source: Caselaw Access Project

author: Justice RICE

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Hal HEBERT, Defendant-Appellee.
    No. 01SA400.
    Supreme Court of Colorado, En Banc.
    May 20, 2002.

      A. William Ritter, Jr., District Attorney, 2nd Judicial District, Robert J. Whitley, Chief Deputy District Attorney, Denver, CO, Attorneys for Plaintiff-Appellant.
    Springer & Steinberg, PC, Harvey A. Steinberg, Stacey L. Rose, Denver, CO, Attorneys for Defendant-Appellee.
   Justice RICE

delivered the Opinion of the Court.

The People challenge suppression orders entered by the Denver District Court in the prosecution of Hal Hebert (Defendant) for first degree murder. The facts of this case do not support the police officers' warrant less entry into Defendant's residence under the emergency aid exception to the Warrant Clause of the Fourth Amendment to the United States Constitution and of article II, section 7 of the Colorado Constitution; however, the redacted affidavits supporting the search warrants are sufficient to sustain a finding of probable cause to search the residence. Therefore, we reverse the trial court's order and remand the case for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

Defendant is charged with the murder of his wife, Carol Hebert, who was found dead in the trunk of her car on April 12, 2001.

The following factual history is based on the trial court's findings of fact. On April 12, 2001 between 4:80 and 4:45 p.m., the Denver Police Department received a call reporting a suspicious death. Sergeant Michael Fetrow, a supervisor in the homicide unit, dispatched two detectives to the scene at 1597 Valentia Street. After arriving at the location, one of the detectives called Fetrow and told him that a body was found in the trunk of a car.

Witnesses at the scene reported that the car, a white Toyota Camry, had been parked on Valentia Street and running "all day long." (R. at v. IV, p. 56.) Noting a purse inside the car, the witnesses opened the trunk, found a woman's body, and called the police.

Fetrow arrived at the scene, examined the inside of the Camry's trunk, and observed the body of a white female wearing jeans, a blouse, socks, and a single sandal. He noticed dirt on the buttocks of the jeans and on the back side of the body and trauma or a gunshot wound to the back side of her head. Fetrow testified that the inside of the car was fairly clean, with no signs of blood or a struggle. He believed this was unusual, given the large amount of blood on the victim's head. Fetrow also observed that the victim did not have any defensive wounds. Accordingly, based on the way she was placed in the trunk, the dragging dirt marks on the buttocks of her pants, the fact that her glasses were on the back of her head, and the absence of large amounts of blood in the car, he concluded that she had been transported from another crime scene.

After running a motor vehicle report, the officers discovered that the car belonged to Carol Hebert at 655 South Monroe Way. According to motor vehicle records, Carol Hebert was five foot four inches tall, weighed 120 pounds, and had brown hair and brown eyes, a description matching the victim's.

Meanwhile, other officers were sent to 655 South Monroe Way to "keep an eye on the house." (R. at v. IV, p. 57.) At approximately 5:20 p.m. or 5:80 p.m., four officers established a perimeter around the residence and began surveillance on the home. Upon arriving at the Hebert residence, Sergeant Kevin Smith, one of the officers who had established the perimeter, was approached by a neighbor, Petey Fletcher. Fletcher told Smith that Hal and Carol Hebert lived at 655 South Monroe Way. As they were speaking, Fletcher received a call from another neighbor, Charles Anderson. According to Fletcher, Anderson remarked that "he had seen Hal backing one of the cars into the driveway and garage on the previous evening and thought it was unusual." (R. at v. IV, p. 58.)

Sergeant Smith watched the back of the Hebert residence for approximately thirty minutes and did not notice any signs of broken windows or forced entry. He did not observe any activity in the home, and at that time did not believe anyone was in the residence.

Technician Eric Knutson, who was positioned to watch the front of the residence, had been surveying the home for about forty-two minutes when he saw a man, who had driven a white sports utility vehicle to the Hebert residence, get out of the vehicle and walk directly to the residence. Knutson stopped the driver at the front door. As he did so, another man, later identified as Defendant, walked out of the front door of the house.

Knutson then spoke with John Mason, the driver of the SUV, who told him that he had been watching a breaking story on the news, which identified a car that had been found. Mason realized that the car matched the description of Carol Hebert's car. Mason then called Defendant, asked him if he was watching the news, and told him that the car might be Carol Hebert's car. Mason also reported that Defendant had called him the previous evening and told him that Carol had gone shopping and had not returned. Mason said Defendant sounded upset and troubled.

In the meantime, Sergeant Smith contacted Defendant, asked him if he was Hal (Hebert), and handcuffed him. Defendant was detained outside his home for about fifteen or twenty minutes before Fetrow told officers to transport Defendant to headquarters because "he didn't like to do death notifications in a public street." (R. at v. IV, p. 61.)

Fetrow left the Valentia Street location at about 6:20 p.m., arriving at the Hebert residence approximately twenty to twenty-five minutes later. Defendant had already been transported to headquarters when he arrived. '

After arriving on the scene and obtaining the updated investigations information, Fet-row determined that a search of the house was necessary "to see if there were any other victims, injured or dead." (R. at v. IV, p. 62.) However, Fetrow admitted that he knew that there were no reports of commotion at the residence; that Defendant did not look like he had been in an altercation and was not armed; and that Defendant had not attempted to flee the scene. Moreover, police did not yet have a positive identification of the body, and did not know the composition of the Hebert family. Nonetheless, Fet-row concluded that "it was not out of the realm of possibilities" that there would be more victims. (R. at v. IV, p. 62.)

Using flashlights to illuminate the interior of the home, three officers conducted a search of the residence. They did not open any drawers or cabinets. Although the officers did not locate any victims, they discovered very small blood droplets in various areas, including the carport, the sidewalk to the garage, the hardwood floor, and on a pair of men's shoes. The officers did not touch anything, but covered the suspected blood droplets on the patio with plastic.

In the intervening time, Detective Dave Wallis initiated a search warrant application for the white Toyota Camry. While preparing the application, Lieutenant Jon Priest advised Wallis that Officer Tim Blair saw Defendant at a police substation on April 12 at 2:45 a.m. Blair reported that Defendant appeared intoxicated and complained that his wife was missing. Blair also said that Defendant was given information about the missing persons unit. Blair forwarded this information when he learned of the possible homicide.

Detective Wallis also said that Lieutenant Priest told him about his conversation with Defendant's friend, John Mason. According to Priest, Mason said Defendant called him at midnight the evening of April 11 and said that his wife was missing. Mason said that Defendant told him that his wife left to go shopping at the mall at 6 pm.; that he fell asleep at 8 p.m.; and that when he awoke at midnight she had not.returned.

After the interior search of the residence, Fetrow asked Detective Wallis to prepare an affidavit to support a search warrant for the home and Defendant's car. The warrant was issued at 9:28 p.m. on April 12th and executed fifteen to twenty minutes later.

Detective Wallis and other officers entered the residence approximately five times pursuant to this warrant. According to Wallis, the search was complex and involved the retrieval of blood evidence using time consuming procedures. In addition, the retrieval was complicated by earlier apparent attempts to clean the blood spots. Another search warrant for the home was issued on October 2, 2001.

Defendant was arrested and charged with murder in the first degree pursuant to section 18-3-102(1)(a), 6 C.R.S. (2001). Defendant filed several suppression motions, and the trial court granted each of them,. The trial court first ruled that the police officers' warrantless entry into the residence was not justified under the emergency exception because there was no showing of an immediate crisis; thus, it held that the entry violated the Fourth Amendment to the United. States Constitution and article II, section 7 of the Colorado Constitution. Accordingly, it redacted the information obtained by the unconstitutional entry and considered whether the legally obtained information in the affidavit established probable cause. It held that it did not. Finally, the court held that the good-faith exception to the exclusionary rule did not apply because it reasoned that the exception would "apply in a situation where the officers in good faith relied on a warrant that is improperly issued by a magistrate." (R. at v. IV, p. 76.) Here, "[the Court would be speculating as to whether police or a magistrate would have issued a warrant based upon the information without the redacted information." (R. at v. IV, p. 76.)

In this interlocutory appeal, the prosecution challenges suppression of (1) observations made by police during the brief war-rantless search of the residence; (2) evidence and observations obtained during a search of the home pursuant to a warrant issued on April 12, 2001; and (8) evidence and observations obtained during a search of the home pursuant to a warrant issued on October 2, 2001.

II. EMERGENCY AID EXCEPTION

We first must analyze whether the police officers' initial warrantless entry into Defendant's residence was justified by the emer-geney aid exception to the Warrant Clause of the Fourth Amendment to the United States Constitution and of article II, section 7 of the Colorado Constitution.

A warrantless search is prima facia unconstitutional unless it is justified by an established exception to the warrant requirement of the Fourth Amendment and of article II, section 7. People v. Harper, 902 P.2d 842, 844 (Colo.1995).

