’s emancipation. Independent living shall only follow some other form of placement out of the home.

Section 19-1-103(65), C.R.S.2002.

Section 19-1-103(85) provides that a “placement out of the home” must either be in a “facility or center operated or licensed by the department of human services” or in an “independent living” situation. Clearly, a natural parent does not constitute a “facility or center operated or licensed by the department of human services.” Therefore, the only remaining question is whether such an arrangement might qualify as “independent living” within the meaning of § 19-1-103(65).

Although the definition of “independent living” in § 19-1-103(65) could be interpreted as encompassing placement with a natural parent with whom the juvenile has not recently lived, that section also specifically provides that such a placement shall be “arranged and supervised by the county department of social services wherein the child is established.” In this case, that supervision would not be possible because the parent with whom P.C. sought to be placed does not live in Colorado. Moreover, such a placement would not be available as an initial sentencing option because the section further specifies that “independent living shall only follow some other form of placement out of the home.” Accordingly, under these circumstances, we conclude the trial court did not err in determining that it was obligated to. place P.C. in a “facility or center operated or licensed by the department of human services.”

Nor could the court have “committed” P.C. to the custody of his mother under § 19-2-907(2). Although, as argued by P.C., the term “commit” means “to transfer legal custody,” § 19-1-103(24), C.R.S.2002, the term cannot be read in isolation. When read in the context of the statutory scheme as a whole, it becomes apparent that the commitment is limited to institutions and programs to which a juvenile may be “committed” under the Children’s Code, namely, the department of human services, and to community accountability programs. See § 19-2-907(l)(a), (f), C.R.S.2002.

The judgment and sentence are affirmed.

Judge DAILEY and Judge LOEB concur.


text:
    BOARD OF DIRECTORS OF the ALPACA OWNERS AND BREEDERS ASSOCIATION, INC., a Colorado nonprofit corporation, Petitioner-Appellee, v. Rodney CLANG, Jerry Forstner, Libby Forstner, Michael Safley, Kenneth Madl, Greg Mecklum, Jim Morton, Jan Davis, Arlin McCroskie, Amy McCroskie, Floyd Romanik, Ana Romanik, and Steve Hull, Intervenors-Appellants.
    No. 02CA1984.
    Colorado Court of Appeals, Div. V.
    Oct. 23, 2003.

      Perkins, Coie, LLP, Frederick T. Winters, Denver, Colorado, for Petitioner-Appellee.
    Walters & Joyce, P.C., William E. Walters, III, Craig D. Joyce, Denver, Colorado, for Intervenors-Appellants.
   Opinion by

Judge ROY.

In this action brought pursuant to § 7-121-601, C.R.S.2002, appellants, dissenting members of the Alpaca Owners and Breeders Association, appeal the trial court’s order denying their motion for reconsideration of an order validating a vote amending the association’s by-laws. We vacate the order and remand for further proceedings.

The association was incorporated as a nonprofit corporation in Colorado in 1993. Its original by-laws stated:

Amendments to the By-Laws may be proposed by a petition signed by twenty (20) percent of the paid Membership of the association or by the majority vote of the Board of Directors. The By-Laws may be amended by 2/S affirmative vote, including votes cast by mail, of the [sic] all Members entitled to vote. Notice that such business is one of the purposes of the Annual Meeting shall be given in advance to Members in the same time and manner as provided for Notice of Meetings.... A copy of any proposed amendment of the By-Laws, including any recommendation the Board of Directors may wish to make on the amendment, shall accompany the notice of the meeting. Members may vote on a proposed amendment of the By-Laws by voting at the meeting or by mail. Votes cast by mail on a proposed amendment shall count for purposes of determining a quorum at the meeting.

(Emphasis added.)

The by-laws define a quorum as “[tjhirty percent of all members entitled to vote.”

The association has submitted proposed amendments to its membership on four occasions: 1994, 1996, 1999, and 2002. On each occasion, the proposed amendments were presented at the annual meeting after appropriate notice, and ballots were distributed to the membership by mail. Only thirty-eight to fifty-two percent of the membership enti-tied to vote voted in the elections. The votes were tallied, and the association declared the proposed amendments adopted if they received a vote of two-thirds of a quorum (thirty percent) of the membership.

