author: Judge TAUBMAN.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Afshin PAHLAVAN, Defendant-Appellant.
    No. 01CA1331.
    Colorado Court of Appeals, Div. I.
    April 24, 2003.
    As Modified on Denial of Rehearing Aug. 7, 2003.
    Certiorari Denied Feb. 17, 2004.

      Ken Salazar, Attorney General, Lauren Edelstein Park, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

       Justice HOBBS would grant as to the following issue:
      When discretionary parole is annexed to a defendant’s "governing” sentence, does the defendant nonetheless have to serve a mandatory parole term that is annexed to the shorter, concurrent sentences imposed.

   Opinion by

Judge TAUBMAN.

Defendant, Afshin Pahlavan, appeals a judgment and sentence entered on a jury verdict finding him guilty of second degree kidnapping, first degree sexual assault, robbery, third degree assault, and two counts of felony menacing. The second degree kidnapping conviction was enhanced to a class two1 felony upon a jury finding that the kidnapping included a sexual assault on the victim. The trial court ordered defendant to serve all sentences concurrently for a total of twelve years in prison plus a period of mandatory parole. We affirm the conviction, but reverse that part of the sentence imposing a period of mandatory parole for the kidnapping conviction.

In August 1998, defendant separated from his wife after seventeen years of marriage. On October 30, 1998, defendant intercepted his estranged wife at a hotel, suspecting that she was there to meet a man. Defendant confronted her, grabbed her arm, and walked her to the parking lot. He then forced her into the passenger seat of .a van and drove to her home. Once at the home, defendant, among other things, sexually and otherwise assaulted his wife, cut off her hair, threw a knife at her, stole the contents of her wallet, and started a fire.

On the morning of October 31, defendant forced his wife back into the van, where she remained for ten hours as he drove around town trying to locate the man with whom he suspected she was has having an affair.

I. Cumulative Evidence

Defendant first contends that the trial court abused its discretion in permitting the prosecutor to present cumulative evidence via police officer testimony. We do not agree.

We review a trial court’s ruling on the admission of evidence for an abuse of discretion. People v. Eppens, 979 P.2d 14 (Colo.1999). The fact that evidence is cumulative does not, by itself, render the evidence inadmissible. Instead, admission of cumulative testimony is an abuse of discretion only if it is manifestly arbitrary, unreasonable, or unfair under the circumstances. People v. Morrison, 985 P.2d 1 (Colo.App.1999), aff'd, 19 P.3d 668 (Colo.2000). Courts must guard against the needless presentation of cumulative evidence. See CRE 403.

At trial, defendant’s wife recanted or minimized most of her written and oral statements to police incriminating defendant. To rebut her inconsistent testimony as allowed under § 16-10-201, C.R.S.2002, the People presented the wife’s own written statement and the testimony of four police officers who had interviewed her.

All four officers testified that the wife told them that defendant tied her to the bed with belts. Three officers testified that the wife said that defendant poured alcohol on her, started a fire in the house, and forced her to have sex with him.

Two officers testified about the wife’s statements that defendant cut her hair, forced her to go outside naked, gagged her with a scarf, and took her to the basement when a family friend came by the house that night. One officer testified about the wife’s statements that defendant took the contents of her wallet and threw a knife.

While some cumulative evidence was presented, the prosecutor attempted to limit each officer’s testimony to different aspects of the offense. We therefore conclude that the trial court’s decision to admit all four officers’ testimony was not manifestly arbitrary, unreasonable, or unfair and that the trial court did not abuse its discretion.

II. Statement Taken into Jury Room

Defendant next contends that it was plain error for the trial court to allow the jury to take the wife’s written statement into the jury room during deliberations. • We conclude there was no error, plain or otherwise.

The wife’s statement was admitted as an exhibit at trial, and defendant did not object to it being taken to the jury room. Accordingly, our review is limited to plain error analysis. Plain error exists only if the error so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of defendant’s conviction. See Wilson v. People, 743 P.2d 415 (Colo.1987).

Relying on People v. Montoya, 773 P.2d 623 (Colo.App.1989), and People v. Talley, 824 P.2d 65 (Colo.App.1991), defendant asserts that the written statement is analogous to a videotape of an eyewitness’s statement or an audiotape of a victim’s statement. In those cáses, the recorded statements taken to the jury room during deliberations improperly allowed jurors to emphasize that evidence.

However, in People v. McKinney, 80 P.3d 823, 2003 WL 282581 (Colo.App.2003), a division of this court interpreted .the amended version of C.R.C.P. 47(m) to permit the witness’s inculpatory written statement to be taken into the jury room. The division held that the amendments to the rule made the analysis in Montoya and Talley no longer applicable.

We agree with the reasoning in McKinney and thus conclude that the trial court here did not err, let alone commit plain error, in allowing the jury to take the wife’s written statement into the jury room during deliberations.

III. Prior Acts of Domestic Violence

Defendant next contends that the trial court abused its discretion in admitting evidence over his objection,of his prior acts of domestic violence against his wife. We conclude that any error in admitting that evidence was harmless.

“If a reviewing court can say with fair assurance that, in light of the entire record of the trial, the error did not substantially influence the verdict or impair the fairness of the trial, the error may properly be deemed harmless.” People v. Gaffney, 769 P.2d 1081, 1088 (Colo.1989); see Masters v. People, 58 P.3d 979 (Colo.2002).

Defendant complains of brief testimony by his wife that they had arguments in the past, during which she thought there was some physical contact, and that she had obtained a temporary restraining order to stop him from telephoning her. However, there was overwhelming evidence of defendant’s guilt, including the police officers’ testimony, the wife’s written statement, photos of the crime scene, the wife’s cut hair, and her bruised body, even without considering the similar acts evidence, which was only a small part of the prosecution’s case. Thus, the admission of the similar acts evidence could not have substantially influenced the verdict or impaired the fairness of the trial and was at most harmless error.

IV.Jury Instruction Defining “Consent”

Defendant next contends that the trial court abused its discretion in rejecting his request not to provide a jury instruction defining “consent” because the word is commonly understood and because that instruction could have been misused in the context of the kidnapping charge. We are not persuaded.

Jury instructions framed in the language of statutes are generally adequate and proper. People v. Dago, 179 Colo. 1, 497 P.2d 1261 (1972); People v. Hayward, 55 P.3d 803 (Colo.App.2002). The decision to provide a jury with a supplemental or clarifying instruction that properly states the law is within the trial court’s discretion and will not be disturbed absent an abuse of discretion. People v. Bielecki, 964 P.2d 598 (Colo.App.1998).

In addition to receiving instructions on the elements of second degree kidnapping and first degree sexual assault, which tracked the statutory requirements for the offenses, the jury also received the following supplemental instruction:

“Consent” means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. A current or previous relationship shall not be sufficient to constitute consent to the crime of First Degree Sexual Assault. Submission under the influence of fear shall not constitute consent.

Section 18-3-401(1.5), C.R.S.2002, the definitional statute for sex offenses, provides a specialized meaning of “consent,” and the instruction substantially tracked that statutory language. The second sentence explained that the existence of a relationship is not a substitute for consent. This sentence varied slightly from the statute, but only to clarify properly that the definition was applicable to first degree sexual assault.

We conclude that the definition was important to explain to the jury the specialized meaning of “consent” in the context of sexual assault. See Leonardo v. People, 728 P.2d 1252 (Colo.1986)(court should answer jury question seeking clarification of terms of art); cf. People v. Leonard, 673 P.2d 37 (Colo.1983)(in context of guilty plea, criminal attempt is not readily understandable to a person of ordinary intelligence without further explanation by the court and must be sufficiently explained in terms defendant can understand before a plea is accepted).

Thus, the court did not abuse its discretion in providing the instruction to the jury.

V. Unanimous Verdict

Defendant also contends that he was denied a unanimous verdict because the instruction as to second degree kidnapping permitted the jury to convict him even if it did not agree whether the kidnapping occurred on October 30 or October 31. Defendant’s reliance on the unanimity requirement is misplaced.

Defendant did not object at trial to this alleged error. Therefore, our review is limited to plain error. See Wilson v. People, supra.

Unanimity in a verdict means only that each juror agrees that each element of the crime charged has been proven to that juror’s satisfaction beyond a reasonable doubt. Jurors are not required to agree on what particular evidence is probative on a specific element of a crime, especially if the evidence supports alternative theories of how that element occurred. See People v. Guffie, 749 P.2d 976 (Colo.App.1987)(in felony murder ease involving aggravated robbery of one of several alternative victims, it is not necessary for jurors to agree on the specific victim if each juror was convinced beyond a reasonable doubt of the aggravated robbery of any one or more of the alternative victims). Here, the jury was instructed that its verdict had to be unanimous. Since we presume that the jury understood and heeded the jury instructions, see People v. Dunlap, 975 P.2d 723, 744 (Colo.1999), it was not necessary for the jurors to agree on whether the kidnapping occurred on October 30, October 31, or over the course of both days.

VI. Mandatory v. Discretionary Parole

Defendant next contends that the trial court erred in sentencing him to a mandatory term of parole for his conviction of enhanced second degree kidnapping under § 18-3-302(3)(a), C.R.S.2002, which has unlawful sexual behavior as a factual basis. Thus, defendant argues, he should be given a period of discretionary parole as is imposed on sex offenders. We agree.

At the time of defendant’s conviction, the discretionary parole statute read, in relevant part:

As to any person sentenced for conviction of an offense involving unlawful sexual behavior or for which the factual basis involved an offense involving unlawful sexual behavior as defined in § 18-34112.5(1), C.R.S., committed on or after July 1, 1996, the board has the sole power to grant or refuse to grant parole....

