author: Judge DAILEY.

text:
    Jeremy BLOOM, Plaintiff-Appellant, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, an unincorporated association; and Regents of the University of Colorado, a body corporate, Defendants-Appellees.
    No. 02CA2302.
    Colorado Court of Appeals, Div. V.
    May 6, 2004.

      Smittkamp & Walters, LLC, James C. Smittkamp, Peter J. Walters, Boulder, Colorado; Wilcox & Ogden, P.C., Ralph Ogden, Denver, Colorado; Bell, Boyd & Lloyd, LLC, Peter G. Rush, Chicago, Illinois, for Plaintiff-Appellant.
    Holme Roberts & Owen, LLP, Colin G. Harris, Dennis J. Baarlaer, Boulder, Colorado; Spencer Fane Britt & Browne, LLP, Linda J. Salfrank, Jonathan F. Duncan, Kansas City, Missouri, for DefendanL-Appellee National Collegiate Athletic Association.
    Office of University Counsel, Joanne M. McDevitt, David P. Temple, Michael W. Schreiner, Jeremy R. Hueth, Denver, Colorado, for Defendant-Appellee Regents of the University of Colorado.
   Opinion by

Judge DAILEY.

In this dispute concerning eligibility to play college football, plaintiff, Jeremy Bloom, appeals the trial court’s order denying his request for a preliminary injunction against defendants, the National Collegiate Athletic Association (NCAA) and the University of Colorado (CU). We affirm.

I. Background

The NCAA is a voluntary unincorporated association that regulates intercollegiate amateur athletics among its more than 1200 member colleges and universities. Its rules are established by representatives of member institutions and are carried out by its Council. Among other things, it maintains rules of eligibility for student participation in intercollegiate athletic events.

Bloom, a high school football and track star, was recruited to play football at CU. Before enrolling there, however, he competed in Olympic and professional World Cup skiing events, becoming the World Cup champion in freestyle moguls. During the Olympics, Bloom appeared on MTV, and thereafter was offered various paid entertainment opportunities, including a chance to host a show on Nickelodeon. Bloom also agreed to endorse commercially certain ski equipment, and he contracted to model clothing for Tommy Hilfiger.

Bloom became concerned that his endorsements and entertainment activities might interfere with his eligibility to compete in intercollegiate football. On Bloom’s behalf, CU first requested waivers of NCAA rules restricting student-athlete endorsement and media activities and, then, a favorable interpretation of the NCAA rule restricting media activities.

The NCAA denied CU’s requests, and Bloom discontinued his endorsement, modeling, and media activities to play football for CU during the 2002 fall season. However, Bloom instituted this action against the NCAA for declaratory and injunctive relief, asserting that his endorsement, modeling, and media activities were necessary to support his professional skiing career, something which the NCAA rules permitted.

In his complaint, Bloom alleged: (1) as a third-party beneficiary of the contract between the NCAA and its members, he was entitled to enforce NCAA bylaws permitting him to engage in and receive remuneration from a professional sport different from his amateur sport; (2) as applied to the facts of this case, the NCAA’s restrictions on endorsements and media appearances were arbitrary and capricious; and (3) those restrictions constituted improper and unconscionable restraints of trade.

For these reasons, Bloom requested that the NCAA restrictions be declared inapplicable, and that the NCAA and CU be enjoined from applying them, to activities originating prior to his enrollment at CU or wholly unrelated to his prowess as a football player.

The trial court ordered CU joined as an indispensable party in the case, and CU aligned with the NCAA as an involuntary defendant. After an evidentiary hearing, the trial court determined that, although Bloom was a third-party beneficiary of NCAA bylaws, he was not entitled to preliminary in-junctive relief under the six-part test of Rathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo.1982). The trial court found that Bloom had satisfied three parts of the test: (1)there is a danger of real, immediate, and irreparable injury which may be prevented by injunctive relief; (2) no plain, speedy, and adequate remedy is available at law; and (3) the injunction would preserve the status quo pending trial on the merits. However, the trial court found that Bloom had not satisfied the other parts of the test: (4) there is a reasonable probability of success on the merits; (5) granting a preliminary injunction would not disserve the public interest; and (6) the balance of equities favors the injunction.

Bloom appeals the trial court’s ruling under C.A.R. 1(a)(3).

II.Standard of Review

Preliminary injunctive relief is designed to protect a plaintiff from sustaining irreparable injury and to preserve the power of the district court to render a meaningful decision following a trial on the merits. The power to grant a preliminary injunction “should be exercised sparingly and cautiously and with a full conviction on the part of the trial court of its urgent necessity.” Rathke v. MacFarlane, supra, 648 P.2d at 653.

A preliminary injunction is not warranted unless the trial court finds that the moving party has demonstrated each of the Rathke factors. Rathke v. MacFarlane, supra, 648 P.2d at 654 (“If each criterion cannot be met, injunctive relief is not available.”); see also Atmel Corp. v. Vitesse Semiconductor Corp., 30 P.3d 789, 796 (Colo.App.2001)(“sinee all the necessary criteria were not established, entry of the preliminary injunction ... was error”).

We review the trial court’s preliminary injunction decision under an abuse of discretion standard. Rathke v. MacFarlane, supra, 648 P.2d at 653. Under that standard, we examine the court’s ruling to determine whether it is based on an erroneous application of the law, Atmel Corp. v. Vitesse Semiconductor Corp., supra, 30 P.3d at 795-96, or is otherwise manifestly arbitrary, unreasonable, or unfair. Bd. of County Comm’rs v. Fixed Base Operators, Inc., 939 P.2d 464, 467 (Colo.App.1997).

III.Claims on Appeal

Initially, we limit our consideration on appeal to Bloom’s claims of breach of contract and arbitrary and capricious action by the NCAA. Although Bloom refers to his restraint of trade claim in a footnote in the opening brief, this reference is insufficient to warrant review of that claim. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991)(“A skeletal ‘argument,’ really nothing more than an assertion, does not preserve a claim.”); see also People in Interest of D.B-J., 89 P.3d 530, 2004 WL 439551 (Colo.App. No. 03CA0893, Mar. 11, 2004)(de-clining to address contention lacking references to supporting facts, specific arguments, or authorities).

IV.Standing

We reject the NCAA’s assertion that Bloom lacked standing to pursue claims for breach of contract or arbitrary and capricious action on the part of the NCAA.

A party has standing to seek relief when he or she has suffered actual injury to a legally protected interest. Turkey Creek, LLC v. Rosania, 953 P.2d 1306, 1314 (Colo.App.1998).

A person not a party to an express contract may bring an action on the contract if the parties to the agreement intended to benefit the nonparty, provided that the benefit claimed is a direct and not merely incidental benefit of the contract. While the intent to benefit the nonparty need not be expressly recited in the contract, the intent must be apparent from the terms of the agreement, the surrounding circumstances, or both. Parrish Chiropractic Ctrs., P.C. v. Progressive Cas. Ins. Co., 874 P.2d 1049, 1056 (Colo.1994).

Here, the trial court found, and we agree, that the NCAA’s constitution, bylaws, and regulations evidence a clear intent to benefit student-athletes. And because each student-athlete’s eligibility to compete is determined by the NCAA, we conclude that Bloom had standing in a preliminary injunction hearing to contest the meaning or applicability of NCAA eligibility restrictions. See Hall v. NCAA, 985 F.Supp. 782, 796-97 (N.D.Ill.1997)(given importance of NCAA’s function to benefit student-athletes, and NCAA’s role in determining eligibility of student-athletes, court assumed student-athlete was likely to succeed in proving third-party beneficiary standing vis-a-vis the contract between the NCAA and its members); see also NCAA v. Brinkworth, 680 So.2d 1081, 1083 (Fla.Dist.Ct.App.1996).

With respect to a claim of arbitrary and capricious action, the Kentucky Supreme Court observed that “relief from our judicial system should be available if voluntary athletic associations act arbitrarily and capriciously toward student-athletes.” NCAA v. Lasege, 53 S.W.3d 77, 83 (Ky.2001). The basis upon which the court made that observation, however, is not altogether clear.

There is some suggestion in Lasege that judicial review was justified because the NCAA occupied the role of a quasi-state actor with respect to individual student-athletes. See NCAA v. Lasege, supra, 53 S.W.3d at 83 n. 9 (analogizing the NCAA and a state high school athletic association). However, in an analogous circumstance, the United States Supreme Court concluded that the NCAA is not a state actor and that a state university’s adherence to NCAA rules does not implicate the “state action” necessary to trigger a civil rights claim. See NCAA v. Tarkanian, 488 U.S. 179, 195, 109 S.Ct. 454, 463-64, 102 L.Ed.2d 469 (1988)(coneerning coach, not student-athlete); see also Matthews v. NCAA, 79 F.Supp.2d 1199, 1207 (E.D.Wash.1999)(NCAA not a state actor, for purposes of assessing student-athlete’s due process claim contesting NCAA’s eligibility determination).

Courts are reluctant to intervene, except on the most limited grounds, in the internal affairs of voluntary associations. See, e.g., Jorgensen Realty, Inc. v. Box, 701 P.2d 1256, 1258 (Colo.App.1985); Van Valkenburg v. Liberty Lodge No. 300, 9 Neb.App. 782, 619 N.W.2d 604, 607 (2000). Even then, it would appear that a plaintiff must ordinarily allege an invasion of some type of civil or property right to have standing. See Van Valkenburg v. Liberty Lodge No. 300, supra, 619 N.W.2d at 609; see also Levant v. Whitley, 755 A.2d 1036, 1043^14 n. 11 (D.C.2000)(surveying circumstances in which courts intervene in disputes involving voluntary membership associations).