An emergency threatening the life or safety of another is one such exception. People v. Amato, 193 Colo. 57, 60, 562 P.2d 422, 424 (1977). We have sometimes treated this emergency aid exception under the rubric of exigent cireumstances, along with the bona fide "hot pursuit" of a fleeing suspect and the risk of immediate destruction of evidence exceptions. See, e.g., People v. Winpigler, 8 P.3d 439, 444 (Colo.1999); People v. Kluhsman, 980 P.2d 529, 534 (Colo.1999); People v. Higbee, 802 P.2d 1085, 1088 (Colo.1990). In this context, we have said that a claim of an emergency under the exigent circumstances exception requires both the presence of the exigency and probable cause that contraband or evidence of criminal activity is located at a particular place. Winpigler, 8 P.3d at 443-44; Kluhsman, 930 P.2d at 534; Higbee 802 P.2d at 1088.

On other occasions, we have analyzed emergency situations not as part of the exigent cireamstances exception but rather as a part of the "emergency doctrine." Kluhsman, 980 P.2d at 535 n. 7; Harper, 902 P.2d at 845 n. 2; Amato, 193 Colo. at 60, 562 P.2d at 424. In this context, we have held that an emergency under the emergency doctrine does not require probable cause. Kluhsman, 980 P.2d at 535 n. 7; Harper, 902 P.2d at 845 n. 2; Amato, 193 Colo. at 60, 562 P.2d at 424.

This dual approach is easily explained. In cases which involve a police response to a fire or other similar emergency, it is easy to understand why a police officer is not required to have probable cause to justify a search: police officers typically respond to many kinds of crises without believing that a crime has occurred. A more difficult situation is presented when a police officer is initially at a scene in an investigative capacity and then makes a warrantless entry to aid an individual in need of emer-geney assistance. Here, a police officer's crime-fighting and investigative role may transform into a duty to assist individuals in need of emergency aid. Thus, it may appear that probable cause is required because the officer originally came upon the scene in his investigative capacity. Indeed, in many such cases police will have probable cause to search. However, this is not necessarily the case, and if an officer's purpose in effecting a warrantless entry even though he was originally on the seene in an investigative capacity-is to render emergency assistance, probable cause that contraband or evidence of eriminal activity is located at a particular place is not required. Rather, the officer's actions are justified by a duty separate from the investigation of crime. See 1 American Bar Association Standards for Criminal Justice §§ 1.1-1, 1-2.2 (2d ed. 1986 Supp.) (police have "complex and multiple tasks to perform in addition to identifying and apprehending persons committing serious criminal offenses," including to "aid individuals who are in danger of physical harm" "assist those who cannot care for themselves," and "provide other services on an emergency basis"); see also 3 Wayne R. Lafave, Search and Seizure § 6.6(a), at 389-90 (3d ed. 1996).

In fact, both the so-called emergency doctrine and the emergency exigent circumstance exception have their genesis in People v. Amato, 193 Colo. 57, 562 P.2d 422 (1977). While the court in Amato noted that the emergency doctrine "has been treated as a variant of the exigent circumstances doctrine," Amato, 193 Colo. at 60, 562 P.2d at 424, it did not require probable cause when there was "an immediate crisis and the probability that assistance will be helpful" and the officers' "primary purpose in being there was to render assistance and not to search for evidence." Id. at 61, 562 P.2d at 424. Thus, while an emergency is an "exigency" in the sense that police must respond to a crisis "requiring immediate aid or action," Webster's New International Dictionary: Unabridged 796 (1986), the use of the word "exigent" as a term of art to describe the emergency exception is misleading. An "exigent circumstance" as a term of legal art requires both the presence of the exigency and probable cause to justify a warrantless entry. Kluhsman, 980 P.2d at 534; People v. Jansen, 713 P.2d 907, 911 (Colo.1986). Thus, defining the emergency aid exception as an "exigent circumstance" is erroneous because a true emergency situation does not require probable cause that contraband or other evidence of eriminal activity is located at a particular place. We therefore make clear that a colorable claim of an emergency threatening the life or safety of another (the emergency aid exception) is an exception to both the warrant requirement and the usual probable cause requirement.

However, several important limitations apply when police effect a warrantless entry under the emergency aid exception. Though police need not have probable cause to believe that contraband or other evidence of criminal activity is located at a particular place, to justify a warrantless search under the emergency aid exception, police must have a reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. See State v. Fisher, 141 Ariz. 227, 686 P.2d 750, 760-61 (1984), overruled in part on other grounds by State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998); State v. Plant, 236 Neb. 317, 461 N.W.2d 253, 262 (1990); People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607, 609 (1976); Lubenow v. North Dakota State Highway Comm'r, 438 N.W.2d 528, 533 (N.D.1989); see also 3 Lafave, supra, § 6.6(a) at 393. In fact, the emergency aid exception does not give police officers carte blanch to make a warrantless entry whenever there is a theoretical possibility that another's life or safety is in danger; rather, there must be a colorable claim that another's life or safety is in danger. We emphasize that the emergency aid exception to the Warrant Clause requires both an immediate crisis and the probability that assistance will be helpful. People v. Smith, 40 P.3d 1287, 1290 (Colo.2002); Amato, 193 Colo. at 60, 562 P.2d at 424.

Moreover, we note that the prosecution has the burden of proving that the intrusion was necessary given the cireum-stances of the case. Smith, 40 P.3d at 1289; People v. Wright, 804 P.2d 866, 869 (Colo.1991). To determine whether the prosecution has met its burden, a court must examine the totality of the cireumstances as they would have appeared to a "prudent and trained police officer" at the time the decision to conduct the warrantless search is made. Smith, 40 P.3d at 1290; People v. Malczewski, 744 P.2d 62, 66 (Colo.1987). Finally, a search justified by the emergency aid exception is limited by the nature of the emergency, and courts must not condone a general exploratory search. Smith, 40 P.3d at 1290; People v. Harper, 902 P.2d 842, 845 (Colo.1995).

III. THE POLICE OFFICERS' WAR-RANTLESS ENTRY WAS NOT JUSTIFIED BY THE EMERGENCY AID EXCEPTION BECAUSE NO IMMEDIATE CRISIS EXISTED

In the framework of a suppression appeal, we defer to a trial court's historical findings of fact, but review de novo the court's application of legal standards to those facts. Smith, 40 P.3d at 1290. Our independent review of the record demonstrates that the trial court's factual findings are supported by the record; thus, the question before us is whether those facts constitute an emergency, and our review is de novo.

We first analyze whether the situation-as it would have been objectively examined by a prudent and trained police officer presented an immediate crisis justifying the officers' initial warrantless entry into Defendant's home. We find no immediate crisis. Accordingly, we need not analyze whether police assistance would have been helpful.

It is clear that the police officers in this case were not responding to the kind of immediate crisis that would justify a war-rantless search. Sergeant Fetrow testified that the possibility that someone was injured or hurt inside the home was within the "realm of possibility." (R. at v. II, p. 37.) However, to justify a warrantless search and its corresponding intrusion into the privacy of one's home, police must have more than theoretical validation for their actions. Though Sergeant Fetrow admitted that emergencies generally require police to check for victims "as soon as possible, because the longer you wait the more dangerous it is you will lose somebody," (R. at v. II, p. 65), and though officers conducting surveillance were instructed to "keep an eye on the house," the officers were not directed to search for potential victims. In fact, police did not enter the house until an hour to an hour and a half after the discovery of the body by police. This significant lag time indicates that there was no immediate crisis justifying the warrantless entry.

Furthermore, police did not see signs of broken windows or forced entry and did not note any type of commotion at the residence. Indeed, one experienced officer, Sergeant Smith, even testified, "I saw no activity at the house to indicate there would be somebody in the house." (R. at v. II, p. 153.) "Everything appeared normal and secure," Smith said. (R. at v. II, p. 134.) In fact, police officers were advised by neighbors that Defendant and Carol Hebert were the only residents of the home, and police had no information that anyone else lived there or was there. In addition, when Defendant emerged from the house he did not appear to have been in an altercation, did not appear to have blood on his body or clothes, and did not attempt to flee.

This case is quite unlike others where we have ruled that an emergency validated police officers' warrantless entry and cursory search of a residence. For example, in People v. Thompson, 770 P.2d 1282 (Colo.1989), police responded to a call of a domestic dispute and upon arriving on the seene observed spent casings in front of the house, broken glass around the door, and blood on the porch and on an occupant's face and clothing. Id. at 1285-86. Though the apparent victim of the domestic violence assured police that she was fine, we reasoned that the casings, broken glass, and blood could have led a reasonable police officer to believe that the women's statements were made under duress and that she was seriously injured and other injured persons might be located on the premises. Thus, we found that an emergency justified the warrantless entry and limited search of the defendant's residence. Id. at 1286. Here, in contrast, police observed no broken glass, blood, commotion or other signs of an immediate crisis justifying their warrantless entry into Defendant's home.

In addition, though police claim that it was in the "realm of possibilit[ies]," (R. at v. II, p. 37), that injured victims were in Defendant's residence, this claim is unsubstantiated by any concrete facts. Thus, this case is unlike People v. Kluhsman where we ruled that the emergency exception justified police officers' entry into the defendant's residence to search for injured persons based on the defendant's blood-streaked appearance and statements that "people had been chasing him all night," that "they were trying to kill him," that "he had killed a couple of his pursuers," and that there were many people in his home that "had engaged in sexual acts and urinated inside the house." Kluhsman, 980 P.2d at 532, 535. In contrast, Defendant in this case did not look like he had been in an altercation, did not appear to have blood on his clothes or body, and did not make any statements that would lead the police to believe that others might be hurt inside Defendant's home. Accordingly, we hold that no immediate crisis justified the police officers' warrantless entry into Defendant's residence, and therefore, the information obtained during this entry-including evidence of blood droplets in the house and on the sidewalk to the garage-was unconstitutionally seized.