Colo. Sess. Laws 1996, ch. 280, § 17-2-201(5)(a.5) at 1585.

In People v. Cooper, 27 P.3d 348 (Colo.2001), the supreme court interpreted § 17-2-201(5)(a.5) to require discretionary, rather than mandatory, parole for sex offenders. The court’s ruling in Cooper applies to persons convicted of a sexual offense committed between July 1, 1996 and November 1, 1998, such as defendant’s offense committed in October 1998.

In Cooper, the court decided that the requirement in § 17-2-201(5)(a.5) that sex offenders be sentenced to discretionary parole controls over more general language in other sentencing statutes that require mandatory parole for felony offenders. The court did not reach the issue before us today about the meaning of “factual basis” as used in the statute. Thus, we must interpret the provision of the statute that is relevant here.

Statutory interpretation is a matter of law that is reviewed de novo. The first goal in construing a statute is to determine and give effect to the intent of the General Assembly. Constructions that defeat the obvious legislative intent should be avoided. Courts should attempt to give effect to all parts of a statute, and constructions that would render a part of the statute meaningless should be avoided. Section 2-4-201, C.R.S.2002; People v. Terry, 791 P.2d 374 (Colo.1990).

Defendant argues that the second degree kidnapping had a factual basis involving a sex offense and that he is, therefore, subject to discretionary parole. The People argue that to fall within Cooper and § 17-2-201(5)(a.5), defendant must have committed one of the sex offenses enumerated in § 18-3-412.5(1). The People thus read the phrase “as defined in § 18-3-412.5(1)” to modify both “factual basis” and “an offense involving unlawful sexual behavior.” Under this reading, defendant would receive discretionary parole only if he had been convicted of an offense listed in § 18-3-412.5(1), which kidnapping is not.

Under defendant’s interpretation, discretionary parole is required for an offense involving unlawful sexual behavior as defined in § 18-3 — 412.5(1) and for an offense for which the factual basis involved an offense involving unlawful sexual behavior as defined in § 18-3-412.5(1). We agree with defendant because under the People’s interpretation, the “factual basis” language would be rendered meaningless. See People v. Terry, supra.

Here, by special interrogatory, the jury found that defendant’s kidnapping offense included a sexual assault. Sexual assault is enumerated in §, 18-3-412.5(1) as a crime that requires discretionary parole. Consequently,' defendant’s kidnapping offense had a factual basis that involved unlawful sexual behavior as defined in § 18-3-412.5(1). Thus, we conclude he is subject to discretionary parole on his conviction for that offense.

Defendant was also convicted of robbery and two counts of felony -menacing, which come with periods of mandatory parole, the longest period of which is three years. According to § 18-1.3-401(l)(a)(V)(E), C.R.S. 2002, an offender sentenced consecutively for two or more felony convictions serves the period of mandatory parole established for the highest class felony of which the offender has been convicted. See People v. Luther, 58 P.3d 1013 (Colo.2002). It follows that offenders sentenced concurrently for two or more felony convictions, such as defendant, also serve only the period of mandatory parole established for the highest class felony for which the offender has been convicted.

Here, defendant’s convictions for first degree sexual assault, robbery, and felony menacing are class three, class four, and class five felonies, respectively. First degree sexual assault does not require a period of mandatory parole based on People v. Cooper, supra. However, robbery requires three years of mandatory parole, and felony menacing requires two years of mandatory parole. Thus, defendant is subject to a three-year period of mandatory parole for his robbery and felony menacing convictions. See § 18-1.3-401(l)(a)(V)(A), C.R.S.2002.

As a final matter, we note that the mitti-mus contains a clerical error, improperly indicating that defendant was convicted of second degree kidnapping under § 18-3-302(1), a class four felony. This mistake must be corrected on remand. See Crim. P. 36; Kailey v. Colo. State Dep’t of Corr., 807 P.2d 563 (Colo.1991).

Accordingly, we reverse the trial court’s order insofar as it imposes a period of mandatory parole on defendant for the second degree kidnapping conviction, and we remand the matter for the imposition of a period of discretionary parole for the kidnapping conviction, for the imposition of a three-year period of mandatory parole for the robbery and felony menacing convictions, and for correction of the mittimus to reflect the proper felony class for the second degree kidnapping conviction.

The judgment is affirmed, the sentence is reversed as to the imposition of mandatory parole, and the case is remanded to the trial court for correction of the mittimus in accordance with the views expressed in this opinion.

Judge VOGT and Judge GRAHAM concur.


source: Caselaw Access Project

author: Judge DAILEY.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jorge DELGADO, Defendant-Appellant.
    No. 01CA0807.
    Colorado Court of Appeals, Div. IV.
    April 24, 2003.
    Certiorari Granted Jan. 26, 2004.

      Ken Salazar, Attorney General, John T. Bryan, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge DAILEY.

Defendant, Jorge Delgado, appeals the order denying his motion for sentence reduction under Crim. P. 35(b). We affirm and remand for correction of the mittimus.

Defendant pleaded guilty to one count of sexual assault on a child by one in a position of trust, a class three felony under § 18-3-405.3(2), C.R.S.2002. The plea agreement called for a stipulated prison sentence of eight to fifteen years. The parties mistakenly assumed, and the plea agreement erroneously stated, that a conviction carried a five-year term of mandatory parole. In fact, because defendant committed his crime in February 1998, he was subject to a period of discretionary parole. See § 17-2-201(5)(a.5), C.R.S.2002; People v. Cooper, 27 P.3d 348, 349 (Colo.2001).

On July 17, 1998, the trial court accepted defendant’s plea and sentenced him to a ten-year prison term. Although the court did not mention mandatory parole at the sentencing hearing, the mittimus indicates that defendant must serve a five-year parole term.

On December 28, 2000, defendant filed a motion for reconsideration and reduction of his sentence under Crim. P. 35(b). He also filed a motion for leave to file out of time pursuant to Crim. P. 45(b)(2).

In support of his motions, defendant attached exhibits as evidence of his exemplary behavior and achievements while in prison. He asserted that he wished to return to Mexico to care for his ill and destitute mother, whose problems were detailed in letters submitted to the court by defendant’s friends and family.

The trial court refused to reconsider or reduce defendant’s sentence. In its order denying relief, the court stated that the motion was untimely and successive to a previous motion, and “it would not be appropriate to grant the relief requested.”

Defendant contends that the trial court erred by denying his motion to reconsider and reduce his sentence under Crim. P. 35(b). We disagree.

Crim. P. 35(b) suspends the finality of the original sentence for 120 days to permit the defendant to request a reduction of sentence or the court to reduce the sentence on its own initiative. People v. Fuqua, 764 P.2d 56, 59 (Colo.1988). Ordinarily, “[o]nce the 120-day limit expires, the trial court’s jurisdiction to reduce or change the sentence terminates,” Swainson v. People, 712 P.2d 479, 480 (Colo.1986), and “relief from a validly imposed sentence cannot be obtained through the judiciary but must instead be sought through the executive department by way of commutation.” People v. Akins, 662 P.2d 486, 487 (Colo.1983).

Here, defendant did not appeal his sentence, and he did not file his motion to reconsider and reduce sentence until more than two years after his sentence was imposed. Consequently, his motion was outside the time limits of Crim. P. 35(b), and the trial court had no discretion to grant him any relief.

We disagree with defendant’s assertion that, under Crim. P. 45(b)(2), the trial court could have extended the time for filing his motion based on his mother’s problems and his lack of knowledge about the law.

Crim. P. 45(b)(2) allows trial courts to extend filing times “for cause shown ... if the failure to act on time was the result of excusable neglect.” In Swainson, the supreme court applied. Crim. P. 45(b)(2) to provide relief from an untimely filed Crim. P. 35(b) motion. However, the excusable neglect recognized in this context was very limited, namely the offender was unconstitutionally deprived of the opportunity to file a Crim. P. 35(b) motion because of ineffective assistance of counsel. In that instance, the court held, “the trial court would have jurisdiction and could extend the time limit for filing the motion.” Swainson v. People, supra, 712 P.2d at 480.

No Colorado appellate decision has expanded excusable neglect for belated Crim. P. 35(b) filings beyond ineffective assistance of counsel. Even if we assume we could, we would not do so here where defendant attributed his belated filing of the motion only to his mother’s problems and his own lack of knowledge about the law. See People v. Fuqua, supra, 764 P.2d at 59 n. 1 (only “extraordinary circumstances” extend the time limit for filing Crim. P. 35(b) motions); cf. People v. McPherson, 53 P.3d 679, 682 (Colo.App.2001)(defendant’s indigence and ignorance of the law did not constitute justifiable excuse or excusable neglect for filing a Crim. P. 35(c) motion outside the time limits of § 16-5-402, C.R.S.2002).

We also reject defendant’s assertion that the trial court had jurisdiction to reduce his sentence because the mandatory parole term is illegal and therefore that the 120-day time limit for filing a Crim. P. 35(b) motion has not yet started to run.

The imposition of an illegal sentence does not trigger the time for the filing of a Crim. P. 35(b) motion, which begins only on the imposition of a legal sentence. See People v. Dean, 894 P.2d 13, 14 (Colo.App.1994). In this ease, however, defendant’s motion sought a reduction in the length of his prison sentence, and that portion of the sentence is legal because it is consistent with the terms specified by statute. See People v. Green, 36 P.3d 125, 126 (Colo.App.2001).

