author: Judge NEY.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ronald D. SIMONDS, Defendant-Appellant.
    No. 02CA1271.
    Colorado Court of Appeals, Div. II.
    Sept. 11, 2003.
    As Modified on Denial of Rehearing Dec. 24, 2003.
    Certiorari Granted June 7, 2004.

      Ken Salazar, Attorney General, Anthony J. Navarro, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado; Burke & Neuwirth, P.C., Dean Neuwirth, Denver, Colorado; Law Office of Steven Louth, Steven Louth, Boulder, Colorado, for Defendant-Appellant.

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

   Opinion by

Judge NEY.

Defendant, Ronald D. Simonds, appeals the orders concerning the revocation of his deferred judgment. We vacate the orders and remand.

The deferred sentencing statute, § 18-1.3-102, C.R.S.2002, permits a trial court to grant a deferred judgment for a maximum of four years. The district attorney may apply to revoke the deferral “at any time within the term of the deferred judgment or within thirty days thereafter.” Section 18-1.3-102(2), C.R.S.2002. The statute provides further that upon full compliance with the conditions of the deferral, the plea shall be withdrawn and the charges dismissed.

Pursuant to this statute, defendant entered his plea of guilty in June 1997 and received a deferred judgment for four years.

In November 2000, the People filed an application to revoke the deferred judgment and to impose judgment of conviction and sentence because of defendant’s alleged breach of the deferred judgment conditions. At a January 2001 hearing on this application, the parties reached an agreement under which the four-year deferral period would start anew. The People withdrew their application to revoke the deferred judgment. The trial court accepted the parties’ agreement and deferred the judgment for another four years.

In August 2001, defendant moved to terminate the deferred judgment and dismiss the case. Defendant contended that the agreement to extend the deferral period for an additional four years was illegal under the statute and that the trial court likewise lacked jurisdiction to extend that period.

The People argued that the agreement was not illegal under the statute because it did not extend the original four-year deferral period, but instead it restarted the deferred judgment period. However, the People also argued that the parties’ agreement contemplated an illegal sentence and therefore should be rescinded. Consequently, the People requested the -court to reinstate their previously withdrawn application to revoke the deferred judgment.

The trial court concluded that the agreed extension was illegal, defendant’s four-year deferred judgment “expired by operation of law on June 30, 2001,” and the trial court “had no jurisdiction to extend the deferred period beyond the original four-year period.” As a result, the trial court rescinded all obligations under the parties’ agreement.

However, because the People’s revocation application had been filed within the four years allowed by statute, the court reinstated it “with its original filing date, November 22, 2000,” and denied defendant’s motion to dismiss it. The court later granted the application, revoked the- deferred judgment, and imposed a sentence of six years probation.

Defendant contends that the statutory four-year plus 30 days for certain conditions not applicable here period is the maximum period for which the court may defer a judgment and that, because that four-year period expired without imposition of judgment and sentence, the trial court must dismiss his ease. We agree.

We conclude that the resolution of this appeal is governed by People v. Perkins, 676 P.2d 711 (Colo.App.1983). In Perkins, the division of this court held that because the deferred judgment statute limits a trial court’s jurisdiction to act, a court cannot act on the deferred judgment after the applicable deferral period, unless a revocation complaint was filed before the expiration of that period.

The People rely on People v. Peretsky, 44 Colo.App. 270, 616 P.2d 170 (1980), in which a division of this court affirmed the revocation of a deferred sentence outside of the jurisdictional statutory period. There, the defendant’s deferred sentence was revoked based upon his conviction of a separate offense. However, on appeal, this conviction was reversed, and the case was remanded for retrial. Upon the defendant’s motion, the trial court reinstated the deferred sentence. However, upon retrial, the defendant again was convicted, and his deferred sentence was revoked for a second time, albeit outside the jurisdictional statutory period.

In addressing the defendant’s argument regarding the alleged jurisdictional defect, a division of this court stated:

Defendant’s ... position, that the second revocation proceeding was not initiated within the [jurisdictional] period, must also be rejected. When the trial court withdrew or cancelled the imposition of the deferred sentence on the initial revocation of deferred sentence, this was akin to a reversal of a judgment of conviction. The reversal of a judgment of conviction for errors of law renders the verdict and judgment a nullity, but warrants a second trial based on the original action. Although the verdict and judgment are rendered null, the original complaint remains intact and serves to safeguard the original action from attacks, as in the instant case, based on the running of the statutory period.

People v. Peretsky, supra, 44 Colo.App. at 273, 616 P.2d at 172 (citations omitted).

The People also rely on Chae v. People, 780 P.2d 481 (Colo.1989), and Clark v. People, 7 P.3d 163 (Colo.2000). In these eases, charges were reinstated after a plea agreement was determined to be , illegal in subsequent appellate proceedings. Although the issue was not directly addressed in these cases, the People contend that the supreme court did not view the statute of limitations— which had expired by the time of the decision upon appeal — as a jurisdictional bar to the reinstatement of the original charges. Accordingly, the People assert that these cases, by implication, stand for the proposition that illegal sentences should toll jurisdictional limits.

However, because we do not read these cases so broadly, we conclude they are inapplicable to the facts here. In Peretsky, unlike in this case, the. trial court’s jurisdictional time limitations were tolled by an appeal that removed jurisdiction from the trial court during its pendency. In Chae and Clark, the statute of limitations was satisfied upon the original filing of charges and tolled by the appeals. Accordingly, the jurisdictional bar was already satisfied upon remand to the trial court.

Here, during the period in which the trial court maintained jurisdiction, the People withdrew their application to revoke the deferred judgment. The period of deferred judgment terminated on June 30, 2001, no revocation complaint was pending and thus the court was without jurisdiction to act after that date. Furthermore, there was no appeal that tolled temporal limit on the trial court’s jurisdiction. Accordingly, the trial court’s orders were entered without jurisdiction and are void.

The orders are vacated, and the case is remanded with directions to dismiss the charges with prejudice.

Judge WEBB and Judge PLANK concur.


source: Caselaw Access Project

author: Judge CASEBOLT.

license: Public Domain

text:
    PETRON DEVELOPMENT COMPANY, Petitioner-Appellant, and Mary E. Huddleston, Property Tax Administrator for the State of Colorado, Intervenor-Appellant, v. WASHINGTON COUNTY BOARD OF EQUALIZATION, Respondent-Appellee, and Colorado State Board of Assessment Appeals, Appellee.
    No. 02CA1476.
    Colorado Court of Appeals, Div. V.
    Oct. 9, 2003.
    Certiorari Granted June 7, 2004.

      Holland & Hart, LLP, Alan Poe, Marcy G. Glenn, Greenwood Village, Colorado, for Petitioner-Appellant.
    Ken Salazar, Attorney General, Larry A. Williams, Assistant Attorney General, Denver, Colorado, for Intervenor-Appellant.
    Berg Hill Greenleaf & Ruscitti, LLP, Josh A. Marks, Boulder, Colorado; Hall & Evans LLC, Edmund M. Kennedy, Denver, Colorado, for Respondent-Appellee.
    Ken Salazar, Attorney General, John Baird, Assistant Attorney General, Denver, Colorado, for Appellee.
    Holme Roberts & Owen LLP, James D. Butler, Kenneth A. Wonstolen, Denver, Colorado, for Amicus Curiae Colorado Oil & Gas Association.
    George N. Monsson, County Attorney, Fort Morgan, Colorado, for Amicus Curiae Colorado Counties, Inc. '
   Opinion by

Judge CASEBOLT.

In this property tax case involving valuation of oil leaseholds, petitioner, Petron Development Company, and intervenor, Mary E. Huddleston, the Property Tax Administrator (PTA), appeal the order of the Board of Assessment Appeals (BAA) upholding the valuations affirmed by respondent; the Washington County Board' of Equalization (CBOE). We reverse and remand.

Petron operates ten oil wells on six leaseholds located in Washington County. Each well consists of equipment that extracts an emulsion of oil, gas, water, and other impurities from an underground reservoir and brings it to the earth’s surface. The emulsion is then pumped through various pieces of equipment that inject chemicals to break down the emulsion, remove water, and separate or settle the contents. The material is finally piped to storage tanks or “tank batteries” to await final transportation by truck.