IV. PROBABLE CAUSE TO SUPPORT SEARCH WARRANT

It is well-established that police can not use information obtained solely by unconstitutional means to supply probable cause to support a search warrant. Bartley v. People, 817 P.2d 1029, 1033 (Colo.1991). Therefore, we must determine whether the legally obtained information in the affidavit is sufficient, independent of the so-called blood evidence, to establish probable cause. Id. ("Where an affidavit includes illegally obtained evidence as well as evidence derived from independent and lawful sources, a valid search warrant may issue if the lawfully obtained evidence, considered by itself, establishes probable cause to issue the warrant.")

We note that a magistrate's probable cause determination is typically given "great deference" and is not reviewed de novo. People v. Gall, 30 P.3d 145, 150 (Colo.2001); People v. Pate, 878 P.2d 685, 690 (Colo.1994). Rather, the usual question for a reviewing court is whether the issuing magistrate had a "substantial basis" for issuing the search warrant and not whether the reviewing court would have found probable cause in the first instance. Gall, 30 P.3d at 150. In the usual case, doubts must be resolved in favor of a magistrate's determination of probable cause because such deference supports the preference for police to seek a judicial determination of probable cause, rather than resorting to warrantless searches in the hope of relying on consent or another exception to the warrant requirement that might develop at the time of the search. Gall, 30 P.3d at 150; Pate, 878 P.2d at 690.

However, review of a redacted affidavit presents a different situation. As noted, in the typical case, police present an affidavit to a magistrate who makes a probable cause determination based on the facts averred in the affidavit In the case of a redacted affidavit, in contrast, the magistrate never had the opportunity in the first place to consider the exact mix of facts remaining and now before the court. Accordingly, we hold that de novo review is the proper standard for an appellate court to apply to determine whether a redacted affidavit is sufficient to establish probable cause. See Feigin v. Digital Interactive Assocs., 987 P.2d 876, 880 (Colo.App.1999) ("[Rleview of the determination by a trial court that an affidavit establishes probable cause after erroneous information is redacted, or it is supplemented with exculpatory information, pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), is de novo."); see also, e.g., United States v. Blount, 98 F.3d 1489, 1495 (5th Cir.1996), reh'g granted, rev'd in part on other grounds, United States v. Blount, 123 F.3d 831 (5th Cir.1997) (en bane) ("In cases involving the use in a warrant affidavit of unconstitutionally obtained information, we first consider the propriety of the antecedent searches and seizures, excise from the warrant affidavit any tainted information, and then review that remaining de novo to determine the existence vel non of probable cause for issuance of the warrant."); cf. United States v. Elliott, 893 F.2d 220, 222 (9th Cir.1990) (In most instances a magistrate's finding of probable cause will not be overturned unless clearly erroneous; however, when an affidavit must be redacted because it was supported by false statements, the magistrate's discretion was vitiated by fraud and the question turns on the legal effect of the correct facts, warranting de novo review.); State v. Buccini, 167 Ariz. 550, 810 P.2d 178, 183-84 (1991) (same). But cf. United States v. Grandstaff, 813 F.2d 1353, 1355 (9th Cir.1987) ("Because the affidavit presented to the magistrate contained such [illegally obtained] information the question becomes whether the affidavit, purged of the illegally obtained information, still affords the magistrate a substantial basis for concluding that a search would uncover evidence of wrongdoing.")

The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution prohibit the issuance of a search warrant without probable cause supported by oath or affirmation particularly describing the place to be searched or the things to be seized. U.S. Const. amend. IV; Colo. Const., art. II, § 7. "Probable cause exists when an affidavit for a search warrant alleges sufficient facts to warrant a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched." People v. Quintana, 785 P.2d 934, 937 (Colo.1990).

The affidavit must supply a "sufficient nexus between criminal activity, the things to be seized, and the place to be searched." People v. Kazmierski, 25 P.3d 1207, 1211 (Colo.2001). However, "the link between suspected criminal activity and a specific location to be searched may be established by cireumstantial evidence and proper inferences drawn therefrom." People v. Hakel, 870 P.2d 1224, 1229 (Colo.1994).

A reviewing court must make its determination of probable cause on the basis of information contained within the four corners of the affidavit. People v. Randolph, 4 P.3d 477, 481 (Colo.2000). In examining whether probable cause supported a warrant, an affidavit must be interpreted in a "common sense and realistic fashion." Bartley, 817 P.2d at 1033. Given the importance of obtaining a search warrant, a search under a warrant may be sustained where one without it may fail. Illinois v. Gates, 462 U.S. 213, 237, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ("[Allthough in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants."); United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (strongly supporting the preference to be accorded searches under a warrant, and recognizing that in doubtful or marginal cases a search under a warrant may be sustainable where without one it would fall). Furthermore, even though the facts alleged in an affidavit may be consistent with an innocent explanation, "[al combination of otherwise lawful circumstances may well lead to a legitimate inference of criminal activity." People v. Altman, 960 P.2d 1164, 1171 (Colo.1998); see also Gates, 462 U.S. at 243 n. 13, 103 S.Ct. 2317 ("[IInnocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens' demands.")

V. THE REDACTED AFFIDAVIT SUPPORTS A FINDING OF PROBABLE CAUSE

We now proceed to evaluate whether the redacted affidavit established probable cause to support the search warrant. Because we must restrict our probable cause analysis to the four corners of the affidavit, we begin by omitting from the affidavit the information obtained during the unconstitutional warrant-less search of the Hebert residence and outlining the remaining alleged facts. The remaining information follows:

, 1. Police officers discover an unidentified Caucasian female body in the trunk of a car at 1597 Valentia Street.
2.The victim's head shows indications of trauma to the front and back. It appears to be a blunt force type injury.
3.The victim is wearing one sandal; her eyeglasses are askew on her head; and she has grease or oil on her pants.
4.A motor vehicle report indicates that the vehicle's license plates list to Carol Hebert at 655 South Monroe Way in Denver. Carol Hebert's driver's license description matches that of the victim.
5.Two witnesses saw the car parked and running at the Valentia Street location all day on April 12. They decided to attempt to contact the owner, discovered the body in the trunk, and called police.
6.Officers responded to 655 South Monroe Way. They observed a 1991 Honda four door car with a license plate listing to Carol and Hal Hebert at the residence.
7.Charles Anderson, a neighbor living at 670 South Monroe Way, told police at the South Monroe location that he had seen Defendant backing the white Toyota into the garage of the residence at about 5:00 p.m. on April 11, 2001. Anderson told police that he believed Defendant's actions were unusual because Defendant did not drive the white Toyota. Anderson said that Carol Hebert usually drove that vehicle. He also thought it was unusual for Defendant to back the car into the garage.
8.At about 2:45 a.m. on April 12, Officer Tim Blair observed Defendant talking to Officers Ron Hughes and Tim Seud-der. He described Defendant as agitated, ranting about missing people and how his wife was missing. Officer Blair believed the officers speaking to Defendant were concerned enough about his actions to step closer to him in order to protect themselves. The officers gave Defendant information about the missing persons unit and he left.
9.John Mason, Defendant's best friend, spoke with Defendant at midnight on the night of April 11. Defendant asked Mason if he had seen Carol Hebert. Defendant said she had left for the shopping mall at 6 pm. He fell asleep at 8 p.m. and when he awoke at midnight he discovered she was not home. Mr. Mason told Defendant that he had not seen Carol Hebert. Mason asked Defendant if he had called police and Defendant responded that he had, but that it does no good.

Whether the redacted affidavit demonstrates the existence of probable cause presents a close question; however, given the preference accorded to warrants in "doubtful or marginal cases," (Gates, 462 U.S. at 237, 103 S.Ct. 2317, and because there are sufficient facts remaining in the affidavit to warrant a person of reasonable caution to believe that contraband or evidence of eriminal activity was located at 655 South Monroe Way, we hold that sufficient probable cause existed to support the search warrant on April 12, 2001 and October 2, 2001.

We reject Defendant's argument that the affidavit contained no information that a see-ond crime seene existed and that it failed to establish a nexus between the erime and the Hebert residence. Though there is no direct information establishing a connection between the alleged murder and the residence at 655 South Monroe Way, substantial circumstantial information and reasonable, commonsense inferences drawn from that information, establish the requisite nexus.

