author: Judge DAILEY.

text:
    In re the MARRIAGE OF Ronald W. PAGE, Appellee and Cross Appellant, and Debra L. Page, Appellant and Cross Appellee.
    No. 00CA1757.
    Colorado Court of Appeals, Div. IV.
    Feb. 27, 2003.
    Certiorari Denied May 27, 2003.

      J. Terry Wiggins, Denver, Colorado, for Appellee and Cross-Appellant.

      Marc J. Kaplan, Denver, Colorado, for Appellant and Cross-Appellee.

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

   Opinion by

Judge DAILEY.

In this dissolution of marriage proceeding, Debra L. Page (wife) appeals from the property division, maintenance determination, and denial of her request for attorney fees entered as part of the trial court's permanent orders. Ronald W. Page (husband) eross-appeals from the trial court's determination that wife met the statutory threshold for maintenance. We affirm.

L.

Wife first contends that the trial court erred in denying her motion to disqualify husband's expert. We disagree.

Husband's expert, a certified public accountant, was retained to value stock that represented husband's business interest and was the primary asset of the marital estate. The expert testified regarding the valuation at the permanent orders hearing. |

Wife claimed that the expert should have been disqualified for a conflict of interest because she or her attorneys had twice interviewed members of the expert's firm (on one occasion, the expert himself) about evaluating the stock for her and finding husband's potential hidden assets. Although she acknowledged that she did not retain the firm, she argued that she had established a confidential relationship with the firm and its members and, along with her counsel, had shared privileged information with them. The trial court denied her motion to disqualify, finding that wife had failed to show that she had entered into a confidential relationship with the expert's firm.

"Courts are generally reluctant to disqualify expert witnesses," W.R. Grace & Co. v. Gracecare, Inc., 152 F.R.D. 61, 65 (D.Md.1993), because of the need to ensure that (1) parties have access to expert witnesses who possess specialized knowledge; and (2) experts are allowed to pursue their professional callings. See English Feedlot, Inc. v. Norden Labs., Inc., 833 F.Supp. 1498, 1504-05 (D.Colo.1993)(noting that if experts are too easily subjected to disqualification, attorneys and clients could attempt to create inexpensive relationships with potentially harmful experts to keep them from the opposing party).

Consequently, conflict of interest issues involving nonattorney experts are analyzed under a two-part test, and both parts must be answered in the affirmative to disqualify an expert: (1) whether it was objectively reasonable for the party to conclude that a confidential relationship existed with an expert consultant; and (2) whether any confidential or privileged information was disclosed by that party to the expert consultant. Mitchell v. Wilmore, 981 P.2d 172, 175 (Colo.1999); see Mayer v. Dell, 139 F.R.D. 1, 8 (D.D.C.1991)("[Dlisqualification ordinarily should not occur when confidential relationship existed but no privileged information was communicated, or, alternatively where no confidential relationship existed but privileged information was nonetheless disclosed.").

A confidential relationship may be established under certain circumstances when one party has reposed special trust or justifiable confidence in another party who invites, accepts, or undertakes that confidence. Crystal Homes, Inc. v. Radetsky, 895 P.2d 1179, 1182 (Colo.App.1995). Specifically, a confidential relationship may arise if; (1) one party has taken steps to induce another to believe that it can safely rely on the first party's judgment or advice; (2) one party has gained the confidence of the other and purports to act or advise with the other's interest in mind; or (8) the parties' relationship is such that one is induced to relax the care and vigilance that ordinarily would be exercised in dealing with a stranger. First Nat'l Bank v. Theos, 794 P.2d 1055, 1061 (Colo.App.1990).

On appeal, we review a trial court's ruling regarding the disqualification of an expert for an abuse of discretion. Koch Refining Co. v. Jennifer L. Boudreaux MV, 85 F.3d 1178, 1181 (bth Cir.1996) A court abuses its discretion when it acts in a manifestly arbitrary, unfair, or unreasonable manner. See People v. Palomo, 31 P.3d 879, 882 (Colo.2001)(orders disqualifying district attorneys from prosecuting cases).

In its ruling, the court stated that a confidential relationship could be established, even if as here, the expert had not been formally retained. However, the court noted that a confidential relationship could not be formed unilaterally, but rather required the invitation or acceptance of the other party. The trial court, therefore, determined that whether or not wife and her attorneys reasonably concluded that they had a confidential relationship with the accountants and their firm, the accountants also were required to 'have, in some fashion, encouraged such conclusion. The court found, however, that the interviews were merely exploratory and remained tentative regarding whether the relationship would proceed.

The record amply supports the court's determination that the interviews were merely exploratory and involved an assessment as to whether the accounting firm would be able to make the evaluations and investigation necessary to trace husband's assets and determine their values. Specifically, wife and her counsel wanted to know whether the firm would be able to prove the existence of assets husband had allegedly failed to disclose and how a valuation of his business interest would account for the fact that he held only a minority share although he had, according to ' wife, an instrumental role in both the creation and management of the business. While, as the trial court found, privileged information in the form of attorney work product regarding a general approach to the case may have been discussed, the record reflects that no confidential document was provided by wife for review by the expert's firm, and the expert's firm did no work for, and offered no opinions to, wife and was not paid any money by wife.

Under the cireumstances, we conclude that the trial court did not abuse its discretion in determining that wife did not have an objectively reasonable belief in the existence of a confidential relationship with the expert's firm. Seqe, eg., Mayer v. Dell, supra, 139 F.R.D. at 3 (refusing to disqualify expert where party's contact with expert "was no more than a consultation to permit [party and expert] to determine whether [expert] might later be retained"); Nikkal Indus. Ltd. v. Salton, Inc., 689 F.Supp. 187, 190 (S.D.N.Y.1988)(refusing to disqualify expert where party's meeting with expert "amounted to no more than 'a comprehensive employment interview' " and party "never in fact utilized [expert's] services").

Because wife failed to prove the first prong of the conflict of interest test, further examination of the type of information shared is unnecessary.

II.

Wife next contends that the trial court failed to value and distribute several assets. We disagree.

The assets wife claims the trial court overlooked were the parties' football tickets, baseball tickets, and frequent flyer miles. However, because the trial court had no evidence before it concerning the classification or value of these assets, its failure to include them in the property division does not constitute error. See In re Marriage of Sharp, 823 P.2d 1387, 1389 (Colo.App.1991)(where there was no evidence presented concerning marital appreciation, the trial court committed no error in failing to address that claimed asset); In re Marriage of Hulse, 727 P.2d 876, 877-78 (Colo.App.1986)(trial court did not err in failing to determine extent of the appreciation in the marital residence where there was no competent evidence as to that value).

TIL

Wife next contends that the trial court erred in its valuation of the closely held stock owned by husband in his business because it was not supported by any findings, analysis, or evidence. Again, we disagree.

In dividing the marital estate, specific findings as to the value of each asset are not required if the basis for the trial court's decision is apparent from its findings. In re Marriage of Hulse, supra, 727 P.2d at 878. The trial court also has discretion to choose the property valuation of one party over that of the other or to make its own reasonable determination of value, and such determination will be upheld unless clearly erroneous. In re Marriage of Nordahl, 834 P.2d 838, 842 (Colo.App.1992).

Here, the trial court valued husband's business stock at $1,450,000 and awarded one-half of the stock to each party for an allocation worth $725,000. Wife's expert valued the stock in a range between a minimum of $3,500,000 and $5,200,000, which would result to her in a maximum allocation worth approximately $2,600,000. In contrast, husband's expert testified that he would apply a minority discount to the minimum valuation of wife's expert by 85% bringing it to $2,210,000. Husband's expert also testified that he valued the company using four different methods, which yielded a range of value for husband's stock from $524,605 to $2,739,510. One of those methods, the capitalized earning method applied to the company's financial statements for 1999, yielded a value of $1.4-1.5 million for husband's minority interest. In addition, husband's expert testified that the average for all the various valuations was $1,481,000.

Thus, the record amply supports the trial court's valuation of husband's stock. See In re Marriage of Huff, 834 P.2d 244, 255 (Colo.1992)(valuation of law practice was a question of fact to be resolved by the trial court as fact finder, and its valuation could not be disturbed unless it was clearly erroneous and not supported by the record). Moreover, the value adopted demonstrates that the trial court credited husband's expert and his valuation methods over the opinion of wife's expert. Consequently, additional findings by the trial court to support the valuation adopted were not necessary.

IV.

Wife next challenges the maintenance award, arguing that it is not supported by sufficient findings and that the amount awarded is inadequate to enable her to meet her expenses without depleting the assets she received in the property division. In his cross-appeal, husband contends that the trial court erred in finding wife eligible for maintenance. We disagree with the assertions raised by both parties.

Before maintenance may be awarded following the dissolution of the marriage, the court must make a threshold determination that the spouse requesting it lacks sufficient property, including marital property, to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment. Section 14-10-114(8), C.R.S.2002; In re Marriage of Renier, 854 P.2d 1382, 1385 (Colo.App.1993). The phrases "reasonable needs" and "appropriate employment" have been liberally construed. Thus, determination of a spouse's reasonable needs is dependent on the particular facts and cireumstances of the marriage, while appropriate employment hinges upon the parties' reasonable expectations established during the marriage. In re Marriage of Bartolo, 971 P.2d 699, 701 (Colo.App.1998).

Onee the statutory threshold has been met, the amount and duration of maintenance are to be determined based upon the criteria set forth in § 14-10-114(4), C.R.98.2002. See In re Marriage of Fisher, 931 P.2d 558, 558-59 (Colo.App.1996) (analyzing maintenance determination under prior version of the statute). Those factors include the parties' financial resources; the recipient's need for education or training; the standard of living established during the marriage; the age and condition, both physical and emotional, of the recipient; and the payor spouse's ability to meet his or her needs while meeting those of the recipient. See In re Marriage of Huff, supra, 834 P.2d at 252-53.

A trial court's award of maintenance will not be reversed absent an abuse of discretion. In re Marriage of Bartolo, supra, 971 P.2d at 701.