A sentence that is illegal in part is not void in its entirety. See People v. Antonio-Antimo, 29 P.3d 298, 305 (Colo.2000)(where defendant’s sentence included an illegal requirement that he leave the United States, trial court had authority to correct the illegal portion by deleting it); Abeyta v. People, 112 Colo. 49, 51-52, 145 P.2d 884, 885 (1944)(an excessive sentence is invalid as to the excess, but is good so far as the power of the court extends); In re Nottingham, 84 Colo. 123, 125, 268 P. 587, 588 (1928)(provision for hard labor, if invalid, would not invalidate defendant’s entire sentence); see also United States v. Wainwright, 938 F.2d 1096, 1099 (10th Cir.1991) (“[T]he imposition of a sentence in excess of what the law permits does not render the legal or authorized portion of the sentence void, but only leaves such portion of the sentence as may be in excess open to question and attack.”)(quoting United States v. Pridgeon, 153 U.S. 48, 62, 14 S.Ct. 746, 751, 38 L.Ed. 631 (1894)).

Here, the illegal mandatory parole portion of defendant’s sentence is distinct from the legal imprisonment term. See Craig v. People, 986 P.2d 951, 963 (Colo.1999). Under these circumstances, the imprisonment portion of defendant’s sentence is not void. See Rousan v. United States, 668 F.2d 1006, 1006 (8th Cir.1982)(defendant’s entire sentence, which consisted of a prison term followed by a special parole term, was not void where the sentencing court corrected it by deleting the special parole term). Therefore, the 120-day period for reducing the prison term expired before defendant filed his Crim. P. 35(b) motion.

In light of our conclusion that defendant’s motion was untimely, we do not address his contention that the trial court erred in denying the motion as successive.

However, because the mittimus erroneously indicates that defendant is subject to five years of mandatory parole, the case is remanded to the trial court with directions to issue an amended mittimus reflecting that defendant is subject to discretionary parole pursuant to § 17-2-201(5)(a.5). See People v. Myers, 45 P.3d 756, 759 (Colo.App.2001).

The order is affirmed, and the case is remanded for correction of the mittimus.

Judge ROTHENBERG and Judge KAPELKE concur.


author: Judge CARPARELLI.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Rhonda KNOTT, Defendant-Appellant.
    No. 01CA1852.
    Colorado Court of Appeals, Div. II.
    May 22, 2003.
    Rehearing Denied July 10, 2003.
    Certiorari Denied Jan. 26, 2004.

    Ken Salazar, Attorney General, Cynthia A. Greenfield, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

       Justice COATS would grant as to the following issue:
      Whether the court of appeals erred in ruling that the district court had jurisdiction to impose an additional probationary term after Petitioner had discharged her community corrections sentence.

   Opinion by

Judge CARPARELLI.

Defendant, Rhonda Knott, appeals the sentence to probation imposed following her release from community corrections. We affirm.

Pursuant to a plea agreement, defendant pleaded guilty to one count of theft. She was ultimately sentenced to three years in a community corrections facility and was ordered to pay $10,532.83 in restitution. On May 29, 2001, the community corrections program director filed a letter with the trial court requesting that defendant be resentenced to a term of probation to ensure her payment of restitution balances. The letter also stated that, with the application of earned time credits, defendant could be released from her community corrections sentence as early as June 27, 2001.

On June 22, 2001, defendant appeared at a hearing regarding the request for resentenc-ing. During the hearing, defense counsel stated that defendant’s community corrections time would end June 27. The district attorney asked for additional time to evaluate the legality of the program director’s request. The court continued the hearing until June 29, 2001.

On June 25, 2001, the program director filed a letter regarding defendant’s earned time and adjustment of her release date. In that letter, the program director noted that he had previously requested resentencing to probation to insure that defendant satisfy unpaid restitution balances and that the court had conducted the June 22 hearing and continued the matter to June 29. The program director attached the earned time computation, which indicated that the earliest possible release date was June 27, 2001. On June 27, 2001, the court endorsed the letter and indicated that the new release date was June 27, 2001.

When the court reconvened on June 29, 2001, defense counsel argued that the court no longer had jurisdiction because defendant was no longer in community corrections. The district attorney acknowledged that defendant may have been discharged, but argued that such discharge was not effective. The court continued the hearing until July 20, 2001, to give the parties time to research the issue.

On August 15, 2001, the court issued a written order in which it concluded that §§ 16-11-204(4) & 17 — 27—105(l)(h) (now §§ 18-1.3-204(4) & IS — 1.3—301(l)(h), C.R.S. 2002), provided the authority to modify defendant’s sentence. The court found that: (1)defendant still owed approximately $5,700 in restitution; (2) on May 25, 2001, community corrections had requested that defendant be resentenced to a term of probation that would allow her to satisfy her restitution obligation; (3) on June 27, 2001, after the resentencing request “was made and pending,” defendant completed her community corrections sentence; and (4) it was “in the best interests of both the victims and justice that restitution continue to be monitored.” The court then resentenced defendant to a four-year term of probation, with the only condition being the payment of restitution.

On appeal, defendant contends, and the People concede, that the trial court lacked jurisdiction to resentence her after she was i-eleased from community corrections. We disagree.

We are not bound by the parties’ concessions as to the applicable law. See People v. Backus, 952 P.2d 846 (Colo.App.1998).

We conclude that the trial court had the authority under the former §§ 16-11-204(4) & 17-27-105(l)(h) to modify defendant’s community corrections sentence before it expired. We further conclude that the court retained this authority after defendant’s release date passed because resentencing proceedings were initiated prior to that date.

Section 17-27-105(l)(h) provided:

The sentencing court shall have the authority to modify the sentence of an offender who has been directly sentenced to a community corrections program in the same manner as if the offender had been placed on probation.

Section 16-11-204(4) provided:

For good cause shown and after notice to the defendant, the district attorney, and the probation officer, and after a hearing if the defendant or the district attorney requests it, the judge may reduce or increase the term of probation or alter the conditions or impose new conditions.

In People v. Gore, 774 P.2d 877 (Colo.1989), the supreme court endorsed the majority view that a trial court retains jurisdiction over a probationer, even after the probation term expires and probation is terminated by court order, so long as revocation proceedings are initiated before the termination. Similarly, in People v. Galvin, 961 P.2d 1137 (Colo.App.1997), a division of this court held that initiation of revocation proceedings tolls the running of the term of a probationary sentence.

Here, defendant does not dispute that re-sentencing proceedings were initiated before her release date or that she received notice of the proceedings. In addition, the court convened the proceedings and defendant appeared before the court before her release date.

Accordingly, we conclude that, because re-sentencing proceedings were initiated before defendant’s release from community corrections, the court retained jurisdiction to modify the sentence. See People v. Gore, supra; People v. Galvin, supra.

To the extent defendant also contends, for the first time on appeal, that the trial court violated her constitutional right to due process and the prohibition against double jeopardy, we decline' to address those contentions. See People v. Cagle, 751 P.2d 614 (Colo.1988)(constitutional issues not raised in trial court will not be considered when raised for the first time on appeal); People v. Williams, 33 P.3d 1187 (Colo.App.2001)(declining to address double jeopardy issue raised for the first time on appeal).

The sentence is affirmed.

Judge NEY and Judge MARQUEZ concur.


text:
    Janell L. LISCIO and Robert Liscio, Plaintiffs-Appellants, v. Ronald C. PINSON, M.D.; David P. Fisher, M.D.; and Rocky Mountain Orthopedic Associates, P.C., Defendants-Appellees.
    No. 02CA0124.
    Colorado Court of Appeals, Div. III.
    June 19, 2003.
    Certiorari Denied Feb. 9, 2004.

      Leventhal, Brown & Puga, P.C., Jim Lev-enthal, Anthony Viorst, Denver, Colorado, for Plaintiffs-Appellants.
    Montgomery Little & MeGrew, P.C., Robert N. Spencer, Englewood, Colorado, for Defendant-Appellee Ronald C. Pinson, M.D.
    Johnson, McConaty & Sargent, P.C., Craig A. Sargent, Bradley G. Robinson, Glendale, Colorado, for Defendant-Appellee David P. Fisher, M.D.
    No Appearance for Defendant-Appellee Rocky Mountain Orthopedic Associates, P.C.
   Opinion by

Judge DAILEY.

In this medical malpractice action, plaintiffs, Janell L. and Robert Liscio, appeal the judgment entered upon a jury verdict in favor of defendants, Ronald C. Pinson, M.D., David P. Fisher, M.D, and Rocky Mountain Orthopedic Associates, P.C. Plaintiffs also appeal an order imposing sanctions for abuse of deposition procedures. We affirm.

Defendants are orthopedic surgeons who, on October 31, 1997, performed surgery to reconstruct a torn anterior cruciate ligament (ACL) in Janell Liscio’s left knee. Following surgery, the screw holding the ACL graft in place detached, requiring defendants to perform a “revision” knee surgery on November 28,1997.

Within a month of the second surgery, Janell Liscio met with defendant Dr. Pinson on four separate occasions, complaining of pain in her leg. Dr. Pinson referred Mrs. Liscio to other specialists, and one eventually determined she suffered an injury to the sartorial, or main, branch of her saphenous nerve and had a condition known as reflex sympathetic dystrophy.

On November 24, 1999, plaintiffs filed this action, alleging that defendants negligently performed the second surgery, causing damage to Mrs. Liscio’s saphenous nerve. Mrs. Liscio’s husband, Robert, asserted a claim for loss of consortium. In their answers, defendants denied that they negligently caused any injury or loss of consortium.

In May 2001, plaintiffs filed a motion to amend their complaint to add two additional claims of negligence relating to the first surgery. Upon defendants’ objection, the trial court summarily denied plaintiffs’ motion.

A prominent issue at trial was whether Mrs. Liscio suffered an injury to the infrapa-tellar*, as opposed to the sartorial, branch of the saphenous nerve. Experts on both sides opined that the infrapatellar branch of the nerve is routinely (and thus, not negligently) sacrificed by doctors during this type of surgery.