As required by § 39-7-101, C.R.S.2002, Petron filed statements with the county assessor for tax year 2001, reporting the value of the oil sold from the leaseholds during the preceding calendar year. Because the oil produced from the wells was sold at the tank battery downstream from the point it exited the ground, and because § 39-7-101 requires the operator to report the' selling price of the oil at the wellhead, which Petron interpreted to mean the value of the unprocessed material at the point it exited the ground, Petron used a “netback” method of valuation. Thus, it reduced the sale price by the costs it incurred for gathering, transporting, manufacturing, and processing the material downstream from the point the oil exited the ground.

The assessor refused to allow these deductions. Instead, the assessor valued the leaseholds based upon the amount of gross lease revenues; that is, he construed the selling price at the wellhead to mean the selling price at the tank batteries. The assessor took the position that the material was unprocessed at the point of delivery from the tank batteries because it remained crude oil and that there were no gathering, transportation, manufacturing, or processing costs incurred here. The assessor reached that conclusion in part because the claimed deductions did not arise beyond the well site, which he understood was required before a netback valuation method could be employed.

Petron appealed the assessor’s valuation to the CBOE, which affirmed. Upon Petron’s further appeal to the BAA, the parties stipulated to costs Petron incurred for gathering, transporting, manufacturing, and processing the oil, agreeing that such deductions from the sale price would be appropriate if the BAA allowed them.

The BAA .declined to allow the deductions and affirmed the assessor’s valuation. In doing so, the BAA interpreted statutory provisions and the PTA’s guidelines and concluded that the sale at the tank battery was not a downstream point of sale for purposes of allowable netback deductions, but rather was a sale at the wellhead. This appeal followed.

I.

Petron contends that the BAA erred in upholding the assessor’s valuation based on the amount received for the oil at a downstream point of sale, without allowing deductions for the costs of gathering, transporting, manufacturing, and processing the oil. Specifically, it asserts that the BAA’s decision violates the constitutional requirement that valuations of oil leaseholds be based on the value of the unprocessed material, violates the statutory requirement that valuations be based on the selling price at the wellhead, and contravenes the PTA’s guidelines. We agree.

In reviewing an agency’s action, a court must determine all questions of law, interpret constitutional and statutory provisions, and apply its interpretation to the facts as found or established. Interpretation of constitutional, statutory, and regulatory provisions presents a question of law; hence our review is de novo. See United Parcel Serv., Inc. v. Huddleston, 981 P.2d 223 (Colo.App.1999).

A decision of the BAA may be set aside if it reflects a failure to abide by the statutory scheme for calculating property tax assessments. City & County of Denver v. Bd. of Assessment Appeals, 848 P.2d 355 (Colo.1993).

When interpreting a constitutional, statutory, or regulatory provision, we look to the ordinary and common meaning of its language, giving effect to every word and term whenever possible. See Welby Gardens v. Adams County Bd. of Equalization, 71 P.3d 992 (Colo.2003); Bd. of County Comm’rs v. Vail Assocs., Inc., 19 P.3d 1263 (Colo.2001); Regular Route Common Carrier Conference v. Pub. Utils. Comm’n, 761 P.2d 737 (Colo.1988); Bd. of County Comm’rs v. City & County of Broomfield, 62 P.3d 1086 (Colo.App.2002). If the language is clear and unambiguous, examination of legislative history is unnecessary. See Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30 (Colo.2000).

When interpreting a tax statute, a court may not extend its operation by analogy or beyond the clear import of the language used, and all doubts are resolved in favor of the taxpayer. Transponder Corp. v. Prop. Tax Adm’r, 681 P.2d 499 (Colo.1984).

The tax at issue here is imposed upon lands or leaseholds and is considered a real property tax. See § 39-1-102(14)(b), C.R.S. 2002. Accordingly, the county tax assessor must value for assessment the oil-producing leaseholds and lands that are located within county boundaries. See § 39-1-103(2), C.R.S.2002; Bd. of County Comm’rs v. City & County of Broomfield, supra. The statutory formula for valuing the oil and gas leasehold is intended to gauge the value of the oil in the ground and is not a tax on the amount of oil actually produced. See Fed. Land Bank v. Bd. of County Comm’rs, 788 F.2d 1440 (10th Cir.1986).

Colo. Const. art. X, § 3(1)(b) provides, in pertinent part:

[T]he valuation for assessment for ... lands or leaseholds producing oil or gas, as defined by law, shall be a portion of the actual annual or actual average annual production therefrom, based upon the value of the unprocessed material, according to procedures prescribed by law for different types of minerals.

Thus, the constitution delegates to the General Assembly the task of specifying the valuation procedure, but expressly requires that valuation be based on the worth of the “unprocessed material.” Accordingly, we must determine the meaning of “unprocessed.”

The plain meaning of “processing” is “subject[ing] to a particular method, system, or technique of preparation, handling, or other treatment designed to effect a particular result ... to prepare for market, manufacture, or other commercial use by subjecting to some process.” Webster’s Third New International Dictionary 1808 (1976); see Bd. of County Comm’rs v. City & County of Broomfield, supra (applying dictionary definition to constitutional provision to determine meaning); see also State v. Four States Drilling Co., 278 Ala. 273, 177 So.2d 828 (1965)(for purposes of tax statute, processing began when power oil and dfemulsifier were added to make production oil flow more easily and to start the process of making production oil into a marketable product).

The constitutional provision requiring valuation to be based on the value of the unprocessed material is implemented by § 39-7-101, et seq., C.R.S.2002. Review of that statute reinforces this plain meaning.

Section 39-7-101(1), C.R.S.2002, requires the leasehold operator or owner to file an annual statement including the “selling price at the wellhead” of the oil or gas sold from the land during the preceding calendar year. “Selling price at the wellhead” is defined in § 39-7-101(1)(d), C.R.S.2002:

As used in this article, “selling price at the wellhead” means the net taxable revenues realized by the taxpayer for sale of the oil or gas, whether such sale occurs at the wellhead or after gathering, transportation, manufacturing, and processing of the product. The net taxable revenues shall be equal to the gross lease revenues, minus deductions for gathering, transportation, manufacturing, and processing costs borne by the taxpayer pursuant to guidelines established by the administrator.

Thus, the statute indicates two locations where the sale may occur: at the wellhead itself or at some other point after gathering, transporting, manufacturing, and processing. “Selling price at the wellhead” requires computation of the “net taxable revenues” realized by the taxpayer. That term is defined to allow deductions for, inter alia, “processing” costs to reach a “net” price.

The term “at the wellhead” generally refers to the point at the top or “head” of the actual well where the mineral product is severed or removed from the ground. See Schroeder v. Terra Energy, Ltd., 223 Mich.App. 176, 179 n. 1, 565 N.W.2d 887, 890 (1997); Howard R. Williams & Charles J. Meyers, Manual of Oil and Gas Terms 161, 1191 (11th ed.2000)(defining wellhead “as being at the Christmas Tree,” which in turn is defined as “the assembly of valves, pipes and fittings used to control the flow of oil and gas from the casinghead”).

' The pertinent statutory provisions do not further define these terms. However, § 39-2-109(1)(e) & (k), C.R.S.2002, authorizes the PTA to create guidelines for administration, which provide additional direction.

To assist county assessors in valuing land for property tax purposes, the PTA prepares and publishes a land valuation manual known as the Assessors Reference Library (rev.Mar.2003) (ARL). See § 39-2-109(1)(e). A reviewing court gives deference to statutory interpretations contained in the ARL, but they are not binding. However, county assessors are bound by such interpretations. Huddleston v. Grand County Bd. of Equalization, 913 P.2d 15 (Colo.1996).

The ARL defines “manufaeturing/proeess-ing” as “any activity occurring beyond the well site which changes the well stream physical or chemical characteristics, enhances the marketability of the stream, or enhances the value of the separate components of the stream,” including activities such as dehydration, heating, treating, and separating. 3 ARL at 6.43. In our view, the ARL definition is consistent with the statutory and constitutional directives.

Here, the BAA concluded that removing water from the raw material and injecting chemicals did not constitute processing of the product, because it remained “crude oil.” However, employing the definitions and rules of construction previously noted, we conclude that injection of chemicals, breakdown of the emulsion, and removal of impurities and water subject the oil to a particular method, system, or technique of preparation, handling, or other treatment designed to prepare it for market, and enhance the oil’s marketability by changing its physical characteristics. That activity constitutes “processing.” Merely because the oil remained “crude” and required further processing does not mean that it had not been subjected to some processing before it reached the tank battery. Hence, the BAA erred in determining that the oil was unprocessed at the tank battery.

For similar reasons, the BAA’s conclusion that processing oil and making it marketable are mutually exclusive activities is erroneous. Not only does the definition of “processing” include “preparation for market,” but also the constitution requires that valuation be based on unprocessed material, not marketable material.

