author: Judge CASEBOLT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Trevor HOWELL, Defendant-Appellant.
    No. 01CA0905.
    Colorado Court of Appeals, Div. I.
    Sept. 12, 2002.
    Certiorari Denied Feb. 24, 2003.

      Ken Salazar, Attorney General, Monica M. Marquez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge CASEBOLT.

Defendant, Trevor Howell, appeals the order revoking his probation, imposing previously suspended prison and jail terms, and assessing costs on his convictions for first degree trespass and false imprisonment. We affirm in part, reverse in part, and remand with directions.

A jury convicted defendant upon evidence that he impersonated a bail enforcement officer as a ruse to gain • entry to a private residence where he and an accomplice brandished a weapon, handcuffed one of the occupants, and searched the premises for a bond violator.

The trial court sentenced defendant to consecutive terms of six years in prison and twelve months in the county jail, but suspended both sentences on the condition that defendant complete ten years of probation. As relevant here, the court imposed a condition of probation prohibiting defendant from working in law enforcement or private police functions, including security, security guard, merchant police, private police, bail bonds, bail bond enforcement, or community patrol.

Subsequently, the probation department filed a complaint seeking revocation of defendant’s probation, alleging violation of the “no security work” and certain other conditions. After a hearing, the trial court found, among other things, that defendant had violated the “no security work” condition. It revoked his probation and imposed the previously suspended terms of confinement, and the mitti-mus imposed costs of prosecution and probation. This appeal followed.

I.

Defendant contends that, because the prosecution failed to prove he violated the terms and conditions of his probation, the court violated his due process rights by revoking his probation. We disagree.

Probation is a privilege, not a right. If a probationer violates any condition of probation, it may be revoked. Whether a probationer has violated a probation condition presents a question of fact. Once the court finds that a violation has occurred, whether probation should be revoked lies within the discretion of the court. People v. Ickler, 877 P.2d 863 (Colo.1994); People v. Colabello, 948 P.2d 77 (Colo.App.1997); see §§ 16-11-205, 16-11-206, C.R.S.2001.

In a revocation proceeding, the prosecution must establish a violation of probation by a preponderance of the evidence, except that the commission of a criminal offense must be established beyond a reasonable doubt. Section 16-11-206(3), C.R.S.2001; Crim. P. 32(f)(3); see also Strickland v. People, 197 Colo. 488, 594 P.2d 578 (1979); People v. Colabello, supra (no finding of willful or unreasonable failure to comply with condition of probation is necessary, except with respect to a failure to pay restitution).

A.

Defendant contends that the court violated his procedural due process rights because he was not given the opportunity to confront and cross-examine witnesses who had personal knowledge of material facts. We disagree.

A probationer is entitled to certain procedural due process protections before probation may be revoked. Among these protections is the right to confront and cross-examine witnesses against him at a hearing, except where the hearing officer finds good cause to waive the requirement. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); People v. Atencio, 186 Colo. 76, 525 P.2d 461 (1974).

Here, a probation officer testified concerning the investigation of defendant’s probation violations. However, the officer did not testify from personal knowledge with respect to a search of defendant’s premises and questioning conducted by a deputy sheriff. In addition, the court did not require, and the prosecution did not offer, an explanation for the failure to call the deputy to testify.

However, even if we assume, without deciding, that the trial court erred in failing to require the prosecution either to produce the witness with personal knowledge or to present good cause to justify the witness’s absence, because the trial court relied upon other evidence to find a probation violation, reversal is not required.

In finding that defendant had violated the proscription against working in the security field, the trial court relied primarily upon the testimony of defendant’s employer, who stated that he had hired defendant to manage his security company. And, while the employer confirmed that he also operated a limousine business, which was the entity for whom defendant claimed to be working, the employer testified that he employed ten people in his security company and only two in his limousine company and that the limousine business had not yet started. Moreover, the prosecution introduced a business card provided by defendant for the limousine business that listed “executive protection” as one of the services provided by the company.

From this evidence, the court found that defendant was actually working in the proscribed area of security. Because the court’s finding is supported by this evidence independent of the probation officer’s testimony concerning the deputy’s search and questioning, permitting the probation officer to testify about hearsay and events of which she had no personal knowledge was harmless beyond a reasonable doubt. See Bernal v. People, 44 P.3d 184 (Colo.2002)(violation of right to confrontation is subject to constitutional harmless error analysis).

B.

Defendant nevertheless contends that the trial court abused its discretion in revoking probation because the prosecution failed to meet its burden to prove by a preponderance of the evidence that he had violated the “no security work” condition of probation. We disagree.

A finding that a probationer has violated a condition of probation will not be disturbed merely because there is a conflict in the evidence. People v. Trujillo, 189 Colo. 206, 539 P.2d 1234 (1975).

Here, there was conflicting evidence on the kind of work in which defendant was engaged, including evidence suggesting that he only worked as a limousine driver and was in the process of winding down his own security business within the period previously required by the court. However, because the trial court’s findings have record support, we decline to disturb them on appeal.

C.

Because we conclude the trial court’s finding that defendant violated the “no security work” condition was sufficient to justify the revocation of probation, we need not separately address defendant’s contentions relating to the violation of other conditions. See People v. Ickler, supra (probation revocation may be based on violation of any condition).

II.

We reject defendant’s contention that the trial court abused its discretion in imposing the previously suspended consecutive sentences of six years in prison and twelve months in jail.

On appellate review of a sentence, the decision of the sentencing court must be accorded deference because of that court’s familiarity with the circumstances of the case. The trial court has broad discretion when imposing a sentence, and the sentence imposed will not be overturned absent a clear abuse of discretion. In exercising that discretion, a trial court must consider the nature of the offense, the character and rehabilitative potential of the offender, the development of respect for the law and the deterrence of crime, and the protection of the public. People v. Fuller, 791 P.2d 702 (Colo.1990); see also § 18-1-409(1), C.R.S.2001.

The sentencing court must state on the record the basic reasons for imposing the sentence. If the sentence is within the range required by law, is based on appropriate considerations as reflected in the record, and is factually supported by the circumstances of the case, an appellate court must uphold the sentence. Only in exceptional cases will an appellate court overturn the trial court’s judgment in sentencing matters. People v. Fuller, supra.

When an aggravated sentence is imposed, the trial court must make findings on the record to justify variation from the presumptive sentencing range. People v. Young, 894 P.2d 19 (Colo.App.l994)(sentence of maximum term of confinement affirmed where trial court properly considered sentencing factors); People v. Jenkins, 674 P.2d 981 (Colo.App.1983), rev’d on other grounds, 687 P.2d 456 (Colo.1984).

Here, the trial court imposed the maximum sentence for the misdemeanor false imprisonment conviction and the maximum aggravated sentence for felony first degree criminal trespass. In imposing the previously suspended sentence, the trial court emphasized the nature of the crime in which defendant used a false show of authority to terrorize innocent victims. Likewise, the court noted that defendant had sustained a deferred judgment for a similar offense committed in Texas. The deferred judgment provided the basis for the aggravated sentence. See § 18-l-105(9.5)(c), C.R.S.2001. Finally, the court found that defendant’s conduct and history of misrepresenting himself indicated a substantial likelihood that he would continue to commit similar offenses.

An extended term of confinement is sometimes necessary to protect the public from further criminal activity by the offender and to adequately provide for individual deterrence and correction when the offender’s past pattern of conduct indicates that he or she is a danger to society. See Flower v. People, 658 P.2d 266 (Colo.1983).

Here, the trial court acted within its discretion when it accorded substantial weight to defendant’s pattern of criminal behavior and the likelihood he would commit further crimes that would endanger the public. The court made sufficient findings to exceed the presumptive sentence range.

People v. Jenkins, supra, upon which defendant relies, is distinguishable. There, the trial court abused its discretion when it imposed a prison term exceeding the presumptive range without considering that the defendant had not previously been incarcerated and therefore had not been exposed to the rehabilitative and deterrent effects of incarceration. Further, the defendant had not been convicted of any similar offenses, a fact emphasized by the appellate court in reversing the trial court’s sentencing decision.

Here, in contrast, while defendant had not been incarcerated before this offense, he had sustained a deferred judgment for a similar offense. This distinction further supports our conclusion that the trial court did not abuse its discretion in sentencing.

III.

The court’s oral pronouncement of sentence made no reference to assessment of costs. After sentencing, the court issued a mittimus that imposed court costs and costs related to the supervision of defendant’s probation. Defendant contends that the trial court violated his rights to due process, to personal presence and counsel, and to be free from double jeopardy when it assessed these costs against him outside his presence and after the pronouncement of his sentence of confinement. We disagree.

The Double Jeopardy Clause protects an accused from being twice punished for the same offense. Thus, a trial court is prohibited from increasing a legal sentence once it has been imposed and the defendant has begun serving it. Righi v. People, 145 Colo. 457, 359 P.2d 656 (1961); People v. Reed, 43 P.3d 644 (Colo.App.2001).

The essential issue is whether the mittimus increased defendant’s sentence by imposing costs. Resolution of the question requires us to determine whether the imposition of costs is a form of punishment that makes up a part of the sentence or whether it serves a purpose unrelated to punishment.

A second sanction in the form of an assessment that is primarily remedial rather than punitive does not violate principles of double jeopardy. In determining whether a particular sanction subjects a defendant to double jeopardy, the reviewing court applies a two-part test, first considering the authorizing statute to determine if the legislature intended a criminal or civil sanction. Second, even if the statute intends to provide a civil sanction, the sanction violates double jeopardy when the statutory scheme is primarily punitive. See Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997).