Following the 2002 vote, a member questioned and ultimately formally protested the vote, arguing that amending the by-laws required a two-thirds affirmative vote of all members entitled to vote. Several more members, including a minority of the board, joined the protest.

The association then filed a petition for judicial relief pursuant to § 7-121-601, requesting that the court “exercise its discretion to fashion a fair and equitable method for resolving the uncertainty surrounding the corporation’s latest attempt to amend its ByLaws.” The association further requested that the court issue an order validating the 2002 vote. This petition was brought in the name of the association alone and did not name any defendants or respondents. Dissenting members sought to intervene in opposition to the petition. One day later, the trial court, apparently unaware of the attempt to intervene, issued its order declaring that the 2002 vote was valid and binding on the association, its board of directors, and its members.

Dissenting members then filed a motion requesting reconsideration of the order. The trial court stayed its order, and the association filed a response. After reviewing the petition, motions, briefs, and responses, the trial court denied the request for reconsideration. The trial court concluded that its original order was “consistent with Colorado law and appropriate” pursuant to § 7-121-601 and, therefore, remained in effect. The dissenting members filed this appeal.

I.

The dissenting members contend that the court misapplied § 7-121-601. They argue that the statute only allowed the court to either order a meeting or authorize a new method of obtaining votes. We agree.

Section 7-121-601 states, in relevant part:

(1) If for any reason it is impractical or impossible for any nonprofit corporation to call or conduct a meeting of its members ... in the manner prescribed by ... [its] bylaws, then upon petition of a director ... the district court ... may order that such a meeting be called or that a urritten consent or other form of obtaining the vote of members ... be authorized, in such a manner as the court finds fair and equitable under the circumstances.
(3) The order issued pursuant to this section may dispense with any requirement relating to the holding of or voting at meetings or obtaining votes, including any requirement as to quorums or as to the number or percentage of votes needed for approval, that would otherwise be imposed by ... [the] bylaivs.
(4) Whenever practical, any order issued pursuant to this section shall limit the subject matter of meetings or other forms of consent authorized to items, including amendments to the ... bylaws, the resolution of which will or may enable the nonprofit corporation to continue managing its affairs without further resort to this section.

(Emphasis added.)

The Colorado Revised Nonprofit Corporation Act, § 7-121-101, et seq., C.R.S.2002, of which § 7-121-601 is a part, is based on the Revised Model Nonprofit Corporation Act (1987). With respect to § 1.60, the counterpart of § 7-121-601, the official comment to the model act states:

Section 1.60 provides an escape valve allowing nonprofit corporations to conduct meetings or obtain the consent of members, delegates or directors when it is otherwise impractical or impossible to do so. For example, a corporation may have a high quorum requirement preventing it from holding a meeting of members because the required number of members won’t attend a meeting.... The section allows directors ... to petition the appropriate court for an order allowing the members or directors to vote or hold a meeting even if the order dispenses with requirements of the Model Act, the articles or bylaws concerning voting or holding meetings....

Revised Model Nonprofit Corporation Act § 1.60 official comment at 45^46.

Section 7-121-601 applies when it is impossible or impractical for a nonprofit corporation to conduct a meeting or obtain the consent of its members. The statute then gives the court power to design a fair and equitable mechanism to remove an impasse independent of, and unencumbered by, the applicable governing statute, the corporation’s articles of incorporation, the corporation’s by-laws, or all three. The purpose of relief under the statute is to extricate the corporation from an impasse and enable the corporation to amend its governing instruments so as to avert future impasses without further resort to the statute. See § 7-121-601(4).

Thus, to determine whether relief is available under § 7-121-601, the court must first determine whether it is impractical or impossible for the association to amend its by-laws or conduct other business requiring the approval of the membership. If that circumstance exists, then the court is empowered to fashion a workable procedure or mechanism; if not, the petition should be dismissed.

Section 7-121-601 is not a substitute for a declaratory judgment proceeding pursuant to C.R.C.P. 57 or § 13-51-101, C.R.S. 2002. Declaratory judgment proceedings are designed to resolve a dispute between parties as to their respective rights, status, or obligations under a law, controlling instrument, or relationship.

Here, the trial court essentially granted a declaratory judgment concluding that the 2002 vote was valid and amending the bylaws. While the association requested that relief, it is not available under § 7-121-601.