Here, Bloom is not a member of the NCAA, and he does not have a constitutional right to engage in amateur intercollegiate athletics at CU. See, e.g., Graham v. NCAA, 804 F.2d 953, 955 (6th Cir.1986); Colo. Seminary (Univ. of Denver) v. NCAA 570 F.2d 320, 321 (10th Cir.1978); Hart v. NCAA, 209 W.Va. 543, 550 S.E.2d 79, 86 (2001). Nor does he assert any property interest in playing football for CU.

However, to the extent Bloom’s claim of arbitrary and capricious action asserts a violation of the duty of good faith and fair dealing that is implied in the contractual relationship between the NCAA and its members, his position as a third-party beneficiary of that contractual relationship affords him standing to pursue this claim. See O’Reilly v. Physicians Mut. Ins. Co., 992 P.2d 644, 646 (Colo.App.1999)(implied duty of good faith and fair dealing requires “parties to the agreement to perform their contractual obligations in good faith and in a reasonable manner”); see also Hall v. NCAA, supra, 985 F.Supp. at 784 (implied duty of good faith and fair dealing “l-equires that a party vested with contractual discretion exercise that discretion reasonably, not arbitrarily or capriciously”); Dayan v. McDonald’s Corp)., 125 Ill.App.3d 972, 991, 81 Ill.Dec. 156, 466 N.E.2d 958, 972 (1984)(implied duty to deal fairly and in good faith requires party vested with discretion to act reasonably and not “arbitrarily, capriciously, or in a manner inconsistent with the reasonable expectations of the parties”).

In sum, we conclude that Bloom has third-party beneficiaiy standing to pursue what in essence are two claims for violation of his contractual lights.

V. Probability of Success

Bloom contends that the trial court erred in assessing the probability of success on his contract claims. We disagree.

Initially, we note that, as a third-party beneficiary, Bloom has rights no greater than those of the parties to the contract itself, here, the NCAA and its member institutions. See United Steelworkers v. Rawson, 495 U.S. 362, 363, 110 S.Ct. 1904, 1906, 109 L.Ed.2d 362 (1990).

A. Interpretation of NCAA Bylaws

In interpreting a contract, we seek to .give effect to the intent and the reasonable expectations of the parties. Thompson v. Maryland Cas. Co., 84 P.3d 496, 501 (Colo.2004). To determine the intent and expectations of the parties, we view the contract in its entirety, not in isolated portions, Colowyo Coal Co. v. City of Colorado Springs, 879 P.2d 438, 445 (Colo.App.1994), and we give words and phrases their plain meaning according to common usage. See Nat’l Propane Corp. v. Miller, 18 P.3d 782, 786 (Colo.App.2000); see also Truck Ins. Exch. v. Eagle River Water & Sanitation Dist., 17 P.3d 844, 845-46 (Colo.App.2000).

If its meaning is clear and unambiguous, the contract is enforced as written. Kaiser v. Mkt. Square Disc. Liquors, Inc., 992 P.2d 636, 640 (Colo.App.1999). If, however, the contract is susceptible of more than one reasonable interpretation, it is ambiguous, and its meaning must be determined as an issue of fact. Ad Two, Inc. v. City & County of Denver, 9 P.3d 373, 376 (Colo.2000). In resolving an ambiguity, a court will follow the construction placed upon it by the parties themselves before the controversy arose. See Tucker v. Ellbogen, 793 P.2d 592, 596 (Colo.App.1989); cf. Centennial Enters., Inc. v. Mansfield Dev. Co., 193 Colo. 463, 465, 568 P.2d 50, 52 (1977)(court will not construe ambiguous language against one party where that party was not exclusively responsible for drafting the language).

The interpretation of a contract and the determination whether it is ambiguous are questions of law subject to de novo review by this court. Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 912 (Colo.1996).

Bloom relies on NCAA Bylaw 12.1.2, which states that “[a] professional athlete in one sport may represent a member institution in a different sport.” He asserts that, because a professional is one who “gets paid” for a sport, a student-athlete is entitled to earn whatever income is customary for his or her professional sport, which, in the case of professional skiers, primarily comes from endorsements and paid media opportunities.

We recognize that, like many others involved in individual professional sports such as golf, tennis, and boxing, professional skiers obtain .much of their income from sponsors. We note, however, that none of the NCAA’s bylaws mentions, much less explicitly establishes, a right to receive “customary income” for a sport.

To the contrary, the NCAA bylaws prohibit every student-athlete from receiving money for advertisements and endorsements. In this regard, NCAA Bylaw 12.5.2.1 states:

Subsequent to becoming a student-athlete, an individual shall not be eligible for participation in intercollegiate athletics if the individual: (a) Accepts any remuneration for or permits the use of his or her name or picture to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind, or (b) Receives remuneration for endorsing a commercial product or service through the individual’s use of such product or service.

Additionally, while NCAA Bylaw 12.5.1.3 permits a student-athlete to continue to receive remuneration for activity initiated prior to enrollment in which his or her name or picture is used, this remuneration is only allowed, if, as pertinent here, “the individual became involved in such activities for reasons independent of athletics ability; ... no reference is made in these activities, to the individual’s name or involvement in intercollegiate athletics; [and] ... the individual does not endorse the commercial product.”

Further, NCAA Bylaw 12.4.1.1 prohibits a student-athlete from receiving “any remuneration for value or utility that the student-athlete may have for the employer because of the publicity, reputation, fame or personal following that he or she has obtained because of athletics ability.”

Unlike other NCAA bylaws, the endorsements and media appearance bylaws do not contain any sport-specific qualifiers. See, e.g., NCAA Bylaw 12.3.1 (ineligibility of student-athlete to compete in intercollegiate sport based on agreement with agent to market athlete’s athletic ability or reputation “in that sport”).

In our view, when read together, the NCAA bylaws express a clear and unambiguous intent to prohibit student-athletes from engaging in endorsements and paid media appearances, without regard to: (1) when the opportunity for such activities originated; (2) whether the opportunity arose or exists for reasons unrelated to participation in an amateur sport; and (3) whether income derived from the opportunity is customary for any particular professional sport.

The clear import of the bylaws is that, although student-athletes have the right to be professional athletes, they do not have the right to simultaneously engage in endorsement or paid media activity and maintain their eligibility to participate in amateur competition. And we may not disregard the clear meaning of the bylaws simply because they may disproportionately affect those who participate in individual professional sports.

Further, the record contains ample evidence supporting the trial court’s conclusion that this interpretation is consistent with both the NCAA’s and its member institutions’ construction of the bylaws. An NCAA official testified that both the endorsement and media appearance provisions have been consistently applied and interpreted in a nonsport-specific manner. Indeed, another NCAA official related that association members had resisted efforts to change the endorsement rule to be sport-specific. Although the evidence is conflicting, the record supports the trial court’s conclusion that, from the beginning, CU understood that the endorsement and media activity rules were nonsport-specifie in scope.

Thus, even if the bylaws were viewed as ambiguous, the record supports the trial court’s conclusion that the bylaws would ultimately be interpreted in accordance with the NCAA’s and its member institutions’ construction of those bylaws.

B. Application of Bylaws to Bloom

The United States Supreme Court has recognized the NCAA as “the guardian of an important American tradition,” namely, amateurism in intercollegiate athletics. See NCAA v. Bd. of Regents, 468 U.S. 85, 101, 104 S.Ct. 2948, 2960, 82 L.Ed.2d 70 (1984).

Under that tradition, “college sports provided an important opportunity for teaching people about character, motivation, endurance, loyalty, and the attainment of one’s personal best — all qualities of great value in citizens. In this sense, competitive athletics were viewed as an extracurricular activity, justified by the university as part of its ideal objective of educating the whole person.” James J. Duderstadt, Intercollegiate Athletics and the American University 70 (Univ. Mich. Press 2003).

The NCAA’s “Principle of Amateurism” states:

Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived. Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.

NCAA Const, art. 2.9.

The NCAA’s purpose, in this regard, is not only “to maintain intercollegiate athletics as an integral part of the educational program,” but also to “retain a clear line of demarcation between intercollegiate athletics and professional sports.” NCAA Const, art. 1, § 1.3.1.

Here, the trial court found that application of the endorsement and media appearance rales in Bloom’s case was rationally related to the legitimate purpose of retaining the “clear line of demarcation between intercollegiate athletics and professional sports.”

The trial court noted that salaries and bonuses are an acceptable means for attaining Income from professional sports, but endorsement income is not acceptable if a student-athlete wishes to preserve amateur eligibility. According to NCAA officials: (1) endorsements invoke concerns about “the commercial exploitation of student-athletes and the promotion of commercial products”; and (2) it is not possible to distinguish the precise capacity in which endorsements are made. A CU official related that generally, the endorsement rule prevents students from becoming billboards for commercialism, and in Bloom’s case, there would “be no way to tell whether he is receiving pay commensurate with his ... football ability or skiing ability.”

In this respect, the trial court observed:

In an honest world where there is no attempt to avoid an ideal, there wouldn’t be an impact on amateurism if Mr. Bloom was allowed to be compensated as is customary for professional skiers; however, it’s naive to think that we live in such a world. There are those who would be less than honest and seek profit for profit’s sake....
If Mr. Bloom was allowed to receive the [endorsement] income that is customary for professional skiers, it is not difficult for me to imagine that some in other professional sports would decide that in addition to direct monetary compensation ... endorsements or promotion of goods would become customary.

Similar concerns underlie the NCAA’s prohibition on paid entertainment activity. Paid entertainment activity may impinge upon the amateur ideal if the opportunity were obtained or advanced because of the student’s athletic ability or prestige, even though that activity may further the education of student-athletes such as Bloom, a communications major. As the trial court noted, there are “various shades of gray within which such events could fall.” And, as should be evident, the NCAA does not prohibit unpaid internships, externships, or other educational opportunities in the entertainment field.