This second part of the test requires consideration of seven factors: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it requires a finding of scienter; (4) whether its operation will promote the traditional aims of punishment — retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; (7) whether it appears excessive in relation to the alternative purpose assigned. Hudson v. United States, supra; Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); In re Cardwell, 50 P.3d 897, (Colo.2002); see People v. Stead, 66 P.3d 117 (Colo.App.2002).

Applying this two-part test to the costs statute, we first conclude that the statute intends a sanction that is essentially civil. When a court imposes court costs in a criminal matter, it renders a civil judgment in favor of the state or the state agency that has incurred the cost. See § 16-11-501(1), C.R.S.2001.

Two of the seven Kennedy factors militate for a finding that costs are punitive in nature. Imposition of costs generally requires a finding of scienter and is applied to behavior already a crime, because costs are only imposed upon conviction of a criminal offense. See § 16-11-501(1). Nevertheless, consideration of the remaining factors leads us to conclude here that costs are not primarily punitive. See Hudson v. United States, supra (no one factor is controlling as factors often may point in different directions).

Costs are imposed to reimburse the state for the actual expenses incurred in prosecuting a defendant. See § 16-11-501, C.R.S. 2001; Bd. of County Comm’rs v. Wilson, 3 Colo.App. 492, 34 P. 265 (1893)(the right to reimbursement for costs is a creature of statute). The costs statute lists numerous items that may be assessed against one convicted of a criminal offense. Each item relates to an expense commonly incurred in the prosecution or incarceration. The assessments are limited to the actual costs incurred by the state or state agency. Cf. United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989)(civil penalty that far exceeds actual damages and expenses may constitute punishment and implicates double jeopardy concerns), overruled on other grounds by Hudson v. United States, supra. Accordingly, costs imposed pursuant to the statute are not excessive in relation to the purpose of reimbursement of actual expenses.

Additionally, costs are not traditionally considered to be punishment. See Tenn. Code Ann. § 40-24-105(a) (2001)(costs are not part of criminal penalty); Va.Code Ann. § 17.1-600 (Michie 2002)(same); Strattman v. Studt, 20 Ohio St.2d 95, 253 N.E.2d 749 (1969); Symons v. Eichelberger, 110 Ohio St. 224, 144 N.E. 279 (1924); State ex rel. Canterbury v. Paul, 205 W.Va. 665, 520 S.E.2d 662 (1999). An assessment of costs also is not an affirmative disability or restraint like imprisonment. See In re Cardwell, supra.

Likewise, the imposition of costs does not serve the goals of retribution and deterrence. Cf. People v. Stead, 845 P.2d 1156 (Colo.1993)(drug offender surcharge considered punishment because it serves goals of retribution, rehabilitation, and deterrence). The statutes concerning costs reveal no intent to advance purposes related to sentencing. To the contrary, the assessment of costs is a separate action from the imposition of sentence. See Crim.P. 32(c) (judgment of conviction consists of both the sentence and any cost award); People v. Fisher, 189 Colo. 297, 539 P.2d 1258 (1975)(court’s sua sponte imposition of costs is not a change to the sentencing concessions made in a plea agreement).

People v. Shepard, 989 P.2d 183 (Colo. App.1999), in which a division of this court held that increasing a restitution award after initial sentencing violates double jeopardy principles, is distinguishable. The Shepard division concluded that, while restitution provides compensation for incurred expenses, it is primarily considered part of a criminal sentence because it advances the rehabilitative and deterrent purposes of sentencing. See also People v. Milne, 690 P.2d 829 (Colo.1984). These purposes are explicitly stated in the restitution statute. See § 16-18.5-101(l)(c), (d), C.R.S.2001.

The better practice is to impose the specific amount of costs on the date of sentencing. See People v. Fisher, supra. However, because costs constitute primarily a civil sanction that is not part of a criminal sentence, the trial court’s assessment of costs following the oral pronouncement of defendant’s sentence here did not violate principles of double jeopardy. See State ex rel. Canterbury v. Paul, supra (because costs are not punishment or part of the penalty for committing a crime, double jeopardy protections do not apply).

Based on our conclusion that the assessment of costs is not part of a criminal sentence, we also reject defendant’s related contentions that them assessment violated his right to procedural due process and his right to be present and to have counsel present at every critical stage of his case.

IV.

Defendant asserts, the People agree, and we concur that the mittimus miscalculated costs, charging defendant for expenses of probation supervision based on the ten-year probationary period originally imposed, rather than the period that he actually served before the revocation. Accordingly, we direct the trial court on remand to recalculate the costs of probation supervision and to assess defendant only for the period of probation actually served. See § 16 — 11— 204(2)(a)(V), C.R.S.2001.

The order is reversed as to the amount of costs assessed, and the case is remanded to the trial court for recalculation of costs and the issuance of an amended mittimus. In all other respects, the order is affirmed.

Judge METZGER and Judge WEBB concur.


source: Caselaw Access Project

author: Judge ROY.

license: Public Domain

text:
    COSTILLA COUNTY CONSERVANCY DISTRICT and Michael McGowan, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS, COSTILLA COUNTY, Colorado, Defendant-Appellee.
    No. 01CA1171.
    Colorado Court of Appeals, Div. V.
    Sept. 12, 2002.
    Certiorari Granted Feb. 3, 2003.

      Kelly Haglund Garnsey & Kahn LLC, Lori Potter, James W. Hubbell, Denver, CO, for Plaintiffs-Appellants.
    Edwin J. Lobato, Alamosa, CO, for Defen-danL-Appellee.
    Faegre & Benson, LLP, Thomas B. Kelley, Steven D. Zansberg, Denver, CO, for Amici Curiae Colorado Press Association and Colorado Freedom of Information Council.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and § 24-51-1105, C.R.S.2001.

   Opinion by

Judge ROY.

In this declaratory judgment action, plaintiffs, Costilla County Conservancy District (CCCD) and Michael McGowan (collectively, the district), appeal from the summary judgment in favor of defendant, Board of County Commissioners of Costilla County (Board). We conclude that the Board violated the Colorado Open Meetings Law (the Act), § 24-6-401, et seq., C.R.S.2001, and therefore reverse.

Battle Mountain Resources, Inc. (BMRI) operated a gold mine near the town of San Luis in Costilla County. In 1999, while the mine was undergoing reclamation, the Colorado Department of Public Health and Environment (CDPHE) issued BMRI a notice of violation and cease and desist order for violations of water quality laws. To settle that matter, BMRI agreed, inter alia, to construct a water treatment facility.

On September 20, 1999, two of the three members of the Board attended a meeting apparently organized by CDPHE, to which all three commissioners had been invited. At the meeting CDPHE, the Colorado Department of Natural Resources (CDNR), and BMRI all gave presentations concerning BMRI’s operations, legal compliance problems, and corrective action plans at the mine. The commissioners made no presentation, did not participate in the discussions, and did not ask any questions of the presenters.

The Board did not give a general public notice of the meeting. In addition to the commissioners and the presenters, representatives of the National Resource Conservation Service, the mayor of San Luis, county officials, and invited private citizens were in attendance. No member of CCCD, which had been actively involved in legal and administrative proceedings concerning the mine for over a decade, was invited.

Both before and after the meeting, the Board received briefings about the issues addressed at the meeting. Shortly after the meeting, the county land use administrator, who also had attended the meeting, issued three permits authorizing the construction of the water treatment facility.

The CCCD sued the Board, alleging a violation of the Act because the Board failed to give public notice of the meeting. The trial court granted summary judgment in favor of the Board.

I.

Because this case involves issues of statutory construction and a summary judgment, our review is de novo. See United States Leasing v. Montelongo, 25 P.3d 1277 (Colo.App.2001); Sandoval v. Archdiocese of Denver, 8 P.3d 598 (Colo.App.2000).

II.

The CCCD contends that the trial court erred in concluding that the meeting was not governed by the Act. We agree.

As relevant here, the Act states:

(a) All meetings of two or more members of any state public body at which any public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times.
(b) All meetings of a quorum or three or more members of any local 'public body, whichever is fewer, at which any public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times.
(c) Any meetings at which the adoption of any proposed policy, position, resolution, rule, regulation, or formal action occurs or at which a majority or quorum of the body is in attendance, or is expected to be in attendance, shall be held only after full and timely notice to the public.

Section 24-6-402(2), C.R.S.2001 (emphasis added). Section 24-6-402(l)(b) defines “meeting” as “any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication.” The Act excludes from its scope “any chance meeting or social gathering at which discussion of public business is not the central purpose.” Section 24-6 — 402(2)(e), C.R.S.2001.

Courts afford statutory language its ordinary and common meaning, giving effect to every term and provision, including legislative definitions, while harmonizing potentially conflicting provisions, if possible. See Telluride Resort & Spa, L.P. v. Colorado Department of Revenue, 40 P.3d 1260 (Colo.2002). When a statute is clear and unambiguous, judicial construction is unwarranted, and the statute must be enforced as written. See Jones v. Martinez, 799 P.2d 385 (Colo.1990).

Here, based on these undisputed facts, the trial court found that the meeting was not a chance or social gathering, that public business was discussed at the meeting, and that the meeting was attended by a quorum of the county commissioners in their official, not personal, capacities.

However, the trial court relied on the phrase in § 24 — 6—402(2)(b), “[a]ll meetings of a quorum or three or more members of any local public body ... at which any public business is discussed,” to conclude that the Act applies only to meetings that the public body itself calls, arranges, and in which its members participate. Accordingly, the trial court concluded that the General Assembly did not intend to include within the scope of the Act meetings, like the one here, called or arranged by other government entities or private parties, concerned with public matters, and attended by a quorum of the commissioners who did not participate in the discussion or presentations.