Thus, the BAA erred in disallowing the claimed deductions.

This analysis and result is consistent with the nature of the tax imposed. The selling price of the oil at the wellhead is used to gauge the value of oil in the ground. See Fed. Land Bank v. Bd. of County Comm’rs, supra. Accordingly, the appropriate place to determine the selling price here is the point at which the oil exits from the ground, which the constitutional provision essentially mandates when it refers to the value of the “unprocessed material” and § 39-7-101 means when it refers to the “selling price at the wellhead.” The statute intends the selling price at the wellhead to reflect revenues realized by the taxpayer for sale of the oil at the wellhead or the net taxable revenue after gathering, transportation, manufacturing, and processing of the product. Therefore, if the selling price of the oil at a point downstream of the wellhead is used to gauge the value of oil in the ground, deductions for intervening processing must be allowed to determine the value of the material when it exits from the ground.

II.

The BAA and the CBOE, however, assert that this interpretation is untenable because “wellhead” does not mean the point where the material exits the ground. Rather, in their view, it means the meter or point of sale, which in this case is the tank battery. In support of their argument, they point to the ARL definition of “wellhead” as “the point beyond the actual casinghead/tubing-head where the product is either processed at the well site or the unprocessed product is metered for transportation beyond the well site.” 3 ARL 6.45 (emphasis supplied). Hence, they assert that the wellhead cannot be simply the top point of the well bore or “hole,” but must be the tank battery, which is beyond the casinghead/tubinghead. We disagree.

First, the assertion that the wellhead is at the tank battery ignores the constitutional provision, which requires that the value of the oil reflect the worth of the unprocessed material. At the tank battery, the material involved here has already been subjected to some processing.

Second, the ARL’s definition of “wellhead” as a point beyond the casinghead/tubinghead does not indicate how far therefrom the wellhead is. It could be a point immediately above the casinghead, a view consistent with the general definitions of “wellhead” previously stated. And as Petron asserts, this ARL definition can be read as merely confirming that costs associated with the actual “head” of the well are not deductible.

III.

The BAA and the CBOE point out that the ARL uses the term “beyond the well site” in the definition of “manufacturing/processing.” See 3 ARL 6.43. In addition, the ARL definition of “gathering” employs similar language, as does the definition of “transportation.” See 3 ARL 6.43-6.44. And the BAA and the CBOE interpret the term “well site,” which is not defined in the ARL, to refer to the entire leasehold. Hence, they assert that allowing deduction of expenses for gathering, manufacturing, processing, and transporting would be improper here because those expenses were not incurred “away from the well site.” Again, we disagree.

The proposed construction of “well site” would violate the uniformity provision of Colo. Const. art. X, § 3, requiring uniform taxation. The uniformity required “is that all persons who are members of any class, or all property logically belonging in a given classification, shall receive equal treatment to that accorded all other persons or property in the same class.” Dist. 50 Metro. Recreation Dist. v. Burnside, 167 Colo. 425, 430, 448 P.2d 788, 790 (1968); see Telluride Co. v. San Miguel County Bd. of Equalization, 962 P.2d 313 (Colo.App.1997)(similar properties, similarly situated, should be assigned consistent values to meet constitutional requirements).

Leased parcels vary in size, from a few acres to hundreds, and encompass different numbers of wells. Hence, gathering, transporting, manufacturing, and processing activities are not uniform among leaseholds. Some of these activities may occur within the leasehold boundaries, especially on larger leases, while others may be conducted solely off site. Construing the term “well site” as a geographic requirement encompassing the entire leasehold would result in unequal imposition of property taxes. Oil and gas producers able to gather, transport, manufacture, and process material entirely on their leaseholds would incur higher taxes, while those with smaller leaseholds would have lower taxes as a result of the deductions simply because they engage in such activities elsewhere, even though the activities would yield the same product.

Thus, because we must give regulations and statutes an interpretation that renders them constitutional, see People v. Hickman, 988 P.2d 628 (Colo.1999), we reject this argument.

IV.

We also conclude that allowing deductions here is consistent with the methods of valuation described in the ARL. In recognizing that oil producers may have different points of sale, the ARL contains a prioritized listing of wellhead pricing procedures, that is, methodologies for the valuation of leaseholds.

According to the ARL, if the preferred valuation method of determining the selling price of oil at a specific, actual wellhead (the “wellhead” method) cannot be used, valuation may instead be calculated downstream from the wellhead, using one of two “netback” methods. The first netback method is used when “unrelated parties [not related by blood, marriage, partnership, corporate identity, or the like] are paid for product gathering, processing, manufacturing and/or transportation services between the wellhead and the point of sale.” Deductions for such activities are then calculated to determine the wellhead sales price. The second netback method is used if expenses are instead charged to the same or related party, in which case similar deductions are authorized. 3 ARL 6.30-6.41.

In other words, to determine the value of the unprocessed oil, the assessor must first attempt to calculate the sale price at the “head” of the well. However, if a sales agreement specifies a point of sale downstream therefrom, the assessor must allow deductions for the costs incurred by the taxpayer in gathering, transporting, manufacturing, and processing the oil between the head and the point of sale, using one of the two netback methods. This hierarchical valuation methodology ensures that regardless of the geographical point of sale, only the value of unprocessed oil is calculated for property tax purposes.

In this case, the assessor based the valuations on revenues received by Petron at the point of sale, the tank battery, after the oil had been subjected to some processing. The ARL specifies that in such a case, where the wellhead method of valuation is not appropriate, a netback method should be used. Regardless of Petron’s relationship, the ARL specifies the allowance of deductions to obtain the value of the unprocessed oil at the wellhead. Thus, according to § 39-7-101(1)(d), deductions should have been allowed for the gathering, transportation, manufacturing, and processing costs borne by Petron between the wellhead and the point of sale, here the tank battery.

For these reasons, we conclude that the BAA erred in determining that the price received at the tank battery was the selling price at the wellhead and in denying the deductions. Its conclusion is contrary to the constitutional requirement that valuation be based on unprocessed material, the plain language of § 39-7-101(1)(d), and the AEL.

In light of our disposition, we need not address the parties’ remaining contentions.

The order is reversed, and the case is remanded to the BAA with directions to determine the appropriate amount of deductions allowable to Petron, consistent with the views expressed in this opinion.

Judge ROY and Judge PICCONE concur.


author: Justice KIRSHBAUM.

text:
    Dennis ROGAN, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE of Colorado, United Parcel Service, and Liberty Mutual Insurance Company, Respondents.
    No. 02CA1770.
    Colorado Court of Appeals, Div. III.
    Oct. 9, 2003.
    Certiorari Denied June 7, 2004.
    Alexander & Ricci, L.L.C., William A. Alexander, Jr., Colorado Springs, Colorado, for Petitioner.
    Ken Salazar, Attorney General, Eric S. Rothaus, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
    The Connell Law Firm, John M. Connell, Susan A. Kraemer, Denver, Colorado, for Respondents United Parcel Service and Liberty Mutual Insurance Company.
   Opinion by

Justice KIRSHBAUM.

In this workers’ compensation proceeding, Dennis Rogan (claimant) seeks review of the final order issued by the Industrial Claim Appeals Office (Panel) upholding the denial of his request for additional temporary total disability (TTD) benefits. We affirm.

Claimant sustained a compensable injury in 1995 while employed by United Parcel Service and was able to continue working until October 25, 1997. Thereafter, United Parcel Service and its insurer, Liberty Mutual Insurance Company (collectively employer) paid TTD benefits until claimant’s authorized treating physician placed him at maximum medical improvement (MMI) on October 18, 1999. The authorized treating physician also assigned a permanent impairment rating for claimant’s lower extremity of twenty-three percent.

Based upon this rating, employer filed a final admission of liability for previously paid TTD benefits of $45,715.30 and permanent partial disability (PPD) benefits of $14,284, and claimant received a total award of $60,000. The $60,000 sum equaled the benefit cap established by § 8-42-107.5, C.R.S. 2002, which limits the combined benefits for temporary disability and PPD compensation payable to a claimant for an impairment rating of twenty-five percent or less to a total of $60,000.

Claimant contested employer’s final admission of liability and obtained a division-spon--sored independent medical examination (DIME). The DIME physician opined that claimant did not reach MMI until October 23, 2001, and had suffered a fourteen percent permanent impairment of the whole person. Claimant then requested additional TTD benefits for the period beginning October 18, 1999, first MMI date, and ending October 23, 2000, when claimant admittedly returned to work. Employer denied liability for further temporary benefits based upon § 8-42-107.5.