After an eleven-day trial, the jury found that defendants had not been negligent.

I. Motion to Amend Complaint

Plaintiffs contend that the trial court erred in denying their motion to amend the complaint. We disagree.

Under C.R.C.P. 15(a), parties may amend their pleadings only by leave of court after responsive pleadings have been filed; however, “leave shall be freely given when justice so requires.” C.R.C.P. 15(a) reflects a liberal policy of allowing amendment, and trial courts are encouraged to look favorably on requests to amend pleadings. Super Valu Stores, Inc. v. Dist. Court, 906 P.2d 72, 77 (Colo.1995).

A trial court may deny leave to amend on grounds of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies in the pleadings via prior amendments, undue prejudice to the opposing party, and futility of amendment. Benton v. Adams, 56 P.3d 81, 86 (Colo.2002); Sandoval v. Archdiocese of Denver, 8 P.3d 598, 605 (Colo.App.2000).

Here, we are unable to determine the precise basis of the trial court’s ruling. Nonetheless, we conclude that plaintiffs’ motion was properly denied on grounds of futility of amendment. See Davis v. Paolino, 21 P.3d 870, 873 (Colo.App.2001)(“if a proposed amendment to the complaint would be futile, reversal is not required”).

“An amendment is futile, if, for example, ‘it merely restates the same facts as the original complaint in different terms, reasserts a claim on which the court previously ruled, fails to state a legal theory, or could not withstand a motion to dismiss.’ ” Benton v. Adams, supra, 56 P.3d at 86-87 (quoting 3 J.W. Moore, et al., Moore’s Federal Practice § 15.15[3], at 15-48 (3d ed.1999)). We review de novo the issue presented in this case, namely, whether the amendment would be futile because it would not survive a motion to dismiss. See Benton v. Adams, supra, 56 P.3d at 86.

Here, plaintiffs’ motion requested leave to file two new claims of negligence related to the first operation. Plaintiffs’ motion was filed, however, three and a half years after the second operation. Defendants opposed plaintiffs’ motion, arguing that plaintiffs’ new claims were barred by the applicable two-year statute of limitations set forth in § 13-80-102.5(1), C.R.S.2002.

In determining when a claim accrues, for purposes of applying § 13-80-102.5, we look to § 13-80-108(1), C.R.S.2002, which provides, in pertinent part, that “a cause of action for injury to person ... shall be considered to accrue on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence.”

In a medical malpractice case, a claim accrues when a plaintiff has knowledge of facts which would put a reasonable person on notice of the nature and extent of an injury and that the injury was caused by the wrongful conduct of another. A plaintiff need not know the specific acts of negligence committed by the defendant or the details of the evidence necessary to prove the claim. “It is enough that the claimant knew, or may reasonably be charged with knowledge of, sufficient facts to be aware that a claim existed more than two years before it was filed.” Mastro v. Brodie, 682 P.2d 1162, 1169 (Colo.1984); see also Sandoval v. Archdiocese of Denver, supra, 8 P.3d at 604 (“The limitation period does not begin to run until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the existence of facts forming the basis of a claim for relief.”).

Although whether a statute of limitations bars a claim is ordinarily a question of fact, Owens v. Brochner, 172 Colo. 525, 529, 474 P.2d 603, 605 (1970), it may, in appropriate cases, be decided as a matter of law. See Adams v. Leidholdt, 38 Colo.App. 463, 468, 563 P.2d 15, 18 (1976), aff'd, 195 Colo. 450, 579 P.2d 618 (1978).

Here, Mrs. Liscio was told that a second operation was required because a bone graft implanted in the first operation had pulled apart. And during her deposition she twice testified that, by the time, of the second operation, she believed that defendants had done something negligently in the first operation. She also testified that within a week of the second surgery, she experienced excruciating pain in her left leg.

Under these circumstances, we conclude that reasonable people could not disagree that, within a week of the second operation, plaintiffs were “aware of [the] injury and knew or should have known that any alleged negligence occurred on or before the date of that injury.” See Adams v. Leidholdt, supra. Because the amended complaint was filed well beyond two years after this time, the new claims would be barred by the statute of limitations, absent the application of C.R.C.P. 15(c).

C.R.C.P. 15(c) provides that a claim asserted in an amended pleading relates back to the date of the original complaint when it arises out of the same conduct, transaction, or occurrence alleged in the original pleading.

Because notice is the essence of C.R.C.P. 15(c), the issue is whether, when viewed from the perspective of a reasonably prudent party, a defendant ought to have anticipated or expected that “other aspects of the conduct, transaction, or occurrence set forth in the original pleading might be called into question.” See United States v. Bell, 724 P.2d 631, 638 (Colo.1986)(quoting 6 Wright & Miller, Federal Practice and Procedure: Civil § 1497, at 498-99 (1971)).

A defendant will not be held to have anticipated or expected a new claim which arises from events other than those included in the original complaint. See Allen Home-site Group v. Colo. Water Quality Control Comm’n, 19 P.3d 32, 34 (Colo.App.2000); see also Peters v. Smuggler-Durant Mining Corp., 930 P.2d 575, 581 (Colo.1997)(“Where an ‘amended complaint attempts to add a new legal theory which is unsupported by the factual claims raised in the original complaint, the proposed claim arises from new and distinct conduct, transactions, or occurrences not found in the original complaint.’ ” (quoting 27A Federal Procedure Pleadings and Motions § 62:335 (Lawyer’s ed.1996)).

Here, plaintiffs’ original complaint set forth several claims of relief, each specifically linked to the November 28, 1997 surgery. Plaintiffs’ amended complaint alleged defendants were negligent in performing the October 31, 1997 surgery and in failing to properly secure the ACL graft at that time, which required Mrs. Liscio to undergo further surgery resulting in “an increase in her injuries and damages.”

Plaintiffs’ new claims alleged defendants’ liability based upon specific conduct and events that were separate and distinct from that set forth in the original complaint. Thus, under C.R.C.P. 15(c), plaintiffs’ new claims could not relate back to date of the original complaint.

Because the new claims were barred by the two-year statute of limitations, we conclude that the amended complaint would have been futile. Hence, we find no error in the trial court’s denial of leave to amend the complaint.

II. Expert Testimony

Plaintiffs also contend the trial court erred in precluding their expert from testifying that defendants negligently or otherwise improperly performed the first surgery. Plaintiffs argue that the expert’s opinion with respect to the first surgery qualified as res gestae evidence and was otherwise admissible under CRE 705. We are not persuaded.

Res gestae evidence provides the jury with a full and complete understanding of the events surrounding the incident at issue. Even assuming it embraces opinion evidence, res gestae evidence is admissible only if it is relevant and its probative value is not substantially outweighed by the danger of unfair prejudice. See CRE 401, 403; People v. Quintana, 882 P.2d 1366, 1373-74 (Colo.1994).

Under CRE 705, an expert is permitted on direct examination to disclose the bases of his or her opinion. See People v. Masters, 33 P.3d 1191, 1206 (Colo.App.2001), aff'd, 58 P.3d 979 (Colo.2002). However, even this type of evidence may be excluded under CRE 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. See Vialpando v. People, 727 P.2d 1090, 1095 (Colo.1986).

A trial court has broad discretion to determine the probative value and prejudicial impact of evidence, E-I70 Pub. Highway Auth. v. 455 Co., 3 P.3d 18, 23 (Colo.2000), and to determine whether evidence should be excluded because it would confuse the issues or mislead the jury. Schultz v. Wells, 13 P.3d 846, 852 (Colo.App.2000).

“To say that a court has discretion ... means that the court is not bound to decide an issue one way or another,” but, rather, may choose from amongst a range of reasonable options. See Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112, 1115 (Colo.1986). Thus, we will not disturb, as an abuse of discretion, a trial court’s ruling unless it was manifestly arbitrary, unreasonable, or unfair. Hock v. N.Y. Life Ins. Co., 876 P.2d 1242, 1251 (Colo.1994).

We perceive no abuse of the trial court’s discretion here, particularly in light of its denial of plaintiffs’ motion to amend the complaint. In this context, the admission of evidence that defendants were negligent in the first operation would have been unfairly prejudicial to defendants and may well have misled or confused the jury regarding the proper and only basis upon which liability could be imposed in this case, namely the second operation.

III. Deposition Testimony

Next, plaintiffs contend the trial court erred in precluding them from impeaching one of the defendants with inconsistent testimony in his deposition. Again, we disagree.

A trial court’s evidentiary ruling will be upheld on appeal unless it was manifestly arbitrary, unreasonable, or unfair. See People v. Garcia, 17 P.3d 820, 828 (Colo.App.2000)(use of inconsistent statements for impeachment purposes).

Under C.R.C.P. 32(a)(2), “any part or all of a deposition, so far as admissible under the rules of evidence,” may be used against a party-deponent “for any purpose.” Here, plaintiffs offered Dr. Fisher’s deposition for the purpose of impeaching his trial testimony.

Under CRE 613, ⅛ witness may be impeached with his or "her prior inconsistent statements. “Although an inconsistency need not amount to a patent contradiction, there must be a material variance between the witness’ testimony and the prior statement or at least the omission of a significant detail which it would have been natural to mention in the prior statement.” Williams v. Dist. Court, 700 P.2d 549, 557 (Colo.1985). Also, the inconsistency must be sufficiently probative to avoid exclusion under CRE 403 on grounds of confusion of issues, misleading the jury, or causing' an undue waste of time. See People v. Saiz, 32 P.3d 441, 446 (Colo.2001)(diseussing the admissibility of prior inconsistent statement evidence under CRE 613 and § 16-10-201, C.R.S.2002).