In our view, the trial court’s analysis does not properly consider the entire legislative scheme, its purpose, and the relevant definitions.

The General Assembly intended the Act to afford public access to a broad range of meetings at which public business is discussed and to prevent public bodies from carrying out public business in secret. See § 24-6-401, C.R.S.2001; Benson v. McCormick, 195 Colo. 381, 578 P.2d 651 (1978); Bagby v. School District No. 1, 186 Colo. 428, 528 P.2d 1299 (1974). The Act is to be interpreted broadly to further the legislative intent to give citizens an expanded opportunity to become fully informed on issues of public importance, so that meaningful participation in the decision-making process may be achieved. See Cole v. State, 673 P.2d 345 (Colo.1983). Even gatherings or meetings that are not formal or official meetings of a public body may be covered by the Act. See Cole v. State, supra; Bagby v. School District No. 1, supra.

In emphasizing the language of § 24-6-402(2)(b) and concluding that the Act does not necessarily require public notice of “any meeting or presentation at which a quorum is present,” the trial court failed to consider § 24-6-402(2)(c), which requires public notice of any meeting where a quorum “is in attendance, or is expected to be in attendance.”

Section 24-6-402(2)(e) clearly and unambiguously requires public notice of meetings at which a quorum of commissioners is expected to be present. Thus, reading § 24-6-402(2)(b) and (c) together, we conclude, contrary to the trial court’s conclusion, that public notice is required not only when the public body has called or arranged the meeting, but also when a quorum of that body is present or expected to be present at a meeting called or arranged by others. See § 24-6-402(l)(b). This construction is consistent with the legislative definition of a meeting as “any kind of gathering, convened to discuss public business.” See § 24-6-402(l)(b) (emphasis added).

Similarly, because the Act clearly and unambiguously makes expected attendance or expected attendance of a quorum at a meeting the operative fact in determining whether public notice is required, we disagree with the trial court’s analysis and conclusion that participation in the discussion is necessary before a meeting is subject to the Act.

Nor do we agree that our interpretation leads to an absurd result. Although each commissioner independently decided whether to attend the meeting, the statute requires notice when the commissioners may be expected to attend, even if they ultimately do not. Without question, the commissioners reasonably were expected to attend a meeting to which they all were invited in their official capacities and where matters of public interest likely to come before the Board would be addressed.

This case is different from the hypotheti-eals posed by the trial court, in which a quorum of commissioners may decide to attend a meeting independently of one another, without first having been invited or expected to attend. In that case the Act’s notice requirement is inapplicable because public notice is, by definition, prospective in nature and can be given only when it is known or expected that the commissioners will attend a meeting.

Here, the commissioners were invited and expected to attend a meeting convened for the purpose of discussing matters of public interest regarding a subject that had been and foreseeably would again be before them, and a quorum in fact did attend. Under these circumstances the commissioners had an obligation either to comply with the public notice requirement of the Act or to negate the expectation that they would attend. This does not lead to an absurd result.

A contrary holding would encourage behavior clearly inconsistent with the purpose of, and jurisprudence pertaining to, the Act. If public entities are excused from the public notice requirements merely because they did not convene or arrange the meeting, private parties would be encouraged to circumvent the Act by inviting public officials to attend as passive onlookers private presentations on public matters for the purpose of influencing their subsequent policy decisions. Consequently, citizens would have less opportunity to become fully informed on issues of public importance and would be deprived of meaningful participation in the decision-making process, thus undermining the legislative purpose behind the Act. See Cole v. State, supra. That interpretation would be inconsistent with a liberal construction of the Act in favor of openness and public notice and would fail to protect the public, the Act’s ultimate beneficiary. See Cole v. State, supra.

Under the circumstances presented here, the Board was required to give public notice of the meeting pursuant to the Act.

The judgment is reversed.

Judge MARQUEZ and Justice ERICKSON concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Timothy MOSES, Defendant-Appellant.
    No. 01CA0293.
    Colorado Court of Appeals, Div. V.
    Sept. 26, 2002.
    Certiorari Denied March 10, 2003.

      Ken Salazar, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.
   Opinion by

Judge ROY.

Defendant, Timothy Moses, appeals from a district court order revoking his probation. We affirm.

Defendant originally was charged with first degree sexual assault, intimidation of a crime victim, criminal extortion, and violation of a restraining order. Pursuant to a plea agreement, defendant entered a guilty plea to second degree sexual assault, other counts were dismissed, and he was sentenced to ten years to life on intensive supervised probation plus eighteen months of work release.

The probation officer conducted an intake with defendant, at which defendant signed the conditions of his probation, including the following:

1. You shall not violate any local, state or federal law.
13. You shall not use alcohol or use unlawfully any controlled substance or other dangerous or abusable drug or substance.
14. You shall submit to substance testing at the direction of the probation officer, and it may be at your expense.

Two weeks later, defendant submitted to a urinalysis, and the urine sample tested positive for cocaine. The probation officer counseled defendant concerning cocaine use, warned him that subsequent positive tests could result in revocation of the probation, and offered assistance if defendant had a problem. Defendant declined any assistance.

Four days after the first test, another urine sample was collected from defendant and submitted for analysis. The report concluded that the sample was water, not urine. The probation officer advised defendant that he was going to treat the second report as a positive report, and he filed a petition to revoke the probation.

Defendant’s probation officer was the only witness who testified at the revocation hearing. During the early part of the probation officer’s testimony, defendant objected to the hearsay nature of the evidence and, while acknowledging that hearsay evidence was admissible at a probation revocation hearing, continued his objection that hearsay evidence alone was not sufficient.

Following the hearing, the district court concluded that the state had established by a preponderance of the evidence that defendant had violated conditions thirteen and fourteen of probation. The court sentenced him to a term of two years to life in the Department of Corrections.

I.

Defendant contends that because the act relied upon for revocation was a criminal offense, the district court erroneously applied a preponderance of the evidence standard of proof to his probation revocation proceedings. We disagree.

Statutory interpretation and the proper legal standard for making a factual determination are matters of law reviewed de novo. See People v. Romero, 953 P.2d 550 (Colo.1998); Robles v. People, 811 P.2d 804 (Colo.1991).

Probation is a privilege, not a right, and may be revoked if a probationer violates any condition of an order of probation. See People v. Ickler, 877 P.2d 863 (Colo.1994).

As pertinent here, § 16-11-206(3), C.R.S. 2002, specifies the applicable standards of proof:

At the [probation revocation] hearing, the prosecution has the burden of establishing by a preponderance of the evidence the violation of a condition of probation; except that the commission of a criminal offense must be established beyond a reasonable doubt unless the probationer has been convicted thereof in a criminal proceeding. (emphasis added)

See Crim. P. 32(f)(3) (containing almost identical language); see also People v. Ickler, supra; People v. Ressin, 620 P.2d 717 (Colo.1980); People v. Carpenter, 885 P.2d 334 (Colo.App.1994); People in Interest of T.M.H., 821 P.2d 895 (Colo.App.1991).

Here, we are presented with the question of which burden of proof applies when a probationer’s alleged violation of a specifically enumerated condition of probation might in and of itself constitute a criminal offense. We conclude that the preponderance standard applies.

Courts must afford statutory language its ordinary and common meaning to effectuate legislative intent, giving effect to every term and provision while harmonizing potentially conflicting provisions, if possible. See Medina v. State, 35 P.3d 443 (Colo.2001); Benz v. People, 5 P.3d 311 (Colo.2000).

Section 16-11-204(1), C.R.S.2002, establishes as a mandatory condition of probation that “the defendant not commit another offense during the period for which the sentence remains subject to revocation” (emphasis added). That condition, although phrased differently, was imposed upon defendant as the first condition of his probation.

Section 16-ll-204(2)(a), C.R.S.2002, lists several discretionary “conditions of probation” that a court may impose. These conditions include, inter alia, that the probationer “[rjefrain from ... any unlawful use of controlled substances, as defined in section 12-22-303(7), C.R.S., or of any other dangerous or abusable drug without a prescription.” Section 16-ll-204(2)(a)(VIII), C.R.S.2002.

Section 16-11-206(3) states that the prosecution must establish a violation of a condition of probation by a preponderance of the evidence, except that the prosecution must prove “the commission of a criminal offense ” beyond a reasonable doubt (emphasis added).

To read § 16-11-204(1) harmoniously with § 16-11-206(3), we conclude that § 16 — 11— 206(3) does not require proof beyond a reasonable doubt when it is alleged that a specific and discretionary condition has been breached, even though the breaching conduct may also be a criminal offense. Thus, § 16-11-206(3) provides that when the basis of revocation is a defendant’s violation of a condition of probation, which includes the conditions contemplated by the legislature in § 16-11-204(2), the applicable standard of proof is a preponderance of the evidence.

Further, proof of a criminal offense requires the proof of all of the elements of the offense as established by the governing statute. Proof of the breach of a condition of probation specifying prohibited conduct may not require the proof of all of the elements of a parallel criminal offense.

A probationer’s violation of the conditions of probation serves as an indication that he or she is either unwilling to rehabilitate or incapable of reintegration into society at that point, and remedial action by the court might be necessary in the interest of the probationer and society. In light of the goals of probation, and the fact that probation is a privilege, the lower standard of proof is all that is required. See People v. Ressin, supra; see also State v. Donovan, 305 Or. 332, 751 P.2d 1109 (1988)(because probation revocation hearings do not usually adjudicate guilt or innocence of a criminal offense, the burden of proof is the lower standard of preponderance of the evidence).