Following an evidentiary hearing, the administrative law judge (ALJ) determined that because claimant received a permanent impairment rating of less than twenty-five percent and had been paid $60,000 in combined TTD and PPD benefits, he was not entitled to additional TTD benefits. The Panel upheld the denial of claimant’s request on review.

Claimant contends that the ALJ erred in failing to retroactively award TTD benefits for the period preceding his return to work because those benefits were improperly terminated based upon an erroneous determination of MMI and a premature impairment rating. Under the circumstances here presented, we disagree.

As the Panel observed, claimant does not dispute that employer acted in good faith when it terminated his TTD benefits following the initial MMI determination. He also does not challenge the fact that his benefit recovery would normally be limited to $60,000. However, he urges that he is entitled to additional TTD benefits because employer had no legal justification to withhold them when they accrued. Implicit in his claim is the' recognition that the reopening statute, in its prior form, did not permit the recovery of overpayments. See Colo. Sess. Laws 1990, ch. 62, § 8-43-303(1) at 509. We are not persuaded.

In Donald B. Murphy Contractors, Inc. v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo.App.1995), a division of this court held that the cap established by § 8-42-107.5 cannot take effect before a claimant attains MMI as defined by § 8-40-201(11.5), C.R.S. 2002. The division reasoned that because the extent of a claimant’s impairment cannot be determined before a claimant reaches MMI, application of the cap is precluded until MMI has been attained and an impairment rating has been assigned. The division also held, however, that under circumstances where additional TTD benefits become due, because the claimant’s condition worsened after an initial MMI determination and a new MMI of 25% was possible, an employer could take an offset against PPD benefits already paid to minimize or avoid any overpayment if the new MMI equaled twenty-five percent or less.

We do not consider Donald B. Murphy Contractors dispositive of the issue raised in this case. It is undisputed here that claimant has reached MMI and that his permanent impairment is less than twenty-five percent. Consequently, we perceive no basis upon which claimant can be exempted from the statutory cap. The possibility that he may have been able to obtain an overpayment if events had unfolded differently does not establish a right to such overpayment when his final MMI is less than twenty-five percent. As the Panel noted, a contrary holding would result in an undeserved windfall and directly undercut the purpose for which the cap was designed, that is, to create an overall savings in workers’ compensation costs to employers while allowing a more generous award for levels of impairment exceeding twenty-five percent. See First Conference Committee on S.B. 218, 58th General Assembly, First Session (May 3 and 4, 1991).

Accordingly, under these circumstances, we uphold the denial of claimant’s request for additional TTD benefits. See Grogan v. Lutheran Med. Ctr., Inc., 950 P.2d 690 (Colo.App.1997)(because the § 8-42-107.5 cap had already been exceeded, claimant was not entitled to farther temporary disability benefits).

The order is affirmed.

MARQUEZ and HUME *, JJ., concur.

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


author: Judge GRAHAM.

text:
    David SHANDS, d/b/a Oxford Group Commercial Properties, Plaintiff-Appellee, v. WM R. WINTON, LTD., Defendant-Appellant.
    No. 02CA1926.
    Colorado Court of Appeals, Div. II.
    Nov. 20, 2003.
    Rehearing Denied Dec. 18, 2003.
    Certiorari Denied May 24, 2004.

      Law Office of Douglas D. Konkel, Douglas D. Konkel, Maureen J. Smith, Fort Collins, Colorado, for Plaintiff-Appellee.
    Gablehouse Calkins & Granberg, LLC, Timothy R. Gablehouse, Donn L. Calkins, Denver, Colorado, for Defendant-Appellant.
    Rothgerber Johnson & Lyons, LLP, Richard K. Clark, Denver, Colorado, for Amicus Curiae Colorado Association of Realtors.
   Opinion by

Judge GRAHAM.

Defendant, Wm R. Winton Ltd., a British limited liability company, appeals the trial court’s judgment in favor of plaintiff, David Shands. We affirm.

The dispute concerns a real estate commission. Most of the salient facts are undisputed. Shands, a licensed real estate broker, had a listing for a portion of Winton’s Larimer County property in 1998-1999. When the listing expired in September 1999, Shands left his sign on the property with Winton’s permission. In May 2000, Fred Ziegler contacted another local real estate broker, Lou Kinzli, and expressed interest in the property. Over the next two months, Kinzli contacted Shands and made several offers on behalf of Ziegler to Winton, through Shands, to purchase the property.

On August 11, 2000, Shands and Winton entered into an exclusive right-to-sell designated party listing agreement, which provided Winton would pay Shands a commission under the following circumstances:

(1) Any Sale of the Property within the Listing Period [August 11, 2000, through December 31, 2000] by Seller, by Broker or by any other person;
(2) Broker’s finding a buyer who is ready, willing and able to complete the transaction as specified herein by Seller; or
(3) Any Sale of the Property within 365 calendar days subsequent to the expiration of the Listing Period (“Holdover Period”) to anyone with whom Broker negotiated and whose name was submitted, in writing, to .Seller by Broker during the Listing Period (including any extensions thereof); provided, however, that Seller shall owe no commission to Broker under this subsection (3) if a commission is earned by another licensed real estate broker acting pursuant to an exclusive right-to-sell listing contract or an exclusive agency listing contract entered into during the Holdover Period.

The designated party provision in the listing agreement applied to Ziegler and Z WEST Development and Investment Inc., a Colorado corporation wholly owned by Ziegler. Z WEST was not yet formed when the agreement was executed.

On August 22, 2000, Z WEST and Winton entered into a purchase contract for the property. Shands was shown as the listing agent. Although the closing date was originally set for December 2000, that closing never occurred because Z WEST had difficulties securing financing. In January 2001, Shands’s attorney wrote to Winton, Kinzli, and the closing agent, stating that Shands expected his share of the commission if the property was sold to Z WEST during the holdover period.

On February 1, 2001, Z WEST and Winton entered into a contract for the sale of the property with a closing date scheduled for February 16, 2001. Kinzli was listed as the transaction broker. The closing instructions acknowledged Shands’s potential claim and directed that the $27,500 that Shands claimed (one-half of the commission) be placed in escrow.

Because Z WEST lacked the financial resources to purchase the property, Ziegler contacted SKESKE I, a Missouri limited liability company, to secure the funds. On February 14, 2001, Z WEST and Winton entered into a mutual rescission agreement, which provided that the parties:

[AJgree that upon [Wmton] or his power of attorney, acknowledging and executing the certain Contract to Buy and Sell Real Estate with SKESKE I L.L.C., a Missouri limited liability company, dated February 14, 2001 the following shall occur: [Z 1VEST] shall relinquish all rights under the contract dated February 1, 2001 and forfeit all the earnest money in the total amount of $14,000.

In March 2001, Ziegler filed articles of incorporation for WSZ, LLC. Z WEST and Ziegler’s cousin each owned twenty-five percent of WSZ, and SKESKE owned fifty percent.

On May 4, 2001, there was a simultaneous closing whereby Winton conveyed the property- to SKESKE who then conveyed the property to WSZ. Both conveyances were by warranty deeds, which were recorded in reverse order.

Shands filed a breach of contract claim against Winton. After a bench trial, the court found that Shands was entitled to one-half of the commission under the listing agreement, noting that, “[although under a different entity, Z WEST ultimately purchased an interest in the property under circumstances that suggests bringing in outsiders for additional financing at best; and to cut out [Shands] and benefit Kinzli at worst.” The trial court entered judgment in favor of Shands for $27,500, plus interest. This appeal followed.

Winton contends that the trial court erred in determining that Shands was entitled to a commission under the listing agreement because the property was sold to SKESKE, a party with whom Shands never negotiated, whose name was never submitted in writing to Winton, and who was not identified in the listing contract as a purchaser. We disagree.

In reviewing a breach of contract case, we defer to the trial court’s findings of fact if the record supports them, and we review its conclusions of law de novo. Albright v. McDermond, 14 P.3d 318 (Colo.2000).

A broker’s right to recover a commission is dependent on the terms of the listing agreement. Horton-Cavey Realty Co. v. Spencer, 37 Colo.App. 96, 544 P.2d 998 (1975). Written contracts that are complete and free from ambiguity express the intention of the parties and will be enforced according to their plain language. Fallenius v. Walker, 787 P.2d 203 (Colo.App.1989).