Police did not randomly connect eriminal activity to the Hebert residence; rather they associated concrete, suspicious activity with "practical" and "commonsense conclusions about human behavior," Gates, 462 U.S. at 231, 103 S.Ct. 2317, to support the search warrant. In this case, the last place Carol Hebert was seen was at her residence the night before a body matching her description was found in her parked, running car. Moreover, at 5 p.m. on April 11, the night before the body was found, a neighbor observed Defendant backing Carol Hebert's car into the garage. The neighbor told police that it was unusual for Defendant to drive his wife's vehicle and unusual for him to back it into the garage. Later, around midnight on the evening of April 11, Defendant told Mason, his best friend, that Defendant's wife-who he claimed had gone shopping at 6 p.m. on April 11-was missing. Police also saw Defendant at a police substation, complaining that his wife was missing. Finally, witnesses reported that Carol Hebert's car was parked and running at the Valentia Street location "all day" on April 12. Though no direct evidence ties criminal activity to the Hebert residence, it is rational to infer that the victim's body was taken to the Valentia Street location from the Hebert residence in the trunk of her car sometime between 5 p.m. on April 11 and the morning of April 12. This explanation comports with other key facts from the affidavit the fact that the victim was wearing only one shoe; that she had oil on the back of her pants; and that her glasses were askew on her head support a reasonable inference that her body had been moved from a different crime location.

Thus the timeline, Defendant's unusual activity, the fact that Carol Hebert was last seen-according to Defendant-at the residence only one hour after Defendant's unusual action, and the victim's physical state within the trunk all support a reasonable inference that criminal activity occurred at the home and supply the necessary nexus linking Defendant's home to criminal activity.

Again, our conclusion that the affidavit demonstrates the existence of probable cause is bolstered by the preference accorded to warrants, Gates, 462 U.S. at 237, 103 S.Ct. 2317, and the strong cireumstantial evidence that the victim was allegedly murdered at the residence.

VI. CONCLUSION

In sum, we hold that the police officers' initial warrantless entry into the Hebert residence was not justified by the emergency aid exception to the warrant clause of the Fourth Amendment to the United States Constitution and of article II, section 7 of the Colorado Constitution. After redacting the unconstitutionally obtained information from the affidavit, we also hold that the remaining information within the four corners of the affidavit was sufficient to establish probable cause to issue the search warrant. Accordingly, we reverse the trial court and remand the case for further proceedings consistent with this opinion.

      . This interlocutory appeal is brought pursuant to section 16-12-102(2), 6 C.R.S. (2001) and CAR. 4.1.

      . Police submitted an affidavit for a second search warrant on October 2, 2001, which the court issued. The information contained in the second affidavit is identical to the first, except that it also contains information obtained from the search pursuant to the first warrant. Accordingly, since we hold that there was probable cause to support the warrant issued on April 12, there was necessarily probable cause to support the October 2 warrant as well.

      . Police had not yet positively identified the body at the time of the warrantless entry or at the time the initial search warrant was executed. However, the victim's body was found in Carol Hebert's car and matched her description.

      . In Kluhsman, we found that the police officers' decision to enter the defendant's home and search for injured people was justified under both the emergency exception of the "exigent circumstances" doctrine and the "emergency doctrine." Kluhsman, 980 P.2d at 535, 535 n. 7.

      . However, we stress that to justify a warrantless entry under the hot pursuit and destruction of evidence exigency exceptions, the People must show both probable cause and the existence of the exigency. Winpigler, 8 P.3d at 443-44.

      . For example, in Kluksman we noted that "a colorable claim of emergency threatening the life or safety of another" is an "exigent circumstance[ ]" justifying a warrantless search. 980 P.2d at 534. As support for that proposition, we cited People v. Lewis, 975 P.2d 160, 168 (Colo.1999). Recreating the chain of support, one is ultimately led to Amato as the foundation for the "colorable claim of an emergency'' exception. Likewise, in Winpigler, another recent case analyzing a "colorable claim of an emergency as an exigent circumstance, Amato ultimately serves as the support for the exception.

      . Because we conclude that the affidavit was sufficient to establish probable cause, we need not address the People's argument that the trial court erred by refusing to consider the good-faith exception to the exclusionary rule.


author: Judge VOGT.

text:
    Eileen F. PERO, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE of Colorado and MediaOne of Delaware, Inc., Respondents.
    No. 01CA1841.
    Colorado Court of Appeals, Div. IV.
    Feb. 28, 2002.

      Eileen F. Pero, Pro Se.
    Ken Salazar, Attorney General, Mark Ger-ganoff, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
    No Appearance for Respondent MediaOne of Delaware, Inc.
   Opinion by

Judge VOGT.

In this unemployment benefits case, petitioner, Eileen F. Pero (claimant), seeks review of a final order of the Industrial Claim Appeals Office (Panel). The Panel upheld a hearing officer's decision that a lump sum payment received by claimant in connection with her separation from employment with MediaOne of Delaware, Inc. (employer), constituted a "severance allowance" under the statutory scheme governing her unemployment claim. We affirm.

Claimant received a lump sum payment of $43,362.69, the equivalent of thirty-nine weeks of her salary, upon her separation from employment. This payment was deemed a severance allowance under § 8-73-110(1), C.R.S.2001, thereby reducing claimant's eligibility for unemployment benefits in accordance with §§ 8-73-107(1)(f) & 8-73-110(1)(a)(III), C.R.S.2001.

Following a hearing, the hearing officer modified and affirmed the administrative decision as to weeks of disallowance and affirmed the decision as to reduction in maximum benefits payable. The Panel affirmed.

I.

Claimant argues on appeal that, because she was required to sign a waiver or release of any claims against her employer in order to receive this lump sum payment, the payment cannot be considered a severance allowance under Moore v. Digital Equipment Corp., 868 P.2d 1170 (Colo.App.1994). We disagree.

Pursuant to § 8-73-110(1)(b), C.R.S.2001, any remuneration received by a claimant as "compensation for weeks not worked after separation" is deemed to be a severance allowance if it is specified as a dollar amount or as a number of weeks.

In Moore, a division of this court held that payments to employees upon their termination were not "severance allowances" within the meaning of § 8-73-110(1) because the primary purpose of the payments was to obtain a release of claims.

Claimant's reliance on Moore is misplaced. First, after that case was decided, § 8-73-110(1) was amended. It now provides that the inclusion in a separation agreement of "other settlement considerations that are not severance allowances" does not affect the status of remuneration as a severance allowance. See 1996 Colo. Sess. Laws ch. 9, § 8-73-110(1)(b) at 28.

Second, in contrast to Moors, the hearing officer in this case found that the primary purpose of the payment was not to obtain a release of claims, but to provide additional compensation after separation.

There is evidence in the record to support that factual determination. Employer's witness testified that "the biggest motivation" for the payment was to provide "a decent cushion" to displaced employees. Moreover, the separation agreement itself refers to this payment as "severance pay" provided by employer to assist claimant in her transition from her job. In its written response to the initial claim, employer also checked the box designating this payment as a severance al-lowanee intended to compensate claimant for weeks not worked after separation. Finally, although the separation agreement required claimant to waive any claims against employer, there is no indication that she had any such claims or that the amount paid represented anything other than the number of weeks of salary to which she was entitled.

Because there was substantial evidence to support the hearing officer's findings concerning the purpose of the lump sum payment, these findings are binding on review. See § 8-74-107(4), C.R.S.2001; Tilley v. Indus. Claim Appeals Office, 924 P.2d 1173 (Colo.App.1996). The Panel thus properly upheld the hearing officer's resolution of this issue.

IL

Claimant's arguments concerning allegedly inconsistent administrative rulings in other unemployment cases likewise provide no basis for overturning the hearing officer's determination in this case.

Our review, like that of the Panel, is restricted to the evidence in the record made before the hearing officer in this case. See § 8-74-107, C.R.S.2001. Contrary to claimant's suggestion, we have no access to, and in any event may not consider, the administrative records of claimants whose cases are not before us.

Other than a hearing officer's decision in a related case, in which employer did not appear, there is no evidence in this record of the circumstances surrounding the other employees' asserted receipt of unemployment benefits. Nor is there evidence that any disparate awards were based on age or gender discrimination, as claimant contends.

Because the record in this case supports the hearing officer's ruling that claimant's payment was a severance allowance, that determination must be sustained on review, regardless of the disposition of any similar issues in separate cases involving other claimants.

The Panel's order is affirmed.

Judge MARQUEZ and Judge TAUBMAN concur.


author: Judge WEBB.

text:
    Pablo QUIROZ and Irene Quiroz, Plaintiffs-Appellants, v. John S. GOFF, M.D., Defendant-Appellee.
    No. 01CA0450.
    Colorado Court of Appeals, Div. II.
    March 14, 2002.

      Cristiano & Associates, Francis V. Cristi-ano, Denver, CO, for Plaintiffs-Appellants.
    Johnson, MeConaty & Sargent, P.C., Craig A. Sargent, CHendale, CO, for Defendant, Appellee.
   Opinion by

Judge WEBB.

In this medical malpractice action, plaintiffs, Irene Quiroz and Pablo Quiroz, appeal the trial court's grant of judgment on the pleadings in favor of defendant, John S. Goff, M.D. We reverse and remand.

Plaintiffs filed a pro se complaint for medical negligence against Goff and several other doctors. The complaint contained an attorney's certification pursuant to C.R.C.P. 11(b) stating that he had assisted plaintiffs in preparing the complaint and that to the best of his knowledge the complaint was well grounded in fact, but that he did not intend to enter an appearance on their behalf.

Later, the attorney prepared and caused to be served a summons on each defendant. Each summons was signed by the attorney with the words "Attorneys for Plaintiffs" at the bottom of the signature block.