In this case, Bloom presented evidence that some of his acting opportunities arose not as a result of his athletic ability but because of his good looks and on-camera presence. However, the record contains evidence that Bloom’s agent and the Tommy Hilfiger company marketed Bloom as a talented multi-sport athlete, and a representative from a talent agency intimated that Bloom’s reputation as an athlete would be advantageous in obtaining auditions for various entertainment opportunities. Further, the NCAA indicated, when asked to interpret its rules, that it was unable, due to insufficient information, to determine which of Bloom’s requested media activities were, in fact, unrelated to his athletic ability or prestige.

Under these circumstances, we perceive no abuse of the trial court’s discretion in failing to fault the NCAA for refusing to waive its rules, as requested by CU, to permit Bloom “to pursue any television and film opportunities while he is a student-athlete at CU.” See Cole v. NCAA, 120 F.Supp.2d 1060, 1071-72 (N.D.Ga.2000)(NCAA decisions regarding “challenges of student-athletes are entitled to considerable deference,” and courts are reluctant to replace the NCAA as the “decision-maker on private waiver applications”); see also NCAA v. Lasege, supra, 53 S.W.3d at 83 (voluntary athletic associations “should be allowed to ‘paddle their own canoe’ without unwarranted interference from the courts”).

Bloom also asserts that the NCAA is arbitrary in its application of the endorsement and media bylaws. He notes that, while the NCAA would bar him from accepting commercial endorsements, it will allow colleges to commercially endorse athletic equipment by having students wear the equipment, with identifying logos and insignias, while engaged in intercollegiate competition. But the trial court determined, and we agree, that this application of the bylaws has a rational basis in economic necessity: financial benefits inure not to any single student-athlete but to member schools and thus to all student-athletes, including those who participate in programs that generate no revenue.

Bloom further argues that the NCAA is arbitrary in the way it applies its bylaws among individual students. Bloom presented evidence that, in one instance, a student-athlete was permitted to make an unpaid, minor appearance in a single film. But the NCAA could rationally conclude that this situation was different: Bloom did not seek permission to make an unpaid appearance in one specific instance; he wanted to take advantage of any number of television and film opportunities, and he wanted to be paid. Bloom also presented evidence that a second student-athlete was permitted to appear on television while he participated in his professional sport. But Bloom did not show that the NCAA would prohibit him from appearing on television while participating in his professional sport.

In a “supplemental authority” filed with this court under C.A.R. 28© before oral argument, Bloom presented us with new evidence relating to the NCAA’s treatment of the second student-athlete. Because this evidence was never presented to the trial court, however, we may not now consider it. See Petition of Edilson, 637 P.2d 362, 364 (Colo.1981)(“Evidence which was not presented to the trial court will not be considered on review.”); In re Marriage of Hunt, 868 P.2d 1140, 1143 (Colo.App.1993)(appellate court may not consider evidence offered for the first time on appeal), aff'd, 909 P.2d 525 (Colo.1995); see also Ministry of Def. of Iran v. Gould Mktg., Inc., 969 F.2d 764, 773 (9th Cir.l992)(under similar version of Fed. R.App. P. 28©, party was permitted to bring to appellate court’s attention new legal authorities, not bring in new evidence on appeal).

Bloom has thus failed to demonstrate any inconsistency in application which would lead us to conclude that the NCAA was arbitrarily applying its rules.

Finally, we are not convinced that the NCAA treated Bloom unfairly in the manner in which it denied the requests to waive or interpret its rules.

Although Bloom is correct that he was not permitted to personally petition the NCAA, he effectively submitted three petitions to the NCAA with the full assistance and support of CU. The trial court’s finding that Bloom had “an ability to fully present his ... position through the membership institution” is amply supported by the record.

Further, the court found, with record support, that the NCAA requested additional information on CU’s petition (evidencing that the NCAA was not acting arbitrarily or capriciously), and that there was no evidence that the NCAA gave CU’s petition any less consideration than its other “hundreds of administrative and waiver requests.”

The record thus supports the trial court’s findings that the NCAA’s administrative review process is reasonable in general and that it was reasonably applied in this case. As such, these findings, as well as those with respect to the NCAA’s application of its bylaws, are not manifestly arbitrary, unreasonable, or unfair. See Bd. of County Comm’rs v. Fixed Base Operators, Inc., supra, 939 P.2d at 467.

For these reasons, we agree with the trial court that Bloom failed to demonstrate a reasonable probability of success on the merits.

VI. Other Issues

As noted earlier, to obtain a preliminary injunction, Bloom had to satisfy every part of the Rathke v. MacFarlane test. Because he failed to satisfy the part requiring a reasonable probability of success on the merits, Bloom was not entitled to a preliminary injunction. See Atmel Corp. v. Vitesse Semiconductor Corp., supra, 30 P.3d at 796 (because a reasonable probability of success on the merits had not been met, entry of the preliminary injunction was error).

In light of this conclusion, we need not address whether, as the trial court found, Bloom also failed to show that a preliminary injunction would not disserve the public interest and was justified by the balance of equities in the ease. Consequently, we do not address the parties’ remaining arguments, including the validity of the NCAA’s restitution rule, NCAA Bylaw 19.8, or the effect, if any, of the federal Commerce Clause on the trial court’s ability to fashion a remedy for Bloom in this case.

Accordingly, the trial court’s order is affirmed.

Judge VOGT and Judge RUSSEL concur.


source: Caselaw Access Project

author: Chief Judge DAVIDSON.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Pamela M. ZEDACK, Defendant-Appellee.
    No. 03CA0462.
    Colorado Court of Appeals, Div. A.
    May 20, 2004.
    Jeanne M. Smith, District Attorney, Robert B. Harward, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellant.
    David S. Kaplan, Colorado State Public Defender, Ann M. Aber, Deputy State Public Defender, Denver, Colorado, for Defendant Appellee.

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

   Opinion by

Chief Judge DAVIDSON.

The People appeal from an order of the trial court dismissing a charge of unlawful possession of a schedule II controlled substance filed against defendant, Pamela M. Zedack. We affirm.

Defendant was convicted at trial of unlawful possession of a schedule II controlled substance. Defendant appealed, arguing that the trial court erred by summarily denying her suppression motion without conducting an evidentiary hearing. A division of this court agreed, ordering as follows:

The judgment is reversed, and the cause is remanded for hearing on defendant’s motion to suppress. If the court denies that motion, the judgment shall be reinstated subject to defendant’s right to appeal that ruling. If the court grants the motion to suppress, then defendant shall be granted a new trial.

People v. Zedack, (Colo.App. No. 99CA2280, June 7, 2001) (not published pursuant to C.A.R. 35(f)).

The trial court received the mandate on January 2, 2002 and scheduled a suppression hearing for July 23.

On July 23, the trial court continued the hearing. After an additional period of delay not relevant to this appeal, the court ruled that defendant’s statutory speedy trial right had been violated because she had not been brought to trial within six months of the date the trial court had received the mandate reversing the conviction. Accordingly, the trial court dismissed the case. The People then filed this appeal.

Under § 18-1-405, C.R.S.2003, a defendant must be brought to trial within six months of the entry of a not guilty plea unless the speedy trial period is tolled or extended by waiver or conduct. If a defendant’s speedy trial rights are violated, the case must be dismissed. See People v. Arledge, 938 P.2d 160 (Colo.1997).

Section 18-1-405(2), C.R.S.2003, provides as follows: “If trial results in conviction which is reversed on appeal, any new trial must be commenced within six months after the date of the receipt by the trial court of the mandate from the appellate court.”

Here, the People argue that the six-month period of § 18-1-405(2) never began to run because “the ease upon remand was not ... in a trial posture ... and the right to a new trial was conditioned on defendant[ ] prevailing at the suppression hearing.” In support of this interpretation, the People assert that defendant “alone, as the party moving for suppression, had the power to decide whether the motion would be pursued.” We are not persuaded.

In construing a statute, we must ascertain and effectuate the legislative intent, which is to be discerned, when possible, from the plain and ordinary meaning of the statutory language. People v. Longoria, 862 P.2d 266 (Colo.1993).

In People v. Zedack, supra, the division clearly stated that the judgment of conviction was “reversed.” Although the question of whether a new trial would be required was dependent on the outcome of the suppression hearing, the timing for any such retrial was controlled by the plain language of § 18 — 1— 405(2). Under that section, a new trial, if there was to be one, had to commence by July 22, 2002, the final date of the six-month period running from “the date of the receipt by the trial court of the mandate from the appellate court.”

It was the shared responsibility of the trial court and the prosecution to schedule the suppression hearing for a date within that six-month speedy trial period so that, if the motion were granted, a new trial could commence on or before July 22. See People v. Colantonio, 196 Colo. 242, 244, 583 P.2d 919, 921 (1978)(it is the mutual responsibility of the prosecution and the trial court to see that a case is brought to trial within the speedy trial period). This responsibility was substantially the same as that which exists in any case where the defendant files a suppression motion in advance of trial. And because the People concede the record “does not establish who acted to set the motion” hearing for July 23, we have no basis for concluding that the speedy trial period was tolled or extended by defendant’s actions.

Accordingly, we uphold the trial court’s determination that defendant’s statutory right to a speedy trial was violated. In light of this conclusion, we do not address the People’s arguments with respect to the time period after July 22.

The order is affirmed.

Judge STERNBERG and Judge NEY concur.


author: Judge GRAHAM.

text:
    FFE TRANSPORTATION SERVICES, INC., Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Laurel Butts, Respondents.
    No. 03CA0622.
    Colorado Court of Appeals, Div. IV.
    May 20, 2004.

      Clisham, Satriana & Biscan, L.L.C., Keith E. Mottram, Denver, Colorado, for Petitioner.
    Ken Salazar, Attorney General, Laurie Rottersman, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
    Weddell & Haller, P.C., Paul H. Haller, Colorado Springs, Colorado, for Respondent Laurel Butts.

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

   Opinion by

Judge GRAHAM.