Therefore, the matter must be remanded to the trial court to determine, after a hearing if necessary, whether it is impractical or impossible for the association to conduct a valid election for the amendment of its bylaws. If the trial court so determines, then it should fashion a procedure for conducting an election at which a workable by-law for amending the by-laws must be submitted to the membership in order to avoid future resort to the statute.

II.

We reject the association’s contention that this issue was not properly raised in the trial court.

Here, the association’s petition did not make the dissenting members parties to the proceedings. Therefore, they did not have the normal opportunity to answer and thereby define the scope of the proceedings. The dissenting members, however, raised a variation of the issue in their motion to intervene by asserting that judicial relief under the statute was inappropriate. Thus, in our view, the issue was adequately preserved for appeal.

Because of our resolution of the issue as to the applicability of § 7-121-601, we need not address the remaining issues raised by the parties.

The order is vacated, and the case is remanded to the trial court for further proceedings consistent with this opinion.

Judge CASEBOLT and Judge PICCONE concur.


text:
    DR/CR FAMILY, LLLP, a Colorado limited liability partnership, Plaintiff-Appellee and Cross-Appellant, v. Paula BURGER, Gerald M. Quiat, and DWG & Co., a partnership, n/k/a DWG, LLC, Defendants-Appellants and Cross-Appellees.
    No. 02CA0702.
    Colorado Court of Appeals, Div. V.
    Oct. 23, 2003.

      Phillip C. Gans, P.C., Phillip C. Gans, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.
    Laff Stein Campbell Tucker & Delaney, LLP, Ronald C. Tucker, Greenwood Village, Colorado, for Defendants-Appellants and Cross-Appellees.

       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 ROY.

Defendants, Paula Burger, Gerald M. Qui-at, and DWG & Co. (collectively, lot owners) appeal the district court's judgment awarding restitution to plaintiff, DR/CR Family, LLLP (shopping center owner), on a claim of unjust enrichment. Shopping center owner cross-appeals certain aspects of the award. We vacate the judgment and remand with directions to dismiss with prejudice.

Lot owners at one time owned all of the land under what is now Green Mountain Plaza Shopping Center. When they acquired the land, it was unplatted and subject to a ground lease between the prior owner and a lessee. Lot owners succeeded to the prior owner’s rights as lessor. The lease allows lessee to construct, own, and operate a restaurant on the leased premises (Lot 4).

The lease also grants lessee the nonexclusive use of common areas, parking areas, and driveways and the exclusive use of no fewer than thirty-two parking spaces for its employees and patrons. The exclusive right is manifested by a parking lot immediately south of Lot 4 containing approximately thirty-two parking spaces which are used almost exclusively by lessee’s customers and employees. The lease also requires lessee to join a merchants association and contribute to the common area maintenance of the shopping center, which includes, among other things, the parking areas. The parties agree that the exclusive use of the thirty-two parking places was a requirement of the City of Lakewood in its approval processes for the construction of the restaurant. The lease, or a memorandum of it, was recorded in the county real estate records.

In 1984, lot owners borrowed money secured by a deed of trust encumbering the land under the shopping center, excluding Lot 4, for the apparent purpose of constructing the rest of the shopping center. Lot owners later defaulted on the loan, the lender foreclosed, and shopping center owner acquired the shopping center, less Lot 4, through the foreclosure.

It is undisputed that when it acquired the shopping center, shopping center owner had actual notice of lessee’s ground lease, including the rights of ingress, egress, and parking. Later, shopping center owner commenced these proceedings seeking a declaratory judgment as to: the rights, duties, and privileges of the parties pursuant to the ground lease, rent, and lessee’s parking rights; a declaration that shopping center owner is entitled to terminate lessee’s use of the shopping center; and a claim that lot owners have been unjustly enriched by the services provided by shopping center owner for the lessee’s use of the parking.

Shortly before trial, shopping center owner settled with lessee. Lessee agreed to pay past and future contributions to the common area maintenance expenses for the duration of the lease.

Following a trial, the court awarded shopping center owner $16,162.27 for past rent on its unjust enrichment claim and twenty percent of future rent payable by lessee to lot owners for the use of the parking.

Because, in our view, it is dispositive, we address only the lot owners’ contention that the trial court erred in awarding restitution on shopping center owner’s unjust enrichment claim. We agree with lot owners.