Our conclusion here is consistent with People v. Trujillo, 189 Colo. 206, 539 P.2d 1234 (1975), and People in Interest of R.J.A., 38 Colo.App. 346, 556 P.2d 491 (1976). While it appears that the issue was not argued in those cases, the supreme court and a division of this court affirmed revocation of probation for violations of specific conditions that were established by a preponderance of the evidence, even though the violations also could have constituted criminal offenses.

Accordingly, because defendant’s probation was revoked on the basis of his violation of specific condition, rather than his commission of a new, separate criminal offense, the trial court properly required that the prosecution establish the violation by a preponderance of the evidence.

II.

Defendant contends that the evidence was insufficient to warrant revocation of his probation. Specifically, he argues that the evidence consisted solely of hearsay testimony about the results of the urinalysis tests and that such evidence is insufficient as a matter of law to show that he violated the conditions of probation under a preponderance of the evidence standard. We disagree.

A.

In revocation proceedings, the probationer is not entitled to the full range of constitutional guarantees available to one not yet convicted of a crime. A probation revocation hearing may be conducted informally, and the court is not bound by the strict rules of evidence. See Holdren v. People, 168 Colo. 474, 452 P.2d 28 (1969).

Section 16-11-206(3) provides in pertinent part: “Any evidence having probative value shall be received regardless of its admissibility under the exclusionary rules of evidence if the defendant is accorded a fair opportunity to rebut hearsay evidence.”

Thus, the court may apply relaxed rules of evidence during a probation revocation hearing, see People v. Kelly, 919 P.2d 866 (Colo.App.1996), and hearsay statements are admissible. See People v. Ressin, supra.

It is well settled that a probation violation may be established by hearsay testimony if the offering witness is subject to cross-examination. See, e.g., People v. Ressin, supra; Holdren v. People, supra; People v. Kelly, supra.

Under the circumstances presented here, the trier of fact could conclude on a preponderance of the evidence that defendant had used unlawfully a controlled substance or other dangerous or abusable drug or substance, and we will not substitute our judgment for that of the trial court. See People v. Trujillo, supra.

B.

For the same reasons, we reject defendant’s related argument that his constitutional rights to procedural due process and confrontation were denied because the revocation order was based solely upon hearsay testimony that he was given no fair opportunity to rebut. Defendant was not denied an opportunity to cross-examine the witness and in fact did so.

In support of his argument, defendant relies on People in Interest of T.M.H., supra, and People v. Thomas, 42 Colo.App. 441, 599 P.2d 957 (1979). However, in those cases probation was revoked based solely on the probationer’s commission of a new, separate violation of the law for which the probationer had not yet been convicted, and not for a violation of a specific, standard condition of probation. Accordingly, while the higher burden of proof and the constitutional rights applicable in preconviction criminal proceedings applied there, they do not apply here.

Finally, we note that defendant has not denied the existence of the laboratory report; nor does he contend that the laboratory did not find and report the presence of cocaine in the first report and a false urine sample in the second report; nor does defendant allege that he was denied access to the reports. Forensic laboratory reports are admissible in criminal proceedings without establishing the usual foundation, absent a request that the technician be made available at trial. Section 16-3-309(5), C.R.S.2002. Defendant also does not assert that any such request was made in this case. Therefore, under the circumstances presented here, testimony about the reports without the admission of the reports into evidence does not deny defendant any rights to confrontation or cross-examination.

III.

Defendant contends that the probation revocation based on an unalleged violation of probation was erroneous. We agree, but conclude that the error was harmless.

A probationer has a due process right to be informed of the specific probation violations with which he or she is charged prior to a probation revocation hearing. See People v. Atencio, 186 Colo. 76, 525 P.2d 461 (1974); People v. Carr, 185 Colo. 293, 524 P.2d 301 (1974).

The prosecution’s complaint alleged a violation of probation based only on the illegal use of controlled substances, which was a specific condition of defendant’s probation. Thus, defendant had no notice that his probation would be revoked based on breach of the specific condition that he submit to substance testing at the request of the probation officer. However, because defendant’s revocation on other grounds was proper, and because the trial court could properly consider the results of the second urinalysis test as evidence of an unlawful use of controlled substances, any error in revoking probation on the basis of the testing condition was harmless beyond a reasonable doubt. See Griego v. People, 19 P.3d 1 (Colo.2001)(constitutional error harmless when reviewing court is confident beyond a reasonable doubt that error did not contribute to the verdict).

IV.

Finally, although not explicitly raised as an issue on appeal, defendant ostensibly argues that the urinalysis methodologies are unreliable. To the extent defendant relies on this argument as a basis for reversal on appeal, we decline to address it because it was not raised before the trial court. See Dill v. People, 927 P.2d 1315 (Colo.1996).

The order is affirmed.

Judge MARQUEZ and Judge NIETO concur.


author:
Justice KIRSHBAUM.
     Judge TAUBMAN

text:
    Kenneth E. YADON, Plaintiff-Appellant, v. Stanton E. SOUTHWARD, Defendant-Appellee.
    No. 01CA1420.
    Colorado Court of Appeals, Div. A.
    Oct. 10, 2002.
    Certiorari Denied Feb. 24, 2003.

      Kenneth E. Yadon, Pro se.
    Ewing & Ewing, P.C., Laurence B. James, Englewood, Colorado, for Defendant-Appel-lee.
   Opinion by

Justice KIRSHBAUM.

In this medical malpractice action, plaintiff, Kenneth E. Yadon, appeals the judgment dismissing his complaint against defendant, Stanton E. Southward, based on his failure to file a timely certificate of review. We affirm in part, reverse in part, and remand with directions.

Defendant performed surgery on one of plaintiffs toes. Alleging that his toe did not heal properly because of defendant’s negligent conduct, plaintiff, proceeding pro se, brought this action.

Defendant moved to dismiss the complaint based on plaintiffs failure to file a certificate of review pursuant to § 13-20-602, C.R.S. 2002. Defendant also filed an affidavit stating that the treatment afforded plaintiff satisfied the standard of care applicable to podiatrists.

Shortly thereafter, plaintiff filed a verified certificate of review accompanied by documents relating to a Podiatry Board disciplinary proceeding addressing defendant’s records of plaintiffs treatment. The certificate contained the statement that a physician contacted by plaintiff had concluded that plaintiffs claim “did not lack substantial justification within the meaning of section 13-17-201(4).”

Based on concerns about certain statements contained in documents filed by plaintiff, the court on June 11, 2001, ordered plaintiff to identify within ten days the physician he had consulted and obtain an affidavit from the physician verifying the contents of the certificate of review.

On June 21, 2002, plaintiff requested a sixty-day extension of time within which to comply with the trial court’s June 11 order, explaining that the physician had objected to signing an affidavit and arguing that, because the medical records previously submitted demonstrated defendant’s negligent conduct, an extension of time was warranted. Plaintiff also argued that the certificate of review requirement did not apply to nonattorney pro se litigants.

The trial court found that plaintiff had not established good cause for a late filing of the certificate of review and granted defendant’s motion to dismiss.

I.

Plaintiff contends that the trial court erred in determining that the certificate of review statute governs actions brought by nonattor-ney pro se litigants. We do not agree.

When construing a statute, courts must ascertain and give effect to the intent of the General Assembly and must refrain from rendering judgments that are inconsistent with that intent. Farmers Ins. Exch. v. Bill Boom Inc., 961 P.2d 465 (Colo.1998). To determine that intent, we look first to the plain language of the statute. If we can give effect to the ordinary meaning of words used by the legislature, then the statute should be construed as written. Askew v. Indus. Claim Appeals Office, 927 P.2d 1333 (Colo.1996).

We are further obligated to construe an entire statutory scheme in a manner that gives consistent, harmonious, and sensible effect to all its parts. Martinez v. Cont’l Enters., 730 P.2d 308 (Colo.1986). It is presumed that “[t]he entire statute is intended to be effective” and that “[a] just and reasonable result is intended.” Section 2-4-201(l)(b), (c), C.R.S.2002. Consequently, a reviewing court must follow the statutory construction that best effectuates the intent of the General Assembly and the purposes of the legislative scheme. See Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo.1992).

In adopting the certificate of review provisions, the General Assembly declared its intent as follows: “[T]he certificate of review requirement should be utilized in civil actions for negligence brought against those professionals who are licensed by this state to practice a particular profession and regarding whom expert testimony would be necessary to establish a prima facie case.” Section 13-20-601, C.R.S.2002.

This broad language refers to civil actions generally; it is not limited to civil actions in which a plaintiff is represented by an attorney. Similar broad language is contained in § 13-20-602(l)(a), C.R.S.2002, which requires the filing of a certificate of review in “every action for damages or indemnity based upon the alleged professional negligence of ... a licensed professional.”

In State v. Nieto, 993 P.2d 493, 502 (Colo.2000), the supreme court emphasized in another context, that, based on its review of relevant legislative history, the certificate of review statute addresses “all civil actions for professional negligence.”

These provisions are designed to avoid unnecessary time and costs in defending professional negligence claims and to weed out frivolous claims at an early stage of the judicial process. Shelton v. Penrose/St. Francis Healthcare Sys., 984 P.2d 623, 628 (Colo.1999). To conclude, as plaintiff contends, that civil actions alleging negligence by licensed professionals filed by nonattorney pro se plaintiffs are exempt from the requirement of filing a certificate of review would produce a result that is both anomalous and contrary to the broad intent clearly expressed by the General Assembly. Statutes are to be construed in a manner to further, not contravene, the clearly expressed legislative intent. State v. Nieto, supra.