Pursuant to C.R.C.P. 12(c), Goff moved for judgment on the pleadings, arguing that the applicable statute of limitations had run and barred plaintiffs' action. Goff sent a copy of the motion and supporting brief to plaintiffs, but not to the attorney. Plaintiffs failed to respond to the motion, which the trial court granted without explanation shortly after the due date for a response.

Plaintiffs promptly filed a verified motion for reconsideration, asserting that Goff had violated C.R.C.P. 5(b) by failing to provide their counsel with a copy of his motion and brief. Plaintiffs argued that their counsel had made an appearance by preparing the summons and that he was clearly representing them. Accordingly, plaintiffs argued that the trial court erred if it had granted Goff's motion based on their failure to file a response. Plaintiffs also argued that if the trial court had granted Goff's motion on its merits, then the ruling was in error.

The trial court denied plaintiffs' motion for reconsideration, again without explanation. At plaintiffs' request, the trial court certified its order as final pursuant to C.R.C.P. 54(b). This appeal followed.

Plaintiffs contend that the trial court erred in granting Goff's motion to dismiss, whether based on their failure to file a response or on the running of the applicable statute of limitations. We agree.

I.

C.R.C.P. 121 § 1-15(3), permits, but does not require, that failure to file a responsive brief "be considered a confession of the motion." Moreover, the failure of the nonmoving party to present affidavits or other evidentiary materials opposing a motion for summary judgment does not alone provide a proper basis for the entry of a judgment. See Murphy v. Dairyland Ins. Co., 747 P.2d 691, 693 (Colo.App.1987)(the trial court abused its discretion by granting summary judgment because the nonmoving party was late in filing a response). We conclude that this rule should apply equally to motions for judgment on the pleadings.

For these reasons, we review the trial court's order as a determination on the merits of the motion. We need not and do not decide whether defendant violated C.R.C.P. 5(b).

IL

Whether the statute of limitations bars a particular claim is normally a question of fact. See Mastro v. Brodie, 682 P.2d 1162, 1169 (Colo.1984). Where material facts are disputed, judgment on the pleadings is not appropriate. See Koch v. Whitten, 140 Colo. 109, 113, 342 P.2d 1011, 1013 (1959). Our review of an order granting a motion for judgment on the pleadings is de novo. See Connecticut Gen. Life Ins. Co. v. A.A.A. Waterproofing, Inc., 911 P.2d 684, 687 (Colo.App.1995), aff'd sub nom. Constitution Assocs. v. New Hampshire Ins. Co., 930 P.2d 556 (Colo.1996).

The parties agree that the applicable statute of limitations requires this action to have been filed within two years from the date it accrued. See § 13-80-102.5, C.R.S.2001. They dispute when the claims against Goff accrued. Here, that determination must be made from the face of the complaint, construed strictly against Goff, as the moving party. See Abts v. Board of Education, 622 P.2d 518, 522 n. 5 (Colo.1980). Hence, we first examine the complaint.

Plaintiffs' complaint alleges that in 1997, Mr. Quiroz sought treatment from Goff and a general surgeon, who is also a defendant, following several weeks of abdominal pain; that Goff ordered extensive tests, which showed an inflammatory mass left over from previous appendix surgery; and that, "(Jn-testinal angina was thus, negligently not included as part of the differential diagnosis."

The complaint further alleges that on January 7, 1998, Mr. Quiroz underwent surgery to remove the inflammatory mass, performed by defendant surgeon. Mr. Quiroz continued to suffer, and defendant surgeon performed additional surgery on January 14, 1998, "with the discovery of extensive dead bowel, which was proximately caused by the delay in diagnosis of the intestinal ischemia." On January 15, defendant surgeon and another of defendant doctors performed further surgery, during which they attempted to connect Mr. Quiroz's large and small intestines.

According to the complaint, Mr. Quirog's condition continued to deteriorate. On February 10, 1999, he went to a gastroenterologist, who discovered that during the January 1998 surgeries, defendant doctors (other than Goff) had negligently misconnected Mr. Qui-rog's large and small intestines.

Under § 13-80-102.5, a cause of action accrues on the date when both the injury and its cause are known or should have been known by the exercise of reasonable diligence. See also § 13-80-108(1), C.R.S.2001; Mastro v. Brodie, supra, 682 P.2d at 1168 ("statute of limitations begins to run when the claimant 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"); Short v. Downs, 36 Colo.App. 109, 113, 537 P.2d 754, 757 (1975)(claim for relief does not accrue "until the plaintiff, as a lay person, discovers, or in the exercise of reasonable diligence, should have discovered that the physician was negligent according to the standards prevailing in the community for members of his profession").

These cases reflect Colorado's general application of the discovery rule. As the supreme court has explained:

There are a number of reasons why the word "accrued" should be equated with the "discovery rule"; first, the injustice of barring the plaintiff's action before he could reasonably have been aware that he had a claim is patent. "* * "*In many cases, he will or should know at the time of or soon after the wrongful act that he has been the victim of negligent medical care; in other settings of fact it may be impossible for him, as a layman, unskilled in medicine, reasonably to understand or appreciate that actionable harm has been done him. If this is fairly the fact, we think he should have the statutory time from the moment of discovery, the moment he knows or should know he has a cause of action, within which to sue."

Owens v. Brochner, 172 Colo. 525, 530-31, 474 P.2d 603, 606 (1970)(emphasis supplied)(quoting Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966). In cases where a physician has concealed his or her negligence, the cause of action does not accrue until the patient discovers or should have discovered the negligence. Owens v. Brochner, supra, 172 Colo. at 529, 474 P.2d at 605.

In moving for judgment on the pleadings, Goff argued that the statute of limitations on plaintiffs' claim for failure to diagnose intestinal angina began to run on January 14, 1998, when the intestinal ischemia was discovered and dead bowel was removed. Because the complaint was not filed until June 9, 2000, more than two years later, in his view the action as against him was barred by § 13-80-102.5.

According to plaintiffs, Mr. Quiroz did not become aware that he had received negligent care until he met with the gastroenterologist on February 10, 1999. Because the complaint was filed within two years of that date, plaintiffs argue that it was timely.

Based only on the allegations of the complaint, we cannot conclude that the cause of action for Goff's alleged misdiagnosis of "intestinal angina" accrued when defendant surgeon discovered that Mr. Quiroz was suffering from "intestinal ischemia." The complaint uses both of these medical terms, but does not specifically allege how one relates to the other, and we construe the allegations strictly against Goff.

Goff relies on Crownover v. Gleichman, 194 Colo, 48, 51, 574 P.2d 497, 499 (1977), which affirmed a summary judgment-not a judgment on the pleadings-on the basis that the statute of limitations runs from the date of the wrongful act, not from the date of death, in wrongful death claims. We are not persuaded that Crownover controls here.

In Crownover, the decedent went to defendant doctor specifically to examine her X-rays for cancer. Defendant doctor failed to discover the cancer. Much later, a second doctor found cancer during surgery. The supreme court held that the wrongful death cause of action for failure to discover the cancer accrued when the decedent underwent surgery. The statute of limitations at issue in Crownover includes the phrase "from the commission of the alleged negligence," which differs from the statute of limitations before us, "after the date that such action accrues."

Moreover, in Crownover, the parties apparently did not dispute the factual significance of the second doctor's findings. Here, in contrast, the complaint does not state that when Mr. Quiroz first sought medical treatment, he knew the cause of his abdominal pain to be "intestinal angina." Also, the complaint does not allege that when defendant surgeon later diagnosed "intestinal ischemia," either Mr. Quiroz was informed by defendant surgeon, or as a layman he understood, the ischemia to be a consequence of his undetected intestinal angina.

Nor does the complaint allege that defendant surgeon knew or should have known that the cause of the ischemia was delay in diagnosis of intestinal angina. Indeed, according to the complaint, Mr. Quiroz initially "presented to both Goff and [defendant surgeon] with several weeks of abdominal pain of unknown cause." Given his status as a codefendant, we cannot say that whatever knowledge defendant surgeon had must be imputed to Mr. Quiroz. Concealment, which at this nascent stage of the proceedings cannot be foreclosed, would make defendant surgeon's knowledge irrelevant as a matter of law in determining when the cause of action against Goff accrued. See Owens v. Brochner, supra, 172 Colo. at 530-31, 474 P.2d at 606.

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

Judge PLANK and Judge JONES, concur.


author: Judge CASEBOLT.

text:
    AMERICAN FAMILY MUTUAL INSURANCE CO., Plaintiff-Appellant, v. CENTURA HEALTH-ST. ANTHONY CENTRAL HOSPITAL, Defendant-Appellee.
    No. 01CA0252.
    Colorado Court of Appeals, Div. V.
    March 14, 2002.

      Law Office of Roger Moore, Roger Moore, Harinder H. Garcha, Denver, Colorado, for Plaintiff-Appellant.
    Law Firm of Ann E. Edelman, LLC, Ann E. Edelman, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge CASEBOLT.

In this dispute concerning payment of medical expenses, plaintiff, American Family Mutual Insurance Co. (insurer), appeals the judgment of dismissal on its claim for an accounting and unjust enrichment against defendant, Centura Health St. Anthony Central Hospital (hospital). Insurer also appeals the award of attorney fees to hospital. We reverse and remand.