However, the purpose of a listing contract is to compensate a broker who is the procuring cause of a sale. Colorado has long recognized that a seller of real estate cannot circumvent the listing broker by changing the terms of the contract or selling to a straw-man who then acts as a conduit and ultimately conveys the property to the purchaser who originally was procured by the broker. See Hayutin v. De Andrea, 139 Colo. 40, 337 P.2d 383 (1959).

. Where the terms are changed and the seller sells directly to the buyer who was introduced to him by the broker, the broker is nevertheless entitled to a commission because he is the procuring cause of the sale. Such circumstances involve the direct appropriation of the client by the seller, and the holdover provision of the purchase contract entitles the broker to the commission. Brewer v. Williams, 147 Colo. 146, 152, 362 P.2d 1033, 1036 (1961)(quoting Houston v. H.G. Wolff & Son Inv. Co., 94 Colo. 73, 77, 28 P.2d 255, 256 (1933): “[T]his was but another case of an owner circumventing his broker by appropriating his client and seeking to escape a commission by slight changes in the terms of the trade.”). As the court in Houston observed, “[Without paying for the seed, [the seller] sought to reap the field the broker had sowed. The scheme is very old, but so is the law which frustrates it.” Houston v. H.G. Wolff & Son Inv. Co., supra, 94 Colo, at 77, 28 P.2d at 256.

Designated party listing agreements present an added complexity of limiting the field of prospective buyers to those parties identified in the agreement. The listing agreement here clearly provided that Shands would be entitled to a commission if: (1) Shands, Winton, or any other person sold the property within the listing period to Ziegler or Z WEST, which was not yet formed; or (2) the property were sold within the holdover period to anyone with whom Shands negotiated and whose name he submitted in writing to Winton during the listing period.

The property was sold to SKESKE who then immediately transferred it to WSZ, another company formed by Ziegler at about the same time. Shands did not negotiate with SKESKE or WSZ, and he did not submit their names in writing to Winton. The trial court’s findings lead to the ineluctable conclusion that Shands was the procuring source of the sale because he negotiated with Ziegler, who ultimately acquired an interest in the property through a company he formed.

Winton argues that we would be expanding Colorado law if we were to affirm the trial court here because Colorado brokerage commission cases have awarded commissions to the complaining broker only where the seller knew of the transaction or participated in the scheme to circumvent the broker. Winton presented evidence that it did not know of the transaction or participate in any scheme. Cf. Rauch v. Rhoades, 172 Colo. 152, 470 P.2d 854 (1970)(buyer and seller changed terms); Becker v. Arnold, 42 Colo.App. 178, 591 P.2d 596 (1979)(seller attempted to avoid payment of commission by changing terms of sale).

Warning against extending the current body of Colorado law to “protect brokers at the expense of innocent sellers,” Win-ton would have us rule that a buyer or a competing broker may circumvent the procuring broker so long as the seller is ignorant of the mechanism used. We find no logic in the proposition that although a seller may not circumvent a procuring broker, a buyer may. That the seller may not know the precise identity of a buyer does not relieve the seller of the contractual duty to make reasonable inquiry or to pay procuring brokers jointly if the listing broker was assisted by another broker.

Here, the fact that the seller claims not to have known the buyer does not, as a matter of law, preclude the broker from being the procuring source of a buyer. See Brewer v. Williams, supra (seller is obligated to pay the procuring broker). The trial court found that “Z West ultimately purchased an interest in the property” under terms that suggest Shands was circumvented to benefit the other broker, Kinzli. The record shows that the ultimate purchaser was formed by Ziegler and owned by Z WEST, SKESKE, and Ziegler’s relative. Moreover, Winton was on notice that Shands expected a commission if Z WEST became an owner of the property.

Consequently, the trial court correctly interpreted the contract and, by implication, ruled that Shands was the procuring cause of the sale.

The judgment is affirmed.

Judge MARQUEZ and Judge ROTHENBERG concur.


author: Chief Judge DAVIDSON.

text:
    Michael S. FANG, Plaintiff-Appellee, v. SHOWA ENTETSU CO., LTD., a Japanese corporation, and SPF Corporation of America, a Colorado, corporation, Defendants-Appellants.
    No. 02CA0836.
    Colorado Court of Appeals, Div. I.
    Nov. 20, 2003.
    Rehearing Denied Jan. 15, 2004.
    Certiorari Denied June 14, 2004.

      Faegre & Benson LLP, Laurence W. De-Muth, III, Jennifer Sullivan, Boulder, Colorado, for Plaintiff-Appellee.
    Osgood & Harris, LLC, Steven E. Harris, Boulder, Colorado, for Defendants-Appei-lants.
   Opinion by

Chief Judge DAVIDSON.

Defendants, Showa Entetsu Co., Ltd., and SPF Corporation of America, appeal from the trial court’s judgment awarding attorney fees and costs to plaintiff, Michael S. Fang. We affirm and remand for an award of appellate attorney fees.

This action arose out of plaintiffs termination of employment with defendants. In 1991, plaintiff and the executive vice president of Showa entered into a two-page employment agreement. This agreement was for an indefinite period of time, but provided, “This agreement may be terminated by the employer by giving 30 days advance written notice to the employee. In this case, the employer will compensate the employee equivalent of two years compensations as listed in the appendix.”

• Plaintiffs compensation consisted of a base salary with annual cost of living and merit raises, year-end bonus, vacation time, medical insurance, life insurance, disability insurance, and matching contributions to his retirement account. He also received a onetime signing bonus of $30,000.

Plaintiff was employed by defendants to “set up and run its branch office in the U.S.A., and to provide support and expertise for the Far East market.” However, instead of a branch office, SPF Corporation of America was formed, and plaintiff served as its president until he was fired in 1999. At that time, his base salary was $155,144 per year. Defendants terminated plaintiffs employment without giving him thirty days written notice or paying him severance as provided in the employment agreement.

Plaintiff filed this lawsuit in October 1999. After a bench trial, the trial court entered judgment for plaintiff in the amount of $386,853.99 on the underlying claim, which has been affirmed in a separate appeal. Fang v. Showa Entetsu Co., 2003 WL 22754160 (Colo.App. No. 02CA0296, Nov. 20, 2003)(not published pursuant to C.A.R. 35(f)). The trial court subsequently awarded attorney fees and costs to plaintiff under the applicable version of the Colorado Wage Claim Act (CWCA). This appeal followed.

I.

Defendants first contend that the trial court erred when it found that plaintiffs damages constituted wages under the CWCA. Under the applicable version of the statute, we do not agree.

We review a trial court’s legal conclusions de novo. Turnbaugh v. Chapman, 68 P.3d 570, 572 (Colo.App.2003).

The purpose of the CWCA is to ensure that wages are paid in a timely manner and to provide adequate judicial relief in the event wages are not paid. The CWCA should be liberally interpreted to serve its purpose. Montemayor v. Jacor Communications, Inc., 64 P.3d 916, 923 (Colo.App.2002). An employer is liable under the CWCA if the employer does not pay an employee wages he or she earned at the time of discharge. Lee v. Great Empire Broad., Inc., supra, 794 P.2d at 1034.

Pursuant to the version of the CWCA applicable here, wages or compensation were defined as:

all amounts for labor or service performed by employees, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculating the same or whether the labor or service is performed under contract, subcontract, partnership,' sub-partnership, station plan, or other agreement for the performance of labor or service if the labor or service to be paid for is performed personally by the person demanding payment.

Colo. Sess. Laws 1959, ch. 167, § 2(1) at 537-38 (formerly codified at § 8-4-101(9); .now codified with amendments at § 8-4-101(8)(a)(I), C.R.S.2003)(emphasis added).

Under that definition, courts considered several factors to determine whether payment sought by a discharged employee constituted wages or compensation, including whether the payment is “both vested and determinable as of the date of termination.” See Rohr v. Ted Neiters Motor Co., 758 P.2d 186, 188 (Colo.App.1988)(quoting Hartman v. Freedman, 197 Colo. 275, 280, 591 P.2d 1318, 1322 (1979); applying factors to conclude that bonus earned as of termination constituted wages or compensation under the former § 8-4-101(9)); cf. § 8-4-101(8)(a)(I), C.R.S.2003 (wages and compensation must be “earned, vested, and determinable”).

For purposes of the CWCA, compensation is earned “if it is vested pursuant to an employment agreement at the time of an employee’s termination.” Barnes v. Van Schaack Mortgage, 787 P.2d 207, 209 (Colo.App.1990).