Plaintiff relies on the provisions of § 13-20 — 602(l)(a) and (3)(a), C.R.S.2002, to support his argument.

Section 13 — 20—602(l)(a) provides in pertinent part as follows:

In every action for damages or indemnity based upon the alleged professional negligence of ... a licensed professional, the plaintiffs or complainant’s attorney shall file with the court a certificate of review for each ... licensed professional named as a party, as specified in subsection (3) of this section, within sixty days after the service of the complaint ... against such person unless the court determines that a longer period is necessary for good cause shown.

Section 13 — 20—602(3)(a) contains the following language:

A certificate of review shall be executed by the attorney for the plaintiff or complainant declaring:
(I) That the attorney has consulted a person who has expertise in the area of the alleged negligent conduct; and
(II) That the professional who has been consulted pursuant to subparagraph (I) of this paragraph (a) has reviewed the known facts, including such records, documents, and other materials which the professional has found to be relevant to the allegations of negligent conduct and, based on the review of such facts, has concluded that the filing of the claim, counterclaim, or cross claim does not lack substantial justification within the meaning of section 13-17-102(4).

While these provisions refer to conduct by attorneys, they must be considered in light of and in conjunction with the overall statutory scheme and the purpose thereof. See, e.g., Martin v. Montezuma-Cortez Sch. Dist. RE-1, supra. It is also noteworthy that pro se litigants must adhere to rules of procedure applicable to attorneys. Loomis v. Seely, 677 P.2d 400 (Colo.App.1983).

The provisions of § 13-20-602(l)(a) and (3)(a) relied upon by plaintiff describe procedures to be followed to implement the broad purposes of the statute. Adoption of plaintiffs proposed construction of the statute would require the conclusion that the General Assembly intended to authorize nonattorneys to file frivolous law suits against licensed professionals and to ignore procedures statutorily required of attorneys. Such unreasonable results are to be avoided. See § 2-4-201(l)(e).

In view of the broad intent and the purpose of the statutory scheme adopted by the General Assembly, we conclude that the requirements of the certificate of review statute are applicable to civil actions alleging negligence of licensed professionals filed by nonattorney pro se plaintiffs. We also note that, although questions respecting the applicability of the statute were not at issue therein, a division of this court has acknowledged that pro se litigants are subject to its requirements. See Rosenberg v. Grady, 843 P.2d 25 (Colo.App.1992).

Based on the foregoing, we conclude that the trial court did not err in requiring plaintiff, a nonattorney pro se litigant, to file a certificate of review.

II.

Plaintiff argues that the certificate of review statute is unconstitutionally vague because it does not clearly apply to actions brought by a nonattorney pro se litigant. Plaintiff did not raise this issue before the trial court. Therefore, it is not properly before us for review. See Colgan v. State, 623 P.2d 871, 874 (Colo.1981).

III.

Plaintiff also contends that the trial court erred in requiring him to obtain an affidavit from the physician he had consulted to prepare the certificate of review. We disagree.

Section 13 — 20—602(3)(b), C.R.S.2002, contains the following provision:

The court, in its discretion, may require the identity of the ... licensed professional who was consulted pursuant to subpara-graph (I) of paragraph (a) of this subsection (3) to be disclosed to the court and may verify the content of such certificate of review. The identity of the professional need not be identified to the opposing party or parties in the civil action.

Thus, § 13-20-602(3)(b) specifically permits the trial court to require disclosure of a professional’s identity and verification of the contents of the certificate of review. We therefore conclude that the trial court did not err in requiring plaintiff to comply with those requirements.

We also reject plaintiffs contention that the trial court should have entered a case management order providing him with subpoena power so that he could compel the physician to verify the contents of the certificate of review. We note, however, that C.R.C.P. 45 sets forth the circumstances under which, and to whom, a subpoena may be issued. Accordingly, any failure of the court to enter a case management order did not affect plaintiffs ability to have the physician verify the contents of the certificate of review.

IV.

We next address plaintiffs contention that the trial court erred in finding that he failed to establish good cause for the late filing of a certificate of review. We conclude that the trial court abused its discretion by not granting plaintiff additional time to file the certificate of review.

Section 13-20-602(l)(a) requires the filing of a certificate of review within sixty days of the service of the complaint. See Martinez v. Badis, 842 P.2d 245 (Colo.1992). If a timely filing is not possible, the plaintiff must request an order extending the filing period for good cause. Shelton v. Penrose/St. Francis Healthcare Sys., supra.

The determination of whether “good cause” exists for the late filing of a certificate of review is committed to the sound discretion of the trial court. Hane v. Tubman, 899 P.2d 332 (Colo.App.1995). In making this determination, the trial court should consider: (1) whether the neglect causing the late filing was excusable; (2) whether the moving party had alleged a meritorious defense or claim; and (3) whether permitting the late filing would be consistent with equitable considerations, including any prejudice to the nonmoving party. Hane v. Tubman, supra. The trial court may deny the motion for failure to satisfy any one of the three criteria. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo.1986); Dunton v. Whitewater West Recreation, Ltd., 942 P.2d 1348 (Colo.App.1997). However, the trial court must consider all three criteria because evidence relating to one factor might shed light on another. Buckmiller v. Safeway Stores, Inc., supra; Hane v. Tubman, supra.

Here, as previously noted, on June 11, 2001, the trial court requested verification of plaintiffs certificate of review. Plaintiff timely requested an additional sixty days within which to file a certificate of review because the physician initially consulted indicated reluctance to participate further. However, the initial physician subsequently verified the accuracy of his medical records respecting his own treatment of plaintiff, which records contained the physician’s observations respecting the inadequacy of defendant’s conduct. Plaintiff could not have anticipated that the physician he initially consulted would later refuse to verify the certificate of review. Furthermore, there is no indication in the record that defendant would have been prejudiced by the delay in filing the certificate of review.

Based on the foregoing, we conclude that plaintiff established good cause for the late filing of his certificate of review. Accordingly, we conclude that the trial court abused its discretion in denying plaintiffs request for an extension of time within which to file a verified certificate of review and in dismissing the complaint for that reason.

V.

We reject plaintiffs contention that he stated claims for lack of informed consent and battery for which a certificate of review is not required.

Plaintiffs complaint alleged only that defendant committed certain negligent acts; lack of informed consent and battery were not mentioned. Plaintiff did not seek to amend his complaint to add such theories. Under these circumstances, we conclude that the trial court properly found that plaintiffs claims were based in negligence.

Although not all claims of professional negligence require expert testimony, see Gorab v. Zook, 943 P.2d 423 (Colo.1997), plaintiffs claims here were based on defendant’s failure to perform surgery properly. Expert testimony would be necessary to establish these claims. See Shelton v. Penrose/St. Francis Healthcare Sys., supra. We, therefore, conclude that the trial court did not err in requiring plaintiff to file a certificate of review with regard to the claims stated in his complaint.

The judgment is affirmed as to the trial court’s determination that plaintiffs claims are claims of negligence, that the certificate of review statute is applicable to those claims, and that plaintiff is required to obtain an affidavit from the professional consulted. The judgment is reversed as to the court’s refusal to grant plaintiff an extension of time, and the case is remanded to the trial court with directions to permit plaintiff to obtain a certificate of review within a reasonable time and to conduct such further proceedings as may be necessary.

Judge STERNBERG * concurs.

Judge TAUBMAN dissents.

Judge TAUBMAN

dissenting.

Because I agree with plaintiff, Kenneth E. Yadon, that the certificate of review statute does not apply to actions brought by nonat-torney pro se litigants, I respectfully dissent.

Yadon filed a pro se complaint against defendant, Stanton E. Southward, alleging that he negligently performed surgery on one of Yadon’s toes. Although Yadon initially filed a certificate of review, which he had signed, alleging that he had consulted with a physician, the trial court dismissed this action after finding that Yadon had not established good cause for a late filing of a certificate of review signed by a physician. At the same time, Yadon contended that the certificate of review statute did not apply to him.

In interpreting the certificate of review statute, the court must apply the rules of statutory construction. When construing a statute, the court must ascertain and give effect to the intent of the General Assembly. State v. Nieto, 993 P.2d 493 (Colo.2000). To discern that intent, we must first examine the plain language of the statute. United Airlines, Inc. v. Indus. Claim Appeals Office, 993 P.2d 1152 (Colo.2000). In so doing, words and phrases should be given their plain and ordinary meaning, unless the result is absurd. Dover Elevator Co. v. Indus. Claim Appeals Office, 961 P.2d 1141 (Colo.App.1998).

Further, it is presumed that the General Assembly meant what it clearly said. Askew v. Indus. Claim Appeals Office, 927 P.2d 1333 (Colo.1996). To effectuate reasonably the legislative intent, a statute must be read and considered as a whole and should be interpreted to give consistent, harmonious, and sensible effect to all its parts. People v. Dist. Court, 713 P.2d 918 (Colo.1986).

Additionally, we are not to presume that the legislative body used language idly and with no intent that meaning should be given to it. See Colo. Ground Water Comm’n v. Eagle Peak Farms, 919 P.2d 212 (Colo.1996). We must respect the words chosen by the General Assembly. See Zamarripa v. Q & T Food Stores, Inc., 929 P.2d 1332 (Colo.1997).

The certificate of review requirements, which apply to actions against licensed professionals, are contained in §§ 13-20-601 and 13-20-602, C.R.S.2002. As the majority notes, Yadon relies on § 13-20-602(l)(a) and (3)(a), C.R.S.2002, to support his argument.