The following facts are undisputed. Hospital provided treatment for a patient who was injured in a car accident. Insurer provided no-fault insurance coverage, including personal injury protection (PIP) benefits, for the patient. Although the accident related to the patient's employment, the workers' compensation (WC) insurance carrier for patient's employer initially denied liability. Faced with this denial of liability, insurer paid hospital $22,666 of the $47,409 hospital had billed. Once the accident was found compensable under the Workers' Compensation Act, the WC carrier paid the hospital the sum of $16,720.

In its second amended complaint, insurer alleged that the WC carrier had applied the workers' compensation fee scheduling medical payment guidelines under § 8-42-101(3)(a)(I), C.R.S.2001, to hospital's bill, and that the full amount due to hospital for its services was $16,720. Thus, insurer alleged that hospital was unjustly enriched because it had been overpaid. Insurer asserted it was entitled to repayment from hospital.

Hospital filed a motion to dismiss the claim for unjust enrichment, asserting that insurer should look to the WC carrier for any reimbursement. Alternatively, hospital claimed that it had not been paid twice because the WC carrier had paid the remaining balance due on the fee-scheduled bill after taking into account the insurer's payment. Exhibits attached to the motion included the hospital bill, a computer printout of payment information, and an affidavit of hospital's billing manager explaining its billing procedures.

In response to the motion to dismiss, insurer asserted that, because the WC insurance was primary, reimbursement from hospital was proper. It also argued that neither hospital nor the WC carrier had submitted the fee-scheduling documents showing how the medical bill had been adjusted. Insurer requested that, in the event the court converted the motion to dismiss to a motion for summary judgment, the court grant it leave to file "appropriate supplementary pleadings containing affidavits and documents."

Hospital then requested and received an extension of time to consider new evidence submitted by insurer in support of the unjust enrichment claim. The new evidence, which was submitted in conjunction with tangential proceedings, consisted of a review of the hospital bill by an independent company hired by insurer. That entity initially adjusted the bill to between $11,050 and $18,700 pursuant to the fee schedule.

The independent adjuster's calculations were challenged, and it later corrected the fee-scheduled amount due to $39,910.29. Without introducing this new material, hospital then requested the court to rule on the motion to dismiss. It specifically requested the court to consider the motion without reference to the extrinsic evidence attached to its motion. Nevertheless, the court apparently denied this request, because it treated the motion as one for summary judgment. The court then granted summary judgment by adopting hospital's reasoning.

Hospital thereafter sought sanctions pursuant to C.R.C.P. 11 and § 13-17-102, C.R.S. 2001, arguing that, because insurer had failed to obtain a correct fee-scheduled bill before filing the second amended complaint, the complaint was filed on speculation, therefore violating the requirements of C.R.C.P. 11. The court awarded hospital attorney fees in the amount of $8000. This appeal followed.

L.

Initially, hospital argues that the appeal of the dismissal of the unjust enrichment claim is moot because insurer's own expert, the independent company performing the fee scheduling, determined that the claim has no factual basis. Specifically, hospital asserts that, because the adjuster eventually fee-scheduled the bill to $39,910.29, and the two insurance payments totaled only $39,386, the hospital had actually been underpaid. We conclude that the issue is not moot.

When a judgment cannot have any practical legal effect upon an existing controversy, the issue is moot. Davidson v. Comm. for Gail Schoettler, Inc., 24 P.3d 621 (Colo.2001). When an issue becomes moot because of subsequent events, an appellate court will decline to render an opinion as to the merits of an appeal. Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d 1095 (Colo.1998).

Here, the record discloses that the WC carrier averred in its answer to the second amended complaint that there was a private agreement between itself and hospital that affected the total amount due for the patient's medical bills, In addition, the corrected fee schedule was not filed with the court until four months after the claim was dismissed and therefore could not have been considered by the trial court. And, we may not consider it on appeal. See McDonald v. Lakewood Country Club, 170 Colo. 355, 461 P.2d 437 (1969) (upon review, the appellate court is in the same position as the trial court).

Furthermore, the "corrected" fee schedule is not necessarily dispositive. We may not speculate as to whether it is subject to rebuttal or additional modification. Accordingly, the appeal is not moot.

IL.

The trial court granted summary judgment on alternative grounds. First, it held that the claim for unjust enrichment did not set forth a viable claim for relief against hospital. Insurer argues that the court erred in so determining. We agree.

The workers' compensation fee schedule applies to all medical and hospital treatment rendered to an employee under the Workers' Compensation Act. As relevant here, under § 8-42-101(3)(a)(I):

[It is unlawful, void, and unenforceable as a debt for any physician, chiropractor, hospital, person, or institution to contract with, bill, or charge any patient for services, rendered in connection with injuries coming within the purview of this article or an applicable fee schedule, which are or may be in excess of said fee schedule unless such charges are approved by the director.

Thus, it is unlawful for a hospital to bill a patient in a workers' compensation case for fees in excess of those mandated by the fee schedule. However, a PIP insurer may not use this fee schedule to determine the amount of fees it must pay. Instead, it must pay in full for reasonable and necessary charges. See Norwood v. Allied Group, Inc., 942 F.Supp. 477 (D.Colo.1996).

Further, if a WC carrier initially denies liability for medical expenses of its putative insured, a PIP insurer is bound promptly to pay benefits covering such expenses under its policy. See § 10-4-708(1), C.R.S.2001.

It therefore follows that, when an accident is ultimately covered by WC insurance, and a PIP insurer has paid hospital fees in excess of those mandated by the WC fee schedule, such excess fees must be reimbursed. The issue then becomes which entity is responsible for reimbursement.

Applying § 8-42-101(3)(a)(I), a division of this court has held that a WC carrier is not required to reimburse a PIP insurer for medical expenses based upon fees that exceed those authorized under the fee schedule. Employers Fire Ins. Co. v. Lumbermens Mut. Cas. Co., 964 P.2d 591 (Colo.App.1998). Accordingly, it is the medical provider that bills an unlawful and void fee that is liable to reimburse the PIP carrier for any fees paid in excess of those mandated by the fee schedule.

Hospital argues that a medical provider is not liable for refunds when a third party mistakenly makes a payment that is due, and that there is no unjust enrichment if a creditor is actually owed the money. However, this argument ignores the fee scheduling statute, which makes any amount charged in excess of the schedule void and unlawful. A void and unlawful bill cannot be considered “due.”

A claim for unjust enrichment is the appropriate vehicle for recouping fees charged in excess of those allowed by the fee schedule. Unjust enrichment occurs when (1) at the plaintiff's expense (2) the defendant received a benefit (8) under cireumstances that would make it unjust for the defendant to retain the benefit without paying. See Salzman v. Bachrach, 996 P.2d 1263 (Colo.2000).

Here, insurer's complaint adequately averred the necessary requirements for an unjust enrichment claim, and such a claim may lie against hospital under § 8-42-101(3)(a)(I). Cf. Employers Fire Ins. Co. v. Lumbermens Mut. Cas. Co., supra. Accordingly, the court incorrectly determined that the claim could only be pursued against the WC carrier.

Contrary to hospital's contention, it does not matter whether we treat its motion as a motion to dismiss or as a motion for summary judgment.

When reviewing a motion to dismiss under C.R.C.P. 12(b)(5), all averments of material fact must be accepted as true, and all of the allegations in the complaint must be viewed in the light most favorable to the plaintiff, See Pub. Serv. Co. v. Van Wyk, 27 P.3d 377 (Colo.2001).

Here, in the second amended complaint, insurer set forth the amount of the bill, the payment it made, and the payment made by the WC carrier. Insurer also averred that the WC carrier had represented that the bill had been fee-scheduled to $16,720. Contrary to the hospital's argument, the fact that insurer stated that it relied on the representation of the WC carrier cannot be construed to mean that the court may accept as true only that the WC carrier made the statement. As we read the complaint, insurer averred that the bill had been fee-scheduled to a total amount due of $16,720. Construing these allegations as true, we conclude that insurer sufficiently stated a claim.

Under a summary judgment standard, the moving party must demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251 (Colo.1995).

Here, the materials attached to hospital's motion did not establish its right to judgment as a matter of law. It submitted the hospital bill for $47,409, a computer printout of payment information, and an affidavit explaining billing procedures. None of these materials established that the proper amount had been billed under the workers' compensation fee schedule.

HIL.

The trial court's second basis for granting summary judgment was its agreement with hospital's argument that it had not been unjustly enriched because the WC carrier paid the remaining amount due on the fee-scheduled bill after taking into consideration insurer's payment. In making this argument, hospital implicitly contends that the bill was fee-scheduled to a higher amount. However, it had no evidence to support that stance, because the "corrected" fee-scheduled bill was not submitted to the court until four months after the claim was dismissed. Thus, if it is assumed that the bill had been fee-scheduled to $16,720, hospital received funds to which it was not entitled.

'Accordingly, because the two arguments made by hospital and adopted by the court are incorrect or are unsupported by the record, the court erred in dismissing the claim for unjust enrichment and an accounting.

IV.