To sustain an action for unjust enrichment, shopping center owner must show that it conferred a benefit, that lot owners appreciated the benefit, and that lot owners accepted the benefit under circumstances that would be inequitable for them to retain the benefit. The extent of the benefit can be measured in various ways in the discretion of the trial court. Engel v. Engel, 902 P.2d 442 (Colo.App.1995). Thus, the benefit can be measured by the value to lot owners or the cost to shopping center owner. See Bock v. Am. Growth Fund Sponsors, Inc., 904 P.2d 1381 (Colo.App.1995).

Here, lot owners’ predecessor in title, which, at the time, owned the entire shopping center property, leased what is now Lot 4 to lessee. The lease stated in pertinent part:

WITNESSETH that Lessor, for and in consideration of the covenants hereinafter contained and made on the part of the lessee, does hereby demise and lease to Lessee, the following described premises in the City of Lakewood, County of Jefferson, State of Colorado, to-wit: [Lot 4]
[TJogether with all Lessor’s easements and appurtenances in adjoining and adjacent land, ... reasonably required for ... driveways and approaches to and from abutting highways for the use and benefit of the above described parcel of real estate, including the improvements to be erected thereon.
Together with non-exclusive easements for sanitary sewer purposes, for surface drainage purposes, for water, gas and electric utility purposes, each appurtenant to [Lot I] described on Exhibit A attached hereto, over, under and upon the shopping center legally described herein.
2. PARKING EASEMENTS AND USE OF COMMON AREAS All of those portions of the Shopping Center designated as common areas, parking areas, and driveways for ingress and egress on Exhibit “A” may be used, during entire term of this lease and any extension thereof, by the Lessee, its invitees, licensees, employees, and patrons, in common with all other tenants of the Shopping Center. Lessor agrees that said parking area shall consist of not less than 32 car parking spaces, as Shown on Exhibit ‘A”, and that said parking area shall be as shown on Exhibit “A” and shall not be changed without Lessee’s consent.
Lessee and Lessor may erect curbstops, as mutually agreed to, in order to define the demised premises and shopping center areas so long as there remains at least one passage ivhicli permits the free flow of traffic to and from the adjacent commercial area and provided said curbstops do not detract from the mutual and common parking rights of Lessee. Lessor agrees not to erect any buildings within 50 feet of the demised premises without the written approval of Lessee.
32.1 It is further covenanted and agreed that the [lessee] hereinabove named shall become and remain an active member of the GREEN MOUNTAIN PLAZA Shopping Center Merchants Association, a nonprofit organization to be established by the merchants doing business in the GREEN MOUNTAIN PLAZA Shopping Center, for the purpose of arranging for the following:
F. Snow removal.
G. Enforcing parking regulations.
I. Enacting and enforcing rules and regulations relative to operation and maintenance of the Parking Lot and other public areas.
Lessee hereby agrees that it will become a member of the Green Mountain Plaza Shopping Center Merchants Association upon condition that all other tenants of the shopping center become members of said association, and that said association trill be primarily responsible for the maintenance and repair of the common areas. Notwithstanding any provision to the contrary hereinabove, lessor and lessee hereby agree that the cost of said maintenance and repair assessed to lessee shall be a prorata portion of the entire cost for said maintenance and repair of the common areas. The lessee’s portion of said costs shall be that percentage of the cost as the square footage of its building area is a percentage to the square footage of the total leasable area of the shopping center.

(Emphasized language typed or otherwise inserted into a preprinted form lease.)

The lease later provides that real property taxes would be prorated to lessee based on 35,000 square feet. Exhibit A, attached to the lease, does not depict any common areas, parking, or ingress and egress. It is, however, undisputed that the lease grants lessee the exclusive use of 15,500 square feet of land (parking area) immediately adjacent to Lot 4 and the nonexclusive use of the common areas of the shopping center for parking, ingress, and egress for the duration of the lease. The lease also provides that lessee is required to contribute to the maintenance and repair of all of the common areas of the shopping center and pay a pro rata share of the real estate taxes of the entire shopping center based on the combined area of Lot 4 and the parking area.

Lessee’s interest in the parking area is a servitude burdening the parcel acquired by shopping center owner and is for the benefit of lessee for the duration of the lease. The exact nature of that servitude, whether it is an easement or a license with an interest, is not clear from the language of the lease, but that issue need not be resolved here. Formal language in the granting document is not required to create an express servitude. An easement is presumed appurtenant. Lobato v. Taylor, 71 P.3d 938 (Colo.2002); Lewitz v. Porath Family Trust, 36 P.3d 120 (Colo.App.2001).