Section 13-20-602(l)(a) provides in pertinent part as follows: “In every action for damages or indemnity based upon the alleged professional negligence of ... a licensed professional, the plaintiff’s or complainant’s attorney shall file loith the court a certificate of review (Emphasis added.)

Section 13-20-602(3)(a) provides in pertinent part: “A certificate of review shall be executed by the attorney for the plaintiff or complainant declaring: (I) That the attorney has consulted a person who has expertise in the area of the alleged negligent conduct .... ” (Emphasis added.)

In my view, these provisions contemplate that a certificate of review must be filed only in those actions in which a plaintiff is represented by an attorney. The above-quoted statutes should be interpreted as written, and that interpretation does not lead to an unreasonable result.

This is not the first time that the General Assembly has enacted separate statutory provisions for attorneys and nonattorney pro se litigants. In § 13-17-102, C.R.S.2002, which concerns the award of attorney fees for frivolous and groundless litigation, the General Assembly provided a standard for nonattorney pro se litigants different from that for other parties and attorneys representing them. See § 13-17-102(6), C.R.S. 2002 (“No party who is appearing without an attorney shall be assessed attorney fees unless the court finds that the party clearly knew or reasonably should have known that his action or defense, or any part thereof, was substantially frivolous, substantially groundless, or substantially vexatious; except that this subsection (6) shall not apply to situations in which an attorney licensed to practice law in this state is appearing without an attorney, in which case, he shall be held to the standards established for attorneys elsewhere in this article.”).

Significantly, § 13-20-602(5), C.R.S.2002, provides that the certificate of review requirements “shall not affect the rights and obligations under section 13-17-102.” This indicates to me that the General Assembly was well aware that if a negligence action were filed by a nonattorney pro se litigant against a licensed professional, § 13-17-102 would curtail the filing of frivolous and groundless actions.

Not only has the General Assembly differentiated between nonattorney pro se litigants and parties represented by attorneys, so too has the supreme court. See C.R.C.P. 16(b) (establishing different procedures for case management order for pro se parties and for parties represented by counsel).

Although the supreme court has held that both pro se litigants and those with lawyers are bound by the same rules of procedure and evidence, see Viles v. Scofield, 128 Colo. 185, 261 P.2d 148 (1953), this holding only applies when the rules are the same. It does not apply when the relevant rules or statutes expressly establish different procedures for represented and unrepresented litigants.

While there is broad language in State v. Nieto, supra, 993 P.2d at 502, that the certificate of review statute addresses “all civil actions for professional negligence,” the supreme court there was concerned with a different issue — whether the statute applies when a plaintiff sues the employer of the licensed professional. After concluding that the certificate of review statutes were ambiguous, the court discussed the relevant legislative history, including the bill sponsor’s remark that the bill was meant to supplement existing legislation “to prevent lawyers from bringing lawsuits against professionals that are without foundation.” State v. Nieto, supra, 993 P.2d at 503 (quoting Hearing on H.B. 1201 Before the House Judiciary Committee, 56th General Assembly, First Regular Session, Mar. 3, 1987). These statements were echoed by Neil Hillyard, then president of the Colorado Trial Lawyers Association, who testified that the certificate of review bill was intended to prevent lawyers from filing frivolous litigation.

Thus, to the extent that the language in §§ 13-20-601 and 13-20-602 is ambiguous, the relevant legislative history indicates that the General Assembly intentionally specified that attorneys must file certificates of review.

While it may seem unreasonable at first blush that the General Assembly intended to exempt nonattorney pro se litigants from the certificate of review requirement, the proceedings in this very case demonstrate the wisdom of limiting the requirement to attorneys. Here, as noted, Yadon initially filed a certificate of review which he himself had signed. Yadon attempted as best he could to comply with his understanding of the certificate of review requirement by filing his own statement and attaching documents of a related Podiatry Board disciplinary proceeding addressing defendant’s records of his treatment. He also indicated that he had contacted a physician who had concluded that his claim did not lack substantial justification. Because the trial court was dissatisfied with this attempt to comply with the certificate of review statutes, it required Yadon to obtain an affidavit from the physician to whom he had referred in his own certificate of review. Yadon encountered difficulty obtaining an affidavit from that physician and ultimately was unable to comply with the trial court’s order to file a certificate of review signed by a physician within a short period. Yadon’s problems may be similar to those of other pro se litigants.

Indeed, the difficulties encountered by judges in dealing with pro se litigants are well recognized. “Increasingly, judges are required to spend additional time in court providing explanations of the process and the legal system.” Colorado Supreme Court Judicial Advisory Council, Committee on Pro Se Litigants, Report 6 (Apr.1998). That report in turn quoted a 1998 “Report of the Committee of Chief Judges on Litigants without Lawyers,” noting that problems created for judges by pro se litigants “often cause unnecessary delays and drag out litigation over issues that could have been resolved in advance.” Certainly, it is reasonable to assume that the General Assembly contemplated that the difficulty nonattorney pro se litigants would experience in attempting to comply with a certificate of review requirement was simply not worth the effort. At the same time, § 13-17-102(6) would adequately guard against frivolous actions by nonattorney pro se litigants.

If the plain words of the statute “[do] not correspond to the General Assembly’s intent, it is for that body, not this court, to rewrite it.” Humane Soc’y v. Indus. Claim Appeals Office, 26 P.3d 546, 548 (Colo.App.2001); see also Martin v. People, 27 P.3d 846, 848 (Colo.2001)(“[i]t is for the legislature, not the courts, to decide what laws best serve the public interest”).

Accordingly, I would reverse the judgment and remand to the trial court with directions that Yadon be permitted to litigate this case without filing a certificate of review.

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


author: Judge JONES.

text:
    Martha L. MONTEMAYOR, Plaintiff-Appellee and Cross-Appellant, v. JACOR COMMUNICATIONS, INC., a Delaware corporation; NSN Network Services, Ltd., a Delaware corporation; Robert L. Lawrence and William Suffa, Defendants-Appellants and Cross-Appellees.
    No. 00CA1434.
    Colorado Court of Appeals, Div. III.
    Oct. 24, 2002.
    Certiorari Denied Feb. 24, 2003.

      Waldbaum, Corn, Koff & Berger, P.C., Michael H. Berger, Scot M. Peterson, Denver, Colorado; Clanahan Tanner Downing & Knowlton, Richard L. Shearer, Dino A. Ross, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.
    Hall and Evans, L.L.C., Alan Epstein, Daniel R. Satriana, Jr., Denver, Colorado, for Defendants-Appellants and Cross-Appellees.

       Justice KOURLIS would grant as to the following issues:
      Whether the trial court erred in awarding damages under a Colorado Wage Claim Act claim in an amount greater than those awarded by the jury for breach of contract.
      Whether stock options which have not been issued are "earned" "wages or compensation” within the meaning of the Colorado Wage Claim Act.

   Opinion by

Judge JONES.

Defendants, Jacor Communications, Inc.; NSN Network Services, LTD.; Robert L. Lawrence; and William Suffa, appeal from a judgment in favor of plaintiff, Martha L. Montemayor, on a jury verdict awarding damages for breach of contract and the trial court’s award of certain damages. Plaintiff cross-appeals the trial court’s refusal to grant a new trial on damages. We affirm in part, vacate in part, and remand for further proceedings.

NSN was incorporated in 1988. In 1990 the NSN board of directors appointed plaintiff president, an office to which the board reappointed her annually and that she held until October 1997. Plaintiff was removed from that position shortly after Jacor Broadcasting of Knoxville, Inc., a subsidiary of Jacor, and NSN entered into an asset purchase agreement. After the acquisition, the Jacor subsidiary changed its corporate name to NSN.

At the time of the acquisition, plaintiff entered into an Executive Employment and Non Competition Agreement (Agreement) with NSN that provided that she was to act as a senior executive officer of NSN for a period of two years, or until NSN discharged her for cause or disability, or until she terminated the Agreement for “good reason,” which included leaving within six months of “any material reduction in the scope of [her] duties and responsibilities for the Company from those duties undertaken by [her] for the Company on the date of this Agreement.”

Pursuant to the Agreement, plaintiff was to be consulted on all “major strategic decisions” regarding NSN. The Agreement further provided that NSN would pay plaintiff a base salary of $100,000 and an annual bonus. The Agreement also stated that the “senior management of [Jacor] ... shall recommend to the Compensation Committee of the Board of Directors of [Jacor] (which shall retain discretion over the grant of any options) that within [twelve] months of the date of this Agreement, Employee be granted incentive stock options for 8,000 shares of [Jacor] common stock under the [Jacor] 1993 Employee Stock Option Plan.”

Shortly after the acquisition, an NSN vice president and its sales manager engaged in ongoing harassment directed against plaintiff. NSN took no real steps to abate the harassment. Jacor directed its human resources director to disregard plaintiffs complaint concerning the harassment, having decided that was no longer a “formal complaint.”

Thereafter, Jacor’s president ordered plaintiff to work closely with the sales manager, even though NSN had determined he had been harassing her. NSN’s general manager then informed plaintiff that she was no longer president of NSN, that management had eliminated her authority to make any decisions, that no employees would report to or work for her, and that her job duties were limited to acting as a resource and consultant to the sales staff.

Plaintiff then terminated the Agreement with NSN, citing “good reason.” She filed this action, claiming interference with contract, breach of contract, conspiracy, and a violation of the Colorado Wage Claim Act (CWCA), § 8 — 4—101, et seq., C.R.S.2002.

The parties stipulated to submit the conspiracy and contract claims to the jury and the CWCA claim to the trial court as finder of fact. The trial court entered judgment in favor of plaintiff on the jury’s verdict concerning the breach of contract claim and the conspiracy claim against Jacor, although the jury made no finding of damages as to the conspiracy claim. The court also found in favor of plaintiff after a hearing on the CWCA issues.