Petitioner, FFE Transportation Services, Inc., seeks review of a final order of the Industrial Claim Appeals Office (Panel) determining that it was liable for workers’ compensation benefits as the statutory employer of Laurel Butts (claimant). We conclude that the Panel misperceived the statutory scheme that excludes certain drivers, including claimant, from the status of statutory employee, and therefore, we set the order aside.

The facts are undisputed. Claimant was employed as a long-distance truck driver pursuant to a written employment agreement with D. Grego Trucking Co. D. Grego had a conforming lease agreement with FFE, a contract carrier, and claimant was not a party to that agreement. D. Grego was uninsured for workers’ compensation when claimant suffered two work-related injuries; however, D. Grego and claimant were insured under an occupational accident policy, similar to a workers’ compensation policy, which paid benefits to claimant. Claimant was terminated without fault on May 2, 2000, and a hearing was conducted concerning temporary disability benefits for the period from May 2, 2000, through March 15, 2001.

The administrative law judge (ALJ) found that FFE conducted its trucking business by contracting out its work to independent contractors such as D. Grego. The ALJ also found that the lease agreement between D. Grego and FFE met the requirements of an independent contractor agreement under § 40-11.5-102, C.R.S.2003. However, because claimant was not a party to that lease agreement, the ALJ determined that claimant was not “working ... under a lease agreement” within the meaning of § 8-40-301(5), C.R.S.2003, and, therefore, was FFE’s statutory employee.

On review, the Panel reasoned that the term “under” was ambiguous in the context of § 8-40-301(5). After considering the legislative history, the Panel construed § 8-40-301(5) to be limited to circumstances where the claimant is a party to the lease agreement with the contract carrier. The Panel then affirmed the ALJ’s order obligating FFE to pay claimant temporary disability benefits. We conclude that the Panel erred in so limiting the application of § 8-40-301(5).

We agree with FFE that the term “under” as used in § 8-40-301(5) is not ambiguous and that the plain meaning of the statute determines claimant is not a statutory employee of FFE.

Section 8-41-401, C.R.S.2003, establishes the circumstances when statutory employment exists. Section 8^11-401(7), C.R.S. 2003, however, provides that “[tjhis section shall not apply to any person excluded from the definition of ‘employee’ pursuant to section 8-40-301(5).” Section 8-40-301(5) states: “ ‘Employee’ excludes any person who is working as a driver under a lease agreement pursuant to section 40-11.5-102, C.R.S., with a common carrier or contract carrier.”

Determining “under” to be ambiguous, the Panel construed § 8-40-310(5) and related statutory provisions to mean that before a driver could be excluded from the class of statutory employees, the driver had to be the independent contractor who was a signatory to a lease directly with the contract carrier. We discern no ambiguity in § 8-40-301(5) and conclude that “employee” also excludes a driver who is working for an independent contractor operating under a conforming lease with a contract carrier.

Section 8-40-301(6), C.R.S.2003, provides that “[a]ny person working as a driver with a ... contract earlier ... shall be offered workers’ compensation insurance coverage ... or similar coverage consistent with the requirements set forth in section 40-11.5-102(5), C.R.S.” Here, it is undisputed that the lease contract conformed to the provisions of § 40-11.5-102(5).

A term is ambiguous if it is subject to more than one meaning. See Longmont Toyota, Inc. v. Indus. Claim Appeals Office, 85 P.3d 548 (Colo.App.2003)(ceil granted on other grounds Mar. 8, 2004).

As relevant here, the word “under” means “below: situated beneath: within the group- or designation of.” Webster’s Third New International Dictionary 2487 (1986). Placing this item in context with the related statutory provisions, we conclude that the legislature intended to exclude independent contractors and their drivers from the class of statutory employees.

Section 8-40-301(5) specifically refers to drivers as opposed to independent contractors. This is in sharp contrast to § 40-11.5-102, which prescribes how lease contracts between contract cai'riers and their common carrier independent contractors must conform. Indeed, § 40-11.5-102(1)©, C.R.S. 2003, assumes that independent contractors may use assistants. Had the General Assembly intended to exclude only independent contractors from the definition of statutory employee, it would not have allowed independent contractors to use assistants.

The provisions that assure that insurance coverage shall be afforded to drivers further convince us that the General Assembly intended to exclude drivers working for qualified independent contractors from the definition of “employee.” Section 40-11.5-105(5)(a), C.R.S.2003, requires that a conforming lease with a common earner who is an independent contractor “shall provide for coverage under workers’ compensation or a private insurance policy that provides similar coverage ” (emphasis added). Yet § 8^0-301(6) provides that “any person working as a driver with a common carrier ... shall be offered workers’ compensation insurance coverage ... or similar coverage consistent with the requirements of section 10-11.5-102(5) ” (emphasis added). Had the General Assembly intended to limit the exclusion in § 8-40-301(5) to only independent contractors in direct contractual privity with the contract carrier, there would have been no need to add the provision of § 8-40-301(6) relating to drivers, because in that event the two provisions would be redundant in that “driver” and “independent contractor” would be interchangeable terms. We should construe these statutory provisions in pari mate-ria, giving effect to both to carry out the intent of the General Assembly and to avoid inconsistencies and absurdities. Martinez v. People, 69 P.3d 1029 (Colo.2003).

Here, the interest of providing insurance coverage to workers is served because a policy was in force that paid benefits to the injured claimant. The injured worker was not left without insurance or recourse.

We also find support for our reading of the statutory scheme in Newsom v. Frank M. Hall & Co., — P.3d -, 2004 WL 352680 (Colo.App. No. 02CA1375, Feb. 26, 2004), in which a division of this court concluded that under § 8-41-401, “a statutory employment relationship does not exist [between the general contractor and an employee of a subcontractor] if the subcontractor is an independent contractor as to the general contractor.” We likewise will not adopt the fiction that an employee of an independent contractor whose relationship with the contract carrier conforms to the statutory requirements may become a statutory employee of the contract carrier.

The order is set aside.

Judge LOEB and Judge HUME concur.


text:
    Z.J. GIFTS D-2, L.L.C., an Oklahoma limited partnership d/b/a Christal’s, Plaintiff-Appellant, v. CITY OF AURORA, an incorporated home rule municipal corporation, Defendant-Appellee.
    No. 03CA0425.
    Colorado Court of Appeals, Div. IV.
    May 20, 2004.

      Schwartz & Goldberg, P.C., Arthur M. Schwartz, Michael W. Gross, Denver, Colorado, for Plaintiff-Appellant.
    Charles H. Richardson, City Attorney, Robert Werking, Assistant City Attorney, Aurora, Colorado; Arrington & Associates, P.C., Barry K. Arrington, Golden, Colorado, for Defendant-Appellee.
   Opinion by

Judge GRAHAM.

Plaintiff, Z.J. Gifts D-2, L.L.C., doing business as Christal’s, appeals the trial court’s judgment permanently enjoining it from operating a sexually oriented business in its present location and without a sexually oriented business license. We affirm.

In November 1993, plaintiff began operating a retail video and gift store in the City of Aurora known as Christal’s that sold and rented adult sexually oriented materials, among other items, for viewing off premises. Plaintiff provided no onsite viewing of material or adult entertainment.

In December 1993, the City enacted an ordinance that restricted the location of sexually oriented businesses to industrial zones. Christal’s was not located in an industrial zone.

Under Aurora City Code § 26^141 (1994), a sexually oriented business includes, inter alia, an adult bookstore, “adult novelty store, or adult video store.” Section 26-441 further defines an “adult bookstore, adult novelty store, or adult video store” as:

A commercial establishment which devotes a significant or substantial portion of its stock in trade or interior floor space to the sale, rental or viewing, for any form of consideration, of books, magazines, periodicals, or other printed matter or photographs, films, motion pictures, video cassettes, slides, or other visual representations which are characterized, by the depiction or description of specified sexual activities or specified anatomical areas.

(Emphasis added.)

In 1993, plaintiff filed an action in federal district court challenging the constitutionality of the ordinance under the First and Fourteenth Amendments to the United States Constitution. The district court concluded that the ordinance violated the First Amendment, but that ruling was reversed on appeal. Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683 (10th Cir.1998)CZ.J. Gifts I). On remand, the federal district court' entered judgment dismissing plaintiffs federal constitutional claims. The judgment then became final.

Approximately forty-five days later, in October 1998, plaintiff filed this action in state court for injunctive and declaratory relief, seeking to prevent the City from enforcing the ordinance against Christal’s. Plaintiff challenged the ordinance as unconstitutionally vague under the United States and Colorado Constitutions and asserted that it wished to comply with the ordinance, but was unable to do so because the City had enacted no ascertainable guidelines defining “significant” or “substantial.” The City filed a motion to dismiss plaintiffs complaint under the principles of res judicata and collateral estoppel based upon the Tenth Circuit’s decision in Z.J. Gifts I, which resolved the federal constitutional issues against plaintiff. The City also filed a counterclaim and motion seeking to enjoin plaintiff from operating a sexually oriented business without a sexually oriented business license in any zone other than an industrial zone.

Following three separate hearings, the trial court rejected plaintiffs claims and granted the City’s motion for preliminary injunction. Plaintiff appealed and secured a stay of the order pending appeal. A division of this court affirmed the trial court’s decision. Z.J. Gifts D-2, L.L.C. v. City of Aurora, (Colo.App. No. 99CA1853, Apr. 26, 2001)(not published pursuant to C.A.R. 35(f))(Z.J. Gifts II). The matter was then remanded for trial.

After trial, the court dismissed plaintiffs federal constitutional claims as barred by res judicata based upon Z.J. Gifts I. The court declined to evaluate the ordinance under Colo. Const, art. II, § 10 because it determined that this article did not extend broader protection in the context of sexually oriented business regulations than the First Amendment and therefore that the state constitutional claims were not different from the federal constitutional claims previously decided against plaintiff in Z.J. Gifts I. The court further concluded that the terms “significant” and “substantial” were not unconstitutionally vague under the Colorado Constitution. The court permanently enjoined plaintiff from operating a sexually oriented business in its present location and in violation of the licensing requirements of the ordinance.