Here Dr. Fisher testified at trial that: (1) he did not think “there was an injury to the saphenous nerve during the [second] procedure”; and (2) to a reasonable medical probability, the sartorial branch of the saphenous nerve had not been injured, cut, transected, compressed, or squeezed in any manner during the second surgery.

On each occasion, plaintiffs sought to impeach Dr. Fisher with that part of his deposition where he appears to have acknowledged, as part a convoluted dialogue, that something more likely than not occurred during the second surgery to causé Mrs. Liscio’s pain problems. The trial court denied plaintiffs’ requests to impeach Dr. Fisher with this testimony.

No abuse of the trial court’s discretion is evident here. Plaintiffs wanted to contradict Dr. Fisher’s testimony concerning nerve damage. But Dr. Fisher’s acknowledgment in the deposition appears to have concerned not nerve damage^ but a more general topic, pain. Even if Dr. Fisher’s acknowledgment could somehow be interpreted as reaching the issue of nerve damage, such an interpretation would have been somewhat misleading. Elsewhere in the deposition, clear questions were asked, and Dr. Fisher was unequivocal, as he was at trial, in his testimony that Mrs. Liscio suffered no nerve damage as a result of the second surgery.

Dr. Fisher’s deposition testimony, then, was excludable, either because it was not at material variance with his trial testimony or because it was, at best, only marginally relevant and was potentially misleading and confusing to the jury.

Consequently, reversal is not warranted on this ground.

IV. Informed Consent

Plaintiffs also contend that reversal is required because the trial court allowed defendants to cross-examine Mrs. Liscio and later comment about an informed consent document. We find no reversible error.

Evidence pertaining to a patient’s informed consent may be irrelevant and potentially unfairly prejudicial to the patient in cases where the patient sues a physician solely on the theory of negligent medical treatment. See Waller v. Aggarwal, 116 Ohio App.3d 355, 357-58, 688 N.E.2d 274, 275 (1996)(evidence may suggest that patient can and did consent to the risk of negligent medical treatment).

Here, however, defendants inquired of Mrs. Liscio only after plaintiffs had asked Dr. Pinson whether a patient’s signing a consent form relieved a doctor of the obligation to properly perform surgery or precluded the patient from bringing suit.

We discern no error here because plaintiffs’ inquiries opened the door to defendants’ inquiries. See Itin v. Ungar, 17 P.3d 129, 132 n. 4 (Colo.2000)(“The concept of ‘opening the door’ represents an effort by courts to prevent one party from creating a misleading impression through the selective presentation of facts by allowing the other party to explain or contradict that impression through evidence that might otherwise be inadmissible.”).

Even if error occurred, reversal would not be warranted. See Rojhani v. Meagher, 22 P.3d 554, 557 (Colo.App.2000)(error in the admission or exclusion of evidence is harmless if it does not substantially influence the outcome of the case).

Here, the trial lasted eleven days. The challenged events consisted of several questions and one comment in closing argument. Defendants’ questions and comment would not naturally require the jury to infer that plaintiffs assumed the risk of their ^negligence. And plaintiffs had previously extracted an acknowledgement to the contrary when they questioned Dr. Pinson.

Given the issues in the case, the small part defendants’ questions and comment played in the course of trial, and plaintiffs’ placing the informed consent topic in proper perspective, we are not persuaded that any error here substantially influenced the outcome of the case.

Plaintiffs’ reliance on Waller is misplaced. In Waller, the Ohio Court of Appeals reversed a judgment in favor of a physician defendant not only because the informed consent issue was pervasive throughout trial, but also because the trial court endorsed informed consent as a defense to a claim of negligent medical treatment. These circumstances are readily distinguishable from those of the present case.

V. Sanctions

Finally, plaintiffs contest the trial court’s denial of their motion for protective order and the imposition of a $500 sanction against them. We are not persuaded.

Defendants deposed as one of their witnesses Mrs. Liscio’s former treating physician. The deposition took place in Montrose, and plaintiffs’ counsel appeared by telephone. Plaintiffs had not endorsed this witness as an expert under C.R.C.P. 26(a)(2). When defendants asked the witness to express an opinion concerning defendants’ exercise of care during the surgery, plaintiffs’ counsel objected, instructed the witness not to answer the question, and indicated that he would seek a protective order. Defendants desisted from any further inquiry along those lines.

Ten days later, plaintiffs sought a protective order. In the meantime, defendants had also sought a protective order and sanctions for plaintiffs’ alleged unjustified interruption of the deposition.

The trial court denied plaintiffs’ request for a protective order, granted defendants’ request for a protective order, and imposed a $500 sanction on plaintiffs for effectively suspending a part of the deposition instead of simply noting them objection for the court to address later.

Decisions whether to grant a protective order or to award sanctions in connection with the discovery process are committed to the discretion of the trial court, and, as such, they will not be disturbed on appeal absent an abuse of discretion. See Steiner v. Minn. Life Ins. Co., 71 P.3d 1017, - (Colo.App., 2002)(ceri. granted May 27, 2003)(pro-tective orders); Koscove v. Bolte, 30 P.3d 784, 788 (Colo.App.2001)(discovery sanctions).

We note that plaintiffs’ objection to defendants’ particular line of inquiry was well-founded. See C.R.C.P. 26(b)(4)(A) (“Except to the extent otherwise stipulated by the parties or ordered by the court, no discovery, including depositions, concerning either the identity or the opinion of experts shall be conducted until after the disclosures required by subsection (a)(2) of this Rule.”); cf. Patel v. Gayes, 984 F.2d 214, 217 (7th Cir.1993)(ab-sent endorsement as expert, treating physician could not relate opinion about facts of which he had no personal knowledge).

However, a valid objection is not, in and of itself, ground for instructing a witness not to answer and suspending part of a deposition.

Under C.R.C.P. 30(d)(1), a party may instruct a witness not to answer a question during a deposition “only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion pursuant to subsection (d)(3) of this Rule.” And under C.R.C.P. 30(d)(3), a party is entitled to suspend a deposition for “the time necessary to make a motion for an order” to stop or limit a deposition “being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party.”

Here, plaintiffs alleged that defendants questioned the witness in bad faith and in an unduly oppressive and burdensome manner. Specifically, plaintiffs contended that defendants had neither endorsed the witness as an expert nor notified plaintiffs that they wished to question him as an expert.

However, defendants’ failure to do so is not the type of conduct warranting a C.R.C.P. 30(d)(3) protective order. See Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672, 677 (Colo.1987)(“ ‘Bad faith’ ... connotes conduct which ... amounts to a flagrant disregard or dereliction of one’s discovery obligations.”); Boyd v. Univ. of Md. Med. Sys., 173 F.R.D. 143, 145 (D.Md.1997)(federal rule, identical to C.R.C.P. 30(d)(3), designed to remedy “abusive” deposition tactics “by an examining attorney, such as repeatedly asking the same question, or asking argumentative questions or questions seeking information not relevant to the litigation, but of a highly personal nature”); see also In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 619 (D.Nev.1998)(“it is not the embarrassment or annoyance which may be caused by unfavorable answers that is the criteria of [Fed.R.Civ.PJ 30(d)(3),” but “the ‘manner’ in which the interrogation is conducted that is grounds for refusing to proceed”).

Thus, not only were plaintiffs not entitled to a protective order, but they also lacked substantial justification for interrupting the deposition to seek one. Accordingly, we perceive no abuse of the court’s discretion in either denying their request for protective order or imposing sanctions. See C.R.C.P. 30(d)(3), 37(a)(4) (sanctions can be imposed unless, as pertinent here, actions were “substantially justified”); cf. Eurpac Serv. Inc. v. Republic Acceptance Corp., 37 P.3d 447, 453 (Colo.App.2000)(for purposes of attorney fees statute, § 13-17r-102, C.R.S.2002, a matter lacks substantial justification if, among other things, its “proponent can present no rational argument based on the evidence or law in its support”).

The judgment and order are affirmed.

Judge MARQUEZ and Judge ROY concur.


author: Judge NEY.

text:
    Carolynne M. SMITH, Plaintiff-Appellant, v. BOARD OF EDUCATION OF SCHOOL DISTRICT FREMONT RE-1, a/k/a Canon City RE-1 School District, in its official capacity; and Frank Cooper, Ron Minty, and Jack Brown, in their individual capacities, Defendants-Appellees.
    No. 02CA0552.
    Colorado Court of Appeals, Div. II.
    July 17, 2003.
    Certiorari Denied Feb. 9, 2004.

      Charles F. Kaiser, Martha R. Houser, Gregory J. Lawler, Cathy L. Cooper, Sharyn E. Dreyer, Denver, Colorado, for Plaintiff-Appellant.
    Law Firm of Fowler, Schimberg & Flanagan, P.C., Catherine A. Tallerico, Denver, Colorado, for Defendants-Appellees.
   Opinion by

Judge NEY.

Plaintiff, Carolynne M. Smith, appeals the judgments in favor of defendants, Board of Education of Fremont RE-1 School District, Frank Cooper, Ron Minty, and Jack Brown, on plaintiffs claims related to her employment at the Canyon City High School. We affirm in part, reverse in part, and remand for a new trial.

Plaintiff was a classified clerical worker at Canyon City High School. She asserts that her male supervisor repeatedly pinched her under her aims, hovered over her, and made derogatory gestures and remarks. Plaintiff complained of these actions to two higher level supervisors. She also complained that her job duties did not match her job description and salary, and she requested a reclassification. After her complaints, her supervisor began giving negative evaluations of her work, which plaintiff contends were in retaliation for the complaints she made against him. She continued to receive negative evaluations, was not reclassified, and eventually filed a formal grievance, which proceeded through four levels of review.