Insurer also contends that the trial court erred in failing to provide advance notification that the motion to dismiss would be treated as a motion for summary judgment. Given our conclusion that the trial court incorrectly dismissed the claim, this argument is moot. See Davidson v. Comm. for Gail Schoettler, Inc., supra. On remand, while hospital may introduce the "corrected" fee schedule in support of its position, insurer must be allowed to conduct discovery and submit materials in opposition. See C.R.C.P. 12, 56.

v.

Insurer's final contention is that the trial court erred in awarding attorney fees. We agree. Because we reverse the underlying judgment, the award of attorney fees must likewise be reversed. See In re Marriage of Paul, 978 P.2d 136 (Colo.App.1998).

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

Judge DAVIDSON and Judge NIETO concur.


author: Judge DAILEY.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Tyrone L. WALKER, Defendant-Appellant.
    No. 01CA0123.
    Colorado Court of Appeals, Div. III.
    March 14, 2002.

      Ken Salazar, Attorney General, Deborah Isenberg Pratt, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    Tyrone L. Walker, Pro Se.
   Opinion by

Judge DAILEY.

Defendant, Tyrone L. Walker, appeals the trial court order denying his Crim. P. 35 motion for postconviction relief. We reverse and remand for further proceedings.

In exchange for the dismissal of a more serious charge, defendant pleaded guilty to attempted aggravated robbery, a class four felony under §§ 18-2-101, 18-4-302, C.R.S.2001. The record reflects that, under the plea agreement, the prosecutor was to ree-ommend a sentence in the presumptive range for the offense, two to six years in the Department of Corrections (DOC) under § 18-1-105(1)(a)(V)(A), C.R.S.2001.

Neither a written plea agreement nor a Crim. P. 11 advisement form appears in the record on appeal. However, the transcript of the providency hearing reflects that the trial court accepted defendant's guilty plea after fully advising him of the penalties he could face, including a maximum sentence of twelve years in DOC, and of the mandatory parole period of three years that would attach to whatever DOC sentence he received. The court also advised defendant that, notwithstanding the prosecution's recommendation of a presumptive range sentence, it would impose whatever sentence it deemed appropriate. Defendant indicated that he understood.

At sentencing, the trial court noted that it found the prosecution's presumptive range sentence recommendation "absolutely inexplicable." The court then imposed a sentence of ten years in DOC plus three years of mandatory parole.

Thereafter, defendant filed a pro se Crim. P. 35(c) motion, in which he alleged that his understanding of his plea agreement was that he would serve no longer than six years in DOC. He argued that the ten-year sentence he received, plus the three-year mandatory parole period, exceeded the maximum sentence he was to receive under his plea agreement. He requested that his plea agreement be enforced and that counsel be appointed to assist him. The trial court denied the motion without a hearing and without appointing counsel, finding that "Defendant was advised of parole during the providency hearing."

Defendant then filed a second pro se motion, entitled "Motion for Ilegal Sentence to Rule # 35(A)," in which he again argued that his sentence under the plea agreement was to be two to six years in DOC plus three years of mandatory parole. He argued that his plea was therefore not knowing and voluntary, and he requested that his sentence be modified to six years in DOC plus mandatory parole to conform to his understanding of his plea agreement. The trial court denied this motion "as a successive motion since it alleges substantially the same grounds as Defendant's [previous] Motion for Postconviction Relief."

On appeal, defendant contends that the trial court erred in denying his motion. We agree.

As an initial matter, we note that, under the cireumstances presented here, defendant's second motion should not have been dismissed on "successive petition" grounds.

If a motion for postconviction relief reasserts a claim that was previously raised but never decided on the merits, "it is neither successive nor abusive and, thus, absent some other procedural deficiency, should be addressed on the merits." See Watkins v. Champion, 39 F.3d 273, 275 (10th Cir.1994)(applying analogous federal habeas corpus provisions).

Here, defendant's first motion emphasized the alleged impropriety of adding a mandatory parole period to his sentence. But, it also alleged that he had, in any event, been promised a sentence of no longer than six years, which was the maximum sentence in the presumptive range for the felony to which he pleaded guilty. In ruling on defendant's motion, the court addressed only the first, and not the second, issue. Under the circumstances, defendant properly raised this see-ond issue again in his subsequent motion for postconviction relief. See Watkins v. Champion, supra. Cf. People v. Billips, 652 P.2d 1060, 1064 (Colo.1982)(defendant not precluded from pursuing in second motion for post-conviction relief matter that neither trial court nor court of appeals addressed in earlier postconviction proceeding).

When advising a defendant entering a guilty plea, a trial court is not bound by any representations made to the defendant concerning the penalty to be imposed, unless such representations are included in a formal plea agreement approved by the court and supported by the findings of any presentence report. See Crim. P. 11(b)(5). In every case, the trial court should exercise independent judgment in deciding whether to grant charge and sentence concessions. See Crim. P. 11(f)(5).

Consequently, in analyzing the sufficiency of a providency hearing advisement, it must be remembered that the trial court advises the defendant of the consequences to which the plea could subject him or her under the applicable statutes, not under the plea agreement. Furthermore, the trial court makes no representations at the provi-dency hearing that the plea agreement will be accepted. Young v. People, 30 P.3d 202, 206 (Colo.2001).

However, when a trial court rejects a plea agreement, it removes the basis upon which a guilty plea was entered and draws into question the voluntariness of the plea. Therefore, a defendant retains the right to withdraw the plea at or before the sentencing hearing if the court determines that it will not follow the sentence concessions contemplated by the plea agreement. Crim. P. 32(d); People v. Wright, 38 Colo.App. 271, 273, 559 P.2d 249, 251 (1976), aff'd, 194 Colo. 448, 573 P.2d 551 (1978).

Merely informing a defendant, pursuant to Crim. P. 11(b)(5), that the court will not be bound by any recommendation concerning sentencing does not obviate compliance with Crim. P. 32(d). Thus, as provided by that rule, if the court decides not to grant the sentence concessions contemplated by a plea agreement, it shall so advise the defendant and then call upon the defendant to either affirm or withdraw the plea of guilty. See People v. Wright, supra, 38 Colo.App. at 274, 559 P.2d at 251; see also Young v. People, supra, 30 P.3d at 209 (Martinez, J., dissenting).

Here, although defendant was advised that the trial court would determine the length of his DOC sentence notwithstanding the plea agreement, he was at no time advised that he would have the right to withdraw his guilty plea if the court chose not to accept the sentence recommendation. Cf. People v. Weed, 830 P.2d 1095, 1097 (Colo.App.1991)(trial court affirmatively advised defendant that he would be allowed to withdraw guilty plea if it rejected sentence stipulation).

Therefore, because the trial court's rejection of the sentence recommendation contained in the plea agreement calls into question the voluntariness of defendant's guilty plea, and because he was not called upon to affirm or withdraw that plea, we conclude that the case must be remanded to the trial court to allow defendant the opportunity to do so. See Chae v. People, 780 P.2d 481, 486 (Colo.1989); People v. Wright, supra, 38 Colo.App. at 274, 559 P.2d at 251.

The order is reversed, and the case is remanded to the trial court with directions to permit defendant to either withdraw or affirm his plea.

Judge NEY and Judge ROY concur.


author: BOUDREAU, J.

text:
    2002 OK 31
    JONES, GIVENS, GOTCHER & BOGAN, P.C., Plaintiff, v. Jim D. BERGER, and Tana D. Parks, Defendants/Appellant.
    No. 95,297.
    Supreme Court of Oklahoma.
    April 23, 2002.

      Debbra Gottschalk, Tulsa, OK, for the Defendant/Appellant, Jim Berger.
    Darven Brown, Ginger Brady, Tulsa, OK, for Appellees, Ted Parks, LL.C. and Ted Parks.
    Tracy Robinett, Tulsa, OK, for Appellee, David Gordon White.
   BOUDREAU, J.

11 Jim Berger (Mr. Berger or Berger) owned a house and lot in Tulsa, Oklahoma. Mr. Berger had previously claimed homestead exemption for the property shortly after his divorce from Defendant, Tana Parks Berger (Ms. Parks). Plaintiff, Jones, Givens, Gotcher & Bogan, P.C. had a claim against Jim and Tana Berger. Jones, Givens, Gotch er & Bogan, P.C. settled its claim against Ms. Parks and took a default judgment against Mr. Berger. Jones, Givens, Gotcher & Bogan, P.C. assigned its judgment against Mr. Berger to Ms. Parks' parents, Ted and Jessie Parks. Ted Parks then assigned his interest to Ted Parks, LLC. and Jessie Parks' interest became one of the assets of her estate upon her death. Ted Parks, LLC. ultimately issued execution on the judgment against the property in Tulsa, resulting in sheriffs sale proceedings. Mr. Berger objected to the sheriff's sale based on his asserted homestead exemption for the property, while the creditors contested Berger's claims of homestead exemption.