Here, the trial court expressly relied upon the threshold standard in finding wife eligible for maintenance and referred generally to the statutory section that lists the factors to be considered in determining the amount and duration of the maintenance award. Further, the court specifically observed that the marriage was of a long duration and that the parties earned significantly disparate incomes. The court also found that wife's psychological problems, as demonstrated in the courtroom and by the evidence, restricted her ability to practice effectively as a psychologist. The record supports the trial court's conclusions concerning wife's emotional state and the impediment it presents regarding her potential to generate adequate support for herself. Not only is husband's contention that wife was earning the average income of a psychologist not supported by the evidence in light of the costs of supervision she must pay, but her earnings alone would have been insufficient, in any case, to provide a standard of living remotely approximating the marital lifestyle. Thus, contrary to husband's claim, the evidence is sufficient to establish wife's eligibility for maintenance.

We also are unpersuaded that the court erred in failing to enter specific findings concerning wife's reasonable needs, which she averred were over $17,000 per month. Wife's testimony showed that she was unable to corroborate many of the particular expenses claimed. Further, many of the items appear on their face to be generous amounts for one person.

The court's award of $3000 per month reflects its implicit determination that wife's reasonable needs were substantially less and could be met with the amount of maintenance awarded combined with the investment earnings from the significant resources allocated to her in the property division. Because the evidence presented was more than sufficient to support the amount awarded based upon the totality of the circumstances, we may not overturn the court's determinations in that regard. See In re Marriage of Lee, 781 P.2d 102, 105 (Colo.App.1989)(a court awarding maintenance need not make explicit findings that the wife has insufficient property to meet her reasonable needs or is unable to support herself through appropriate employment, and when the award is supported by the record, it is binding on appeal).

v.

Finally, we disagree that the trial court erred in denying wife's request for attorney fees.

The purpose of an award of attorney fees under § 14-10-119, C.R.9.2002, is to apportion equitably the costs of the dissolution based on the current resources of the parties in order to equalize their status and to ensure that neither party suffers undue economic hardship as a result of the proceedings. In re Marriage of Aldrich, 945 P.2d 1370, 1377 (Colo.1997).

Here, in view of the redundancies in work done by wife's three attorneys, the substantial share of property awarded to wife, her earnings as a psychologist, and the maintenance awarded to her, we do not find the denial of her request for attorney fees to be an abuse of discretion.

The judgment is affirmed.

Judge VOGT and Judge CRISWELL concur.


source: Caselaw Access Project

author: Judge NIETO.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, In the Interest of D.L.C., Jr., a Child, Upon the Petition of Denver County Department of Human Services, Petitioner-Appellee, and Concerning J.L.C., Respondent-Appellant.
    No. 01CA2509.
    Colorado Court of Appeals, Div. V.
    Feb. 27, 2003.

      J. Wallace Wortham, Jr., City Attorney, Laura Grzetic Eibsen, Assistant City Attorney, Denver, Colorado, for Petitioner-Appel-lee.
    Deborah Gans, Denver, Colorado, for Respondent-Appellant.
   Opinion by

Judge NIETO.

J.L.C. {mother) appeals from a judgment terminating the parent-child legal relationship between her and her child, D.L.C., Jr. We affirm.

I.

Mother contends that the juvenile court erred by excusing the appearance of the guardian ad litem (GAL) during a portion of the termination hearing. Mother argues that, because of the unique position of a guardian ad litem, his or her absence during a termination hearing constitutes per se reversible error. We reject this contention.

On the first day of the termination hearing, the GAL asked to be excused because of a family medical emergency. The GAL stated that she was aligned with the department and did not have any witnesses of her own. Over mother's objection, the juvenile court granted the GAU's request. The GAL returned on the third day of the hearing and participated through its conclusion.

A GAL must be appointed for a minor child in dependency and neglect actions under § 19-8-501, C.R.S.2002, and termination of parental rights proceedings under § 19-3-602, C.R.S.2002. Sections 19-8-2083(1), 19-8-602(3), C.R.S.2002. A GAL is charged with the responsibility of representing the child's best interests. Section 19-8-208(8), C.R.S. 2002; People in Interest of J.E.B., 854 P.2d 1372 (Colo.App.1993).

To that end, the guardian ad litem shall make such further investigations as the guardian ad litem deems necessary to ascertain the facts and shall talk with or observe the child involved, examine and cross-examine witnesses in both the adjudicatory and dispositional hearings, introduce and examine the guardian ad litem's own witnesses, make recommendations to the court concerning the child's welfare, appeal matters to the court of appeals or the supreme court, and participate further in the proceedings to the degree necessary to adequately represent the child.

Section 19-38-2088).

Section 19-38-203(8) defines the role of a GAL without specifying the precise method that should be utilized in performing the role. People in Interest of J.E.B., supra. The phrase "to the degree necessary to adequately represent the child" is applicable to all the duties itemized in § 19-30-2038). People in Interest of M.W., 796 P.2d 66 (Colo.App.1990).

To assist the administration of justice, the chief justice promulgated Chief Justice Directive 97-02 (revised July 1, 2001)(CJD 97-02) concerning, among other issues, court appointment of GALs.

The chief justice is the executive head of the Judicial Branch. She implements her administrative authority through chief justice directives. "The Chief Justice Directive represents an expression of Judicial Branch policy, to be given full force and effect in matters of court administration." Office of State Court Administrator v. Background Information Services, Inc., 994 P.2d 420, 431 (Colo.1999).

CJD 97-02 addresses the appointment, payment, training, and duties of GALs, as well as the duties of judges and magistrates relative to court-appointed GALs. Section XI(A) provides that a GAL "shall diligently take steps that he or she deems necessary to protect the interest of the person for whom he or she was appointed." Among other duties, § XI(B)(1) provides, "A guardian ad litem ... in a dependency and neglect case shall specifically: Attend all court hearings...." Section XII directs judges and magistrates to ensure that GALs perform the duties specified in the directive.

Thus, the purpose of CJD 97-02 is to give guidance to courts in the appointment and supervision of GALs and to give guidance to GALS in performing their duties.

CJD 97-02 does not specifically address emergency situations, such as that presented here. However, because it is not asserted that the interests of the child or mother were adversely affected, we do not reach that issue, except to observe that in ordinary circumstances, CJD 97-02 must be followed.

It is clear from § 19-38-2083 and CJD 97-02 that the performance of the GAL's duties is intended primarily to benefit the child. The court's supervisory duties in CJD 97-02 are directed toward ensuring that the GAL represents the best interest of the child. Therefore, violation of the GAU's duties does not, without more, interfere with a parent's rights.

The interests of the child and the parent may be intertwined or even identical, and in such a case, a GAL's violation of duty might affect the parent's interest. If a parent can show such coincidence of interest, the parent could assert that a violation of CJD 97-02 affected his or her interest. See People in Interest of M.B., 188 Colo. 370, 535 P.2d 192 (1975)(where GAL had previously taken position favorable to parents, it was plain error to hold dispositional hearing in his absence). However, without such a showing, a GAL's violation of duty relates only to the child's rights. > -

In the trial court, mother did not assert that her interest was prejudiced in any way by the GAL's absence. Similarly, mother makes no argument here that she suffered harm because of the GAL's absence. Without a showing that mother's interest was negatively affected, the error, if any, relating to the GAL's representation of the child, was harmless. See C.A.R. 35(e) (appellate court shall disregard any error not affecting substantial rights of parties).

IL

Mother next contends that the evidence is insufficient to support the criteria for termination. We disagree.

Termination of the parent-child legal relationship pursuant to § 19-3-604(1)(c), C.R.S. 2002, requires clear and convincing evidence establishing that an appropriate treatment plan has been approved by the trial court; the parent has not complied with the treatment plan or it has not been successful in rehabilitating him or her; the parent is unfit; and the parent's conduct or condition is unlikely to change within a reasonable time. People in Interest of A.M.D., 648 P.2d 625 (Colo.1982).

The credibility of the witnesses and the sufficiency, probative effect, and weight of the evidence, as well as the inferences and conclusions to be drawn therefrom, are within the province of the trial court. Thus, a trial court's findings and conclusions will not be disturbed on review if the record supports them. People in Interest of C.A.K., 652 P.2d 603 (Colo.1982).

A.

Mother argues that the juvenile court erred in finding that she did not reasonably comply with the treatment plan. We find no error.

A parent need not comply absolutely with every provision of a treatment plan. People in Interest of C.L.I., 710 P.2d 1183 (Colo.App.1985). However, partial compliance, or even substantial compliance, may not result in a successful plan that renders the parent fit. People in Interest of D.M.W., 752 P.2d 587 (Colo.App.1987); see People in Interest of CA.K., supra.

Intervention was necessitated here when the child was six months old because mother was not meeting his medical needs. The child, who was born three months prematurely, suffered from chronic lung disease, gastroesophageal reflux disease, retinopathy, and developmental delays, which required ongoing physical and occupational therapy. Shortly after intervention, he was diagnosed as a failure to thrive child and with mild cerebral palsy.

The treatment plan required mother‘a) to undergo a substance abuse evaluation and follow ariy recommendations; (2) to submit to random urinalyses upon request; (8) to have a psychological evaluation and follow any recommendations; (4) to understand and meet the child's medical needs; (5) to visit the child regularly; (6) to attend parenting classes; (7) to attend domestic violence classes; (8) to maintain a stable home and employment; and (9) to cooperate with the department of human services (DHS). The provision regarding the child's medical needs, which was of utmost importance, required mother to attend the child's medical appointments, telephone his therapy providers biweekly, and refill the child's prescriptions.

Although mother partially complied with the treatment plan, she failed to comply with the provision regarding the child's medical needs. In fifteen months, mother attended only six of thirty-two doctor appointments, rarely telephoned the child's therapists, and did not refill the child's preseriptions.

Mother also failed to complete parenting classes or domestic violence classes. In addition, mother changed residences frequently and did not maintain stable employment. At the time of the termination hearing, she was unemployed and living with the child's paternal grandmother.