Plaintiff filed a motion for reconsideration based on several legal decisions issued after Z.J. Gifts I. The trial court denied the motion, and this appeal followed.

I. Res Judicata

Plaintiff contends that the trial court erred by failing to consider its federal constitutional claims in the context of the recent Supreme Court decision, City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), which plaintiff asserts implicitly overruled Z.J. Gifts I. Plaintiff contends that Alameda Books placed a stricter evidentiary burden on the City to prove by a designated quantum of evidence that the ordinance is a constitutional regulation. Plaintiff argues that the trial court should have considered its federal constitutional claims under the new, heightened evidentiary burden set forth in Alameda Books. ■ In effect, plaintiff asserts that the trial court erred in ruling that its First and Fourteenth Amendment claims were barred by the doctrine of res judicata. We disagree.

Res judicata operates as a bar to a second action on the same claim litigated in a prior proceeding where there was a final judgment and identity of subject matter, claims for relief, and parties to the action. City & County of Denver v. Block 173 Assocs., 814 P.2d 824 (Colo.1991).

In barring the relitigation of tried matters, res judicata serves distinct and important public and private values. As the United States Supreme Court has stated, res judicata serves “the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979).

Although plaintiff concedes that Z.J. Gifts I became final and resolved its federal constitutional claims, it nevertheless asserts that the Supreme Court’s decision in Alameda Books imposes a new, heightened evidentiary burden on the City to show specifically the secondary adverse effects of sexually oriented businesses providing no onsite adult entertainment. Plaintiff argues that, because the City did not furnish such evidence, but relied only upon studies from other states that examined the effects of sexually oriented businesses generally and the effects of adult bookstores on surrounding communities, the trial court should not have relied on the Tenth Circuit’s holding in Z.J. Gifts I and should have reconsidered the constitutional issues in light of the new evidentiary standard announced in Alameda Books.

A. The Alameda Books standard

We conclude that Z.J. Gifts I in fact comports with the principles announced in Alameda Books.

In holding that the City’s ordinance satisfied City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), and United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), the Tenth Circuit stated that the City need only rely upon “evidence ... reasonably believed to be relevant to the problem that the city addresses.” Z.J. Gifts I, supra, 136 F.3d at 687 (quoting Renton, supra, 475 U.S. at 51-52, 106 S.Ct. at 931). “If the city can show that the ordinance affects That category of [businesses] shown to produce the unwanted secondary effects,’ the ordinance will stand.” Z.J. Gifts I, supra, 136 F.3d at 687 (quoting Renton, supra, 475 U.S. at 54, 106 S.Ct. at 932). The court reasoned that the City’s reliance on studies utilizing slightly dissimilar businesses did not affect the ordinance’s content-neutrality, Z.J. Gifts I, supra (citing ILQ Invs., Inc. v. City of Rochester, 25 F.3d 1413 (8th Cir.1994)), and whether sexually oriented materials are viewed onsite or offsite is “constitutionally insignificant for purposes of determining an ordinance’s content-neutrality,” “particularly in light of the [Supreme] Court’s strong statements regarding the government’s interest in regulating such businesses in Young [v. America Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976)] and Renton.” Z.J. Gifts I, supra, 136 F.3d at 687-88.

In Alameda Books, the Supreme Court also adopted the evidentiary standard announced in Renton that a municipality may rely on evidence that is “reasonably believed to be relevant” for demonstrating a connection between speech and a substantial, independent governmental interest. Alameda Books, supra, 535 U.S. at 438, 122 S.Ct. at 1736. The Court explained that the “city certainly bears the burden of providing evidence that supports a link between concentrations of adult operations and asserted secondary effects,” but the city did not “bear the burden of providing evidence that rules out every theory for the link between concentrations of adult establishments that is inconsistent with its own.” Alameda Books, supra, 535 U.S. at 437, 122 S.Ct. at 1735. The Court refused to “set such a high bar for municipalities that want to address merely the secondary effects of protected speech.” Alameda Books, supra, 535 U.S. at 438, 122 S.Ct. at 1736. It stated that cities are entitled to rely, in part, on “appeal to common sense,” rather than “empirical data,” at least where there is no “actual and convincing evidence from plaintiffs to the contrary.” Alameda Books, supra, 535 U.S. at 439, 122 S.Ct. at 1736.

In so holding, the Alameda Books plurality provided the following observation regarding the deference properly accorded to legislative findings:

This is not to say that a municipality can get away with shoddy data or reasoning. The municipality’s evidence must fairly support the municipality’s rationale for its ordinance. If plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the municipality’s evidence does not support its rationale or by furnishing evidence that disputes the municipality’s factual findings, the municipality meets the standard set forth in Benton. If plaintiffs succeed in casting doubt on a municipality’s rationale in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance.

Alameda Books, supra, 535 U.S. at 438-39, 122 S.Ct. at 1736. The plurality described its “deference to the evidence presented by the city” as “the product of a careful balance between competing interests.” Alameda Books, supra, 535 U.S. at 440, 122 S.Ct. at 1737. On the one hand, courts have an obligation to exercise independent judgment in First Amendment cases, but on the other hand the plurality acknowledged “that the [city] is in a better position than the Judiciary to gather and evaluate data on local problems.” Alameda Books, supra, 535 U.S. at 440, 122 S.Ct. at 1737.

Justice Kennedy concurred separately. However, contrary to plaintiffs contention, he did not criticize the plurality’s approach to the evidence necessary to support a secondary effects justification. If anything, Justice Kennedy’s comments on that issue appear somewhat more deferential to the cities: “As a general matter, courts should not be in the business of second-guessing fact-bound empirical assessments of city planners.” Alameda Books, supra, 535 U.S. at 451, 122 S.Ct. at 1743 (Kennedy, J., concurring). “The Los Angeles City Council knows the streets of Los Angeles better than we do. It is entitled to rely on that knowledge; and if its inferences appear reasonable, we should not say there is no basis for its conclusion.” Alameda Books, supra, 535 U.S. at 451-52, 122 S.Ct. at 1743 (Kennedy, J., concurring) (citation omitted).

We do not find anything in Alameda Books to suggest the trial court must reconsider its ruling that plaintiff was precluded by res judicata from again raising federal constitutional claims that were considered and rejected in Z.J. Gifts I.

Alameda Books found the City of Los An-geles could reasonably rely on its 1977 study regarding concentration of adult entertainment establishments to draw inferences about secondary effects arising from concentration of adult operations within a single establishment. If anything, the Supreme Court’s decision in Alameda Books is consistent with the Tenth Circuit’s decision in Z.J. Gifts I. See also World Wide Video, Inc. v. City of Spokane, 227 F.Supp.2d 1143 (E.D.Wash.2002)(declining to read Alameda Books as overruling or substantially changing Z.J. Gifts T).

B. Post-Alameda Books Decisions

Plaintiff relies on two cases decided post-Alameda Books for its argument that Z.J. Gifts I has been implicitly overruled or modified and, therefore, its federal constitutional claims should have been reexamined by the trial court. Both cases involved adult stores selling materials for “take-home” use only.

In DiMa Corp. v. High Forest Township, 2003 WL 21909571 (D.Minn. No. Civ.02-3800, Aug. 7, 2003), an unpublished decision, the federal district court determined that “Alameda Books, certainly clarifies the manner in which the Court should determine whether the municipality relied on evidence that was ‘reasonably believed to be relevant’ for ‘demonstrating a connection between speech and a substantial, independent governmental interest.’ ” The court determined that genuine issues of material fact existed as to whether the city acted reasonably in relying upon studies that were conducted in metropolitan, not rural, areas and “did not particularly examine the secondary effects of purely take-home fare.” We are not persuaded by this decision, which is not precedent even in the Eighth Circuit. See 8th Cir. R. 28A(i).

The Fifth Circuit held that to meet the narrow tailoring requirement, a city must provide “at least some substantial evidence of the secondary effects of establishments that sell adult products solely for off-site consumption.” Encore Videos, Inc. v. City of San Antonio, 330 F.3d 288, 295, clarified, 352 F.3d 938 (5th Cir.2003). The court noted that the studies relied upon by the city either entirely excluded establishments that provide only take-home videos and books or included them, but did not differentiate the data collected from enterprises that provide onsite adult entertainment. Encore Videos, supra.

Although these cases question the reasoning in Z.J. Gifts I, they cannot and do not overrule its holding. Nevertheless, even if Alameda Books and Encore Videos somehow altered the evidentiary analysis to be employed, plaintiffs federal constitutional claims are still barred by res judicata.

The application of res judicata is not thwarted simply because a court’s ruling was based on legal principles subsequently rejected in an unrelated case. Lobato v. Taylor, 70 P.3d 1152 (Colo.2003); see also Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499 (11th Cir.1984)(finding res judicata applicable despite a subsequent reinterpretation of Alabama’s statute of limitations). Res judicata cannot be avoided here simply because the Supreme Court may have clarified an eviden-tiary threshold in a legal decision to which plaintiff was not a party. See Lobato v. Taylor, supra; see also Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398-99, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103 (1981)(“[T]he res judicata consequences of a final, unappealed judgment on the merits [are not] altered by the fact that the judgment may have been wrong.... ‘[T]he indulgence of a contrary view would result in creating elements of uncertainty and confusion and in undermining the conclusive character of judgments, consequences which it was the very purpose of the doctrine of res judicata to avert.’”)(quoting Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 325, 47 S.Ct. 600, 604, 71 L.Ed. 1069 (1927), and Reed v. Allen, 286 U.S. 191, 201, 52 S.Ct. 532, 534, 76 L.Ed. 1054 (1932)).