Shopping center owner purchased the shopping center property with actual and constructive notice of the servitude, the existence of which would impact the value of the parcel subject to it and which, in turn, would be reflected in the purchase price.

The servitude is appurtenant to land, or an interest in land, that is, Lot 4. We reach this conclusion because (1) the lease provides that its terms, conditions, and covenants shall run with the land; and (2) there was no indication of any intent that the servitude would survive the lease or that lessee is to have any interest independent of its leasehold interest in Lot 4. See Lewitz v. Porath Family Trust, supra.

In modern commercial leases it is the normal practice to lease a space in a shopping center to a tenant and grant the tenant the use of the common areas of the shopping center, including the parking areas, with an obligation to contribute to maintenance and taxes. It is also common for businesses to own their own land and building within a shopping center complex with easements and licenses for the use of the surrounding land for parking, utilities, ingress, and egress without which their land and facilities would be inaccessible and unusable. In both instances it may be anticipated that the owner or tenant will lease or sublease to another party who would then benefit from the use of the common areas. See generally 1 Emanuel B. Halper, Shopping Center and Store Leases ch. 11 (1995); 3 Milton R. Friedman, Friedman on Leases §§ 37.1-37.2 (1997).

Here, the fee ownership of Lot 4 is separate from the remainder of the shopping center, and the servitude is appurtenant to the leasehold interest in, not the fee ownership of, Lot 4. While it is true that the fee owner of Lot. 4 benefits from the exclusive parking area adjacent to the lot, the direct and intended benefit flows to the leasehold interest and only incidentally to the fee ownership. Shopping center owner has not directed our attention to any cases in which the owner of the servient estate is permitted to charge rent or use fees to the owner of the dominant estate or others deriving incidental benefit from the servitude. Indeed, we have found no cases in which rent has ever been requested. See 1 James H. Baekman & David A. Thomas, A Practical Guide to Dis putes Between Adjoining Landowners— Easements §§ 107[3], 205[l][a], [2][a] (2003).

Shopping center owner argues that it is a colessor and is entitled to a prorated share of the rent paid to lot owners based on the number of square feet of its property burdened by the lease. This argument is unsound for a variety of reasons: (1) shopping center owner is not a party to the lease; (2) shopping center owner does not assume any of the responsibilities of a lessor; (3) the lease describes with particularity the property leased, and shopping center owner has no interest in that property; (4) a leasehold is a possessory interest in real property, and a servitude is not; (5) the nature, extent, and terms of the servitude are separately established and described in the lease; (6) Lot 4 and the exclusive parking area were in common ownership at the time of the lease, and the prior owner had the full authority to define the relationship of the parties and interests and did so; and (7) shopping center owner purchased the shopping center with constructive and actual notice of the interests.

Shopping center owner relies on White v. Short, 794 P.2d 1110 (Colo.App.1990), for the proposition that the right to receive rent runs with the land. That proposition is correct, but is premised on the further proposition that the prior owner had the right to receive rent. Here, the prior owners, including the original lessor, granted a servitude in favor of lessee and reserved no rent for its use. Lot owners’ lender and shopping center owner received what lot owner had, the shopping center property subject to the servitude in favor of lessee.

Shopping center owner also relies on Megginson v. Hall, 111 Colo. 104, 137 P.2d 411 (1943); Erwin v. West, 105 Colo. 71, 99 P.2d 201 (1939); and Great-West Life Assurance Co. v. Raintree Inn, 837 P.2d 267 (Colo.App.1992). These cases deal with the rights of parties, be they mortgagor, mortgagee, or successor, to the rent when pledged or not pledged in the mortgage or deed of trust before, during, and after foreclosure. These cases have no bearing on the issues before us.

Therefore, because we have concluded that here the owner of the servient estate cannot charge for the use of the servitude by the holder of the dominant estate, the judgment awarding shopping center owner rent for use of the parking cannot stand. Having so concluded, we need not address the remaining issues raised on appeal or in the cross-appeal.

The judgment is vacated, and the case is remanded to the trial court with directions to dismiss the complaint with prejudice.

Judge DAILEY and Judge PLANK concur.