Mother asserts that her noncompliance was due to transportation problems and bed rest during pregnancy with her second child. The record reveals, however, that bus tokens and passes were provided to mother and that transportation was available upon request through an agency that provided family preservation services to mother. Even though mother's bed rest frustrated compliance with the treatment plan for about six weeks, it did not preclude compliance. Furthermore, the social services caseworker and the juvenile court took into account the limitations imposed on mother by the bed rest.

Thus, the record supports the juvenile court's finding that mother did not reasonably comply with the treatment plan, and it will not be disturbed on review. See People in Interest of C.A.K., supra.

B.

Mother also argues that the juvenile court erred in finding that she was unfit and that her conduct or condition was unlikely to change within a reasonable time. Again, we find no error.

An unfit parent is one whose conduct or condition renders him or her unable to give a child reasonable parental care. Reasonable parental care requires, at a minimum, that the parent provide nurturing and protection adequate to meet the child's physical, mental, and emotional health needs. Section 19-8-604(2), C.R.9.2002,. A parent may be unfit as to one, but not all, of his or her children. See People in Interest of L.D., 671 P.2d 940 (Colo.1983).

Among the factors to be considered in determining a parent's unfitness are the parent's emotional or mental health, the parent's neglect of the child, and the length of the child's foster care placement.. Section 19-3-604(2)(a), (£), (k), C.R.98.2002. The trial court must also consider whether reasonable efforts have been made by child-caring agencies to reunite the family. Section 19-3-604(2)(h), C.R.8.2002.

In determining whether a parent's conduct or condition is unlikely to change within a reasonable time, a trial court may consider whether any change has occurred during the pendency of the dependency and neglect proceeding, the parent's social history, and the chronic or long-term nature of the parent's conduct or condition. People in Interest of A.N.W., 976 P.2d 365 (Colo.App.1999). A reasonable time is not an indefinite time, and it must be determined by considering the physical, mental, and emotional conditions and needs of the child. See § 19-3-604(8), C.R.8.2002.

Mother's psychological evaluation resulted in a diagnosis of panic disorder and a personality disorder, not otherwise specified, with mixed histrionic and narcissistic features. Mother saw herself as a victim, did not recognize the seriousness of the child's medical conditions, and overvalued the effectiveness of the care she provided to the child. Because of her lack of insight and resistance to therapy, the evaluating psychologist did not believe that mother would benefit from psychotherapy. Her prognosis for meeting the child's special medical and developmental needs was poor.

Mother's prognosis was borne out by her failure to attend doctor appointments, maintain contact with the child's therapists, or refill his prescriptions. These failures revealed a lack of understanding of the seriousness of the child's medical conditions and constituted ongoing neglect of the child throughout the pendency of the proceeding.

DHS made efforts and provided services to facilitate family reunification. Among these were family preservation services, which offered in-home, one-on-one parenting instruction, as well as transportation; referrals to group parenting classes and domestic violence classes; and assistance with housing and transportation.

Finally, at the time of the termination hearing, the child was twenty-six months old and had been in foster care for seventeen months. His special needs required routine medical appointments, daily monitoring by his caregivers, and ongoing physical, occupational, and speech therapy. He needed a permanent, stable home, with nurturing, attentive caregivers who could meet his daily needs, which mother was not able to provide.

Thus, the record supports the juvenile court's findings that mother was unfit and that her conduct or condition was unlikely to change within a reasonable time to meet the child's needs. Therefore, they will not be disturbed on review. See People in Interest of LD., supra; People in Interest of CA.K., supra.

IIL.

Finally, Mother contends that the juvenile court erred in rejecting permanent placement with the child's paternal grandmother as a less drastic alternative to termination. We find no error.

Before entering an order of termination, a trial court must consider and eliminate less drastic alternatives. People in Interest of M.M., 726 P.2d 1108 (Colo.1986). In so doing, the court must give primary consideration to the physical, mental, and emotional needs and conditions of the child. Section 19-3-604(8).

After initiating a home study, the department rejected the paternal grandmother as a placement alternative because of her inability to provide financially for herself and her three children. The department agreed to reconsider placement if the paternal grandmother obtained a job and submitted verification of her employment for three months. Although she maintained a job for five months during the pendency of the proceeding, she did not submit verification to the department. Furthermore, at the time of the termination hearing, the paternal grandmother had been unemployed for five months and was living in subsidized housing with her three children, as well as mother, father, and their new baby.

Thus, we conclude that the juvenile court did not err in rejecting placement with the paternal grandmother as a less drastic alternative to termination. See People in Interest of C.A.K., supra.

The judgment is affirmed.

Judge TAUBMAN and Judge CASEBOLT concur.


author: Judge MARQUEZ.

text:
    In re the MARRIAGE OF Debra K. McCAULLEY-ELFERT, Appellee, and Michael J. Elfert, Appellant.
    No. 01CA0767.
    Colorado Court of Appeals, Div. II.
    March 27, 2003.

      Cage Williams Abelman & Layden, P.C., Jordan M. Fox, Denver, Colorado, for Appel-lee.
    Mare J. Kaplan Attorney at Law, LLC, Mare J. Kaplan, Denver, Colorado, for Appellant.
   Opinion by

Judge MARQUEZ.

In this dissolution of marriage proceeding between Michael J. Elfert (husband) and Debra K. MceCaulley-Elfert (wife), husband appeals from the trial court's permanent orders insofar as they contain findings that he abused his stepdaughter. We affirm.

The parties married in 1996 and were granted a decree of dissolution in 2000. They have a son who was born in 1997. Wife also has a daughter from a previous marriage, who was born in 1994 and resides with her.

As part of its determinations concerning the allocation of parental responsibility for the parties' son, the trial court found that husband had committed acts of domestic violence against wife and had been a perpetrator of child abuse or neglect as defined in § 18-6-401, C.R.S.2002. Specifically, the court found credible wife's testimony that she had observed husband engaging in inappropriate sexual behavior with her daughter. Husband appeals from this latter finding.

I.

Because husband does not challenge the court's allocation of parental responsibility regarding the parties' son, our review of the court's permanent orders will not affect that allocation. However, the challenged findings regarding the abuse of his stepdaughter pose a risk of continuing stigma. We will, therefore, consider husband's contentions. See White v. Adamek, 907 P2d 735 (Colo.App.1995)(although contemnor no longer faced the possibility of a fine or incarceration, the finding of contempt itself imposed a continuing stigma that could lead to adverse consequences, and therefore, the case was not moot).

IL

We first reject husband's contention that the trial court erred in entering findings with respect to his stepdaughter because it had no jurisdiction over her.

Husband argues that § 14-10-124, C.R.S. 2002, vests the court with authority to allo-eate parental responsibility only for the children of the marriage being dissolved. Because neither party sought orders regarding the stepdaughter, husband asserts that the court exceeded its jurisdiction in addressing wife's allegations of child abuse against her daughter. He further maintains that his alleged conduct with the stepdaughter is not pertinent to the issues presented to the court concerning the parties' son.

We acknowledge that the court had no jurisdiction over the stepdaughter. The matters presented for adjudication to the court in no way involved the rights of the stepdaughter or her relationship with her mother.

However, we do not agree with husband that jurisdiction over the stepdaughter was necessary for the trial court to consider evidence of his sexual misconduct in determining the parental responsibility issues raised with respect to the parties' son. Seetion 14-10-124(1.5)(a)(IX) .and (b)(IV), C.R.S. 2002, require the court to give paramount consideration to credible evidence of child abuse or neglect in determining the child's best interest for purposes of allocating parenting time and decision-making responsibility.

Indeed, § 14-10-124(1.5)(@)(IX) provides that in determining the best interests of the child for purposes of parenting time, the court shall consider all relevant factors, including: "Whether one of the parties has been a perpetrator of child abuse or neglect under section 18-6401, C.R.S., or under the law of any state, which factor shall be supported by credible evidence." Section 14-10-124(1.5)(b)(IV) contains an identical wording. It prohibits the trial court from allocating mutual decision-making responsibility over a spouse's objection if the court has made a finding that the other spouse has been a perpetrator of child abuse or neglect.

Nothing within these statutory provisions precludes the court's inquiry into the alleged abuse or neglect when it involves other children. Such a restriction would unduly hinder a court's ability to carry out the statutory directive of assessing all relevant factors when making the best interests determination. Evidence of abuse or neglect, even when the victim is unrelated to the perpetrator, is probative of the overall home environment and the interaction of the parties with their children, issues that lie at the core of any parental responsibility or parenting time proceeding. See People in Interest of A.R.D., 43 P.3d 632 (Colo.App.2001)(in parenting time determination, court considered evidence of improper sexual contact with unrelated children and conviction of incest with daughter from a prior marriage); see also Thompson v. Thompson, 559 So.2d 4 (La.Ct.App.1990)(stepfather's sexual misconduct with his own daughter was adequate basis for award of sole custody to father and restricted visitation to mother); In re Welfare of H.M.P.W., 281 N.W.2d 188 (Minn.1979)(father's prior convictions for unlawful sexual conduct were sufficient to support the termination 'of parental rights even though there was no proof that he had harmed his children); Brown v. Brown, 154 Vt. 625, 580 A.2d 975 (1990) (trial court properly admitted and considered evidence that husband had sexually abused his stepdaughter in determining whether he should be awarded visitation with the parties' child). Therefore, husband's reliance on § 14-10-124(2), C.R.8.2002, which instructs the trial court to disregard a party's conduct if it does not affect that party's relationship to the child, is misplaced.

TIL

Husband next contends that the trial court erred in its determination that he had committed child abuse as it is defined in § 18-6-401 because the rules and constitutional protections afforded criminal defendants generally were not extended to him. He argues that § 14-10-124(1.5)(a)(IX) does not permit the domestic relations court, under the rules of civil procedure and by a preponderance of the evidence, to determine whether the criminal statute was violated. Again, we disagree.