Although cases exist where a misapplication of the law has resulted in the waiver of res judicata, in those eases the legal correction was based on significant changes in fundamental constitutional rights. Lobato v. Taylor, supra; see also Christian v. Jemison, 303 F.2d 52 (5th Cir.1962)(res judicata not applied to state court judgment after Supreme Court overruled separate-but-equal doctrine in Brown v. Bd. of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954)). Assuming, arguendo, that the evidentiary analysis in Alameda Books differs from the analysis in Z.J. Gifts I, it is not of such magnitude as to compel us to overlook the longstanding and important principles supporting the application of the res judicata doctrine. See Lobato v. Taylor, supra.

Thus, we conclude the trial court did not err in dismissing plaintiffs federal constitutional claims under the doctrine of res judica-ta.

II. Colo. Const, art. II, § 10

Plaintiff asserts that it may nevertheless maintain constitutional claims under Colo. Const, art. II, § 10 and that the trial court erred in determining that this provision does not provide broader protections than the United States Constitution in the context of municipal regulations of sexually oriented businesses. In other words, plaintiff asserts that, while the federal constitutional claims may be barred, its state constitutional claims are not. We agree that the claims are not barred, but nevertheless perceive that plaintiff cannot prevail here.

Colo. Const, art. II, § 10 provides, as relevant here, that “every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty.” This section provides broader protection for freedom of speech in the context of political speech and obscenity than does the First Amendment to the United States Constitution. Bock v. Westminster Mall Co., 819 P.2d 55 (Colo.1991).

None of the cases cited by plaintiff in support of its proposition, however, involves a challenge to the location of adult businesses regulated through licensing ordinances that are directed at negative secondary effects associated with the free speech aspects of adult entertainment, as opposed to the regulation of obscenity or the outright restriction of free speech. See, e.g., Bock v. Westminster Mall Co., supra (discussing the plaintiffs’ right to distribute political leaflets in a shopping mall); People v. Ford, 773 P.2d 1059 (Colo.1989)(addressing the constitutionality of the Colorado obscenity statute); People v. Seven Thirty-Five E. Colfax, Inc., 697 P.2d 348 (Colo.1985)(same). In analyzing a local ordinance regulating nude dancing, the supreme court relied almost exclusively on federal cases in determining that the ordinance did not violate the free speech protections of either the federal or state constitutions. 7250 Corp. v. Bd. of County Comm’rs, 799 P.2d 917 (Colo.1990).

In the context of zoning regulations, we have found no Colorado appellate opinions that have interpreted the state constitution to provide greater protection than the federal constitution. See Z.J. Gifts D-4, L.L.C. v. City of Littleton, 311 F.3d 1220, 1241 n. 20 (10th Cir.2002)(Z.J. Gifts III)(cert. granted, — U.S. -, 124 S.Ct. 383, 157 L.Ed.2d 274 (2003)). Accordingly, we reject this contention.

III. C.R.C.P. 65(d).

Plaintiff also argues that the trial court’s injunctive order violates C.R.C.P. 65(d). We disagree.

C.R.C.P. 65(d) provides, in pertinent part: “Every order granting an injunction ... shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained....:”

A trial court has broad discretion to formulate the terms of injunctive relief when equity so requires. However, an injunction prohibiting conduct must be sufficiently precise to enable the party subject to the equitable decree to conform its conduct to the requirements thereof. C.R.C.P. 65(d); Colorado Springs Bd. of Realtors, Inc. v. State, 780 P.2d 494 (Colo.1989).

Here, the trial court’s injunctive order states that “Plaintiff is hereby permanently enjoined from operating a sexually oriented business at 15451 East Mississippi Avenue, Aurora, Colorado in Arapahoe County. Plaintiff is further permanently enjoined from operating a sexually oriented business without a sexually oriented business license.” The order contains detailed findings of fact and conclusions of law setting forth the reasons for its issuance and describing the act or acts from which plaintiff is restrained. Also, there are findings regarding the provisions of the City ordinance that plaintiff violated.

Plaintiffs primary contention is that the definition of “sexually oriented business” includes the terms “significant” and “substantial,” which in its view are overly vague, and therefore it has no notice of what is required to comply with the injunctive order. We disagree.

Statutory terms need not be defined with mathematical precision to pass constitutional muster. “Instead, the statutory language must strike a balance between two potentially conflicting concerns: it must be specific enough to give fair warning of the prohibited conduct, yet must be sufficiently general to address the problem under varied circumstances and during changing times.” Parrish v. Lamm, 758 P.2d 1356, 1368 (Colo.1988).

The trial court determined that the terms “significant” or “substantial” are not unconstitutionally vague and that the ordinance provides a person of ordinary intelligence a reasonable opportunity to understand its meaning and application.

A division of this court similarly rejected a vagueness challenge to the term “significant”:

“Significant” means “deserving to be considered; important; notable,” and “significantly,” thus means “to a significant degree.” See Webster’s Third New International Dictionary 2116. The antonyms of “significant” include meaningless, trivial, trifling, paltry, and picayune. See Roget’s Thesaurus 639 (Bantam Rev. Ed.1990).
“Significant” is a term used extensively throughout statutory language in Colorado to describe the extent of a specific status or condition. See § 13-21-401(1), C.R.S. (1987 Repl.Vol. 6A)(“[Manufacturer] also includes any seller of a product who is owned in whole or significant part by the manufacturer or who owns, in whole or significant part, the manufacturer.”); § 16 — 4—101(l)(b), C.R.S. (1994 Cum. Supp.)(no bail required in cases of certain crimes of violence if the court finds the proof is evident that the crime occurred and that “the public would be placed in significant peril if the accused were released”); § 22-20-103(1.5), C.R.S. (1994 Cum.Supp.)(children with disabilities includes children with “significant limited intellectual capacity” or “significant identifiable emotional disorder[s]”). Indeed, our research has revealed over 200 statutory sections which have used the term without any reported interpretative difficulty.

City of Colorado Springs v. Bd. of County Comm’rs, 895 P.2d 1105, 1114 (Colo.App.1994).

The Supreme Court and other courts have also held that the terms “significant” and “substantial” as used in the definition of adult stores are not so indefinite as to render an ordinance void and unenforceable. See Young v. Am. Mini Theatres, Inc., supra; Excalibur Group, Inc. v. City of Minneapolis, 116 F.3d 1216 (8th Cir.1997); ILQ Invs., Inc. v. City of Rochester, supra; S & G News, Inc. v. City of Southgate, 638 F.Supp. 1060 (E.D.Mich.1986), aff'd, 819 F.2d 1142, 1987 WL 37574 (6th Cir.1987); 15192 Thirteen Mile Road, Inc. v. City of Warren, 626 F.Supp. 803 (E.D.Mich.1985); Golden Triangle News, Inc. v. Corbett, 689 A.2d 974 (Pa.Commw.Ct.1997). We conclude that the reasoning of these cases is persuasive.

Furthermore, courts have determined that the terms “substantial” and “significant” have recognized meanings in the English language, and their use in the definition of “adult bookstore” does not render them vague merely because a percentage of business devoted to floor space, sales, or inventory is not specified. See State v. Holmberg, 545 N.W.2d 65 (Minn.Ct.App.1996)(ordinance does not require any specific percentage; it merely requires that a substantial or significant portion of the store’s stock in trade consists of sexually oriented material); Golden Triangle News, Inc. v. Corbett, supra, 689 A.2d at 984-85 (limiting the definition of “adult bookstore” to establishments that meet a specific sales percentage would frustrate legislative purpose by drawing arbitrary classifications).

Finally, we reject plaintiffs argument that Z.J. Gifts III mandates that a percentage test be implemented as a guide to what constitutes significant or substantial. In Z.J. Gifts III, the Tenth Circuit did not address whether the City’s ordinance was void for vagueness because it determined that plaintiff lacked standing to challenge the constitutionality of the ordinance. However-, the court noted in dicta that a “common method of narrowing construction has been to develop a percentage that will act as a guide as to what constitutes ‘significant or substantial’ ” and that the uncertainty in the City’s ordinance is easily susceptible of a narrowing construction. Z.J. Gifts III, supra, 311 F.3d at 1229-30. Because this observation was not necessary to the decision in that case, it was dicta that does not affect our conclusion here. See Town of Eagle v. Scheibe, 10 P.3d 648 (Colo.2000); see also Main Elec., Ltd. v. Printz Servs. Corp., 980 P.2d 522, 526 n. 2 (Colo.1999)(“Dictum is not the law of the case and is not controlling precedent.”).

IV. Prompt Judicial Review

Plaintiff contends that the ordinance’s failure to provide prompt judicial review of a license denial violates its First Amendment rights of free speech and its Fourteenth Amendment rights to due process. Plaintiffs challenge to the prompt judicial review provision is now moot, and we will not address it. See Grossman v. Dean, 80 P.3d 952 (Colo.App.2003)(when an issue is moot, a court normally refrains from addressing it).

The Tenth Circuit declared an ordinance nearly identical to the one at issue here unconstitutional because it failed to provide a prompt judicial determination of a license denial as required by the First and Fourteenth Amendments of the United States Constitution. Z.J. Gifts III, supra (cert. granted as to the following issue: whether the requirement of prompt judicial review imposed by FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), entails a prompt judicial determination or a prompt commencement of judicial proceedings).

In response to the Tenth Circuit’s decision in Z.J. Gifts III, the City repealed its old ordinance. The new ordinance requires a judicial determination of an adverse administrative licensing decision within seventy-five days from the date the complaint was served on the director of finance. Because the City amended its ordinance to comply with the directives of Z.J. Gifts III, plaintiffs claim is moot. A determination of the issue here would have no practical effect upon the existing controversy because the challenged ordinance provision has been repealed. See People v. McMurrey, 39 P.3d 1221 (Colo.App.2001)(an issue on appeal is moot when the relief, if granted, would have no practical effect on the controversy).