Defendants appeal the judgment and damages entered against them. Plaintiff cross-appeals the trial court’s denial of her motion for mistrial and its refusal to grant a new trial on damages related to the jury verdict on her civil conspiracy claim against Jacor.

I.

Defendants first contend that plaintiff did not present sufficient evidence to establish a prima facie case of breach of contract. We disagree.

To prove breach of contract, a plaintiff must show: (1) the existence of a contract; (2) performance by the plaintiff or justifiable nonperformance; (3) the defendant’s failure to perform the contract; and (4) damages to the plaintiff. Western Distrib. Co. v. Diodosio, 841 P.2d 1053 (Colo.1992).

The intent of the parties to a contract must be determined from the contract itself. If the terms of a contract are complete, clear, and unambiguous, no extraneous evidence may be considered in ascertaining the intent of the contracting parties. Christie v. San Miguel County Sch. Dist., 759 P.2d 779, 782 (Colo.App.1988)(citing Radiology Prof'l Corp. v. Trinidad Area Health Ass’n, 195 Colo. 253, 577 P.2d 748 (1978)).

In ascertaining whether certain provisions of an agreement are ambiguous, the language of the instrument must be examined and construed in harmony with the plain and generally accepted meaning of the words employed. Written contracts that are complete and free from ambiguity will be found to express the intention of the parties and will be enforced according to their plain language. Ad Two, Inc. v. City & County of Denver, 9 P.3d 373 (Colo.2000).

When “a promisor is himself the cause of the failure of performance of a condition upon which his own liability depends, he cannot take advantage of that failure.” Navajo Freight Lines, Inc. v. Moore, 170 Colo. 539, 543, 463 P.2d 460, 462 (1970); see also Hofer v. Polly Little Realtors, Inc., 37 Colo.App. 86, 543 P.2d 114 (1975)(employer cannot discharge employee to avoid payment of compensation otherwise due).

A.

Defendants first assert that NSN did not breach its contract with plaintiff when it demoted her from company president to sales consultant. They argue that, regardless of the status at which plaintiff was hired, pursuant to the Agreement, all terms regarding her employment remained subject to the authority of the board of directors and senior officers, therefore reserving to NSN discretion and final authority concerning her employment. We disagree.

The record reflects that plaintiff, in being demoted and required to work under the direct supervision of the persons who harassed her, was deprived of the specific responsibilities she contracted for, namely (1) that she would act as a senior executive; and (2) that NSN senior management would “consult with [her] and other senior employees ... on major strategic decisions.”

Ordinarily, an employment agreement does not obligate an employer to furnish work for an employee. However, such an obligation may be inferred depending on the circumstances under which the agreement is made or the nature of the employment itself. When the anticipated nonmonetary benefits to the employee are a material part of the advantage to be received from employment, an employment contract has an implied promise to provide work. The anticipated benefits may be, among other things, the “acquisition of skill or reputation by the employee,” or the opportunity to earn performance bonuses. Van Steenhouse v. Jacor Broad., Inc., 958 P.2d 464, 467-68 (Colo.1998)(quoting Restatement (Second) of Agency § 433 (1953)).

The ruling in Van Steenhouse is not perfectly analogous to the facts in this case because the employee there, a radio personality and call-in show host, was deprived by her employer, a broadcasting company, of contracted-for air time. However, as here, the radio host there lost certain anticipated benefits, such as the valuable opportunity to “build and maintain her professional marketability” with exposure to the community and the opportunity to earn performance bonuses based on audience share during her show. Van Steenhouse v. Jacor Broad., Inc., supra, 958 P.2d at 468.

While the demotion, as here, of a corporate executive to a sales consultant may not have the same quantifiable impact on a career, the principle of law relied on in Van Steenhouse is, nevertheless, applicable. Thus, under the Agreement, NSN had an implied obligation to furnish work because, salary aside, plaintiff would materially benefit from performing the duties described in the Agreement, i.e., to act as a senior executive officer and to be consulted on all “major strategic decisions” regarding NSN. If she had been allowed to perform those duties, plaintiff would have gained valuable experience as an executive officer, she would have enhanced her professional reputation, and she might have positioned herself for opportunities elsewhere as a corporate executive.

Therefore, because the Agreement implied a promise to provide plaintiff with executive-level work, the failure to provide that work is an actionable breach of contract. We conclude that NSN breached the Agreement by its failure to provide executive-level work, strategic decision-making responsibility, and all of the promised nonmonetary material advantages of the job. In addition, by its failure to provide the agreed upon work to plaintiff, NSN deprived her of the ability to fulfill her basic obligations under the Agreement.

Moreover, we conclude that plaintiffs demotion from president to sales consultant, which stripped her of all decision-making and managerial responsibilities, and which the parties did not contemplate when they agreed that she would act as an executive, constituted a breach of contract. See Hayes v. Res. Control, Inc., 170 Conn. 102, 365 A.2d 399 (1976)(any unjustified reduction of rank or material change in duties of executive employee, not originally contemplated by parties, constitutes breach of contract); Rudman v. Cowles Communications, Inc., 30 N.Y.2d 1, 330 N.Y.S.2d 33, 280 N.E.2d 867 (1972).

B.

Defendants also assert that NSN did not breach the Agreement by constructively discharging plaintiff. We disagree.

“To prove a constructive discharge, a plaintiff must present sufficient evidence establishing deliberate action on the part of an employer which makes or allows an employee’s working conditions to become so difficult or intolerable that the employee has no other choice but to resign.” Wilson v. Bd. of County Comm’rs, 703 P.2d 1257, 1259 (Colo.1985)(citing Irving v. Dubuque Packing Co., 689 F.2d 170 (10th Cir.1982)).

A successful argument of constructive discharge “depends upon whether a reasonable person under the same or similar circumstances would view the ... working conditions as intolerable.” Boulder Valley Sch. Dist. R-2 v. Price, 805 P.2d 1085, 1088 (Colo.1991)(quoting Wilson v. Bd. of County Comm’rs, supra), overruled in part on other grounds by Cmty. Hosp. v. Fail, 969 P.2d 667 (Colo.1998). Cumulative events can cause working conditions to deteriorate to an intolerable level. Hogue v. MQS Inspection, 875 F.Supp. 714 (D.Colo.1995).

Plaintiffs complaint presented issues of breach of contract and constructive discharge. Defendants did not object to the jury instruction issued by the trial court, which stated in pertinent part:

For the plaintiff ... to recover from the defendant ... on her claim for breach of an employment contract for a definite period of time, then you must find that all of the following have been proved by a preponderance of the evidence:
1. The plaintiff and the defendant entered into a contract of employment;
2. The contract provided that the employment would continue for a definite period of time;
3. a. The defendant committed a material breach of the contract or
b. The defendant constructively discharged the plaintiff before the end of that period of time; and
4. Until discharged plaintiff substantially performed her part of the contract.

The jury apparently found that sufficient evidence had been presented to satisfy the elements.

The record reveals that an NSN vice president and the NSN sales manager waged a campaign to undermine plaintiffs authority; to paint her as unstable, unethical, incompetent, and lacking in credibility; to humiliate her publicly in the eyes of her subordinates; and to eliminate her authority and demote her. Plaintiff continued substantially to perform her part of the Agreement, reporting to work daily and attempting to fulfill her assigned work, even when teamed with the harassing sales manager, who later was required to take an indefinite leave of absence.

We conclude that, under the circumstances revealed by the record, defendants created an environment that a reasonable person in the same or similar circumstances would view as intolerable. Thus, based on the intolerable circumstances, plaintiff was constructively discharged from her position.

C.

Defendants further assert that plaintiff did not present sufficient evidence to show that their failure to issue her stock options was a breach of contract. We disagree.

Here, the Agreement provided that, as a benefit of plaintiffs employment, “[t]he senior management of [Jacor] shall recommend to the Compensation Committee” that plaintiff be granted the incentive stock options.

Defendant Lawrence’s testimony confirmed that NSN breached the Agreement when no member of the senior management committee recommended to the compensation committee that plaintiff receive the stock options. Lawrence further admitted that he did not recall the compensation committee ever having refused to grant stock options upon the senior management committee’s recommendation. We conclude that this evidence was sufficient to prove that NSN breached the Agreement.

We note that, had defendants not constructively discharged plaintiff before her two-year tenure expired, senior management might have made the required recommendation, and the compensation committee could have declined to issue the options, without breaching the Agreement. However, because defendants breached the Agreement, they may not depend upon their own failure to protect themselves from their obligations under the Agreement. See Navajo Freight Lines, Inc. v. Moore, supra. Thus, the trial court did not err in entering judgment in favor of plaintiff as to breach of contract.

II.

We disagree with defendants’ contention that the trial court erred as a matter of law when it awarded plaintiff the value of her stock options pursuant to the CWCA, § 8-4-104, C.R.S.2002. We agree with plaintiff that stock options may be considered as compensation under the CWCA.

The parties stipulated to submit the CWCA claim to the trial court as finder of fact. We defer to the trial court’s findings of fact unless we determine that they are so clearly erroneous as to find no support in the record. See Peterson v. Ground Water Comm’n, 195 Colo. 508, 579 P.2d 629 (1978). We, however, are not bound by the trial court’s conclusions of law. See Todd Holding Co. v. Super Valu Stores, Inc., 874 P.2d 402 (Colo.App.1993).