An appellate court's fundamental responsibility in interpreting a statute is to give effect to the General Assembly's purpose or intent in enacting the statute. Interpretive efforts begin with the language of the statute itself. If the statutory language unambiguously sets forth the legislative purpose, we need not apply additional rules of statutory construction to determine the statute's meaning. Martin v. People, 27 P.3d 846 (Colo.2001).

Pursuant to § 14-10-124(1.5)(a)(IX) and (b)(IV), the child abuse or neglect must be consistent with the criminal conduct proscribed in § 18-6-401 or the "law of any state." In re Marriage of Chatten, 967 P.2d 206 (Colo.App.1998). Under the eriminal statute, a person commits child abuse if such person

causes an injury to a child's life or health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to the child's life or health, or engages in a continued pattern of conduct that results in malnourishment, lack of proper medical care, cruel punishment, mistreatment, or an accumulation of injuries that ultimately results in the death of a child or serious bodily injury to a child.

Section 18-6-401(1)(a), C.R.8.2002.

Here, the trial court found wife's testimony to be credible and based on that testimony found that husband had been a perpetrator of "spouse abuse" as defined in §. 14-10-124(4), C.R.S.2002, and had been a perpetrator of child abuse or neglect as defined in § 18-6-401, by a preponderance of the evidence. Specifically, the court found that wife's testimony that her daughter was sexually abused was credible.

We conclude that the trial court was free to credit her testimony over husband's denials in determining that the abuse had occurred. See In re Marriage of Laughlin, 932 P.2d 858 (Colo.App.1997)(trial court's determination as to the eredibility of witnesses and the sufficiency and weight of the evidence cannot be disturbed on appeal unless it is manifestly erroneous); In re Marriage of Agner, 659 P.2d 53 (Colo.App.1982)(finding of endangerment supported by abundant evidence that, regardless of whether they were actually molested, the children feared such would occur if they were returned to the mother and stepfather's home).

Furthermore, while § 14-10-124(1.5)(a)(IX) and (b)(IV) do not state that the factor must be supported by a preponderance of the evidence, those subsections state that it "shall be supported by credible evidence." Conversely, the subsections do not require proof beyond a reasonable doubt.

In other contexts, Colorado courts have suggested that "credible evidence" means something less than a preponderance of the evidence. In Watso v. Colorado Dep't of Social Services, 841 P.2d 299 (Colo.1992), the supreme court addressed an argument that the former Child Protection Act of 1987 established two evidentiary standards. The Act then provided that a report of child abuse or neglect could be confirmed only if the allegations contained in the report were supported by "credible evidence." If the subject of the report sought a review hearing, the burden for the county department of social services was by a preponderance of the evidence. The court noted that the standards differ. See also People v. Preciado, Flores, 66 P.3d 155, 2002 WL 31357331 (Colo.App. No. 99CA2533, Oct. 10, 2002)(quantum of evidence necessary for a duress instruction is "some credible evidence," alternatively stated as a "seintilla of evidence").

We conclude that in the context of § 14-10-124(1.5), "supported by eredible evidence" means no more than supported by a preponderance of the evidence. The issues before the court here included the best interests of the child for purposes of determining parenting time and allocating decision-making responsibilities. Determination of these questions is based upon a preponderance of the evidence standard. See People in Interest of A.R.D., supra.

Although the trial court's finding of abuse may carry a degree of stigma and the potential threat of eriminal prosecution, the use of the preponderance standard in domestic proceedings does not offend due process and is adequate to protect a parent from false accusations of sexual abuse while serving the strong societal interest in protecting children from abusive parents. See People in Interest of O.E.P., 654 P.2d 312 (Colo.1982)(use of fair preponderance of the evidence in the adjudicatory phase of dependency and neglect action involving claims of sexual abuse complied with the requirements of due process); People in Interest of A.R.D., supro (preponderance standard correctly applied in guardianship proceeding where father's parental rights were significantly limited based on his prior conviction of incest and admissions of inappropriate sexual contact with other victims); Mallory v. Mallory, 207 Conn. 48, 539 A.2d 995 (1988)(court did not err in applying preponderance standard to determine that husband had sexually abused his daughter, and such evidence supported the restriction of his visitation); cf. Colleen McMahon, Note, 39 Cath. Law. 153 (1999)(discussing constitutional rights and the stigma of sexual abuse allegations in child custody proceedings and advocating a clear and convincing standard).

IV.

Finally, husband contends that the trial court committed reversible error when it allowed testimony from wife indicating he had taken a polygraph test. We disagree.

Evidence of polygraph test results and the testimony of polygraph examiners is per se inadmissible in both eriminal and civil trials. People v. Anderson, 637 P.2d 354 (Colo.1981); Valley Nat'l Bank v. Chaffin, 718 P.2d 259 (Colo.App.1986).

Wife's reference to the polygraph test occurred when she was asked about the factors that made her believe the abuse took place. She replied, "A lie detector test that he took." In response to the objection of husband's counsel, the court ruled that it would allow wife to testify to a lie detector test, but would find that the results were not admissible. The court also stated it would not consider the statement for the truth of the matter asserted, but only to explain wife's attitude about an award of attorney fees. Wife then testified that she believed husband had taken three polygraph tests and that they had convinced her the abuse took place.

In view of the limited purpose for which the testimony was allowed and the court's obvious understanding that the results were not to be considered proof of any wrongdoing, we do not find any reversible error. As wife points out, the unfavorable polygraph results were first disclosed to the court when husband was seeking a continuance to obtain a third test. Consequently, although wife's reference was not cumulative, it did not convey information unknown to the court. In addition, wife's belief was also predicated upon the opinion of the child's therapist and her daughter's demeanor both when she was examined by a doctor and when she was questioned about the episodes.

Thus, the court's findings relative to the abuse allegations were based upon adequate competent evidence that was separate and apart from the lie detector results. We also note the trial court's permanent orders and its order denying husband's motion for reconsideration make no mention of the polygraph tests. See Mondragon v. Poudre Sch. Dist. R-1, 696 P.2d 831 (Colo.App.1984)(admission of exhibit containing a statement of the results of a polygraph examination was not improper or prejudicial where the exhibit was admitted to show the necessary procedural requirements had been met, no further evidence regarding the polygraph was admitted, and it was not mentioned in the hearing officer's findings of fact).

The judgment is affirmed.

Judge NEY and Judge CARPARELLLI concur.


text:
    Michele R. PEARSON and Denise L. Fahy, Plaintiffs-Appellees, v. William E. KANCILIA, Defendant-Appellant.
    No. 01CA1747.
    Colorado Court of Appeals, Division IV.
    March 27, 2003.

      Rick DeWitt, Denver, Colorado, for Plaintiffs-Appellees.
    Hall & Evans, LL.C., Alan Epstein, Michael W. Jones, Denvér, Colorado, for Defendant-Appellant (On the Briefs).
    . William E. Kancilia, Pro Se.
   Opinion by

Judge DAILEY.

Defendant, William E. Kancilia, appeals from the judgment entered in favor of plaintiff Michele R. Pearson on claims of chiropractic negligence, outrageous conduct, and invasion of privacy and in favor of plaintiff Denise L. Fahy on claims of chiropractic negligence and outrageous conduct. We affirm.

Defendant is a chiropractor. Plaintiffs were his patients, and later his employees. Each plaintiff testified she was emotionally vulnerable because of her marital situation. Each plaintiff testified that she had a sexual relationship with defendant. Defendant denied that he had been sexually involved with either plaintiff.

Pearson testified that, while employed by defendant, she was subjected by him to unwanted jokes of a sexual nature, unwanted sexual advances, and unwanted sexual contact. Although she admitted her first sexual encounter was consensual, she related that she thereafter repeatedly told him that she did not want to have sex with him. Nonetheless, he demanded that she continue having sex with him at both her apartment and his office. She maintained she did so because she felt she had no choice in the matter: as his employee, she was afraid of losing her job if she refused him sex. She based her fear upon defendant being the type of person who "if you didn't seratch his back, he wouldn't scratch yours." Defendant made such a remark when Pearson eventually absolutely refused to have sex with him. Thereafter, according to Pearson, defendant fully exposed his penis to her at the office on several occasions.

In Fahy's case, a sexual and romantic relationship developed after she had received treatment by defendant for severe migraine headaches. Fahy testified that several months into their sexual relationship, she expressed, on several occasions, a desire to end the relationship so she could put more time into preserving her marriage. She testified that, among other things, defendant said he would not treat her if she did not have sex with him.

Fahy broke off the affair, and Pearson stopped working for defendant, after each discovered that defendant was intimate with the other during the same period of time.

The jury awarded Pearson $287,685 in compensatory damages on her chiropractic negligence claim, $100,000 in compensatory and punitive damages on her claim for outrageous conduct, and $200,000 in compensatory and punitive damages on her claim for invasion of privacy. The jury awarded Fahy $229,400 in compensatory damages on her chiropractic negligence claim and $100,000 in compensatory and punitive damages on her claim for outrageous conduct. The trial court entered judgment accordingly.

Defendant appeals only that part of the judgment concerning plaintiffs claims for outrageous conduct and invasion of privacy.

I. Heart Baim Statute

Initially, defendant contends that, because plaintiffs' outrageous conduct and invasion of privacy claims are claims 'of seduction, they are barred by the heart balm statute, § 13-20-202, C.R.8.2002. We will not, however, consider this contention because it concerns an affirmative defense which should have been raised by defendant in his answer rather than in his post-trial motion for judgment notwithstanding the verdict. See Bob Blake Builders, Inc. v. Gramling, 18 P.3d 859, 865 (Colo.App.2001).

IL Sufficiency of the Evidence

Defendant also contends that there was insufficient evidence to support the verdicts in favor of plaintiffs on their outrageous conduct claims and in favor of plaintiff Pearson on her invasion of privacy claim. We disagree.