In the absence of controlling statutory provisions, severance payments are generally viewed as consideration for past services. See Moore v. Digital Equip. Corp., 868 P.2d 1170, 1171 (Colo.App.1994)(superseded on other grounds by § 8-73-110, C.R.S.2003). Not all severance payments, however, constitute compensation. For example, in Wank v. Saint Francis College, 740 N.E.2d 908 (Ind.Ct.App.2000), after the plaintiffs employment was terminated because of a merger, the defendant offered the plaintiff a severance package in acknowledgment of his years of service. The court held that the severance pay offered was not a wage under the Indiana Wage Payment Statute because it was not part of the plaintiffs terms of employment or connected to the work he had performed, but instead was “a discretionary, gratuitous benefit offered to employees as an act of benevolence.” Wank v. Saint Francis Coll., supra; 740 N.E.2d at 913.

Unlike Wank, however, plaintiffs severance payment here was not a gift. Plaintiffs employment agreement required defendants to pay him a sum certain — two times his ending salary — if they terminated him. In addition, the employment agreement did not require him to perform any other service. Thus, plaintiffs severance payment was determinable and vested upon entering the contract, payable under the contract upon termination. See Black’s Law Dictionary 1557 (7th ed.1999)(defining vested as “a completed consummated right for present or future enjoyment; not contingent; unconditional; absolute”).

Accordingly, because plaintiffs severance pay was vested and determinable at the date of discharge, the trial court properly concluded that, under the applicable version of the CWCA, plaintiffs severance pay constituted wages. See Rohr v. Ted Neiters Motor Co., supra; see also Hartman v. Freedman, supra (vacation pay falls within definition of wages or compensation); Montemayor v. Jacor Communications, Inc., supra (stock options may be considered compensation under CWCA); E.S. Lipstein, Civil Actions Under the Colorado Wage Claim Act, 28 Colo. Law. 65, 66 (Feb.1999).

We note that effective August 6, 2003, § 8-4-101 was amended to specifically exclude severance pay as wages or compensation. Section 8-4-101(8)(b), C.R.S.2003. However, the General Assembly, when amending the CWCA, is presumed to be aware of existing law setting forth the factors relevant to a determination of wages or compensation under that act. See Vaughan v. McMinn, 945 P.2d 404 (Colo.1997)(General Assembly is presumed cognizant of the judicial precedent in a particular area when it enacts legislation in that area). Thus, by the amendment, the General Assembly appears to acknowledge that a severance payment like plaintiffs here could constitute wages or compensation under the previous version of the statute. See Hearings on H.B. 1206 before the House Business Committee, 64th General Assembly, first session (March 20, 2003).

II.

Defendants contend the trial court erred when it awarded plaintiff attorney fees under the CWCA because plaintiffs complaint alleged only a claim for breach of contract and he failed to allege a wage claim until after judgment on the merits had been entered. We disagree.

Plaintiffs complaint included a general request for attorney fees. After the trial on the merits, the court reserved ruling on the issue of attorney fees and requested that plaintiff submit a statement of the law he believed entitled him to an award of fees. Plaintiff then filed a memorandum stating that the severance pay award constituted wages under the CWCA and, therefore, he was entitled to fees under that act. Defendants responded that the request for fees was improper and that plaintiffs severance package did not constitute wages under the CWCA. The trial court concluded that, while plaintiff had not alleged that the severance payment constituted wages under the CWCA in his complaint, plaintiff had properly asserted a request for fees under the CWCA. We agree with the trial court.

If an employer terminates an employee, the wages or compensation for labor or services earned and unpaid at the time of discharge is due and payable immediately. Colo. Sess. Laws 1993, ch. 192, § 8-4-104(1) at 869 (now codified with amendments at § 8-4-109(1)(a), C.R.S.2003). Under the applicable version of the CWCA, if an employee filed a civil action to recover or collect wages and penalties due as provided by certain sections of the CWCA, the judgment must “include a reasonable attorney fee in favor of the winning party, to be taxed as part of the costs of the action.” Colo. Sess. Laws 1967, ch. 398, § 80-8-14 at 861 (formerly codified at § 8-4-114; repealed Colo. Sess. Laws 2003, ch. 286, § 2 at 1863).

Thus, under the former § 8-4-114, reasonable attorney fees were awarded to the winning party whenever it was necessary for an employee to bring an action to recover wages. See Hartman v. Freedman, supra. Here, because it was necessary for plaintiff to file this action to recover his severance payment provided in the employment agreement, as the successful party he was entitled to reasonable attorney fees. See Lee v. Great Empire Broad., Inc., 794 P.2d 1032, 1037 (Colo.App.1989).

Defendants’ argument to the contrary notwithstanding, we agree with the trial court that plaintiffs failure to specify in his complaint the precise statute on which his claim was based did not prevent him from seeking attorney fees provided under the CWCA. Under C.R.C.P. 8(a), plaintiff was only required to put defendants on notice that he was seeking damages and reasonable attorney fees for defendants’ failure to pay severance as provided in the employment agreement. Cf. Hofer v. Polly Little Realtors, Inc., 37 Colo.App. 86, 543 P.2d 114 (1975).

Similarly, pursuant to C.R.C.P. 8(a), a plaintiff should be awarded all the relief to which he is entitled under the facts set forth in the complaint, regardless of the specific claim pleaded and the specific relief sought. See also Tisdel v. Bd. of County Comm’rs, 621 P.2d 1357, 1360 (Colo.1980)(“If the plaintiff is entitled to relief under the allegations of the complaint, the court may grant it regardless of the specific remedy requested.”).

Furthermore, a trial court may rule on a request for attorney fees under a theory raised for the first time after judgment. See Jensen v. Runta, 80 P.3d 906, 907, 2003 WL 22208422 (Colo.App. No. 03CA0611, Sept. 25, 2003)(post-judgment motion for attorney fees pursuant to Colorado Common Interest Ownership Act, § 38-33.3-123(1), C.R.S.2003, not requested in the complaint or at trial, constituted a new request, not a motion under C.R.C.P. 59(e)); see also Pagosa Lakes Prop. Owners Ass’n v. Caywood, 973 P.2d 698, 703 (Colo.App.1998)(even when the complaint does not request attorney fees, if such an award is authorized by statute based on the achievement of a successful result and is for services in conjunction with the litigation, the propriety of the award may be determined after the litigation is completed and the result known).

Here, according to the record, defendants had ample opportunity to challenge plaintiffs entitlement to fees. The entire trial focused on whether plaintiff was entitled to receive his severance payment. And, posttrial, each party fully briefed, argued, and presented evidence on the issues whether plaintiff could be awarded fees under the CWCA and, if so, whether those fees were reasonable.

Township Homeowners Ass’n v. Arapahoe Roofing & Sheet Metal Co., 844 P.2d 1316 (Colo.App.1992), on which defendants rely, instead supports plaintiffs position. In that case, the trial court awarded attorney fees to the defendants under § 13-17-101, et seq., C.R.S.2003, because the plaintiff presented no evidence to justify its request for attorney fees set forth in the complaint. In reversing that award, the division concluded that a general request for attorney fees in the prayer clause of a complaint is not a claim for relief that could 'be frivolous or groundless, but merely provides notice that such fees may be sought, depending on the outcome of the case. Similarly, here, plaintiffs request for fees in his prayer for relief sufficiently apprised defendants that, if plaintiff successfully received his severance pay, attorney fees might be sought.

III.

Finally, defendants contend the trial court erred by failing to proportionately reduce the award of attorney fees because of a trial continuance. We disagree.

The determination of the reasonableness of attorney fees is a question of fact for the trial court, and its ruling will not be reversed on appeal unless it is manifestly erroneous or not supported by the evidence. In awarding attorney fees, a trial court may consider several factors, including (1) the amount in controversy; (2) the time required to effectively represent the client; (3) the complexity of the case; (4) the value of the legal services to the client; and (5) the customary practice in the legal community regarding fees in similar cases. Porter v. Castle Rock Ford Lincoln Mercury, Inc., 895 P.2d 1146, 1150 (Colo.App.1995).

Here, the continuance, to which the parties stipulated, was necessitated because of plaintiffs medical emergency. The trial was rescheduled, and in the interim, plaintiffs first trial counsel retired.

Although defendants emphasize that the continuance was due to no fault of their own, we agree with plaintiff that, under the circumstances here, that fact was irrelevant to the determination of a reasonable fee. Moreover, although defendants argued that the replacement of plaintiffs first trial counsel resulted in duplicate billing, plaintiff presented expert testimony that all the requested fees were reasonable, that counsel always must again prepare for trial whenever a trial is continued, and that the expert saw no repeat billings due to the continuance.