Not only did the City change its provision for judicial review to seventy-five days, but plaintiff has continued to operate its business at all times pending appellate review. Thus, plaintiff received full and complete judicial review and was not harmed by any delay in such review.

V. Retroactive Application of § 38-l-101(3)(a)

We also reject plaintiffs contention that § 38 — 1—101(3)(a), C.R.S.2003, prevents the City from enforcing the zoning restrictions against it.

Section 38-l-101(3)(a), which became effective in June 2003, provides: “Notwithstanding any other provision of law to the contrary, a local government shall not enact or enforce an ordinance, resolution, or regulation that requires a nonconforming property use that was lawful at the time of its inception to be terminated or eliminated by amortization.”

Plaintiff argues that its business was a conforming use and validly operating at the time the City’s ordinance was enacted in 1993; therefore, plaintiff argues that it is being forced by ex post facto regulation to close its doors through the process of unlawful amortization. However, the trial court’s permanent injunction order became final in November 2002, months before § 38-1-101(3)(a) became law. Because our review is limited to whether the trial court erred in issuing a permanent injunction, we must look at the law in effect when the trial court issued its decision. Section 38 — 1—101(3)(a) was not the law and was not before the trial court when it decided this case; thus, we cannot conclude that under § 38~l-101(3)(a) the trial court erred in issuing a permanent injunction unless the statute were to apply retroactively.

Plaintiff urges us to conclude that the statute applies retroactively so as to render the trial court’s judgment an enforcement contrary to § 38-l-101(3)(a). We are not persuaded.

Absent legislative intent to the contrary, a statute is presumed to operate prospectively, meaning it operates on transactions occurring after its effective date. A statute is retroactive if it operates on transactions that have already occurred or on rights and obligations that existed before its effective date. In re Estate of DeWitt, 54 P.3d 849 (Colo.2002).

The constitutional proscription on retrospectivity states that “[n]o ... law ... retrospective in its operation ... shall be passed by the general assembly.” Colo. Const, art. II, § 11. This proscription prevents unfairness that would result from changing the consequences of an act after that act has occurred. Van Sickle v. Boyes, 797 P.2d 1267 (Colo.1990). A statute is retrospective if it “takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.” Denver S. Park & Pac. Ry. v. Woodward, 4 Colo. 162, 167 (1878).

The statutory language here did not specify that the amendment was to be applied retroactively, and we decline to attribute to

the‘General Assembly an intent to enact a statutory amendment controlling amortization of nonconforming uses that took place before the amendment was enacted. Therefore, we hold that the statute does not apply here. See Mission Viejo Co. v. Bd. of Equalization, 942 P.2d 1251 (Colo.App.1996). Accordingly, the trial court did not err in enforcing an ordinance which required a licensee to operate, if at all, in an appropriately zoned area of the City.

The judgment is affirmed.

Judge CASEBOLT and Judge LOEB concur.


author: OPALA, J.

text:
    2001 OK 57
    Brian Dale DUBUC, Plaintiff-Appellant, v. Marty SIRMONS, John Richards, Wayne Morton, John Latimer, and Cathy Morton, Defendants-Appellees.
    No. 93,793.
    Supreme Court of Oklahoma.
    July 3, 2001.

      Brian Dale Dubuc, Holdenville, OK, Pro Se.

    Tracy Folsom Milner, Assistant Attorney General, Oklahoma City, OK, for Appellees.
   OPALA, J.

¶ 1 Certiorari stands limited to whether the Court of Civil Appeals erred in affirming summary judgment for the defendants (on a dispositive theory that was interjected sua sponte ). We answer in the affirmative and remand the cause to the Court of Civil Appeals for its reconsideration of the appeal.

I

THE ANATOMY OF LITIGATION

¶2 On 4 May 1999 Brian Dale Dubuc [Dubuc, inmate or prisoner], an incarcerated inmate at Howard McLoud Correctional Center [HMCC], brought a civil rights action against five HMCC employees — Marty Sir-mons, John Richards, Wayne Morton, John Latimer and Cathy Morton — individually and in their official capacities [collectively called Sirmons, prison officials or defendants]. His claim rests on the prison officials’ actions which allegedly deprived him of meaningful access to court in his attempt to prosecute an appeal from the denial of postconviction relief in a Tulsa County case. The Court of Criminal Appeals dismissed that appeal as untimely.

¶ 3 Both parties moved for summary judgment. The trial court gave summary relief to Sirmons and overruled Dubuc’s quest. The Court of Civil Appeals [COCA] affirmed. We granted certiorari on the inmate’s petition.

Prisoner’s Claim For Postconviction Belief — The Antecedent Litigation

¶ 4 Dubuc’s unsuccessful attempt to launch an appeal from the denial of his quest for postconviction relief forms the basis of his civil rights action. While he was incarcerated at the Jess Dunn Correctional Center [JDCC], Dubuc sought postconviction relief from the District Court, Tulsa County. According to Dubuc, his quest was denied by order entered and mailed 23 February 1999, making the 30~day deadline for appealing fall on 25 March 1999 Dubuc asserts that on Friday, 19 March 1999, he had the appellate paperwork ready for transmission to the Court of Criminal Appeals, but the JDCC officials refused to process it because he was being transferred that day to the Howard McLeod Correctional Center [HMCC].

¶ 5 Upon his March 19th arrival at HMCC, Dubuc states, he advised Lt. Wayne Morton of the statutory filing deadline and requested admittance to the law library. He was denied access until the next day, Saturday, March 20. This delay prevented him from mailing his appellate paperwork until the following Monday. Dubuc spent time in the library on Saturday to finalize all the needed documents except for the in fotma pauperis affidavit. The latter had to be notarized and his account verified by prison officials. According to Dubuc, on Monday, March 22, he told two HMCC officials about his March 25 filing deadline. They had his in forma pau-peris affidavit notarized that day but could not complete the form because the critical money account information had to be obtained from JDCC, the site of his former confinement. Dubuc states that after he kept “badgering” the HMCC staff about whether they had received the completed form, Latimer told him “not to bother the staff or the Warden with this problem” and that the papeiwork would be done “when ‘they’ got to it.” Latimer threatened him ■with misconduct, Dnbuc claims, if he said anything else about the matter.

¶ 6 In an effort to save his appeal Dubue delivered to prison officials for mailing to the Court of Criminal Appeals his petition in error, brief, and certified trial court order Csans the pauper’s affidavit) on Tuesday, March 23. The affidavit was not included because the HMCC officials allegedly prevented him from timely obtaining the information critical for its completion. On Wednesday, March 24, Dubue asserts, an HMCC employee checked on the status of the affidavit. He had the business office fax the information and complete the form. Dubue claims that when Latimer received the affidavit on March 24, he withheld the form and did not give it back to him until the next day. Dubue states that on Thursday, March 25th he told Cathy Morton about his filing deadline and asked her to fax the documents to the Court of Criminal Appeals that day. His request was denied after she consulted with the assistant warden, John Richards. Later that day Dubue gave the in forma pauperis affidavit to prison officials for mailing to the Court of Criminal Appeals. All of Dubuc’s appellate paperwork, which had been mailed to the Court of Criminal Appeals (on March 23 and March 25), was filed by that court’s clerk 26 March 1999.

¶ 7 The Court of Criminal Appeals dismissed the appeal as untimely. The text of its order notes that postconviction relief was denied by the trial court on February 18 and that a copy of the order was mailed to Dubue on February 23. The critical trial court order is not amony the documents found in the assembled record.

Sirmons’ Aryument For Summary Adjudication.

¶ 8 According to Sirmons’ motion for summary judgment, defendant-Latimer did not (a) hold up any paperwork for Dubue, (b) deprive Dubue of any service or (c) warn him not to talk to the warden or any staff member. Sirmons claims that Dubue failed to comply with Department of Corrections [DOC] policy, which requires that an inmate furnish the facility staff with written proof of a filing deadline by 10:00 a.m. on the deadline date. To defeat Dubuc’s claim Sirmons interposed four affirmative defenses: (1) Du-buc failed to exhaust the administrative remedies mandated by the Prison Litigation Reform Act; (2) Dubue has not shown that he has been denied the right of access to the courts; (3) the defendants possess qualified immunity; and (4) they are protected by Eleventh Amendment immunity.

Dubuc’s Counter-Motion for Summary Relief

¶ 9 Dubue countered that the HMCC officials were put on notice of the filing deadline on March 19 (the day of his arrival at that facility) when defendant Copeland reviewed the order denying postconvietion relief and approved the photocopies and mailing forms, rather than making him wait 48 hours as provided by DOC rules. According to Dubue, invoking the administrative grievance procedure would have been futile because that process could not secure for him a reinstatement of his dismissed appeal. Dubue asserts he should be given summary judgment on his claim because HMCC correctional officers failed in their constitutionally imposed duty to assist him in accessing the court to prevent the appeal’s dismissal.

The Court of Civil Appeals’ Affirmance

¶ 10 The Court of Civil Appeals [COCA] affirmed the trial court’s summary judgment for Sirmons on the sole theory (interjected sua sponte ) that Dubuc’s civil rights case rests on the erroneous conclusion that the Court of Criminal Appeals’ dismissal rested on his failure to file the in forma pauperis affidavit within the 30-day time period. COCA noted that, but for this dispositive point of law, there were fact issues that would have prevented the entry of summary judgment. COCA reasoned that because (a) Dubuc’s claim for relief arises from allegations that HMCC personnel caused him to miss his March 25 deadline for filing the pauper’s affidavit by inaction or delayed performance (even though he had informed them of the deadline), and (b) the Court of Criminal Appeals’ order (which declared itself sans jurisdiction solely on the ground that the petition in error was not timely filed) does not mention the pauper’s affidavit as the reason for dismissal, the prison officer’s handling of that document was simply immaterial. COCA then affirmed the summary judgment to Sirmons, concluding no doubt that Dubuc’s appeal would have been dismissed even if he had the affidavit in time.