In reviewing a claim of insufficient evidence, we view the evidence in the light - most favorable to the parties seeking to sustain the judgment-here, the plaintiffs-and if there is any evidentiary basis for the verdict, it may not be disturbed on review. Borquez v. Robert C. Ozer, P.C., 923 P.2d 166, 175 (Colo.App.1995), aff'd in part and rev'd in part, 940 P.2d 371 (Colo.1997).

A. Outrageous Conduct

The elements of outrageous conduct are: (1) the defendant engaged in extreme and outrageous conduct, (2) recklessly or with the intent of causing the plaintiff severe emotional distress, and (8) causing the plaintiff severe emotional distress. McCarty v. Kaiser-Hill Co., 15 P.3d 1122, 1126 (Colo.App.2000).

Here, defendant contests only the sufficiency of the evidence with respect to the first element, outrageous conduct. As to that element, the level of outrageousness required to create liability is extremely high. Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities are insufficient. Only conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community, will suffice. Bob Blake Builders, Inc. v. Gramling, supra, 18 P.3d at 866; see also Churchey v. Adolph Coors Co., 759 P.2d 1336, 1350 (Colo.1988)(facts must so arouse resentment against the defendant in average members of the community as to lead them to exclaim, "Outrageous!").

An outrageous conduct claim may be submitted to the jury only if reasonable persons could differ on whether the defendant's conduct was sufficiently outrageous. Coors Brewing Co. v. Floyd, 978 P.2d 663, 665 (Colo.1999). Whether reasonable persons could differ on the outrageousness issue is a question of law subject to de novo review by this court. See Spencer v. United Mortgage Co., 857 P.2d 1342, 1345 (Colo.App.1993).

The trial court denied defendant's motion for directed verdict because

[in this case, we not only have allegations that a healthcare provider had sex with a 'patient, which by itself might be outrageous enough, but we also have allegations that there were demands made on each [pllaintiff in return for that, employment-related demands as to Ms. Pearson, health-treatment demands as to Ms. Fahy.

Although Colorado's appellate courts have not yet addressed the subject, courts elsewhere have recognized claims for outrageous conduct based on unwanted and egregious sexual harassment in the workplace: Seq, e.g., Stewart v. Thomas, 538 F.Supp. 891, 894 (D.D.C.1982)(allowing outrageous conduct claim to go forward where complaint alleged that the employer touched the employee in a sexual manner, caressed her body, attempted to kiss her, and verbally pressured her for sexual relations); Guthrie v. Conroy, 152 N.C.App. 15, 23, 567 S.E.2d 403, 409 (2002)(upholding plaintiff's outrageous conduct claim against co-worker, based upon allegations of obscene language, sexual advances towards plaintiff, alleged touching or rubbing neck and shoulders, and statements expressing desire to engage in sexual relations with plaintiff); Bushell v. Dean, 781 S.W.2d 652, 658 (Tex.App.1989)(outrageous conduct evidenced, in part, by supervisor's off-color jokes, discussion of marital problems of a sexual nature, attempts to kiss plaintiff, touching her several times, and declaration of his love and desire for a sexual encounter), rev'd on other grounds, 803 S.W.2d 711 (Tex.1991). >

Further, "[clonduct, otherwise permissible, may become extreme and outrageous if it is an abuse by the actor of a position in which he [or shel has actual or apparent authority over the other, or the power to affect the other's interests." Farmers Group, Inc. v. Trimble, 658 P.2d 1370, 1377 (Colo.App.1982)(internal quotation marks omitted), aff'd, 691 P.2d 1138 (Colo.1984); accord Spahn v. International Quality & Productivity Center, 211 F.Supp.2d 1072, 1076 (N.D.Ill.2002)("when, as here, the defendant has some degree of power over the plaintiff, the severity of the conduct that plaintiff need allege decreases as the defendant's level of control increases")(internal quotation marks omitted); see also Guthrie v. Conroy, supra, 152 N.C.App. at 23, 567 at 409 ("an unfair power relationship between defendant .and plaintiff" factored into outrageous conduct analysis).

Here, there was evidence that Pearson was subjected to sexual jokes, advances, contact, and other lewd behavior, nearly all of which occurred while she was an employee in defendant's office. According to Pearson, most of this conduct was unwanted. Although she repeatedly told defendant that she did not want to have sex, he pressured her into doing so. Further, his behavior caused her to believe that she had no choice in the matter: if she did not comply, she would lose her job.

From this evidence, a jury could reasonably infer that defendant exploited his position of authority over Pearson as her employer to obtain what he ultimately wanted. We conclude that the trial court did not err in. determining that reasonable people could find defendant's conduct so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable. See Jackson v. Kimel, 992 F.2d 1318, 1326 (4th Cir.1993)(coerced sex in exchange for job benefits may constitute outrageous conduct); Stewart v. Thomas, supra, 538 F.Supp. at 894; Tschantz v. Ferguson, 97 Ohio App.3d 693, 708, 711, 647 N.E.2d 507, 517, 519 (1994)(noting a "superior's implied threat that if the employee did not participate in the sexual relationship termination . would follow is repugnant;" and reversing summary judgment for supervisor, based on evidence that employee was financially dependent on job, supervisor used her as a "sex slave," and employee felt threatened because she knew how supervisor operated the office).

In Fahy's case, the jury could find that defendant exploited the doctor-patient relationship by, at several critical points, overcoming Fahy's reluctance to continue the relationship by threatening to withhold treatment for her severe migraine pain if she did not continue having sex with him. Under these cireumstances, we conclude that reasonable minds could differ as to whether defendant's conduct was outrageous. Cf. Gunter v. Huddle, 724 So.2d 544, 547 (Ala.Civ.Ct.App.1998)(affirming summary judgment on outrageous conduct claim in part because there was no "evidence that [the patient] was obliged in any way to engage in sexual relations with [the doctor] as a prerequisite for treatment"); McDaniel v. Gile, 230 Cal.App.3d 363, 365, 281 Cal.Rptr. 242, 247 (1991) ("withholding by a retained attorney of legal services when sexual favors are not granted by a client and engaging in sexual harassment of the client constitute[d] acts of outrageous conduct").

Consequently, we reject defendant's argument that the evidence was insufficient to sustain the verdicts.

B. Invasion of Privacy

Defendant next contends that the trial court erred in submitting Pearson's invasion of privacy claim to the jury. We disagree.

In Colorado, "invasion of privacy" encompasses three separate torts: (1) unreasonable intrusion upon the seclusion of another ("seclusion"); (2) unreasonable publicity given to another's private life ("disclosure"); and (8) appropriation of another's name or likeness ("appropriation"). Denver Publishing Co. v. Bueno, 54 P.3d 893, 897 (Colo.2002).

Here, we are concerned with seclusion. To prevail on such a claim, "a plaintiff must show that another has intentionally intruded, physically or otherwise, upon the plaintiff's seclusion or solitude, and that such intrusion would be considered offensive by a reasonable person." Doe v. High-Tech Institute, Inc., 972 P.2d 1060, 1065 (Colo.App.1998).

The absence of a definitive refusal to engage in sex does not defeat as a matter of law a claim for invasion of privacy.

In Doe v. High-Tech Institute, Inc., supra, 972 P.2d at 1067, the division adopted the test articulated in Restatement (Second) of Torts § 652B (1981), namely, that lability is to be imposed "if the intrusion would be highly offensive to a reasonable person." The division further stated, "Although intrusion upon seclusion clearly encompasses an intrusion upon a physical space held in seclu-gion by a person, the element of seclusion also encompasses intrusions into a person's private concerns based upon a reasonable expectation of privacy in that area." Doe v. High-Tech Institute, Inc., supra, 972 P.2d at 1068; see also Cunningham v. Dabbs, 703 So.2d 979, 984 (Ala.Civ.App.1997)(summary judgment denied on employee's claim of invasion of privacy based on evidence of employer's sexual propositions and inappropriate physical contact with the employee; court found a material fact issue existed whether employer's conduct unreasonably intruded into the employee's private affairs).

Pearson based her invasion of privacy claim on evidence that defendant repeatedly came to her apartment early in the morning and demanded to have sex with her. Initially, he arrived with very little advance warning, and he came to her apartment for sex three times a week.

Defendant maintains that he went to Pearson's apartment pursuant to his romantic, sexual relationship with her. However, the jury was free to determine which version of the facts it would accept. As noted by the trial court in denying defendant's motion for directed verdict:

The facts do establish a reasonable inference that when the Defendant allegedly went to the Plaintiff Pearson's home, [he] went there for the purpose of engaging in sex, and went there purportedly against her will, and she let him in because of the employment relationship and the fear of losing her job; that could amount to a reasonable juror concluding that there has been an intrusion on her solitude.

Pearson's psychologist testified that defendant "now was intruding into her private space" and that "[oJjur homes are our sanctuaries ... [alnd now he has demonstrated to her not only can he control her and manipulate and maneuver her during her work hours, but he can now do this in her own residence, her own domicile, her own safe place."

Under the cireumstances, we reject defendant's contention that the evidence was insufficient to support the verdict on Pearson's invasion of privacy claim.

III. Prejudgment Interest

Finally, in his opening brief, defendant contended that the trial court erred in caleu-lating prejudgment interest on plaintiffs' negligence claims. However, because defendant withdrew this contention in his reply brief, we need not address it on appeal.

Accordingly, the judgment is affirmed.

Judge ROTHENBERG and Judge KAPELKE concur.


author: Judge CASEBOLT.

text:
    W. Robert EASON, Plaintiff-Appellee and Cross-Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BOULDER, Defendant-Appellant and Cross-Appellee.
    No. 01CA0631.
    Colorado Court of Appeals, Div. V.
    March 27, 2003.

      French, Stone & Murphy, P.C., Joseph C. French, David M. Haynes, Boulder, Colorado, for Plaintiff-Appellee and Cross-Appellant.
    H. Lawrence Hoyt, County Attorney, David Hughes, Assistant County Attorney,

      Boulder, Colorado, for Defendant-Appellant and Cross-Appellee.
   Opinion by

Judge CASEBOLT.