During this time, plaintiff also became an active recruiter and organizer for a new union for classified employees of the school district, which, according to defendants, the school district had not yet recognized. She requested that her union representative, who was also an agent for the teachers’ union, be allowed to accompany her to the meetings associated with her grievance. This request was denied. Plaintiff was eventually terminated.

Plaintiff asserted claims of sexual harassment and retaliation under Title VII; claims under 42 U.S.C. § 1983 for violation of her freedom to associate with a union; and claims for violations of due process, breach of contract, and outrageous conduct and intentional infliction of emotional distress. The trial court granted summary judgment for defendants on all claims except the freedom of association and outrageous conduct claims, which were tried to a jury. The court granted a directed verdict for one defendant on the association claims, and the jury returned verdicts on the remaining claims in favor of defendants. This appeal followed.

I. Title VII Retaliation

Plaintiff first contends that the court erred in granting summary judgment in favor of defendants on her claim of retaliation for making a sexual harassment complaint. We agree.

We review a summary judgment ruling de novo. Smith v. Boyett, 908 P.2d 508 (Colo.1995). Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c). The moving party has the burden of establishing that no triable issue exists. The nonmoving party is entitled to all favorable inferences that may be drawn from the facts, and all doubt should be resolved in favor of the nonmoving party. Smith v. Boyett, supra.

Plaintiff filed Title VII claims based on hostile environment, sexual harassment, quid pro quo, and retaliation. See• 42 U.S.C. § 2000e, et seq. (2003). The court granted summary judgment in favor of defendants on the first two claims, finding that the actions complained of were not sexual, but rather were “gender neutral antics.” Plaintiff does not contest this ruling.

The court then dismissed the retaliation claim, concluding:

While there may be a factual dispute as to whether the termination was based upon adverse evaluations or her complaints of sexual harassment, there is no longer a dispute, as a matter of law as to whether the harassment was sexual as covered by Title VII. The causal connection issue is therefore moot and the retaliation claim must fail.

Title VII provides, inter alia, “It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by this subehapter....” 42 U.S.C. § 2000e-3(a). The elements of a pri-ma facie case of retaliation are: (1) protected opposition to Title VII discrimination or participation in a Title VII proceeding; (2) adverse action by the employer subsequent to or contemporaneous with such employee activity; and (3) a causal connection between such activity and the. employer’s action. Love v. RE/MAX of Am., Inc., 738 F.2d 383 (10th Cir.1984).

The first prong of a retaliation claim is met if the plaintiff shows that she had a good faith belief that she was engaging in protected activity. See Love v. RE/MAX of Am., Inc., supra (opposition activity is protected when it is based on a mistaken, but good faith belief that Title VII has been violated).

Defendants argue that plaintiffs complaints to her superiors were not “protected opposition to Title VII discrimination” because her supervisor’s repeatedly pinching her was gender neutral behavior. Plaintiff contends that she had a good faith belief that this behavior was sexual because “pinching” was listed as an example of “sexual harassment” in the employee manual. We agree with plaintiff.

Here, plaintiff provided evidence that the employee manual designated “pinching” as one type of sexual harassment and that, although the pinching ceased after it was designated as sexual harassment in the manual, she continued to complain of it after the designation. She also submitted an affidavit describing why she believed the behavior was sexual and stating that she believed the supervisor had only pinched women. Thus, whether plaintiff had such a good faith belief is a disputed issue of material fact.

As to the second prong, plaintiff has presented evidence that her superiors took ad-verase actions against her shortly after she complained about her supervisor’s actions. Thus, whether there was “adverse action by the employer subsequent to or contemporaneous with such employee activity” is also a disputed issue of material fact.

Last, the existence of “a causal connection between such activity and the employer’s action” is a disputed issue of material fact.

The trial court held that because the complaint arose from gender neutral behavior, causality could not be shown. To the extent the court held that plaintiff could not maintain a retaliation claim if her underlying claims for sexual hai-assment failed, the order was in error. See Love v. RE/MAX of Am., Inc., supra (retaliation claim does not require that the plaintiff prevail on the underlying claim of discrimination; rather, the plaintiff must have a good faith belief that the employer’s actions are illegal).

However, defendants contend that the complaint itself was for gender neutral behavior. Defendants contend that plaintiff cannot show a causal relationship between the employer’s actions and her protected behavior because her complaints could not reasonably be construed by her superiors as being for sexual harassment rather than gender neutral behavior.

We hold that to meet the third prong of a prima facie retaliation case, plaintiff is required to show that defendants reasonably could have construed her complaint as protected opposition to sexual harassment, and here, she provided enough evidence on that issue to survive a motion for summary judgment.

If an employee’s complaint to the employer fails to include allegations that could reasonably be construed as directed at a prohibited act, the complaint is not “protected opposition” under the first prong of a retaliation claim. See, e.g., Smith v. Bd. of County Comm’rs, 96 F.Supp.2d 1177 (D.Kan.2000).

Further, even when an employee makes a good faith complaint of sexual harassment, if the employer could not reasonably view the complaint as one for sexual harassment, any action taken against the employee as a result of the complaint could not be retaliation for protected opposition. Under those circumstances, the employer would only be retaliating against an unprotected complaint. See Robbins v. Jefferson County Sch. Dist. R-1, 186 F.3d 1253 (10th Cir.1999)(plaintiff failed to provide evidence that her complaint concerned discrimination; informal complaints are sufficient) abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Gallagher v. Kleinwort Benson Gov’t Sec. Inc., 698 F.Supp. 1401 (N.D.Ill.1988)(summary judgment for defendant upheld where plaintiff did not provide evidence that she expressed opposition to any unlawful practice); cf. Williams v. Rice, 983 F.2d 177 (10th Cir.1993)(causal connection cannot be shown where person who acts adversely against plaintiff is unaware of complaint); Gifford v. Atchison, Topeka & Santa Fe Ry., 685 F.2d 1149, 1157 (9th Cir.1982)(employee need not be aware that the practice is unlawful under Title VII at the time of the opposition for opposition to be protected).

However, here, plaintiff provided evidence that she initially complained of her supervisor’s pinching her, that the school district subsequently designated “pinching” as a form of sexual harassment, and that in her grievance, she alleged that her supervisor “verbally and physically harassed her.” Viewing the evidence in the light most favorable to plaintiff, we find that whether her complaints could cause a reasonable person to believe she was engaging in protected opposition was a disputed issue of material fact to be resolved by the jury, and summary judgment was improper.

II. Breach of Contract and Due Process

Plaintiff contends that the court erred in granting summary judgment in favor of defendants on her breach of contract and due process claims. We agree as to the contract claim.

Specifically, plaintiff asserts that the employer’s policies and handbooks created an implied contract, that this contract required certain procedures to be implemented before termination, and that because these procedures were not implemented, she was denied due process and her implied employment contract was breached. She asserts she was not given an opportunity to respond to complaints made against her prior to her termination, she was disciplined and terminated without just cause, and the progressive discipline required by the employer’s policies was not implemented.

Defendants argue that plaintiff did not present sufficient evidence that a contract existed between the parties and that, assuming a contract did exist, the process accorded plaintiff, which included evaluations, a growth plan, and a four-level grievance procedure, gave her all the process she was due.

A. Contract

First, we agree with plaintiff that the entry of summary judgment was improper on the breach of contract claim.

When a school board limits its power to discharge personnel by promulgating and issuing a handbook, an employee may rely on the provisions in the handbook to state a claim for relief for breach of implied contract. Adams County Sch. Dist. No. 50 v. Dickey, 791 P.2d 688 (Colo.1990). Whether an employee relied on the handbook provisions creating an implied contract is normally a factual inquiry for the jury, and summary judgment would not be proper on this basis alone. See Tuttle v. ANR Freight Sys., Inc., 797 P.2d 825 (Colo.App.1990).

Here, by complaining to her superiors during the grievance process that they were not following the policies of the school district, plaintiff presented evidence that she relied on the handbook. Thus, a disputed issue of material fact exists as to whether there was an implied contract.

Moreover, assuming a contract existed between the parties, plaintiff presented evidence that created a disputed issue of material fact as to whether the contract was breached.

Plaintiff failed to specify any provisions within the standard operating procedures or employee handbook that require an additional pre- or post-termination hearing or require any different or additional progressive discipline other than that' which she received. However, plaintiff specified portions of the standard operating procedures that described “Just and Proper Cause for Disciplining an Employee” and that outlined, in detail and with examples, the method for determining the proper level of discipline and “guidelines or criteria that are to be applied to the facts of any one case.” These portions could reasonably be read to require that termination be only for just cause. Plaintiff also presented evidence that she was told that the negative evaluations were a pretext for dismissing her based on her complaints against her supervisor.

Thus, a disputed issue of fact remains as to whether she was dismissed for just cause, and summary judgment was not warranted on this claim.

B. Due Process

However, summary judgment was proper on plaintiffs due process claim.

[14,15] If the school board properly creates rules or mutually explicit understandings, which - form the basis of a binding agreement, those - rules or understandings may create a property interest in continued employment entitling the employee to the protections of the procedural due process guarantee of the United States Constitution. Adams County Sch. Dist. No. 50 v. Dickey, supra. Once a protected interest is implicated, due process requires that the public employee receive notice of the charges and an opportunity to respond prior to termination. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)(essential requirements of due process are notice, opportunity to respond, and opportunity to present reasons, either in person or in writing, why action should not be taken; full evidentiary hearing not necessarily required); Ellis v. City of Lakewood, 789 P.2d 449 (Colo.App.1989).