2 The trial court conducted an evidentia-ry hearing, after which it issued an order. The order found as follows:

1. Defendant established the property in question as his homestead shortly after his divorce from Tana Parks in 1998.
2. Defendant established a residence in Bella Vista, Arkansas and married again, and has been using a post office box mailing address in Bentonville, Arkansas since 1998.
3. Defendant leases the property to tenants who occupy the house as a residence on a full-time basis, although Defendant excluded "the front southwest bedroom for [his] personal office and bedroom with access to the entire home."
4. Oklahoma's homestead exemption is designed to protect the family's home as its principal residence. The evidence is both clear and convincing that Defendant no longer uses the property in question as his principal residence, and the Court has no serious doubt that the Defendant's home is not in Tulsa, Oklahoma, but in Arkansas. Although Defendant states to the contrary, the evidence of Defendant's own actions clearly shows that Arkansas is considered his principal residence and his home, and not this rented house in Tulsa, Oklahoma. (Emphasis added)
5. The property in question is no longer exempt as Defendant's homestead and is therefore subject to attachment, execution or forced sale.

Based on these findings, the trial court confirmed the sheriff's sale.

13 In confirming the sheriffs sale, the trial court focused its inquiry on identifying Berger's principal residence. In doing so, the trial court relied on a 1980 amendment to 31 O.S. § 1(A) 1, which provides the following:

Exeept as otherwise provided in this title and notwithstanding subsection B of this section, the following property shall be reserved to every person residing in the state, exempt from attachment or execution and every other species of forced sale for the payment of debts, except as herein provided:
1. The home of such person, provided that such home is the principal residence of such person. (emphasis added).

Onee the trial court found Berger no longer used the Tulsa property as his principal residence, it determined that the property could not be impressed with the homestead exemption.

T4 After the trial court's decision, Berger moved for a new trial. The trial court overruled his motion. Berger appealed the trial court's order overruling his new trial motion. The Court of Civil Appeals, with one judge dissenting, affirmed the trial court order confirming the sheriffs sale and Mr. Berger sought certiorari to this Court. In his Petition for Certiorari, Berger asserted the trial court erroneously shifted the burden of proof by requiring him to prove the home was his principal residence, instead of requiring the creditors to prove he abandoned the Tulsa property.

I. Standard of Review

15 In reviewing a trial court's decision denying a motion for new trial, the appellate court employs an abuse of discretion standard of review. State v. Vaughn, 2000 OK 63, 11 P.3d 211; Soldan v. Stone Video, 1999 OK 66, 988 P.2d 1268. Although a trial court is vested with wide discretion in denying a new trial, its order will be reversed if the trial court is deemed to have erred with respect to a pure, simple and unmixed question of law. Bishop's Restaurants, Inc. of Tulsa v. Whomble, 1960 OK 44, 355 P.2d 560, 563; Nash v. Hiller, 1963 OK 63, 380 P.2d 77, 80. This case falls into the latter category.

II. The Homestead Exemption

16 In Oklahoma, the homestead exemption is both a statutorily and constitutionally created right. Okla. Const. art. 12, § 2; 31 O.S. Supp.1999, § 1(A)1 & 2; see Ludeman v. Armbruster, 1946 OK 38, 165 P.2d 835. The exemption is intended to shield the family's home from the reach of creditors. In the Matter of Wallace's Estate, 1982 OK 80, 648 P.2d 828. A properly claimed homestead exemption protects the property from attachment, execution or forced sale by creditors. Id. Homestead ex'emption laws must be construed in favor of the "spirit that prompted their enactment" and are thus liberally construed in favor of preserving the family home. In re Kretzinger, 103 F.3d 943 (10th Cir.1996); See also In re Hughes, 166 B.R. 957 (Bankr.E.D.Okla.1994).

T7 A property owner asserting the homestead character of his property against a creditor has the burden of establishing that the property is impressed with the homestead exemption. See Hensley v. Fletcher, 1935 OK 458, 172 Okla. 19, 44 P.2d 63; Merritt v. Park Nat'l Bank of Sulphur, 1920 OK 51, 77 Okla. 148, 187 P. 232. Onee homestead character attaches to the property, it continues to be the homestead until the owner voluntarily changes its character either by disposing of the property, abandoning it or performing some other act which relinguish-es his right to the exemption. Alexander v. Love Co. Nat'l Bank of Marietta, 1950 OK 221, 223 P.2d 363, 365; Kunauntubbee v. Greer, 1958 OK 76, 323 P.2d 725, 730-31; In the Matter of Wallace's Estate, 648 P.2d at 832. Accordingly, onee a property owner demonstrates that homestead character attached to the property, creditors or other parties attempting to defeat the claim of homestead bear the burden of proving the owner either relinquished, waived or abandoned the homestead right. Alexander, 223 P.2d at 365.

III. Trial Court Erred by Failing to Apply the Law of Homestead Abandonment

T8 The trial court found in its order that the property in question was impressed with homestead character after Berger's 1998 divorcee. Once it made that finding, the trial court should have then directed its inquiry into whether Berger abandoned the homestead after that time and not whether the property continued to be his principal residence. The legislature did not abrogate the law of abandonment when it adopted the 1980 amendment to 31 O.S. § 1(A)1, providing a home must be a person's principal residence in order to be exempt from forced sale. Were we to hold otherwise, this Court would place the amendment in direct conflict with the provisions of Okla. Const. art. 12 § 2 and 31 O.S. 1(A)1, allowing a homestead to be rented temporarily without changing its character. Both the Oklahoma Supreme Court and the federal bankruptcy courts in Oklahoma have continued to apply pre-amendment case law of homestead abandonment. In the Matter of Wallace's Estate, 648 P.2d at 831-32; In re Simpson, 206 B.R. 230 (Bankr.E.D.Okla.1997).

T9 In our view, the 1980 amendment defines the type of occupancy that is sufficient, in the first instance, to impress the property with homestead status. The amendment requires the property be the principal residence of the owner or his family in order for the homestead character to vest. It does not change pre-amendment jurisprudence relating to homestead abandonment.

110 To establish a property has been abandoned and therefore no longer shielded with the homestead exemption, the party attacking the homestead status must show by clear and convincing evidence the owner of the property 1) moved from the premises and 2) formed the intent never to return, either at the time of moving or sometime thereafter. Kunauntubbee, 323 P.2d at 731. This is primarily a question of the property owner's intent. This intent is determined not only from the property owner's declarations, but also from his acts and the cireumstances surrounding his absence from the property. Id.; Alexander, 223 P.2d at 365.

111 The fact that an owner is no longer using property as a principal residence may be relevant on the issue of abandonment, but it is not dispositive. An owner's temporary absence from the property or an owner's occupancy of another premises does not necessarily demonstrate an intent to abandon the homestead under Oklahoma law. 31 O.S. Supp.1997, § 2(E); In re Jones, 107 B.R. 350 (Bankr.E.D.Okla.1989). Oklahoma law does not impose a requirement of continuous occupation to preserve a homestead. Similarly, the leasing of part or all of a homestead property does not as a matter of law establish an abandonment. Okla. Const. art 12 § 2; 31 O.S. Supp.1997, § 2(E); see also In re Jones, 107 B.R. 350. Rather, a court must consider all the pertinent facts or cireumstances in determining whether the owner formed the intent never to return. In evaluating an owner's intent, this Court has considered such factors as the length of the owner's absence, the reasons for the absence, purchase of a new home, declaring another homestead, attempts to sell the would-be homestead, or declarations never to return. Alexander, 223 P.2d at 365-66, Kunauntubbee, 323 P.2d at 731.

{12 Onee Berger established at trial the property in question was impressed with the homestead exemption, the burden of proof shifted to the creditors to demonstrate that he had abandoned the homestead. At that point, the trial court should have focused its inquiry as to whether the creditors had demonstrated by clear and convincing evidence that Berger moved from the premises and had formed the intent, either concurrently with the move or subsequent thereto, never to return. The order confirming the sheriff's sale made no finding of fact with respect to Berger's intent never to return to the Tulsa property. Instead, the trial court limited its findings in the order to whether Berger was currently using the property as his principal residence. By failing to inquire as to whether Berger formed the intent never to return, the trial court applied an erroneous legal standard.

{ 13 We find that the trial court abused its discretion when it failed to sustain Berger's motion for new trial We reverse and remand this matter to the trial court with directions to conduct a new evidentiary hearing to determine whether creditors can establish by clear and convincing evidence that Berger abandoned the property as his homestead.

114 CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; DECISION OF THE TRIAL COURT REVERSED AND CAUSE REMANDED WITH DIRECTIONS TO PROCEED IN A MANNER CONSISTENT WITH THIS OPINION.

HARGRAVE, C.J., WATT, V.C.J., and HODGES, LAVENDER, OPALA, and SUMMERS, JJ., concur.

KAUGER, J., concurs in result.

WINCHESTER, J., dissents.

      . In addition to Ted and Jessie Parks, the executor of the estate of Winifred White, David Gordon White, also claimed an interest in the property as a judgment creditor, but was not listed in the original style of the case and is not listed in the style of the appealed from order. We will follow Supreme Court Rule 1.25(b), which provides that the style heading used in the appealed from order shall be the one used for purposes of appeal. Oklahoma Supreme Court Rules 12 O.S. Supp, Ch. 15, App.

      . Impressing another property with homestead character defeats the exemption of any previous homestead. In the Matter of Wallace's Estate, 648 P.2d at 832. However, simply living in another home does not automatically defeat a previously claimed homestead exemption. In re Jones, 107 B.R. 350.