In this action for damages under 42 U.S.C. § 1988 (2002) and for review of a land use determination under C.R.C.P. 106(a)(4), defendant, the Board of County Commissioners of Boulder County, appeals the judgment in favor of plaintiff, W. Robert Eason. Eason has filed a conditional cross-appeal. We affirm in part, reverse in part, and remand for further proceedings.

In 1988, the County's land use department approved Eason's proposal to operate a self-storage business using semitrailers on property located on North Broadway Street. The department's director sent Eason a letter (1988 letter) stating that the use was permitted under the zoning code and that the semitrailers were not "structures" and therefore were exempted from the application of the Uniform Building Code (UBC). Nevertheless, the letter required Eason to obtain a "building permit," which would serve as a "zoning use permit," the intent of which was to provide a mechanism for site plan review. The letter also required Eason to clean, paint, and tie down the trailers, but gave no deadline for compliance.

In 1989, Eason obtained a building permit; which incorporated the same conditions as the 1988 letter. The permit, which cost in excess of $1,000, contained an expiration date in 1991. Eason thereafter purchased and moved over one hundred semitrailers onto the property and began operating his self-storage business. He did not comply with the other terms of the permit.

In 1993, the department's new director and its building official jointly sent Eason a letter (19983 letter) revoking his "building permit" because he had failed to comply with its conditions. The 1998 letter additionally stated that county zoning and building code poli-cles on the use of semitrailers had changed and that their use for permanent storage was no longer permitted, so that Eason's use was no longer legal and was in violation of the zoning resolution and the UBC. This letter told Eason that he had to remove the trailers within thirty days.

Eason appealed the director's decision to the Board of Adjustment (BOA). That body affirmed, finding that the "building permit" had expired and that the "zoning use permit" was properly revoked for failure to comply with its conditions.

Eason sought review of the BOA decision in the district court under C.R.C.P. 106(a)(4) and also asserted a claim for damages against the County and its officials for violation of his due process rights under § 1988. Ruling on Eason's C.R.C.P. 106(a)(4) claim, the court reversed the BOA decision. The court held: (1) the department had told Ea-son that the use of semitrailers for self-storage in a commercial zone was a permitted use and was exempt from the UBC; (2) there was no such thing as a "zoning permit," and the department and BOA had no authority to create one in the guise of a building permit with an expiration date; (8) a building permit was not required by law, and thus, the expiration of the building permit was of no legal effect; (4) the department could not destroy Eason's use-by-right under the zoning code; and (5) Easoti's failure to comply with the conditions in the 1988 letter and the building permit was of no effect because the department had failed to give Eason proper notice of any violations and an opportunity to cure, and the building permit did not create any authority for the County to avoid this obligation.

Eason then moved for partial summary Judgment on his due process claim, asserting in part that the department had failed to give him proper notice and an opportunity to cure. The court agreed, holding the County liable for the director's "implementation of the reinterpretation of the zoning policy as set forth in the ... 1998 letter." The court also determined that the 1998 letter did not comply with due process requirements because the "building permit" did not create any authority for the department to avoid giving Eason notice and an opportunity to cure. The court rejected the County's argument that Eason received due process because he had exercised his right to appeal the director's decision to the BOA, where he had a full hearing. The court stated:

The [department] misapprehend[s] the nature of the defective notice. Having concluded that the building permit was of no effect as a matter of law, it necessarily follows that the notice of the Zoning Administrator's and Building Official's determination was not proper notice as a matter of law. Further, absent proper notice, [Eason] was given no opportunity to correct the violations. Finally, exercising one's right to appeal an erroneous decision predicated on improper notice does not cure the underlying due process violation.

In addition, the court directed the parties to set a trial on damages. Because Eason had continued to operate his business during the proceedings, he asserted only noneco-nomic damages in the form of mental suffering and emotional distress. The court denied the County's motion asserting that Eason was entitled only to nominal damages because any deprivation that had occurred was justified.

The parties also disputed the period for which Eason could recover damages. The court ultimately determined that he could recover only from November 19983, following his receipt of the 19983 letter, through March 1995, when the court reversed the BOA decision upon C.R.C.P. 106(a)(4) review. That ruling is not at issue in this appeal.

Following trial, the jury returned its ver-diet in favor of Eason for $150,000. When the trial court entered judgment, it assessed prejudgment interest under § 13-21-101, C.R.S.2002, and this appeal followed.

I. Due Process

The County contends the court erred in granting summary judgment on Eason's § 1983 due process claim. Specifically, the County contends Eason was not deprived of due process because (1) he did not have a protected property interest; and (2) the notice in the 1998 letter of his right to appeal to the BOA, combined with the full evidentiary hearing before the BOA, provided sufficient procedural due process. We disagree.

We review the grant of summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995); Timm v. Reitz, 39 P.3d 1252 (Colo.App.2001).

Summary judgment is appropriate only if the pleadings and supporting documents demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, supra.

To prove a procedural due process claim under § 1983, a plaintiff must show that (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), Hillside Community Church v. Olson, 58 P.3d 1021, 1025 (Colo.2002). In evaluating a due process claim, a court must consider: (1) whether a property right has been identified; (2) whether governmental action with respect to that property right amounts to a deprivation; and (8) whether the deprivation occurred without due process of law. Hillside Community Church v. Olson, supra.

Here, it is undisputed that the County officials were acting under the color of state law, and the County has not contested its liability for the acts of those officials. Hence, our analysis centers on the remaining issues.

A. Protected Property Interest

The Fourteenth Amendment mandates that a state may not deprive any person of life, liberty, or property without due process of law. The definition of the type of property that is safeguarded by the Fourteenth Amendment has evolved to encompass not only tangible physical property, but also a legitimate claim of entitlement to certain cir-cumseribed benefits. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

The identification of those benefits and the "legitimate claim of entitlement" to them is determined not by the Constitution, but largely by state law. Once the state has legislatively created an entitlement and <a person can demonstrate a legitimate claim thereto, then the Fourteenth Amendment ensures that a deprivation of that entitlement does not occur absent due process of law. In short, "legislatures create property and courts protect it." Hillside Community Church v. Olson, supra, 58 P.3d at 1025 (quoting Peter N. Simon, Liberty and Property in the Supreme Court: A Defense of Roth and Perry, T1 Cal. L.Rev. 146 (1983)).

Under Colorado law, the right to use property is fully protected by the Due Process Clauses of the federal and state constitutions, but is subject to a proper exercise of the police power. , Western Income Properties, Inc. v. City & County of Denver, 174 Colo. 533, 485 P.2d 120 (1971); Sundheim v. Board of County Commissioners, 904 P.2d 1337 (Colo.App.1995), aff'd, 926 P.2d 545 (Colo.1996). Zoning ordinances are generally upheld as valid exercises of the police power to regulate public health, safety, and welfare. See City of Colorado Springs v. Securcare Self Storage, Inc., 10 P.3d 1244 (Colo.2000).

While Colorado courts have not directly considered the issue present in this case, courts in other jurisdictions have held that a landowner has a protected property interest in a prior zoning classification. See River Park, Inc. v. City of Highland Park, 23 F.3d 164 (7th Cir.1994){fee simple interest in land subject to zoning was protected property interest); Nasierowski Brothers Investment Co. v. City of Sterling Heights, 949 F.2d 890 (6th Cir.1991).

In Nasterowski, the plaintiff purchased real property in reliance on the city's assertion that his proposed development was allowable under the applicable zoning regulations. The court found the city had violated the plaintiff's procedural due process rights when it changed the zoning ordinance the plaintiff had relied upon without giving the plaintiff notice and an opportunity to be heard. The court stated: "[The plaintiff] had a property interest in the old zoning classification within which his development was permitted. That property interest was securely vested by [the plaintiff's] engage ment in substantial acts taken in reliance, to his detriment, on representations from and affirmative actions by the City." Nasierowski Brothers Investment Co. v. City of Sterling Heights, supra, 949 F.2d at 897; see also Buckeye Community Hope Foundation v. City of Cuyahoga Falls, 263 F.3d 627 (6th Cir.2001)(property interest arose from city council's approval of plaintiffs' site plan, and a due process violation resulted from defendants' use of a referendum to deny plaintiffs that benefit), cert. granted, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002).

Similarly, other courts have held that landowners have vested property interests in zoning determinations if the landowners have acted in reliance on them. See Trever v. City of Sterling Heights, 53 Mich.App. 144, 218 N.W.2d 810 (1974)(acts in reliance on the zoning must be of such a nature that a rezoning would be to the landowner's substantial detriment); cf. Harris v. County of Riverside, 904 F.2d 497 (9th Cir.1990)(county's decision to rezone land to preclude certain commercial purposes triggers procedural due process protections); Norton v. Town of Islip, 239 F.Supp.2d 264 (E.D.N.Y.2003)(a nonconforming use that predates the enactment of a restrictive zoning ordinance is a vested right entitled to constitutional protection). See generally Daniel R. Mandelker, Federal Land Use Law § 2.083(2) (2002).

Colorado courts have recognized vested rights in the context of building permits. The supreme court has held that "[a] city permit can provide the foundation for a vested right, and thus be constitutionally protected from impairment by subsequent legislation, if the permit holder takes steps in reliance upon the permit." P-W Investments, Inc. v. City of Westminster, 655 P.2d 1365, 1371 (Colo.1982); see also Crawford v. McLaughlin, 172 Colo. 366, 473 P.2d 725 (1970).

Accordingly, following the rationale of Nasterowski, we hold that Colorado law recognizes a protected property interest in a zoning classification when a specifically permitted use becomes securely vested by the landowner's substantial actions taken in reliance, to his or her detriment, on representa- . tions and affirmative actions by the government.

Here, the department told Eason in the 1988 letter that, under its interpretation of the zoning ordinance, the use of semitrailers for self-storage was permitted and the trailers did not constitute "structures" under the UBC. Relying on these assertions, Eason paid for a "building permit," purchased and installed the semitrailers, and began his self-storage business. Based on the 1988 letter, Eason thus had a legitimate claim of entitlement to that interpretation granting a use-by-right to so employ his property. Like the plaintiff in Nasterowski, supra, Eason was told by the government that his use was permitted under its interpretation of the zoning ordinance, and he relied, to his detriment, on that assertion. Hence, he had a protected interest in property within the meaning of the Due Process Clause.