We conclude that the court was not required to reduce the award because of the continuance. Moreover, the record supports the trial court’s other factual determinations concerning reasonableness. Thus, we find no basis for reversal. See Porter v. Castle Rock Ford Lincoln Mercury, Inc., supra.

Based on our disposition, we need not address defendants’ remaining arguments. However, we agree with plaintiff that pursuant to the former § 8-4-114, he also must be awarded attorney fees incurred in this appeal.

Accordingly, the judgment is affirmed, and the case is remanded to the trial court to determine an award of additional attorney fees for this appeal.

Judge DAILEY and Judge LOEB concur.


author: Judge ROY.

text:
    Thomas A. CARY and Beth Hanna, individually and on behalf of their minor daughter, Dena Cary, Plaintiffs-Appellants and Cross-Appellees, v. UNITED OF OMAHA LIFE INSURANCE COMPANY and Mutual of Omaha of Colorado, Inc., d/b/a Antero Health Plans, Defendants-Appellees and Cross-Appellants.
    No. 00CA0681.
    Colorado Court of Appeals, Div. I.
    Nov. 20, 2003.
    Certiorari Granted June 14, 2004.

      Wilcox & Ogden, P.C., M. Anne Wilcox, Ralph Ogden, Denver, Colorado, for Plaintiffs-Appellants and Cross-Appellees.
    Kutak Rock, LLP, Melvin B. Sabey, Gerard V. Reardon, Denver, Colorado, for De-fendanh-Appellee and Cross-Appellant United of Omaha Life Insurance Company.
    Kennedy & Christopher, P.C., John R. Mann, Christopher K, Miller, Denver, Colorado, for Defendant-Appellee and Cross-Appellant Mutual of Omaha of Colorado, Inc.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2003.

   Opinion by

Judge ROY.

Defendants, United of Omaha Life Insurance Company and Mutual of Omaha of Colorado, Inc., d/b/a Antero Health Plans (administrators), appeal the summary judgment which concluded that a group health plan managed by them covered medical and hospital expenses incurred by plaintiffs, Thomas A. Cary (father) and Beth Hanna (collectively insureds). We reverse the summary judgment and remand the case for further proceedings consistent with the views expressed in this opinion.

This matter is before us on remand from the supreme court. The trial court had granted the administrators’ motion for summary judgment on the issue of duty, concluding that as third-party administrators of a self-insured municipal health plan, they did not owe insureds a contractual duty amenable to a claim of bad faith breach of an insurance contract. At the same time, the trial court granted insureds’ motion for summary judgment on the issue of coverage. The insureds appealed the summary judgment in favor of administrators, and the administrators cross-appealed the summary judgment on the coverage issue.

We affirmed the judgment on insureds’ appeal and did not address the administrators’ cross-appeal. Cary v. United of Omaha Life Ins. Co., 43 P.3d 655 (Colo.App.2001). The supreme court reversed and remanded for consideration of any remaining issues on appeal. Cary v. United of Omaha Life Ins. Co., 68 P.3d 462 (Colo.2003). We now address the cross-appeal.

Father was an employee of the City of Arvada and was a member of a group health plan (Plan) the city provided to its employees and their families. The Plan was designed and funded by the Arvada Medical and Disability Program Trust Fund (Trust) and was administered by administrators, who processed all claims and determined coverage, subject to appeal to the Trust.

Insureds’ child was a beneficiary of the Plan and had a history of Bipolar I Disorder, a biologically based mental illness characterized by both manic and major depressive episodes, the treatment of which was covered by the Plan. On June 7, 1997, the child put a rifle under her chin and shot herself in an apparent suicide attempt. As a result, she required extensive treatment, hospitalization, and multiple surgeries. Insureds applied for benefits under the Plan, but administrators denied benefits, citing, as justification, the exclusion for self-inflicted injuries.

Insureds sued the city, the Trust, and administrators, seeking both a declaratory judgment that the Plan covered the child’s injuries and damages for bad faith breach of an insurance contract. On cross-motions for summary judgment, the trial court granted partial summary judgment for insureds, concluding that the self-inflicted injury exclusion of the Plan was ambiguous and, even if the Plan were not ambiguous, a 1994 Summary Plan Description (1994 SPD) rendered the exclusion ambiguous. The trial court then resolved the ambiguity in favor of coverage. The city and the Trust settled with insureds and are not parties to this appeal or cross-appeal.

I.

At the outset, insureds contend that administrators lack standing to challenge the trial court’s ruling on coverage because administrators were not parties to the Plan which formed a contract between father and the City of Arvada. We disagree.

To have standing to appeal, a person must either be a party to the action or be substantially aggrieved by the disposition of the case in the lower court. Kornfeld v. Perl Mack Liquors, Inc., 193 Colo. 442, 567 P.2d 383 (1977); see Bush v. Winker, 907 P.2d 79 (Colo.1995); see also § 13-51-106, C.R.S. 2003 (“Any person interested under a ... written contract ... or whose rights, status, or other legal relations are affected by a ... contract ... may have determined any question of construction or validity arising under the ... contract ... and obtain a declaration of rights, status, or other legal relations thereunder.”).

Here, administrators were substantially aggrieved by the trial court’s declaratory judgment concluding that the Plan covered the child’s injuries because that determination directly affects insureds’ claims against them.

The supreme court concluded that the administrators owed insureds a duty amenable to a claim of bad faith breach of an insurance contract. The supreme court reasoned that a “sufficient special relationship existed between the [ajdministrators and [insureds] to impose a duty of good faith and fair dealing on the [administrators, in light of their central role in claims administration and their financial liability for claims.” Cary v. United of Omaha Life Ins. Co., supra, 68 P.3d at 468. The court also stated that “administrators had primary control over benefit determinations, assumed some of the insurance risk of loss, undertook many of the obligations and risks of an insurer, and had the power, motive, and opportunity to act unscrupulously in the investigation and servicing of the insurance claims.” Cary v. United of Omaha Life Ins. Co., supra, 68 P.3d at 465.

Because the supreme court concluded.that administrators had a duty to act in good faith in administering the Plan, it follows that they have standing to challenge the trial court’s conclusion that the Plan covers the cost of treating the child’s injuries. The issue of coverage is a central predicate to any claim of bad faith breach of the insurance contract.

II.

In their cross-appeal, administrators assert that the trial court erred when it concluded that the Plan was ambiguous as to coverage for self-inflicted injuries and then resolved that ambiguity in favor of coverage for the child’s self-inflicted injury. We agree.

Insurance policies are contracts. If they are clear and unambiguous, then they require no construction or interpretation and are to be enforced as written. Cruz v. Farmers Ins. Exch., 12 P.3d 307 (Colo.App.2000); Wieprzkowski v. State Farm Mut. Auto Ins. Co., 976 P.2d 891 (Colo.App.1999).

In determining whether a policy is ambiguous, the courts must read the entire policy as a whole and give the words used their plain meaning according to common usage. In re Estate of Heckman, 39 P.3d 1228 (Colo.App.2001). When words are not defined in the policy, they are to be given their plain, ordinary, customary, and accepted meaning. An insurance policy is ambiguous if it is reasonably susceptible of more than one interpretation, but it is not rendered ambiguous merely because the parties disagree on its interpretation. Safeco Ins. Co. v. Robertson, 994 P.2d 488 (Colo.App.1999).

When, as here, the evidence is limited to the documents, the issues of a contract’s ambiguity and correct interpretation are matters of law to be determined by the court. Kaiser v. Mkt. Square Disc. Liquors, Inc., 992 P.2d 636 (Colo.App.1999).

The Plan defines “illness” as “a physical or mental disorder, including pregnancy.” “Injury” is defined as: “[Ajecidental bodily injury which occurs independently of Illness. Injury does not include self-inflicted bodily Injury either while sane or insane, or disease or infection (except pyogenic infection occurring through an accidental cut or wound).”

The term “Covered Expenses” is defined as “a Reasonable and Customary medical expense ... which expense is Medically Necessary for the treatment of an Injury or an Illness not specifically excluded or otherwise limited under this Plan.” The Plan contains a specific exclusion from benefits for “[cjharges in connection with a self-inflicted injury, whether sane or insane.”

Therefore, self-inflicted injury, incurred whether the claimant is sane or insane, is a limitation on coverage under the definition of “Injury” and is a separately provided plan exclusion.