Here, even assuming a contract exists, assuming that the employee handbook and standard operating procedures entitle plaintiff to due process, and viewing the evidence in the light most favorable to plaintiff, we conclude that plaintiff has not provided evidence that the school district failed to accord her due process.

Contrary to her argument, plaintiff was given an opportunity to respond to her negative evaluations and was accorded proper progressive discipline before termination. Plaintiff grieved her pretermination employment evaluations, and during this grievance process she was given an opportunity to respond to the negative evaluations, both in person and in writing.

Moreover, plaintiff has not identified any specific provisions that grant her any additional process or that require a full evidentia-ry hearing prior to termination.

Therefore, we conclude summary judgment on her claim for violation of due process was properly granted.

III. Freedom of Association

As to her freedom’of association claims, plaintiff contends that the trial court erred in admitting certain evidence, instructing the jury, and granting a directed verdict for one of the defendants. We agree that the judgments on these claims must be reversed.

A. Evidence

Plaintiff contends that the trial court erred in admitting portions of the Collective Bargaining Agreement between the teachers’ union- and the school district. We disagree.

Plaintiff filed a claim under 42 U.S.C. § 1983 (2003), arguing that defendants retaliated against her for exercising her First Amendment right to freedom of association with a union. Part of her claim is based upon defendants’ refusal to allow an agent of her union to represent her during the grievance process. Defendants responded that they refused to allow the representation not in retaliation, but because they relied on Article 1-3 of the Collective Bargaining Agreement, which provided that a teachers’ union member or agent would not represent classified employees in grievances.

Plaintiff contends that Article 1-3 was invalid and therefore should not have been admitted at trial. However, regardless of its validity, the evidence was admissible because it showed a motive other than retaliation for defendants’ actions.

A trial court has considerable discretion in ruling upon the admissibility of evidence, and we will find an abuse of discretion only if its ruling is manifestly arbitrary, unreasonable, or unfair. Wark v. McClellan, 68 P.3d 574 (Colo.App.2003). Generally, evidence that logically tends to prove or disprove a fact in issue or that sheds light upon a contested matter is relevant. A trial court has considerable discretion in determining whether evidence has logical relevance. Wark v. McClellan, supra.

Here, the court determined, out of the presence of the jury, that the contract was valid and then admitted it. We perceive no abuse of discretion. The jury had to determine whether defendants, in deciding not to allow the representative to accompany plaintiff, were motivated by retaliation or by some other factor. The existence of a contract or any other evidence explaining the motives was relevant to this issue, irrespective of the contract’s validity.

We also note that the court did not instruct the jury that the provision was binding, and, contrary to plaintiffs contention, no witness heard arguments regarding its validity-

B. Instruction

Plaintiff next contends that the court committed reversible error by submitting an instruction related to her freedom of association claim. We agree.

The instruction, given over plaintiffs objection, stated:

Under the law, you are not to second guess the business decisions made by employers. It is the perception of the decision-makers, here [the defendants], which is relevant as to whether [plaintiff] met the expectations of the School District. The Defendants are entitled to make their business decisions based on whatever lawful grounds they find appropriate as long as [plaintiffs] participation in a union was not a determining factor in the business decision.
You are not to determine whether a business decision was good or bad, prudent or imprudent. An employer’s business judgment is relevant only as it relates to whether the employer’s true motivation was retaliation against [plaintiff] for participating in a union.
It is not unlawful for an employer to refuse to recognize or negotiate with a particular employee union. Such a decision does not violate the First Amendment.

In the trial court, plaintiff stated that the instruction was “an inaccurate statement of the First Amendment” and that “the law says that union activity has to be a substantial or motivating factor.” We find this objection sufficient to preserve the issue for appeal.

We agree with plaintiff that the instruction misstates the law by giving the standard for proving an association claim as whether plaintiffs union activity was a “determining” factor, rather than a “substantial or motivating” factor. See Hadley v. Moffat County Sch. Dist. RE-1, 681 P.2d 938 (Colo.1984)(to prove retaliation for union association, plaintiff must show that her constitutionally protected conduct was a substantial or motivating factor in defendant’s adverse action).

Although a separate instruction specifically outlining the elements of the association claim stated the correct standard, “when various instructions are in direct conflict and one of the instructions is an incorrect and clearly prejudicial statement of the law, the fact that other instructions contain a correct statement of the law cannot.cure the error.” People v. Herbison, 761 P.2d 263, 264 (Colo.App.1988).

Under these circumstances, we find that the erroneous instruction could have misled the jury into applying an incorrect standard, and thus, we conclude it was reversible error. See People v. Herbison, supra. .

However, we reject plaintiffs interpretation of the instruction as stating that the reasonableness of defendants’ decisions could not be considered by the jury for any reason. The instruction correctly states that a defendant’s business judgment is only relevant “as it relates to whether the employer’s true motivation was retaliation ... for participating in a union.” See Sanchez v. Philip Morris Inc., 992 F.2d 244 (10th Cir.1993)(if plaintiff successfully proves that the defendant’s reasons are not worthy of credence, the plaintiff must still prove that the true motive of the employment decision violates Title VII); Lucas v. Dover Corp., 857 F.2d 1397 (10th Cir.1988)(court will not second-guess business decisions made by employers in the absence of some evidence of impermissible motives).

We also disagree with plaintiff that the instruction was otherwise prejudicial and cumulative.

The decision to provide a jury with a supplemental or clarifying instruction that properly states the law is within the trial court’s discretion and will not be disturbed absent an abusé of discretion. See People v. Bielecki, 964 P.2d 598 (Colo.App.1998).

Here, we perceive no abuse of discretion. The instruction properly stated the law regarding business judgment, and the combination of similar principles did not render the instruction cumulative.

C. Directed Verdict

One of plaintiffs 42 U.S.C. § 1983 association claims asserted that the school superintendent retaliated against her for her union association. After plaintiff presented her case-in-chief, the trial court directed a verdict in favor of that defendant. Plaintiff contends that this decision was in error. We agree.

A court considering a motion for directed verdict must view the evidence and all reasonable inferences arising from it in the light most favorable to the nonmovant. If the evidence, when viewed in this light, cannot support a verdict in favor of the nonmov-ing party, the issue should not be submitted to a jury, and a directed verdict should be entered. Huhtoon v. TCI Cablevision of Colo., Inc., 969 P.2d 681 (Colo.1998).

In her ease-in-chief, plaintiff presented evidence that the superintendent was not interested in bargaining with a new union, that he was the decision maker for her level-three grievance, and that her supervisor told her that the superintendent told him to document her poor performance in support of termination. Plaintiff also testified that during her level-three grievance conference with the superintendent, he stated, “I don’t wish for you to take this as a threat. However, sometimes when you don’t accept what is offered you, you lose everything.”

Viewed in the light most favorable to plaintiff, this evidence supports the conclusion that the superintendent had some anti-union animus, that he threatened plaintiff with adverse consequences should she take the grievance process to the next level, and that he had some role in the decision to document her performance with the intent to terminate her.

A reasonable jury could have concluded that the superintendent’s anti-union animus was a “substantial or motivating factor” in the adverse action. See Hadley v. Moffat County Sch. Dist. RE-1, supra.

Hence, because plaintiff presented some evidence of retaliation for union association, the court erred in granting a directed verdict for the superintendent on this claim.

IV. Outrageous Conduct

Plaintiff contends that the court gave an erroneous instruction to the jury on her outrageous conduct claim against her supervisor. We disagree.

The form of the instructions given at trial is within the discretion of the trial court. All the court’s instructions to the jury are to be read and considered as a whole in determining whether all the necessary law has been correctly stated. Armentrout v. FMC Corp., 842 P.2d 175 (Colo.1992).

The elements of outrageous conduct are: (1) the defendant engaged in extreme and outrageous conduct; (2) the defendant engaged in such conduct recklessly or with the intent of causing the plaintiff severe emotional distress; and (3) the defendant’s conduct caused the plaintiff to suffer severe emotional distress. Tracz v. Charter Centennial Peaks Behavioral Health Sys., Inc., 9 P.3d 1168 (Colo.App.2000).

The court instructed the jury on these elements, but, because the supervisor was subject to qualified immunity, the court included a fourth element — that his conduct was willful and wanton. Plaintiff argues that inclusion of this element in the instruction improperly shifted the burden of proof on the qualified immunity issue to her. We disagree.

Under the Colorado Governmental Immunity Act, public employees such as the supervisor are entitled to immunity unless their conduct is willful and wanton. See § 24-10-118(2)(a), C.R.S.2002; Mattson v. Harrison, 929 P.2d 41 (Colo.App.1996)(public employee granted immunity for acts or omissions occurring during performance of employee’s duties, unless employee’s act or omission was willful and wanton).

While a defendant has the burden of proving the affirmative defense of governmental immunity, to overcome the immunity the plaintiff must prove that the defendant’s action was willful and wanton. Duong v. County of Arapahoe, 837 P.2d 226 (Colo.App.1992)(dismissal of tort claims on basis of sovereign immunity proper because plaintiffs presented no evidence of willful and wanton conduct).

Plaintiff does not dispute that the supervisor enjoys qualified immunity. Thus, the only remaining determination for the jury was whether plaintiff showed that he acted willfully and wantonly. See Duong v. County of Arapahoe, supra. The instruction only addressed this latter requirement and properly placed on plaintiff the burden of overcoming the affirmative defense.

The judgments on plaintiffs claims for Title VII retaliation, breach of contract, and § 1983 retaliation for union association are reversed, and the case is remanded for a new trial on those claims in accordance with this opinion. In all other respects, the judgments are affirmed.