II

THE DISPOSITIVE ISSUE ON CERTIORARI

¶ 11 The dispositive issue on certiorari is whether the prisoner’s appeal would have failed even if the completed pauper’s affidavit had been included with the other papers (petition in error, brief and certified trial court order) which were delivered to prison officials on March 23 for mailing to the court clerk of the Court of Criminal Appeals.

¶ 12 The Posl^Conviction Procedure Act [Act] governs challenges to a conviction or sentence as well as appeals from the grant or denial of relief. Section 1087 of the Act provides that the critical event which triggers the appeal time is the filing of the decision in the office of the trial court’s clerk. A party has 30 days from the filing of the order to commence an appeal in the Court of Criminal Appeals by filing the petition in error and brief (and a certified copy of the order) in the office of the clerk of the Court of Criminal Appeals. The delivery of the appellate paperwork to prison officials is not considered effective for the § 1087 filing requirement. At the time of filing, the appealing party must pay costs or submit an affidavit in forma pauperis. The Court of Criminal Appeals deems itself without cognizance of an appeal where the pro se prisoner fails timely to comply with the statutory cost requirements. The presence of the pauper’s affidavit is a sine qua non of the filing’s sufficiency.

¶ 13 There is a controversy here between the critical dates assumed by the Court of Criminal Appeals in its dismissal order and those dates which the prisoner tenders to us for the entry and mailing of the trial court’s order that denies postconviction relief. In support of his position that the trial court’s order was entered and mailed on 23 February 1999, Dubuc tendered below what appears to be an unstamped copy of the Index of Contents of the appellate record. Based on a February 23 filing date, the terminal day for filing the appeal would be March 25. The Court of Criminal Appeals, on the other hand, believed the prisoner’s appeal was out of time because, according to its dismissal order, postconviction relief was denied in the trial court on February 18 and a copy of that court’s order was mailed to Dubuc on February 23. Based on the February 18 filing date, the terminal day of the 30-day appeal time would be Saturday, March 20, which period would stand extended to Monday, March 22. It is apparent that the basis of the decision for the appeal’s dismissal was the Court of Criminal Appeals’ view that a different set of dates (from those on which the prisoner relies) governed Dubuc’s appeal time.

¶ 14 The dispositive issue before us now cannot be answered on this record. This is so because the critical trial court order that denied postconviction relief from which the appeal was brought is absent from the assembled materials in the record. There is no record proof of when the appeal time was triggered by the filing of the trial court’s adverse order which the prisoner sought to have reviewed. The latter’s text and filing date are the sole source that could inform COCA of the correct date on which the 30-day limit began to tick. Because there is no record proof warranting the adoption of Du-buc’s date of February 23, we cannot conclude that his appeal would not have failed had the authorities enabled him to include the affidavit with the papers by which he sought to commence the appeal.

¶ 15 The absence of the critical order was not fatal to the prisoner’s appeal, but its incorporation is a sine qua non of a meaningful appellate review. When the record is incomplete for lack of a critical part which may be readily procured, COCA may afford the appellant an opportunity to supplement the record nunc pro tunc before the trial court sitting as a special master.

III

SUMMARY

¶ 16 We therefore hold that on this record the reason given for COCA’s affirmance of summary judgment does not support its disposition. Because COCA erroneously concluded that, as a matter of law, the in forma pauperis affidavit was immaterial to the dismissal of Dubuc’s appeal in the antecedent litigation, we return this cause to that court for another revieiv. On remand COCA (a) should afford Dubuc the opportunity to institute an authorized trial court nunc pro tunc correction proceeding and (b) when that is completed and the record supplemented, should then determine the dispositive issue on Dubuc’s appeal whether the appeal would have failed as untimely to review the filed trial court order even if Dubuc had included his informa pauperis affidavit with the rest of the papers that were delivered to prison officials on March 23 for filing with the clerk of -the Court of Criminal Appeals.

¶ 17 On certiorari granted upon the inmate’s petition, the Court of Civil Appeals’ opinion is vacated and the cause remanded to that court for its reconsideration of the appeal in a review to be consistent with this pronouncement.

¶ 18 WATT, V.C.J., LAVENDER, OPALA, KAUGER and BOUDREAU, JJ., concur.

¶ 19 HARGRAVE, C.J., HODGES, SUMMERS and WINCHESTER, JJ., dissent.

      . Dubuc’s quest for postconviction relief was brought in Cause No. CF-91-3581, styled State of Oklahoma v. Brian Dale Dubuc on the docket of the District 'Court, Tulsa County.

      . Sirmons sought, in the alternative, either the claim’s dismissal or summary judgment.

      . 22 O.S.1991 § 1087; Rule 5.2(C)(2), Rules of the Oklahoma Court of Criminal Appeals, 22 O.S.Supp.1998, Ch. 18, App., infra note 12.

      . The needed documentation, located in the inmate’s trust accounting system, was required to prove the affiant's financial status.

      . 42 U.S.C. § 1997e(a). This requirement is apparently met by filing a grievance against the DOC employees.

      . According to Sirmons' argument, the inmate must prove actual injury, which requires a showing that a nonfrivolous claim challenging the inmate’s sentence or conditions of confinement has been lost or rejected, or the presentation of the claim is being prevented.

      . To overcome this defense, Sirmons argues, Du-buc must do more than allege in the abstract some violation of a constitutional right. He must show that the defendants violated clearly established law.

      . According to Sirmons, a prison officer acting in his official capacity is not a "person” within the meaning of 42 U.S.C. § 1983 and hence is immune from suit by operation of the Eleventh Amendment.

      . COCA noted that a DOC report, apparently prepared at the trial court’s direction, revealed unresolved fact issues, such as whether (a) Du-buc timely notified DOC personnel about his filing deadline, (b) he pursued his administrative remedy by grievance before seeking district court relief and (c) the grievance remedy would have been futile and hence should be excused.

      . This is the meaning we attribute to COCA's conclusory phrase: "Inasmuch as there is no dispute about whether he was able to obtain assistance to prepare and mail his petition in error, brief, and copy of the District Court order then summary judgment was properly granted.”

      . 22 O.S.1991 §§ 1080-1089.7.

      . The pertinent terms of 22 O.S.1991 § 1087 are:
      A final judgment entered under this act may be appealed to the Court of Criminal Appeals on petition in error filed either by the applicant or the state within thirty (30) days from the entry of the judgment ....
      (emphasis added).
      Rule 5.2(C)(2), Rules of the Oklahoma Court of Criminal Appeals, 22 O.S. Supp.1998, Ch. 18, App., advises all parties desiring to appeal from a final judgment entered under the Post-Conviction Procedure Act to file their petition in error "within thirty (30) days from the date the final order of the District Court is filed with the Clerk of the District Court.”

        . Hunnicutt v. State, 1997 OK CR 77, ¶ 7, 952 P.2d 988, 989; Moore v. Gibson, 2001 OK CR 8, 11 14, 27 P.3d 483.
      Whether the prisoner had timely notice of the order (by which he was aggrieved) does not appear to be critical here, but the date the adverse order was filed is crucial. This is so because the filing of that order alone triggers the appeal time. An inmate who fails timely to appeal, through no fault of his own, may invoke the out-of-time appeal procedures for post-conviction proceedings (Rules 5.2 and 2.1(E), Rules of the Oklahoma Court of Criminal Appeals, 22 O.S.Supp.1998, Ch. 18, App.). Banks v. State, 1998 OK CR 5, ¶ 5, 953 P.2d 344, 346 (the Court of Criminal Appeals does not recognize the "mailbox rule” but uses the out-of-time procedures for post-conviction proceedings). Cf. Woody v. State ex rel. Department of Corrections,
        1992 OK 45, ¶¶ 5-6, 833 P.2d 257, 259-60 (the mailbox provisions of 12 O.S.1991 § 990A(B) apply in the Oklahoma Supreme Court to pro se prisoners' appeals).

      . The terms of 20 O.S.1991 § 38 provide in pertinent part:
      ... In all cases filed in the Court of Criminal Appeals, and at the time of filing same, there shall be deposited with said Clerk as costs in said cause, Fifty Dollars ($50.00)....
      Rule 1.10, Rules of the Oklahoma Court of Criminal Appeals, 22 O.S.1991, Ch. 18, App.

      . Rule 1.11, Rules of the Oklahoma Court of Criminal Appeals, 22 O.S.1991, Ch. 18, App., provides in pertinent part:
      Any person who asserts indigency and an inability to pay the filing fees required under these Rules must execute and file with the Clerk of this Court an "Affidavit in Forma Pauperis,” verified before a notary public or other person authorized to administer oaths....

      . Behrens v. Patterson, 1997 OK CR 76, ¶ 3, 952 P.2d 990, 991; Hunnicutt, supra note 13, at ¶ 5, at 989.

      . In Behrens, supra note 16, at ¶ 3, at 991, the court held that the filing date for matters before the Court of Criminal Appeals is the date when "the Clerk’s office is open for the performance of public business” and the item is actually received by the clerk "before the close of business in proper order and with the necessary number of copies and all necessary filing fees, or a pauper's affidavit for waiver of filing fees.”

      . Huff v. Huff, 1984 OK 51, ¶ 5, 687 P.2d 130, 132. We note that Dubuc attempted to supplement the appellate record by attachment of some paper to his petition for rehearing in the Court of Civil Appeals. Neither this court nor COCA may consider as part of an appellate record any instrument or material which has not been incorporated into the assembled record by a certificate of the clerk of the trial court. Frey v. Independence Fire and Cas. Co., 1985 OK 25, ¶ 7, 698 P.2d 17, 20; Eckel v. Adair, 1984 OK 86, ¶ 9, 698 P.2d 921, 925.

      . Huff, supra note 18, at ¶ 5, at 132.