The trial court initially concluded, and we agree, that the second sentence of the definition of “Injury,” which excludes self-inflicted injuries whether the claimant is sane or insane, is not in and of itself ambiguous. See Bigelow v. Berkshire Life Ins. Co., 93 U.S. 284, 287, 23 L.Ed. 918 (1876)(when used to exclude intended self-destruction in a life insurance policy, the words “sane or insane” have a “precise, definite, and well-understood meaning”).

However, the trial court went on to conclude that the Plan was ambiguous based on the phrase in the first sentence of the definition of “Injury”: “accidental bodily injury which occurs independently of Illness.” The court reasoned that the child was suffering from a treatable and covered mental illness, the self-inflicted injury was not independent of the covered mental illness, and, therefore, the Plan covered treatment of the injuries.

In our view, the trial court’s interpretation strains the definition of “Injury.” We read the phrase “which occurs independently of Illness” in the definition of “Injury” as modifying “accidental bodily injury,” not “Injury.” The self-inflicted injury' limitation is contained in a separate, independent, and immediately subsequent sentence and, in our view, modifies “Injury.” That is, no intentionally self-inflicted injuries are covered. The language in the Plan limiting the definition of “Injury” by excluding from that definition self-inflicted injuries is clear and unambiguous and is not narrowed by the phrase requiring accidental injuries to occur independently of illness. We hold that a reasonable insured would not find the language to be ambiguous or confusing.

The trial court did not consider, and we need not consider, the effect of the identical phrase as a Plan exclusion.

Therefore, the trial court erred in concluding that the Plan was internally ambiguous in limiting coverage to exclude self-inflicted injuries whether the claimant is sane or insane.

III.

Administrators also assert that the trial court erred in relying on the 1994 SPD in determining that Plan was ambiguous. We agree.

The Plan was not distributed to the city employees. Instead, the Trust or the administrators, or both, distributed documents summarizing the Plan to the city employees. These summary documents may become a part of a plan or insurance policy, disclaimers to the contrary notwithstanding, and, if they conflict with the plan or are incomplete, they may create an ambiguity which must be resolved in favor of coverage. See Tepe v. Rocky Mountain Hosp. & Med. Servs., 893 P.2d 1323 (Colo.App.1994)(where provisions of brochure conflicted with policy, conflict was resolved in favor of coverage); see also Holdridge v. BCS Life Ins. Co., 863 F.Supp. 1366 (D.Colo.1994)(applying Colorado law); Blue Cross & Blue Shield, Inc. v. Chestnut Lodge, Inc., 81 Md.App. 149, 667 A.2d 147 (1989).

In Blue Cross, the Maryland court explained the majority view that exclusions stated in the policy but not in the summary booklet should not be enforced:'

The majority of the courts addressing the issue have refused to enforce policy exclusions contained in the master contract but which have been omitted from the benefits booklet or other explanatory materials provided to the insured. Whether expressed in terms of estoppel or waiver, the underlying rationale of these cases is the unfairness of permitting an insurer, who usually drafts the benefits booklet, or at the very least, reviews it to determine its consistency with the master policy, to raise, as an impediment to coverage, a provision in the master policy which is not contained in the explanatory literature. They recognize that, to construe the provisions in the benefits booklet indicating that coverage is determined by reference to the master contract would render such provisions “a vast, additional exclusionary condition to coverage, making their omission from the [Blue Cross] brochure inexcusable,” Van Vactor v. Blue Cross Association, [50 Ill. App.3d 709, 716, [8 Ill.Dec. 400, ]365 N.E.2d 638[, 644] (1977)], and would “encourage insurers to withhold the master policy and include few important provisions” in the benefits booklet or other explanatory literature provided to insureds. Thus, language in the benefits booklet to the effect that benefits are subject to the terms of the master policy does not change the result; an insurer will not “be allowed to hide behind the technical provisions of the policy when the misleading shortcomings of his booklet are exposed.” See Bauer v. Insurance Company of North America, 351 F.Supp. [873,] 876 [ (E.D.Wis.1972) ].

Blue Cross & Blue Shield, Inc. v. Chestnut Lodge, Inc., 567 A.2d at 150-51 (citations omitted).

Here, we consider three supplemental or summary documents: the 1994 SPD, a 1997 SPD, and a 1997 brochure prepared and distributed by administrators.

SPDs are summaries of the Plan or policy written in plain-language. Therefore, by definition, SPDs do not contain all the terms and conditions of the Plan. In this case, they contain many explanations of specific benefits, for example, transplants, the amounts the Plan will pay, and the way that claims are processed.

The 1994 SPD, upon which insureds now rely in arguing for an ambiguity, was approved by the Trust and was issued and distributed to city employees from 1994 until 1997, when the 1997 SPD was approved. While the 1994 SPD used the term “covered expenses,” it did not define that term. And while it listed a significant number of exclusions, it did not include self-inflicted injury as an exclusion.

The 1997 SPD was approved after the child injured herself; was effective as of January 1, 1997; had been in draft form for some months prior to approval; and was used by administrators in reviewing and denying insureds’ claim. The 1997 SPD presented a fundamental change in the way the Plan was' administered and delivered services. The Plan was to use a “point of service” method similar to an HMO, requiring, among other things, that employees select a primary care physician from a panel of physicians, and the benefits differed depending on whether the services were provided by network providers or others. This point of service structure was owned and operated by administrators.

The 1997 SPD used the term “covered service or supply,” but did not define it. It also used the term “medically necessary service or supply,” defining it as “one which is ordered by a Primary Care Physician for-In Network Benefits or a physician for Out-of Network Benefits and which [administrators] determine[ ] [is appropriate].” The 1997 SPD listed exclusions from coverages, which included “Charges for treatment of an intentionally self-inflicted injury or sickness, occurring while sane or insane.” Insureds relied on the 1997 SPD when this action commenced and attached a copy of it to the complaint.

The 1997 brochure was entitled “Mutual [of] Omaha Companies Point of Service Plan Summary” and was distributed to father in late 1996. It was a two-page description of the point of service delivery system that was described in more detail in the 1997 SPD. It contained a chart describing benefits for particular treatments, conditions, or physicians, and it explained the difference in benefits for services performed in- and out-of-network. It also listed the exclusions from coverage including, “whether the member is sane or insane, from an intentionally self-inflicted injury or sickness or suicide or attempted suicide.” Administrators used this language in denying insureds’ claim, rather than that contained in the Plan or the 1994 or 1997 SPD.

Father attended a meeting of city employees in November 1996 where the new point of service health care delivery system was introduced. The 1997 brochure was distributed to the attendees, including father, and had attached application forms. In his deposition, father testified he received the summary and read and understood it at or after the meeting. He also testified that, after consultation with his wife, he applied for the point of service delivery system on the application forms provided. This system delivered medical care and services to the child at the time of the incident. The trial court did not consider this document in its order granting summary judgment.

While the 1994 SPD could render the plan ambiguous, we conclude that as of father’s receipt and reading of the 1997 brochure in late 1996 and signing up for the point of service delivery system based thereon, the Plan was not reasonably susceptible of more than one interpretation with respect to the coverages and exclusions related to self-inflicted injuries. See Safeco Ins. Co. v. Robertson, supra.

Therefore, the unambiguous Plan was not rendered ambiguous by the SPDs and the 1997 brochure circulated by the Trust and administrators to insureds. The Plan excluded self-inflicted injuries, and there was no coverage for the injuries sustained by the child.

IV.

Insureds also argue that the exclusion for self-inflicted injuries is contrary to public policy and, therefore, is unenforceable. More particularly, insureds rely on § 10-16-104(5.5), C.R.S.2003, which requires that health plans regulated by the Colorado Division of Insurance “provide coverage for the treatment of biologically based mental illness that is no less extensive than the coverage provided for any other physical illness” and further includes bipolar affective disorder and major depressive disorder in its definition of biologically based mental illness. We disagree.

We agree with both parties that § 10-16-104(5.5) does not apply to the Plan because it is not regulated by the Colorado Division of Insurance. Insureds further argue, however, that even though § 10-16-104(5.5) was not effective in 1997 and does not apply to the Plan, we should look to it as a statement of public policy applicable to this case. We are not persuaded. If the General Assembly wished to make the statute a statement of public policy applicable to the Plan, it could expressly do so, or it could make the Plan subject to regulation by the Colorado Division of Insurance, or both.

We affirm the trial court’s award of costs to administrators pursuant to C.R.C.P. 54(b) as prevailing parties.

The summary judgment is reversed, and the case is remanded to the trial court for further proceedings consistent with the views expressed in this opinion.

Chief Judge DAVIDSON and Judge METZGER concur.