Judge CASEBOLT and Judge WEBB concur.


text:
    The BRICKMAN GROUP, LTD., a Delaware corporation, Plaintiff-Appellant, v. COMPASS BANK, Defendant-Appellee.
    No. 02CA1645.
    Colorado Court of Appeals, Div. V.
    July 31, 2003.
    Certiorari Granted Feb. 2, 2004.

      Baker & Hostetler, LLP, Laurin D. Quiat, Paul Karlsgodt, Denver, Colorado, for Plaintiff-Appellant.
    Davis Graham & Stubbs, LLP, Glen E. Keller, Jr., James S. Simko, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge CARPARELLI.

Plaintiff, The Brickman Group, Ltd. (claimant), appeals the trial court’s judgment that dismissed its action to foreclose a blanket mechanic’s lien against property owned by defendant, Compass Bank (owner). We reverse and remand for further proceedings.

Claimant was the landscaping contractor for common areas of a forty-eight-unit townhouse development. The common areas are at the entrance to the development, along the streets, and between multiunit buildings. Owner provided construction financing to the developer for various units in the development.

When the developer failed to pay claimant, twenty-one of the forty-eight units remained unsold. Claimant filed a mechanic’s lien against the common areas and nine unsold units adjacent to the common areas. The lien statement omitted twelve unsold units.

Claimant later filed this action to foreclose its lien. By the time of trial, owner had foreclosed on three of the units included in claimant’s action and purchased them at the foreclosure sale.

After a bench trial, the court ruled as a matter of law that claimant’s mechanic’s lien was not valid because its lien statement did not include all properties that benefited from claimant’s work and materials. Consequently, the court entered judgment in favor of owner.

I. Blanket Liens

Mechanics’ liens exist as a result of statute and are based on equitable considerations. 3190 Corp. v. Gould, 163 Colo. 356, 431 P.2d 466 (1967). Their purpose is “to benefit and protect those who supply labor, materials, or services which enhance the value or condition of another’s property.” Thirteenth St. Corp. v. A-1 Plumbing & Heating Co., 640 P.2d 1130, 1134 (Colo.1982). Consequently, courts liberally construe the statute to effect its remedial goals, but strictly construe it with regard to a claimant’s right to a lien. Schmidt Constr. Co. v. Fast, 776 P.2d 1175 (Colo.App.1989).

When a claimant provides laborers, materials, or services for the benefit of more than one structure and does so under a single contract, it is lawful for the claimant to divide and apportion the indebtedness owed for the labor, materials, and services among the structures in proportion to the value .that the labor, materials, and services contributed to each structure. When a claimant files such a lien, it may enforce it in the same manner as if it had furnished the laborers, materials, or services for each of the structures separately. Section 38-22-103(4), C.R.S.2002.

When it is not possible to readily and definitely ascertain the value of labor and materials to each structure, “one claim may be made, established, and enforced against” all the structures, together with the ground on which they sit. When a claimant files such a lien, all the structures are deemed to be a single structure, and the land is deemed to be a single tract of land. Section 38-22-103(4).

Although the statute does not specify a name for such liens, the term “blanket lien” is commonly used to refer to “a single lien ... made, established, and enforced against two or more improvements.” Hill Dev. Corp. v. Cordova, 714 P.2d 926, 927 (Colo.App.1986); see also Northwest Fed. Sav. & Loan v. Tiffany Constr. Co., 158 Ariz. 100, 101, 761 P.2d 174, 175 (Ariz.Ct.App.1988)(“[a] lien for more than one lot or building is referred to as a blanket or joint lien”).

Here, it is undisputed that claimant was entitled to assert a blanket lien against common areas and unsold units. See Plateau Supply Co. v. Bison Meadows Corp., 31 Colo.App. 205, 500 P.2d 162 (1972)(blanket lien proper because work done to common areas of a condominium project could not be readily and definitely divided).

II. Validity of Claimant’s Lien

Claimant contends that the court erred when it ruled as a matter of law that claimant’s lien was invalid because the lien statement did not include all units in the project. We agree.

In Perkins v. Boyd, 37 Colo. 265, 86 P. 1045 (1906), and First National Bank v. Sam McClure & Son, Inc., 163 Colo. 473, 431 P.2d 460 (1967), the claimants filed lien statements that did not include all the property that benefited from their work and materials. In each case, when the claimant recorded the lien, the debtor owned both the included and the omitted property. In Perkins, the debt- or continued to own the property when the claimant sued to foreclose. In McClure, a bank acquired the debtor’s interest in the property before the foreclosure and asserted the rights of the owner.

In both cases, the supreme court ruled that the lien was valid, notwithstanding the fact that a portion of the indebtedness related to the improvement of property omitted from the lien statement. In addition, the court concluded that the claimants could satisfy the entire debt from the foreclosure of the included properties. Accord Plateau Supply Co. v. Bison Meadows Corp., supra.

Because the pertinent wording of the blanket lien provision has not changed since the supreme court decided these cases, see Colo. Sess. Laws 1899, ch. 118 at 265; Colo. Sess. Laws 2000, ch. 68 at 207, we conclude that a blanket lien that omits property that benefited from the mechanic’s materials and work is valid against the property included in the lien statement.

Here, there is no dispute regarding claimant’s right to a lien, and the facts are similar to those in Perkins and McClure. The lien statement does not include all properties that benefited from the work. When claimant recorded the lien and sued to foreclose it, the developer-debtor owned the nine unsold units included in the lien statement and the twelve units that were omitted.

Therefore, we conclude that the decisions in Perkins and McClure are controlling and that claimant’s lien is valid, notwithstanding the omission of the twelve unsold units.

III. Enforcement of Claimant’s Lien

Owner challenges enforcement of the lien based on Independent Trust Corp. v. Stan Miller, Inc., 796 P.2d 483, 488 (Colo.1990)(/3"C), in which the supreme court held that a blanket lien “may not be enforced against less than all the properties in the absence of some showing of proper apportionment.” Owner’s reliance on this language is misplaced.

In Plateau Supply Co. v. Bison Meadows Corp., supra, a claimant’s blanket lien omitted condominium properties that had already been sold. Nonetheless, the claimant released its claims against sold properties when it received partial payments of amounts due. A division of this court, citing Buerger Investment Co. v. B.F. Salzer Lumber Co., 77 Colo. 401, 237 P. 162 (1925), ruled that the lien could be foreclosed against the properties that were included in the lien statement, but that the amount of the debt must be reduced to account for the partial payments the claimant had already received.

In Buerger Investment, the claimant’s blanket lien included all properties that benefited from the claimant’s work and materials. However, the debtor’s title had passed to two successors. The claimant settled with one successor and released the lien as to that owner’s property. The supreme court stated that it could see no reason why release of a part of the property covered by a blanket lien should effect a release of the lien against the remainder of the property.

Nonetheless, the supreme court ruled that the trial- court should credit an equitable portion of the claimant’s lien as the result of the release of the one parcel and allow the claimant to enforce a blanket lien or separate liens against the remaining parcels. Buerger Inv. Co. v. B.F. Salzer Lumber Co., supra.

In ITC, the claimants recorded blanket liens against an 1100-acre project, and two mortgage holders later took title to separate portions of the property. ITC took title to approximately 110 acres and asserted that the claimants’ work could be readily and definitely divided between the two parcels based on acreage and that equity required apportionment. The supreme court concluded that ITC did not meet its burden of proving that the blanket hens were improper.

In contrast here, owner asserts that claimant’s work cannot be readily and definitely apportioned and seeks to eliminate the lien, not to apportion it.

Despite these distinctions, owner relies on the following language in ITC:

Subsection 38-22-103(4), and our interpretation of it, is in accord with the general rule that a blanket mechanics’ lien upon several properties for materials and labor benefitting [sic] the properties may not be enforced against less than all of the properties in the absence of some showing of proper apportionment.

ITC v. Stan Miller, Inc., supra, 796 P.2d at 488.

However, the quoted language is contrary to the supreme court’s earlier rulings in Perkins and McClure. It also conflicts with the court’s reasoning in Buerger Investment that “where a blanket lien is permitted, each part is liable for the whole lien even against subsequent purchasers.” Buerger Inv. Co. v. B.F. Salzer Lumber Co., supra, 77 Colo, at 405, 237 P. at 164. Because the supreme court in ITC did not cite or discuss the rulings in Perkins and McClure, and because the quoted excerpt was not essential to the outcome, we conclude that the supreme court has not overruled its earlier holdings.

Consequently, we conclude that, subject to apportionment, claimant’s lien is enforceable against owner’s properties as listed in the lien statement.

IV. Apportionment of Claimant’s Lien

The supreme court has reasoned that the equities in favor of mechanic’s lien claimants take precedence over efforts to achieve absolute fairness among the owners of properties included in such liens. ITC v. Stan Miller, Inc., supra; Buerger Inv. Co. v. B.F. Salzer Lumber Co., supra.

Here, an apportionment based on the cost of materials and labor involved in the construction of each townhouse, as anticipated by the statute, is impossible because claimant did not provide materials to or perform work on the townhouse units themselves. Instead, claimant contributed materials to and performed work on property that was to be held in common ownership among all the eventual owners of the townhouses. Hence, any apportionment must necessarily be based on equitable considerations.

Consistent with the referenced cases and the equitable principles upon which the statute is based, we conclude that when claimant failed to include all benefited properties in its lien statement, the effect was to release the twelve unsold properties that were omitted from the lien. However, like the supreme court in Buerger Investment, we see no reason why claimant’s release of those properties should effect a release of the properties included in the lien statement.

On remand, the trial court should make an equitable apportionment of the debt to owner’s three units, based on the premise that they are among twenty-one units that claimant could have included in the lien statement. The court may then order foreclosure in the apportioned amount.

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

Judge ROTHENBEKG and Judge VOGT concur.