B. Deprivation

We reject the County's assertion that it did not deprive Eason of a protected property interest.

Here, the 1993 letter informed Eason that, not only was his "building permit" no longer valid, but also the zoning and building code policies had changed, his use of trailers for storage was no longer permitted and "no longer legal," and he had thirty days to remove the trailers. In essence, the County changed the legal use to an illegal use. Such an action constitutes a deprivation of Eason's protected property interest.

We also reject the County's contention that Eason's use was not rendered illegal, but rather was changed to a legal noneon-forming use.

A nonconforming use is one that lawfully existed before the enactment of an applicable zoning ordinance and that is maintained after the effective date of the ordinance, although it does not comply with the zoning restrictions applicable to the district in which it is situated. See Anderson v. Board of Adjustment for Zoning Appeals, 931 P.2d 517 (Colo.App.1996). It is clear that a zoning board can terminate noneon-forming uses through amortization. See #250 Corp. v. Board of County Commissioners, 799 P.2d 917 (Colo.1990)(a nonconforming use may be lost for a variety of reasons, including the expiration of a reasonable period of amortization). However, noneonform-ing uses may not be eliminated retroactively and immediately upon the adoption of a zoning ordinance. See Hartley v. City of Colorado Springs, 764 P.2d 1216 (Colo.1988); Mandelker, supra, § 2A.05[2][d].

Here, the 1998 letter did not change Eason's use to a legal nonconforming use. Instead, it immediately terminated Ea-son's use. Zoning authorities may not declare a previously existing use-by-right to be nonconforming and thereupon immediately terminate it without providing a period for amortization. See Hartley v. City of Colorado Springs, supra. The County did not provide an amortization period here. Hence, it did not merely change Eason's permitted use into a legal nonconforming use.

C. "Building Permit"

The County asserts that our conclusion that Eason has a protected property interest is inconsistent with the trial court's ruling on the CR.C.P. 106(a)(4) claim that "because a building permit was not required to start with, the expiration of the permit is of no legal consequence." It contends that a determination, like the building permit here, cannot be both so significant that it constitutes a property interest entitled to due process protection and also "of no legal consequence." We disagree.

The flaw in the County's reasoning is that Eason's protected interest here is not in the invalid "building permit"; rather, it is in the favorable zoning interpretation and the use-by-right granted to him thereunder. See Biser v. Town of Bel Air, 991 F.2d 100 (4th Cir.1993)(claim of entitlement must come from some existing legislative or administrative standard and cannot be mere unilateral expectation).

For the same reasons, we reject the County's contention that the director had the power to revoke the "building permit" and therefore Eason has no constitutionally protected property interest. The County's reliance on C.F. Lytle Co. v. Clark, 491 F.2d 834 (10th Cir.1974), and Mountain Gravel & Construction Co. v. City of Cortez, 721 P.2d 698 (Colo.App.1986), is misplaced. There, the courts recognized a building official's declaration that a permit had expired where the permit was validly required and issued. Here, there was no such permit.

D. Implementation

The County argues Eason was not deprived of a property interest because the County did not implement the decision. It argues that, because Eason appealed the director's decision to the BOA and then to the district court, the status quo of his property interest never changed. We disagree.

The County relies upon Denargo Market Neighbors Coalition v. Visser Real Estate Investments, 956 P.2d 630 (Colo.App.1997), asserting that an appeal of a zoning administrator's determination stays implementation of that decision. However, Denargo is distinguishable because the court relied there upon a specific Denver City Charter provision that an appeal to the BOA "stayed all proceedings in furtherance of the action appealed from." Here, the County's zoning ordinance has no such provision. .

Moreover, the department informed Eason that his use was illegal. < Therefore, even if enforcement were stayed, Eason was nevertheless deprived of the legal use of his land and was placed in peril if he continued that use. Indeed, the County threatened criminal proceedings and commenced civil enforcement proceedings against him. Eason was thereby required to spend time, effort, and money to rectify the deprivation and, according to the jury's verdict here, sustained significant emotional distress. Without question, the County implemented the change in Eason's use.

E. Sufficient Process

The County next contends that, in any event, it provided Eason with sufficient process. Specifically, the County contends that the 1993 letter informing him of his rights to appeal the decision and the full hearing before the BOA satisfied procedural due process requirements. We are not persuaded.

1. Predeprivation Process

The essence of due process is basic fairness in procedure. Jafay v. Board of County Commissioners, 848 P2d 892 (Colo.1993). Due process is not a technical concept with fixed content unrelated to. time, place, and cireumstance; rather it is flexible and calls for such procedural protections as the particular situation demands. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Whether particular procedures adopted to review determinations affecting property interests satisfy due process depends on the circumstances of the particular case. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Jafay v. Board of County Commissioners, supra.

The Supreme Court has established a three-part test to determine the procedural protections the Constitution requires in a particular case. First, a court weighs the private interest that will be affected by the official action. Second, it weighs the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards. Finally, it weighs the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, supra.

Here, Eason's private interest involves the right to use and enjoy his real property, certainly a weighty interest. The deprivation limited his rights of ownership and restricted his commercial use of the property. While he continued his use, including collection of rents, during postdeprivation proceedings, a stigma was associated with the property's use given the County's assertions of illegality. See Connecticut v. Doehr, 501 U.S. 1, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991)(statute authorizing prejudgment attachment of real estate without prior notice or hearing was unconstitutional, even though it did not interfere with owner's use, possession, or rentals from existing leaseholds); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 82 L.Ed.2d 556 (1972)(loss of kitchen appliances and household furniture significant enough to warrant predeprivation hearing).

The procedures employed by the County create a substantial risk of an erroneous deprivation of Eason's interest. Its officials provided no neutral decision-making forum for determination of the continuing legality of Eason's use before issuing the 1998 letter. Moreover, there is great value in providing additional predeprivation safeguards, because the County would be required in any event to provide a suitable amortization period before it could make Ea-son's use illegal.

Providing predeprivation notice and hearing would not be unduly burdensome for the County, and any resulting expense or delay would be minimal in comparison to the injury occasioned by an erroneous deprivation. Moreover, Colorado law already requires notice and a public hearing before final adoption of any amendatory zoning resolution. See Webster Properties v. Board of County Commissioners, 682 P.2d 506 (Colo.App.1984); see also § 830-28-116, C.R.S.2002; Anderson v. Board of Adjustment for Zoning Appeals, supra (significant changes in the interpretation of a resolution can have the same effect as a formal amendment).

2. Postdeprivation Remedy

Concerning the County's argument that the postdeprivation process was all the process that was due, we note that the Supreme Court generally has held that the Constitution requires some kind of hearing before the state deprives a person of liberty or property. See Zinermon v. Burch, 494 U.S. 118, 126, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990). In Zinermon, the Court stated that where the government feasibly can provide a predeprivation hearing before taking property, it generally must do so, regardless of the adequacy of a postdeprivation remedy.

The Supreme Court has recognized exceptions to the requirement of predeprivation process when quick action. by the government is needed. See Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 188 L.Ed.2d 120 (1997); United States v. James Daniel Good Real Property, 510 U.S. 48, 114 S.Ct. 492, 126 L.Ed.2d 490 (1998); Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); see also Watso v. Colorado Department of Social Services, 841 P.2d 299 (Colo.1992). Here, however, the County has not asserted such a necessity.

An adequate postdeprivation remedy also may preclude a § 1983 due process claim based on a deprivation resulting from "random and unauthorized" conduct by officials, rather than from some established state procedure. See Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 8194, 82 L.Ed.2d 898 (1984); Parratt v. Taylor, supra. However, this rationale is inapplicable when state procedures are in place or the state has delegated to officials broad authority to effect the deprivation in question and the duty to provide procedural safeguards. Conduct under such cireumstances is not "unauthorized" in the sense the term is used in Hudson and Par-ratt. See National Camera, Inc. v. Sanchez, 832 P.2d 960 (Colo.App.1991); Price v. Boulder Valley School District R-2, 782 P.2d 821 (Colo.App.1989), affd in part and rev'd in part, 805 P.2d 1085 (Colo.1991).

Here, the County does not contend that the officials' actions were random and unauthorized. In essence, the County admits authorizing the officials to act and create policy on its behalf.

Moreover, the 1998 letter states that "county zoning and building code policies have changed," indicating that the reinterpretation was undertaken as official policy. At the BOA hearing, the director testified that he was authorized to interpret and enforce the county zoning ordinance. Hence, the reinterpretation was an established government procedure, requiring predeprivation process. See Wilson v. Civil Town of Clayton, 889 F.2d 375 (7th Cir.1988)(conduct representing "official policy" is not random and unauthorized); Sullivan v. Town of Salem, 805 F.2d 81 (2d Cir.1986); Independent Coin Payphone Ass'n v. City of Chicago, 863 F.Supp. 744 (N.D.Ill.1994).

The County nevertheless argues that, under Sundheim v. Board of County Commissioners, supra, 904 P.2d at 1846, procedural due process requirements are met "[wlhen a state affords reasonable remedies to rectify legal errors by local administrative bodies, including avenues of appeal, and when no challenge is raised as to the regulatory or statutory scheme itself." However, Sundheim is distinguishable because the plaintiffs there all received pre-deprivation hearings. Further, SundRkeim involved an application for use by special review that took place before any alleged deprivation, not the deprivation of a preexisting use. Therefore, Sundkeim; Van Sickle v. Boyes, 797 P.2d 1267 (Colo.1990); and Zavala v. City & County of Denver, 759 P.2d 664 (Colo.1988), upon which the County also relies, are not applicable here.