The CWCA provides that, if employment is terminated by the employer, “the wages or compensation for labor or service earned and unpaid at the time of such discharge is due and payable immediately.” Section 8^-104(l)(a), C.R.S.2002. Wages or compensation “means all amounts for labor or service performed by employees ... if the labor or service to be paid for is performed personally by the person demanding payment.” Section 8-4-101(9), C.R.S.2002; see also Rohr v. Ted Neiters Motor Co., 758 P.2d 186 (Colo.App.1988).

The purpose of the CWCA is to assure the timely payment of wages and provide adequate judicial relief when wages are not paid, and it should be liberally construed to carry out its purpose. Hofer v. Polly Little Realtors, Inc., supra.

Here, the trial court found that the value of the stock options in question constituted wages or compensation within the meaning of § 8-4-101(9).

Plaintiff asserts that courts in other jurisdictions routinely protect an employee’s stock option rights from being circumvented by wrongful termination. See e.g., Haft v. Dart Group Corp., 877 F.Supp. 896, 903 (D.Del.1995). Thus, one court stated that, when stock options have been issued but not exercised, “[t]he proposition that an employee would contract with his employer and assume the risk of losing his stock options if the employer terminated him without cause is ‘inconceivable.’ ” Haft v. Dart Group Corp., supra, 877 F.Supp. at 903.

Colorado courts have considered the status of stock options for the purposes of property division in dissolution of marriage cases. For instance, when options have been awarded for past services, their value is marital property. However, “[a] nonvested interest is an expectancy and not property because the holder has no enforceable rights.” In re Marriage of Miller, 915 P.2d 1314, 1318 (Colo.1996)(citing In re Marriage of Jones, 812 P.2d 1152 (Colo.1991)).

Furthermore, accrued vacation pay falls within the definition of wages or compensation, because “vacation pay — like wages — is both vested and determinable as of the date of termination.” Hartman v. Freedman, 197 Colo. 275, 279, 591 P.2d 1318, 1321 (1979).

Similarly, a bonus constitutes wages or compensation as contemplated by § 8-4-101(9), if it is “both vested and determinable as of the date of termination,” “disproportionately large ... in relation to the base salary,” and “owed as compensation for services performed by [the employee] as required by § 8-4-101(9),” rather than pursuant to a profit-sharing plan. Rohr v. Ted Neiters Motor Co., supra, 758 P.2d at 188.

Here, the Agreement referred to “incentive stock options,” pursuant to “Section 422” of the Internal Revenue Code, which defines an incentive stock option as “an option granted to an individual for any reason connected with his employment by a corporation, if granted by the employer corporation or its parent or subsidiary corporation.” 26 U.S.C. § 422(b) (2002).

The Agreement provided that, in addition to compensation for plaintiffs services at a minimum annual base salary of $100,000, “[d]uring the Employment Period, Employee shall be entitled to such additional benefits, including without limitation ... participation in stock option and stock purchase plans in amounts determined by the Compensation Committee of the Board of Directors of [Ja-cor] in its discretion, paid vacation and holidays.” Additionally, the Agreement described a separate bonus plan that applied to three executive employees.

The Agreement differentiates between plaintiffs compensation for services and the “additional benefits” to which she was entitled. Further, the Agreement specifies that decisions regarding the stock option plan were subject to the compensation committee’s discretion.

However, the options were to be for a definite number of shares. Further, the value of the stock options, $518,531, is not in dispute and is large in comparison to plaintiffs annual base salary. See Rohr v. Ted Neiters Motor Co., supra, 758 P.2d at 188. When received, the options would be taxable income pursuant to 26 U.S.C. § 83 (2002). See Hartman v. Freedman, supra (emphasizing taxability of accrued, unpaid vacation when determining it should be within CWCA).

Moreover, the Agreement lists both the obligation to recommend stock options and the paid vacation and holidays as benefits of equal importance in the same sentence. Because vacation pay is within the ambit of the CWCA and also contemplated within the Agreement to be “wages and compensation,” we agree with the trial court that the same is contemplated by the Agreement as to stock options, which, therefore, fall within the CWCA as well.

Thus, we conclude that defendants denied plaintiff compensation for her labor under the CWCA, and the trial court did not err when it held that the stock options were within the CWCA. See Hofer v. Polly Little Realtors, Inc., supra.

Therefore, the trial court did not err when it awarded plaintiff the value of the stock options.

III.

Defendants next contend that the trial court erred in not finding that the breach of contract claim subsumed plaintiffs CWCA claim for the same damages. Specifically, defendants argue that because the jury rejected plaintiffs request for stock option damages under the other claims, the trial court was precluded from awarding those damages under the CWCA claim. We perceive no error.

Res judicata refers to “claim preclusion.” The doctrine holds that:

[A]n existing judgment is conclusive of the rights of the parties in any subsequent suit on the same claim. It bars relitigation not only of all issues actually decided, but of all issues that might have been decided. It requires an identity of parties or their privies, as it would be unfair to preclude a party from litigating an issue merely because he could have litigated it against a different party.

Pomeroy v. Waitkus, 183 Colo. 344, 350, 517 P.2d 396, 399 (1973) (citation omitted).

Here, the trial court considered two distinct issues within the same proceeding. Thus, we conclude that the doctrine of res judicata does not apply to this situation.

Further, the trier of fact must determine all issues relative to the sufficiency, credibility, and weight of the evidence. See Cottonwood Hill, Inc. v. Ansay, 709 P.2d 62 (Colo.App.1985).

At the outset, the parties stipulated that the jury would consider breach of contract, while the trial court would make all factual determinations regarding the CWCA claim, including the amount recoverable under the CWCA. Having weighed the evidence, the jurors awarded damages to plaintiff in an amount that suggests that they were not convinced by all of plaintiffs arguments regarding her economic damages from the breach of contract. However, the trial court, weighing the same evidence in light of the CWCA, found that plaintiff should receive the value of the stock options as compensation pursuant to the CWCA.

Having determined that the CWCA applies to the stock options in question, we conclude that the record supports the trial court’s award. Therefore, we will not reverse it. See Peterson v. Ground Water Comm’n, supra.

IV.

Defendants further contend that because the trial court erred in awarding damages representing the value of the stock options under the CWCA, the court further erred in imposing a statutory penalty pursuant to that act. We disagree, having already determined that the trial court did not err in that award.

V.

Defendants contend that the trial court erred in awarding plaintiff attorney fees without conducting the hearing they requested. We agree.

The CWCA provides that:

Whenever it is necessary for an employee to commence a civil action for the recovery or collection of wages and penalties due ... the judgment in such action shall include a reasonable attorney fee in favor of the winning party, to be taxed as part of the costs of the action.

Section 8-4-114, C.R.S.2002 (emphasis added).

When a statute mandates an award of attorney fees to the prevailing party through use of the word “shall,” such language “leaves nothing to the discretion of the trial court except to determine what is a reasonable fee.” Keeton v. Rike, 38 Colo.App. 505, 506, 559 P.2d 262, 263 (1977). What constitutes a reasonable fee, however, may be challenged by the nonprevailing party. In that regard, as here, when the amount constituting a “reasonable” fee is challenged, the trial should conduct a hearing to determine the amount of the award. Keeton v. Rike, supra.

Additionally, when a party prevails on appeal under the CWCA, that party is entitled to reasonable attorney fees incurred on appeal. Cortez v. Brokaw, 632 P.2d 635 (Colo.App.1981).

Accordingly, the order awarding attorney fees to plaintiff must be vacated, and on remand the trial court shall conduct a hearing to determine plaintiffs reasonable attorney fees as to the CWCA claim at trial and on appeal.

VI.

Defendants also contend that the trial court erred in awarding plaintiff costs. We disagree.

“[I]f each party prevails in part, an award of costs is committed to the sole discretion of the trial court,” and the court’s discretion is unaffected by the fact that the judgment awarded to one party is larger than the judgment awarded to the other. Husband v. Colo. Mountain Cellars, Inc., 867 P.2d 57, 62 (Colo.App.1993); see § 13-16-108, C.R.S.2002; see also Grynberg v. Agri Tech, Inc., 985 P.2d 59 (Colo.App.1999)(exercising discretion, awarding costs to party who prevailed on only one of five claims), aff'd, 10 P.3d 1267 (Colo.2000). Only a statutory prohibition would limit the trial court’s discretion to award reasonable costs. Cherry Creek Sch. Dist. # 5 v. Voelker, 859 P.2d 805 (Colo.1993); see § 13-16-109, C.R.S.2002.

Here, plaintiff succeeded upon the breach of contract issue, and no statute limits the court’s discretion in awarding reasonable costs to a party prevailing upon at least one issue. See Harvey v. Farmers Ins. Exch., 983 P.2d 34 (Colo.App.1998)(upholding award of costs of photocopying, mileage, parking, deliveries, and telephone charges as part of a nonexclusive list of acceptable costs pursuant to § 13-16-122, C.R.S.2002), aff'd sub nom. Slack v. Farmers Ins. Exch., 5 P.3d 280 (Colo.2000).

Therefore we conclude that the trial court did not abuse its discretion in awarding costs to plaintiff.

VII.

In her cross-appeal plaintiff contends that the trial court erred in denying her motion for mistrial and her request for a new trial concerning her claim of civil conspiracy against Jacor. However, during oral argument, plaintiff conceded that if we affirm the judgment, further proceedings concerning the civil conspiracy claim would be unnecessary because civil conspiracy damages would be duplicative. Therefore, because we affirm, we do not consider this issue.

The judgment is affirmed. The order awarding attorney fees to plaintiff is vacated, and the case is remanded for further proceedings consistent with the views expressed in this opinion.

Chief Judge HUME and Judge DAVIDSON concur.