In any event, the trial court specifically limited Eason's damages to the period between the date of his receipt of the 1993 letter and the date it reversed the BOA action, a period neither party challenges here. Therefore, the availability of postde-privation process at most would affect the period for which Eason could recover damages and would not affect the County's lHiability for the lack of predeprivation process.

F. Other Remedies

To the extent the County argues that exhaustion of state remedies is required, or that the judicial review authorized by C.R.C.P. 106 precludes the claim, we likewise reject those contentions. See National Camera, Inc. v. Sanchez, supra (noting that exhaustion is not required before bringing a § 1988 claim); Sclavenitis v. City of Cherry Hills Village Board of Adjustment & Appeals, 751 P.2d 661 (Colo.App.1988)(holding that availability of C.R.C.P. 106 review does not preclude due process claim in which monetary damages are sought).

The County does not argue, and we therefore will not address, whether there are adequate state tort law remedies or federal substantive claims for relief that could be asserted in state court that would preclude Eason's procedural due process claim. See Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999)(only where state provides no adequate remedy could a deprivation of property without due process result).

Accordingly, we conclude that due process required a predeprivation hearing before the County could change Eason's legal use to an illegal one, and the summary judgment was therefore proper.

II CR.C.P. 106(a)(4)

The County asserts that the district court erred in reversing the decision of the BOA in the C.R.C.P. 106(a)(d) proceeding. Specifically, the County argues that the decision of the BOA was supported by competent evidence and had a rational basis in law. We disagree.

Review in a CRCP. 106(a)(d) proceeding is "limited to a determination of whether the body or officer has execeded its jurisdiction or abused its discretion, based on the evidence in the record before the defendant body or officer." C.R.C.P. 106(a)(d)(D); Van Sickle v. Boyes, supra. In determining whether an agency has abused its discretion, the court may consider whether the agency misconstrued or misapplied the applicable law. See Van Sickle v. Boyes, supro; Stamm v. City & County of Denver, 856 P.2d 54 (Colo.App.1998). Furthermore, an agency's denial of due process in its exercise of quasi-judicial functions may amount to an abuse of discretion. Tepley v. Public Employees Retirement Ass'n, 955 P2d 573 (Colo.App.1997).

Because the review of an agency's decision is based solely on the administrative record, an appellate court is in the same position as a trial court, and it applies the same standard of review. Hence, we are not bound by the trial court's determination in such an action. City of Colorado Springs v. Givan, 897 P.2d 753 (Colo.1995); Denargo Market Neighbors Coalition v. Visser Real Estate Investments, supra.

The County asserts that there was a reasonable basis for the director's and the BOA's interpretation of the law to require Eason to obtain a building permit. It points. out that the BOA reasoned as follows:

It's clear from the evidence ... that the building permit was necessary pursuant to [Article] 25-101 [of the Zoning Resolution], because that provides that the structures need to get building permits. Structure is defined in [Article] 28-279 as that which is built or constructed, an edifice or a building of any kind and it appears that these trailers, particularly the way they are used, fits the description of a structure, and therefore a building permit was necessary.

Because, the County's argument proceeds, the decisions of the director and the BOA are grounded in a reasonable interpretation of a law they are charged with enforcing, their decisions are entitled to deference and should not have been set aside upon C.R.C.P. 106(a)(4) review. We are not persuaded.

The County again ignores the fact that the new interpretation that a building permit was necessary was a change from the previous interpretation that the semitrailers were not structures and needed no permit. Had the director and the BOA rendered the quoted interpretation ab initio, presumably the district court and this court would have granted it deference. However, here, the changed interpretation, issued without notice and an opportunity to be heard, is due no deference. See Tepley v. Public Employees Retirement Ass'n, supro; Adams v. Colorado Department of Social Services, 824 P.2d 83 (Colo.App.1991)(although a contemporaneous administrative interpretation of a statute is entitled to great weight, this is not true of a subsequent contradictory interpretation).

The County nevertheless argues that Town of Erie v. Eason, 18 P.3d 1271 (Colo.2001), requires a different result. We reject this argument.

In Erie, as here, Eason sought to use his property in the town for self-storage in semitrailers. The town determined that the semitrailers were structures within the meaning of the UBC. The supreme court affirmed this determination, holding that semitrailers used for public storage units are included within the meaning of the term "structure" in the UBC and are therefore subject to all appropriate permit requirements.

However, in Erie, the town had consistently interpreted its UBC to apply to semitrailers used for storage, Eason had never obtained or relied upon a different interpretation, and Eason therefore had no due process rights in a previous interpretation. Further, the town did not change its interpretation without notice and an opportunity to be heard, as the County did here.

Eason had a protected property right in the first zoning interpretation stated in the 1988 letter, even if, under Erie, a different interpretation would have been proper. In any event, the 1988 letter preceded Erie by thirteen years and is unquestionably binding upon the County, at least as to Eason.

In addition, the BOA did not have jurisdiction to determine that Eason had committed a building code violation. Its authority was limited to zoning matters.

Because, as we have concluded, the County violated Eason's due process rights, it necessarily follows that the BOA abused its discretion and acted arbitrarily in denying Eason's appeal. See Tepley v. Public Employees Retirement Ass'n, supra.

III. Justified Deprivation

The County asserts that Eason was not entitled to compensatory damages because his injuries were caused by a justified deprivation of a property interest and the court erroneously precluded it from presenting evidence of its justification. We disagree.

Damage awards under § 1983 compensate individuals for the deprivation of constitutional rights. Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). Compensatory damages for procedural due process violations may be awarded upon proof of actual injury; nominal damages may be awarded without such proof. However, no compensatory damages may be awarded where the procedures were deficient, but the actual injuries were caused by a justified deprivation of a property interest. Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). Thus, if the deprivation would have occurred anyway, and the lack of due process itself did not cause any injury, then a plaintiff may recover only nominal damages. Zinermon v. Burch, supra, 494 U.S. at 126 n. 11, 110 S.Ct. at 983; Dill v. City of Edmond, 155 F.3d 1193 (10th Cir. 1998); see McClure v. Independent School District No. 16, 228 F.3d 1205 (10th Cir.2000)(holding that the court erred in refusing to consider school district's evidence that it would have made the same decision even if due process were provided).

Here, the County asserts that it was prevented from proving that its actions could have justifiably occurred. It characterizes the deprivation as a change from a legal use-by-right to a legal nonconforming use, which it argues it could have accomplished by amending its zoning resolution. However, we have already rejected that characterization; the change was from a legal conforming use to an immediately illegal use, with no opportunity to cure or amortize the investment.

Hence, the department's action was prohibited, and the deprivation could not be justified as a matter of law. Accordingly, the County was correctly precluded from introducing evidence of this justification.

IV. Prejudgment Interest

The County next contends the court erred in relying upon § 18-21-101 to award prejudgment interest to Eason. It asserts that federal law, not state law, determines whether interest should be awarded in $ 1983 actions. We agree.

When a provision of the Civil Rights Act, such as § 1983, does not set out a rule of decision, 42 U.S.C. $ 1988 (2002), directs courts to conduct a three-step process to determine the applicable law. See Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Community Hospital v. Fail, 969 P.2d 667 (Colo.1998).

First, the court must look to federal law to determine whether a federal rule exists. Second, if there is no federal rule, the court must consider the application of state law. Third, because the federal interest predominates, the court must not apply state law if such application would be inconsistent with the United States Constitution and laws. Community Hospital v. Fail, supra.

We are persuaded by the authorities holding that a federal rule exists for determining the availability of prejudgment interest in § 1983 claims. See, eg., United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219 (10th Cir.2000)(federal law determines the propriety of prejudgment interest on federal claims); Malloy v. Monahan, 78 F.3d 1012 (10th Cir.1996)(applying federal standard in § 1983 claim); Carpenters District Council v. Dillard Department Stores, Inc., 15 F.3d 1275 (5th Cir.1994)(federal rate of interest applies where jurisdiction is based on a federal question); Zuchel v. City & County of Denver, 997 F.2d 730 (10th Cir.1993); Savarese v. Agriss, 888 F.2d 1194 (3d Cir.1989); Kennedy v. Dexter Consolidated Schools, 124 N.M. 764, 955 P.2d 693 (N.M.App.1998), affd in part and rev'd in part, 129 N.M. 436, 10 P.3d 115 (2000); L.4. Ray Realty v. Town Council, 698 A.2d 202 (R.I.1997). But see Winter v. Cerro Gordo County Conservation Board, 925 F.2d 1069 (8th Cir.1991)(applying Towa prejudgment interest statute); Pressey v. Patterson, 898 F.2d 1018 (5th Cir.1990)(applying Texas law). Indeed, in a recent 42 U.S.C. § 1981 civil rights case, the Tenth Circuit reversed an award of prejudgment interest under § 13-21-101. Guides, Ltd. v. Yarmouth Group Property Management, Inc., 295 F.3d 1065 (10th Cir.2002)(noting that federal law governs the range of remedies, including prejudgment interest, on a claim under a federal statute).

Thus, the court here erred in awarding prejudgment interest under § 18-21-101. On remand the court must apply federal law.

A two-step analysis applies. First, the court must determine whether an award of prejudgment interest would serve to compensate the injured party. Second, the court must determine whether the equities would preclude the award of prejudgment interest, and if the equities do not preclude the award, interest may be awarded in the court's discretion. United Phosphorus, Ltd. v. Midland Fumigant, Inc., supro; Malloy v. Mon-akan, supra.

Because the award of prejudgment interest is ultimately a discretionary equitable determination to be made by the trial court in the first instance, and it does not appear that the issue of compensability presents a question of law, see United Phosphorus, Ltd. v. Midland Fumigant, Inc., supra, we decline the County's request to undertake the analysis here.

V. Cross-Appeal

Eason has filed a conditional cross-appeal in the event we reverse the jury's verdict. Because our disposition does not affect that verdict, we need not address the cross-appeal.

That part of the judgment awarding prejudgment interest is reversed; the balance of the judgment is affirmed; and the case is remanded for further proceedings concerning the assessment of prejudgment interest.

Judge TAUBMAN and Judge NIETO concur.